Opinion
No. 1526 C.D. 2012
04-04-2013
Richard Jones, Sr. and Janet Jones, h/w, Appellants v. Hamilton Township Zoning Hearing Board and Hamilton Township
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge (P.) HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Richard Jones, Sr. and Janet Jones (the Joneses) appeal from the Monroe County Common Pleas Court's (trial court) July 10, 2012 order denying their appeal from the Hamilton Township (Township) Zoning Hearing Board's (Board) determination that they violated the Township's Zoning Ordinance by operating a "junk yard" without zoning approval.
The Joneses own 1.87 acres in Hamilton Township, Monroe County (Property) which is located in a commercial zoning district. On the Property is a residential structure and outbuildings. In July 2011, the Township's enforcement officer Robert Rehman (Enforcement Officer Rehman) issued an enforcement notice stating that the use of the Property was in violation of Sections 403.1 and 902.1 of the Zoning Ordinance because it was being used as junk yard without a zoning permit, the "trailers" used for storage were structures for which building and zoning permits were not obtained, and the Property was being used for commercial purposes. The Joneses, pro se, appealed the enforcement notice to the Board.
Section 403.1(a) of the Ordinance states that "[n]o additional junk yards shall be established in [the] Township." Section 201.4 of the Ordinance defines "junk yard" as:
A lot, land, structure, or parts thereof where waste, discarded or salvaged materials are bought, sold, exchanged, stored, baled, cleaned, packed, disassembled or handled, included [are] what are known as 'auto graveyards,' auto wrecking yards, house wrecking yards, used lumber yards and places or yards for use of salvaged house wrecking and structural steel materials and equipment, but excluding such uses when conducted entirely within a completely closed building, and excluding pawn shops and establishments for sale, purchase or storage of used cars in operable condition, salvage machinery, used furniture and household equipment, and the processing of used, discarded or salvaged materials as part of manufacturing operations. The deposit or storage of three or more unlicensed, wrecked or disabled vehicles shall be deemed to be a 'junk yard'. (Emphasis added).
Section 902.1 of the Ordinance provides, in pertinent part, that "no person shall erect, alter or convert any . . . structure . . . ." without a zoning permit. Section 201.4 of the Ordinance defines "structure" as "[a]ny material or combination of materials which are constructed or erected, the use of which requires location on or in the ground . . ., or attached to something located on or in the ground . . . ." This definition encompasses shipping containers without wheels placed on the ground.
The Enforcement Notice also cited Article 9.400 Section A.2 of the Township's Subdivision and Land Development Ordinance (SALDO) because there was no approved Land Development Plan. The Board did not address that issue because it found that it lacked jurisdiction and the trial court upheld that determination. It has not been raised as an issue in this appeal.
Before the Board, Enforcement Officer Rehman testified that while the Township had issued permits at the Property for a garage at the back of the home, a 30 by 50-foot shed and a 40 by 60-foot shed, no permit or certificate of non-conforming use had been issued to operate a junk yard or any other structure. He stated that the trailers he observed on the Property were considered structures requiring permits because they were on the ground and were used for storage. On cross-examination, he testified that he did not know if the vehicles were registered. As to the junk yard violation, Enforcement Officer Rehman observed several truck bodies, box trucks, trailers from semi-trucks, a dump truck, a school bus, dumpsters and a line of metal objects that runs from one side of the Property to the other. He also introduced pictures depicting the condition of the Property that showed that it is more than cluttered and that it is filled with piles of materials, including inoperable vehicles, refrigerators and other metal objects. Mr. Rehman also testified to having seen trucks coming in and out of the Property.
Prior to the Board hearings, Enforcement Officer Rehman asked the Joneses to show him the trailer registrations but they refused. See Reproduced Record (R.R.) at 35-36. After Mrs. Jones reported at the October hearing that she would remove the noncompliant items from the Property, the Board continued the hearing, giving the Joneses additional opportunity to make the Property compliant, and affording them time to produce registrations for vehicles that remained on the Property. See id. at 50-51, 53. However, because no meeting took place between the Township and the Joneses as directed, the Board resumed the hearing on December 6, 2011.
Mrs. Jones did not dispute that the Property looked as it is depicted in the 2008 aerial photograph, except for the one van that had been removed. She also claimed that some Ford pick-up trucks were going to be restored, and many of the other items, such as the refrigerators, were moved to the Property from three other homes in July and August 2011, but due to illness and storms they have been unable "to do anything." R.R. at 89. She further testified that more items were put on the Property when they moved in 2011. Mrs. Jones maintained that almost all of the vehicle registrations are in her name. She averred that they do not accept items from other people, and what is on the Property are "not newly acquired things. We have owned these things." R.R. at 108.
