Opinion
No. 1210 C.D. 2012
04-10-2013
Steven C. Faustner and Patricia A. Faustner, his wife, Appellants v. Zoning Hearing Board of the Borough of Nazareth and Borough of Nazareth
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Steven C. Faustner and Patricia A. Faustner, his wife, (Appellants) appeal from the May 24, 2012 order of the Court of Common Pleas of Northampton County (trial court), which affirmed the decision of the Zoning Hearing Board (ZHB) of the Borough of Nazareth to uphold the Enforcement Notice issued against Appellants on April 7, 2011. We also affirm.
Appellants are the owners of property located at 366 South Broad Street, Nazareth, Pennsylvania. The property is situated in an R-5 High Density Residential District. The structure at issue is one half of a double home (duplex) and meets the ordinance's definition of a single-family semi-detached dwelling unit so long as it contains only one dwelling unit.
The ordinance defines a "dwelling unit" as one or more rooms with provisions for living, cooking, sanitary, and sleeping facilities arranged for the use of one family. (ZHB's Finding of Fact No. 44.)
Section 202 of the borough's zoning ordinance states that no structure shall be used or altered except in conformity with the intent and regulations specified in the ordinance. (Trial court op. at 3; ZHB's Finding of Fact No. 55.) On April 7, 2011, Appellants received an Enforcement Notice from the Borough of Nazareth, which cited section 202 of the ordinance and stated in relevant part as follows:
The use of the single family residential unit has been changed to three (3) dwelling units or apartments at the property .... Section 202 of the Nazareth Zoning Ordinance requires that a change in use or occupancy shall be in conformity with the intent and regulations specified in the Ordinance. The change of use to three (3) dwelling units or apartments does not conform to the regulations of the Nazareth Zoning Ordinance. Our records indicate the approved use of the main structure is for one (1) dwelling unit.(Reproduced Record (R.R.) at 12.) Appellants appealed the Enforcement Notice, (R.R. at 14), and the ZHB held a hearing on June 14, 2011.
You shall immediately cease the rental and/or use of the two (2) additional dwelling units or apartments.
Dennis Huth, the borough's zoning officer, testified that Appellants previously had sought a permit to convert their property from a single-family residence to two apartments in 2006. Huth said he denied that request and informed Appellants that they did not satisfy the minimum lot size and parking requirements. (R.R. at 18.) His letter of April 5, 2006, explained that if Appellants chose not to apply for zoning relief and permits they would be required to return the use of the dwelling to a single-family unit within thirty days. Huth said that Mr. Faustner visited him on April 21, 2006, and advised that he was returning the property to a single-family residence.
In 2011, Huth contacted Faustner to arrange inspections of his properties in the borough. Huth testified that he inspected the property at 366 South Broad Street and thereafter issued the Enforcement Notice. (R.R. at 19.) Appellants' counsel questioned Huth about various ordinance provisions and suggested that the change to three dwelling units may actually have made the property more conforming. (R.R. at 20-24.) Mr. Faustner testified that he thought the removal of doorbells brought the property into compliance with the ordinance definition of "single family dwelling," which applies to five or fewer unrelated persons. (R.R. at 25-29.) He described the three floors of separate living space and acknowledged that he collected rent from individuals who lived on the second and third floors. Ultimately, Appellants conceded that there were three dwelling units, but they argued that, even if the conversion had been accomplished without permits and determinations concerning parking and other ordinance provisions, the change brought the property into greater conformity with the ordinance. (R.R. at 37.)
The ZHB voted to deny Appellants' appeal. The ZHB noted that it was limited to deciding whether the Enforcement Notice was correct and could not rule on other arguments that had been alluded to during the hearing. The ZHB subsequently issued a written decision with 60 numbered paragraphs setting forth findings of fact and conclusions of law in support of its determination. The ZHB specifically noted that, in denying Appellants' application for more than one dwelling unit in 2006, the zoning officer informed Appellants that they needed a variance to meet applicable area and parking requirements. The ZHB concluded that if Appellants believed that such interpretation was wrong and that the changes were permitted under ordinance provisions governing non-conforming uses, it was incumbent upon Appellants to timely appeal that decision and, having failed to do so, they could not raise that issue on appeal from an Enforcement Notice. The ZHB further rejected Appellants' contention that the use was permitted as a special exception, noting that Appellants had not filed an application for such permission.
Appellants filed a land use appeal to the trial court, (R.R. at 50-52), arguing that the ZHB erred and/or abused its discretion as follows: (1) in finding that the property does not exist as a single family dwelling under the applicable ordinance definition; (2) in finding that the change into three apartments did not constitute a conversion that is permitted as a special exception under section 405.3 of the ordinance; and (3) in finding that any modifications made to the building are not permitted as changes in non-conforming uses under section 506.3 of the ordinance.
Section 405.3 of the ordinance states that the following uses are permitted in the R-5 district by special exception: "A) Private or public school approved by the Department of Education, but not including correctional institutions; B) Membership; C) Group care facility and family care facility; D) Day care facility; E) Conversion of existing dwelling into apartment; and F) Service station."
Section 506.3 of the ordinance governs nonconforming uses and structures and states that a nonconforming use may not be changed except to a conforming use.
The trial court noted that Appellants did not challenge any of the ZHB's findings and that they conceded that three dwelling units exist on the property. The trial court identified the only issue on appeal as whether the conversion of the property was not in conformance with the ordinance. After briefly reviewing the evidence, the trial court concluded that the ZHB's findings were supported by substantial evidence and that the ZHB did not abuse its discretion or commit an error of law in upholding the Enforcement Notice. Accordingly, the trial court dismissed Appellants' appeal.
On appeal to this Court, Appellants first argue that the change from single-family dwelling to multi-family dwelling use is a conversion permitted as a special exception under section 405.3 of the ordinance. However, as the ZHB correctly observed, Appellants did not request permission for a three-family dwelling use under section 405.3 of the ordinance, and, thus, such relief could not be granted. Accordingly, this argument is without merit.
Where, as here, the trial court takes no additional evidence, our scope of review is limited to determining whether the zoning board committed an error of law or a manifest abuse of discretion in rendering its decision. In re Heritage Building Group, Inc., 977 A.2d 606 (Pa. Cmwlth. 2009).
Appellants next argue that the change in use does not violate section 202 of the ordinance because the change actually lessens the degree of non-conformity with dimensional requirements of the ordinance and section 506.3 of the ordinance permits such a change to a non-conforming use. However, Appellants concede that the change in use was effectuated without a permit and that other zoning provisions may be implicated. Accordingly, the ZHB's determination that the change in use is in violation of the ordinance was proper.
Finally, citing Township of Maidencreek v. Stutzman, 642 A.2d 600 (Pa. Cmwlth. 1994), Appellants contend that whether they violated the ordinance is irrelevant because the Enforcement Notice was insufficient as a matter of law. Appellants note that the Enforcement Notice only references section 202 of the ordinance and argue that the borough is limited to enforcing the specific provisions cited in the notice. In response, the ZHB correctly asserts that Appellants did not raise any issue concerning the sufficiency of the Enforcement Notice before the ZHB and, therefore it is waived. Segal v. Zoning Hearing Board of Buckingham Township, 771 A.2d 90 (Pa. Cmwlth. 2001).
In Township of Maidencreek, the notice at issue did not include the specific ordinance provision and misidentified the zoning district in which the property was located. The court held that the language of section 616.1(c)(3) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, as amended, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10616.1(c)(3) (the enforcement notice shall "include the specific violation with a description of the requirements which have not been met, citing in each instance, the applicable provisions of the Ordinance"), requires a specific numerical reference to the ordinance section that the township asserts has been violated. Township of Maidencreek, 642 A.2d at 601-602. But compare Krupa v. Fayette County Zoning Hearing Board, (Pa. Cmwlth., No. 1111 C.D. 2007, filed January 30, 2008) (holding that the mere lack of a citation to a section of the Ordinance was neither fatally defective under section 616.1(c)(3) of the MPC nor violative of the landowners' due process rights).
Statements in Appellants' notice of appeal suggest that this issue was raised in Appellants' brief to the trial court. However, this issue had not been raised to the ZHB, and the trial court did not address it. --------
In Segal, owners of a nursing home sought variances to fill in a portion of wetlands on their property in order to construct an access road from a proposed expansion of the facility to a public road. The zoning hearing board granted one variance but denied the remaining variance requests. The owners appealed to the court of common pleas, which affirmed the zoning hearing board's decision without taking additional evidence. On appeal to this Court, the owners argued that the common pleas court erred by failing to consider whether they were entitled to a de minimis variance. The township responded that the issue was waived on appeal because, although the owners raised this issue to the common pleas court, they did not raise it before the zoning hearing board. We agreed that the issue was waived, explaining that "[i]n zoning cases, a new and different theory may not be advanced for the first time on appeal without the permission of the common pleas court." Id. at 94 (citing Myers v. State College Zoning Hearing Board, 530 A.2d 526 (Pa. Cmwlth. 1987)). In this case, Appellants did not obtain, or seek, such permission from the trial court and therefore cannot raise this issue in the present appeal. Segal.
For these reasons, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge Judge Simpson did not participate in this decision. ORDER
AND NOW, this 10th day of April, 2013, the order of the Court of Common Pleas of Northampton County, dated May 24, 2012, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge