Opinion
No. 280 C.D. 2011
11-17-2011
Bruno A. Frustaci, Antonio Frustaci, and Caterina Frustaci v. Greene Township Board of Supervisors, Appellant
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge (P) HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this zoning appeal, the Greene Township Board of Supervisors (Supervisors) asks whether the Court of Common Pleas of Pike County (trial court) erred in invalidating Greene Township Ordinance No. 43 (building permit ordinance containing setback provision).
The trial court determined the Supervisors lacked authority to regulate setbacks through a building permit ordinance in the absence of an ordinance that contains the appropriate procedural safeguards required by the Pennsylvania Municipalities Planning Code (MPC) (including application to a zoning officer and possible review by a zoning hearing board). The trial court also rejected the Supervisors' argument that the setback regulations in the Township's Subdivision and Land Development Ordinance (SALDO) applied to Applicants' single-family home and attached garage, which does not constitute a "subdivision" or "land development" as defined by the SALDO. Based on its determinations that the setback regulations were either invalid or inapplicable, the trial court determined it was unnecessary to reach the merits of Applicants' request for a dimensional variance from those regulations. Upon review, we affirm.
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
Applicants are Bruno A. Frustaci, Antonio Frustaci and Caterina Frustaci.
The trial court's findings may be summarized as follows. Applicants own a parcel of land adjacent to State Route 447 in Greene Township (Township), Pike County (subject property). When Applicants purchased the subject property, it was improved with two pre-existing structures, a house and a trailer. Applicants sought to remove those structures in order to build a new home. They applied to the appropriate Township authorities for a demolition permit for the pre-existing structures and for a building permit for the proposed new home.
The parties' briefs differ on the applicable standard of review. However, where, as here, the trial court receives additional evidence, our review is limited to determining whether the trial court committed an error of law or abused its discretion. Briar Meadows Dev., Inc. v. S. Centre Twp. Bd. of Supervisors, 2 A.3d 1303 (Pa. Cmwlth. 2010).
Applicants' building permit application included a drawing of the proposed home, which indicated the front edge of the home would lie 40 feet from the edge of the pavement of Route 447. Applicants also applied for a setback permit for the proposed new home and included a drawing that indicated a distance of 40 feet between the edge of the pavement of Route 447 and the front edge of the proposed home.
Thereafter, Township authorities granted Applicants' applications for demolition, building, and setback permits. Applicants then demolished the pre-existing structures.
Township "Setback Officer" Carl Fregoni personally reviewed Applicants' setback permit application and issued the permit in April 2009. Construction of the new home commenced in June 2009. Both during and after construction, Applicants obtained all required permits and approvals from appropriate Township authorities.
In September 2009, after construction of the home, Applicants applied for a certificate of occupancy; however, the Township declined to issue the certificate of occupancy.
In October 2009, Fregoni sent Applicants a notice that their home violated Township Ordinance No. 43, which establishes minimum setback requirements for certain buildings. That ordinance is entitled, "AN ORDINANCE AMENDING GREENE TOWNSHIP ORDINANCE NUMBER 23 (TWENTY-THREE) RELATING TO THE CONSTRUCTION, RECONSTRUCTION, ENLARGEMENT, ALTERATION, OR RELOCATION OF ANY BUILDING OR STRUCTURE UNLESS AN APPROVED BUILDING PERMIT HAS BEEN OBTAINED FROM THE GREENE TOWNSHIP SECRETARY." Reproduced Record at 9a. Fregoni explained that on October 7, 2009 he learned that the right-of-way line for Route 447 lies not at the edge of the pavement, as he previously informed Applicants, but instead approximately 10 feet closer to the front edge of the home.
About a month later, Fregoni sent Applicants an order to vacate the home because of the alleged setback violation. Applicants complied with the order.
Applicants then applied to the Supervisors for setback variances of: 9.53 feet at the front of the home; 3.33 feet at the right of the home; 2.68 feet at the left of the home; and, 1.26 feet at the right of the driveway. These were the distances by which William Schoenagel, a surveyor hired by Applicants to perform a survey of the subject property, concluded that the home's placement exceeded Ordinance No. 43's setback requirements.
The Supervisors held hearings on Applicants' variance requests in early 2010. Uncontradicted testimony indicated that Applicants obtained all necessary permits to begin construction on the home with no indication that the proposed location was closer to the right-of-way than permitted by Township regulations. Schoenagel testified it would cost more than $200,000 to move the home to a location 40 feet or more from the right-of-way. He further testified it was not possible to relocate the home a much greater distance from Route 447 because wetlands cover nearly the entire subject property.
Fregoni stated that at some point before his written notice of October 7, 2009, he notified Debra Wasylyk, a representative of Applicants' builder, via telephone, that there may be a problem with the setbacks. Fregoni conceded the October 7, 2009 notice was the first time he notified anyone in writing of a potential setback violation, and he could not specifically recall the date on which he spoke with Wasylyk via telephone about the potential violation.
After the hearings, the Supervisors issued a decision denying Applicants' variance request on the ground that any alleged unnecessary hardship was self-created. The Supervisors also alluded to a safety concern based on the home's proximity to State Route 447. Applicants appealed to the trial court.
On appeal, the trial court received additional evidence. Specifically, the trial court received additional deposition testimony by Wasylyk and Fregoni. Wasylyk testified she met with Fregoni in November 2008. Wasylyk testified during this meeting she requested Fregoni provide her with any written rules or regulations relating to setback requirements, and Fregoni told her there were none. She further testified, at no point prior to the October 7, 2009 written notice did Fregoni or any other Township official inform her of a potential setback violation.
Ultimately, the trial court sustained Applicants' land use appeal on the grounds that the setback requirements in the SALDO, relied on by the Supervisors, were inapplicable, and Ordinance No. 43 was invalid. First, the trial court agreed with Applicants that the SALDO's setback requirements do not apply here. Specifically, the trial court determined the SALDO did not apply to Applicants' construction of a single-family home with an attached garage, which contemplated no subdivision or other land development. As a result, the trial court rejected the Supervisors' reliance on Section 503(4.1) of the MPC, which relates to the contents of SALDOs, including setback requirements.
53 P.S. §10503(4.1). This subsection was added by the Act of December 21, 1988, P.L. 1329. --------
Further, the trial court determined Ordinance No. 43 was invalid. Specifically, the trial court stated Ordinance No. 43 was, in name and in title, a building permit ordinance. The trial court determined the Township, which has no zoning ordinance, lacked authority to regulate setbacks through a building permit ordinance, without complying with the MPC's procedural safeguards (application to a zoning officer and potential review by a zoning hearing board). See Bd. of Supervisors of Franklin Twp., Adams Cnty. v. Meals, 426 A.2d 1200, 1202 (Pa. Cmwlth. 1981) (holding that, "an ordinance which regulates a zoning principle [including setbacks], but does not contain the procedural safeguards mandated by the MPC is invalid on its face.") (emphasis added); Bd. of Supervisors of U. Frederick Twp. v. Moland Dev. Co., Inc., 339 A.2d 141 (Pa. Cmwlth. 1975), overruled on other grounds as recognized by, Borough of Malvern v. Jackson, 529 A.2d 96 (Pa. Cmwlth. 1987) (invalidating township's "lot size and sewage disposal" ordinance that purported to regulate zoning concepts such as minimum lot size and setbacks, because the ordinance lacked the statutory safeguards set forth by the MPC).
As a result, the trial court granted Applicants' appeal, directed the Supervisors to issue Applicants a certificate of occupancy, required the Supervisors not to place any additional conditions on Applicants' immediate and continued occupancy of the home, and declared Ordinance No. 43 invalid. The Supervisors appealed to this Court.
On appeal, the Supervisors assert the trial court erred in determining Ordinance No. 43 was invalid because the provisions constitute permissible, uniform regulations explicitly authorized by Section 503(4.1) of the MPC. The Supervisors also argue Applicants did not establish unnecessary hardship or entitlement to a de minimis variance so as to warrant relief from the setback provisions.
After reviewing the record, the parties' briefs, and the law in this area, we see no need to elaborate on the trial court's thorough and thoughtful opinion. The issues presented were ably resolved in the comprehensive opinion of the Honorable Gregory H. Chelak. Therefore, we affirm on the basis of the trial court's opinion in the matter of Bruno A. Frustaci, Antonio Frustaci, and Caterina Frustaci v. Greene Township Board of Supervisors, (No. 984-2010 Civil, filed February 10, 2011) (C.P. Pike).
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 17th day of November , 2011, the order of the Court of Common Pleas of Pike County is AFFIRMED upon the opinion of the Honorable Gregory H. Chelak in Bruno A. Frustaci, Antonio Frustaci, and Caterina Frustaci v. Greene Township Board of Supervisors, (No. 984-2010 Civil, filed February 10, 2011) (C.P. Pike).
/s/_________
ROBERT SIMPSON, Judge