Mrs. Jones twice described that they moved to the Property quickly and did not have time to be organized, yet she also stated that they moved over a couple of months during the summer of 2011. See R.R. at 80-81, 88-89, 91. Nevertheless, in light of the 2008 photograph, the Board did not find credible Mrs. Jones' explanation that the material depicted in the 2011 photograph had just been moved there.
Mrs. Jones declared that they are "[t]rying to comply with" the enforcement notice. R.R. at 71. She stated that since the first hearing, they "cleaned up a lot of stuff. We have six vehicles there sitting to go. They'll be out of there." Id. at 67. Mrs. Jones reported that those six vehicles were replaced because "they were broke [sic] down." Id. at 101. Mrs. Jones maintained that some of the items behind the house were taken out of a building damaged in storms and will be put back in the building once it is repaired. She stated that what was to the rear of the Property and along the driveway is now gone or is in the process of being removed. Mrs. Jones testified that the school bus and the vehicles near it have been removed. A white vehicle remains out front, but it is registered. Two operable blue vans and the backhoe, bulldozer and excavator - which are still used by her son - were moved.
Mrs. Jones admitted that the Joneses do not have an approved land development plan. She also acknowledged that many of the items on the Property are metal, and the Joneses have been or will be paid for their salvage. Although she claims to have documentation for certain vehicles on the Property, and she said at the October hearing that she would produce it, she did not provide it to the Township or to the Board before or at the December hearing. See R.R. at 51, 92-93, 95, 108-110.
When asked: "Do you have with you here today any of the registration or other paperwork which you believe indicates that either the vehicles or equipment are permitted by either being licensed or registered . . . .?," Mrs. Jones responded: "I didn't realize I had to bring that . . . . I could have brought them." R.R. at 93-94. Although she claims to have checked the trailer registrations, she did not bring them to the hearing. See id. at 95, 108. The Board's counsel explained to Mrs. Jones that if she asked, it could hold the record open for her to produce the registrations, but she concluded that she had no other evidence to bring forward, so the Board closed the record. See id. at 108-110.
Relative to the Property's structures, Mrs. Jones testified that the Joneses obtained a permit in 1999 for a fence and shed north of the residence, and in 2004 for the 30 by 50-foot and 40 by 60-foot sheds. Three other sheds on the Property were permitted before 1999, one of which is being repaired due to storm damage. Mrs. Jones testified that the sheds are used to store garden items, outdoor furniture and children's outdoor play items. Mrs. Jones stated that the approximately seven trailers on the Property "are all licensed" and registered, and are on chassis with wheels. R.R. at 76, 95-96, 98. She did not, however, bring the documentation to the hearing. She explained that the trailers are not used for hire. Rather, they were purchased specifically to move items from their three homes, and they are used for storage of the family's personal belongings.
At the conclusion of the hearings, the Board denied the Joneses' appeal because:
(1) [the Joneses] are operating an unlawful Junk Yard on the [Property];Board Op. at 11. The Joneses appealed the Board's decision to the trial court.
(2) [the Joneses] are conducting commercial operations from the [Property] without a [p]ermit for such use;
(3) [the Joneses] have placed shipping containers without chassis on the [Property] and thus have placed structures on the [Property] without permits as the term "structure" is defined in the Ordinance; and
(4) placement on the [Property] of unlicensed trailers mounted on chassis with wheels and tires for an extended period of time constitutes part of an auto graveyard.
Without taking additional evidence, the trial court denied the Joneses' appeal on the bases that the Board properly determined that: (1) the Joneses were operating a junk yard without a permit for a non-conforming use; (2) there was no reason to overturn the Board's conclusion that the Joneses were conducting commercial activity without a permit; (3) the Board properly determined that the storage containers were "structures" without permits; and (4) multiple inoperable vehicles stored on the Property constituted an auto graveyard. The Joneses appealed from the trial court's order to this Court.
In matters such as this where the trial court took no additional evidence in reviewing the decision of a zoning hearing board, this Court reviews the zoning hearing board's decision for errors of law or an abuse of discretion. Hamilton Hills Group, LLC v. Hamilton Township Zoning Hearing Board, 4 A.3d 788, 792 n.6 (Pa. Cmwlth. 2010). "An abuse of discretion occurs when the findings of the [ZBA] are not supported by substantial evidence. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Catholic Social Services Housing Corp. v. Zoning Hearing Board of Edwardsville Borough, 18 A.3d 404, 407 n.2 (Pa. Cmwlth. 2011) (citation and quotation marks omitted).
The Joneses first argue that the evidence does not support the Board's finding that they are operating a junk yard because there was no evidence that all of the vehicles on the Property were not licensed and it was not shown that the vehicles were inoperable, unlicensed or disabled. However, this argument ignores Mrs. Jones' testimony that only "some of these vehicles are usable, are registered that I can see here," R.R. at 42, and that the six cars ready to be removed from the Property are, in fact, disabled and will be salvaged. See id. at 81-82, 92, 101. Moreover, when given a chance to bring in the registration certificates to the hearing, she failed to do so allowing the Board to draw an adverse inference that the vehicles were unregistered. Fitzpatrick v. Philadelphia Newspapers, Inc., 567 A.2d 684, 687-88 (Pa. Super. 1989).
While Mrs. Jones' testimony that there were more than three inoperable vehicles on the Property alone establishes that the Property is being used as a junk yard, the aerial photographs introduced at the hearing show that there are not only many inoperable vehicles but also enormous amounts of waste and other materials stored and handled on the Property, which constitute substantial evidence that the Property is a junk yard. Moreover, the admission that the trailers are not being used as trailers but for permanent storage supports the Board's conclusion that they are unpermitted "structures" within the meaning of the Township's Zoning Ordinance. Because there is substantial record evidence to support the Board's finding that the Joneses are operating a junk yard by storing voluminous amounts of vehicles and other material on the Property, the trial court properly upheld the Board's decision.
The Joneses next argue that the evidence does not support the trial court's finding that the Joneses are conducting a commercial operation. Mrs. Jones, however, testified that the items stored on the Property contain metal, are salvageable and they have salvaged items and received remuneration for them. This testimony, together with Enforcement Officer Rehman's testimony that trucks were coming in and out of the Property, constituted substantial evidence that the Joneses were operating a commercial use without a zoning permit.
The Joneses finally argue that the Township's junk yard ordinance is defective because it excludes new junk yards from being established anywhere in the Township. However, Section 916.1(a) of the Pennsylvania Municipalities Planning Code (MPC) states:
Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §10916.1(a).
A landowner who, on substantive grounds, desires to challenge the validity of an ordinance . . . which prohibits or restricts the use or development of land in which he has an interest shall submit the challenge either:
(1) to the zoning hearing board under section 909.1(a) [53 P.S. § 10909.1(a)]; or
(2) to the governing body under section 909.1(b)(4), together with a request for a curative amendment under section 609.1 [53 P.S. § 10609.1].
Section 909.1(a) of the MPC, 53 P.S. §10909.1(a), mandates that "[t]he zoning hearing board shall have exclusive jurisdiction to hear and render final adjudications in . . . [s]ubstantive challenges to the validity of any land use ordinance, except those brought before the governing body pursuant to [MPC] [S]ections 609.1 and 916.1(a)(2)."
Section 609.1(a) of the MPC, 53 P.S. §10609.1(a), provides in pertinent part:
A landowner who desires to challenge on substantive grounds the validity of a zoning ordinance . . . which prohibits or restricts the use or development of land in which he has an interest may submit a curative amendment to the governing body with a written request that his challenge and proposed amendment be heard and decided as provided in section 916.1. . . .--------
This Court has held that because "Section 916.1 of the MPC provides the exclusive mechanism for challenging the validity of a zoning provision[,]" a property owner may not, via an enforcement appeal, challenge the exclusionary nature of an ordinance. Urey v. Zoning Hearing Board of City of Hermitage, 806 A.2d 502, 506 (Pa. Cmwlth. 2002), appeal denied, 572 Pa. 762, 818 A.2d 507 (2003). The Court reasoned:
Public policy is not well served by allowing one to build in violation of an ordinance, wait until an enforcement action is commenced by the municipality, and then assert the unconstitutionality of the ordinance. In short, a procedure exists to challenge the constitutionality of an ordinance on the basis that it works as a total exclusion of
a legitimate use . . . [the landowner] should have availed himself of this procedure, but he did not.Id. Because the Joneses did not challenge the exclusionary nature of Section 403.1 of the Zoning Ordinance to the Board in accordance with Section 916.1(a) of the MPC, they have waived their right to do so now.
For all of the above reasons, the trial court's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 4th day of April, 2013, the Monroe County Common Pleas Court's July 10, 2012 order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge