Opinion
No. 72 C.D. 2014
11-13-2014
Amna Salahuddin, Appellant v. Zoning Hearing Board of West Chester and Borough of West Chester
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Amna Salahuddin (Landowner) appeals, pro se, the order of the Court of Common Pleas of Chester County (trial court) affirming the decision of the Zoning Hearing Board (Board) of the Borough of West Chester (Borough) that affirmed the Borough's June 28, 2012 enforcement notice. We affirm.
As this Court noted in Salahuddin v. Zoning Hearing Board of West Chester, 55 A.3d 1285, 1286 (Pa. Cmwlth. 2012), Landowner purchased the property at 123 South Walnut Street in the Borough's NC-2 Neighborhood Conservation District in 1996. The property is improved with a single-family semi-detached dwelling and Landowner resided on the first floor. Id. Until 1992, the owner of the property used the first floor as a single-family semi-detached dwelling and the second and third floors as a "rooming house." However, in 1992, PNC Mortgage Corporation (PNC) acquired the property in foreclosure and it was no longer used as a rooming house. Id. In 1995, the Borough's Director of Building and Housing advised a realtor marketing the property as a "multifamily dwelling" for PNC that the rooming house use had been abandoned and that the official use of the property is as a single-family dwelling. Id. at 1287. Landowner was also advised prior to her purchase in April 1996 that the dwelling had to be used as a single-family dwelling because the rooming house use had been abandoned. Id. She testified that she used the dwelling as a single-family dwelling since it was purchased and had hopes of either converting it into a multifamily dwelling unit or, if not permitted, using it as a single-family dwelling. Id. Landowner stated that she used the dwelling as a single-family dwelling since she purchased it in 1996, although she did not use the second or third floors. Id.
Section 112-19.A. of the Borough's Zoning Ordinance lists the following permitted uses in the NC-2 Zoning District:
A. Permitted principal uses:
(1) Single-family detached dwellings.
(2) Single-family semidetached dwellings.
(3) Single-family attached dwellings.
(4) Two-family detached, semidetached and attached dwellings.
(5) Municipal uses.
(6) Family day-care homes....
Section 112-7.D. of the Borough's Zoning Ordinance defines "dwelling unit" as "[o]ne or more rooms ... designed for occupancy by one family for living purposes and having its own permanently installed cooking and sanitary facilities, with no enclosed space ... in common with any other dwelling unit...." Section 112-7. also defines single-family semi-detached dwelling as "[a] building designed for and occupied exclusively as a residence for only one family and having one party wall in common with an adjacent building."
In turn, Section 112-7. defines "family" as"
One or more individuals living together in a dwelling unit as a single nonprofit housekeeping unit, and doing their cooking on the premises, when said individuals are related by blood, marriage or adoption; or no more than four unrelated individuals living together as a single nonprofit housekeeping unit in a single-family dwelling and no more than two unrelated individuals living together as a single nonprofit housekeeping unit in a two-family or multifamily dwelling; provided, however, that no more than three unrelated individuals living together may be permitted as a special exception....
Section 112-7. defines rooming house as "[a] dwelling providing lodging with or without meals, but including common cooking and sanitary facilities."
Section 112-7. defines multifamily dwelling unit as "apartment," which is defined as "[a] building on a separate lot containing three or more dwelling units."
In 2011, Landowner filed an application with the Board requesting a variance to use the dwelling as a three-unit multifamily dwelling which the Board denied and the trial court affirmed on appeal. On further appeal to this Court, Landowner claimed that the property had been used as a nonconforming multifamily use and that she did not intend to abandon that nonconforming use. Id.
However, we rejected Landowner's claim, explaining:
PNC foreclosed upon the Property in 1992. The Property was not used in any manner from 1992 until April 1996, when [Landowner] purchased the Property. A bank
possessing property after foreclosure, "[w]it its powers of management strictly limited, ... could neither operate nor abandon the nonconforming use during the [time] it held title." Therefore, the "rooming house" use was not abandoned pursuant to section 112-96.P. of the Ordinance while PNC held the Property from 1992 until 1996 when [Landowner] purchased the Property.Id. at 1287-88 (citation omitted). This Court ultimately affirmed the Board's denial of Landowner's variance request because she failed to show that the property could not be used for a permitted purpose given that she had been using it as a single-family dwelling since she purchased it in 1996, and because she failed to show that converting it to a permissible use was not financially prohibitive or it had no value for a permitted purpose as it was already being used as a permitted single-family dwelling. Id. at 1288.
Prior to the purchase in 1996, the Borough incorrectly notified [Landowner] that the "rooming house" use had been abandoned and that she was not permitted to use the Property in that manner. However, [Landowner] is not seeking a "rooming house" use; she is seeking a "multifamily" designation, which is not the same thing as a "rooming house" use.
* * *
The Property had never been used as "multifamily dwelling" and, therefore, [Landowner] did not have a "multifamily dwelling" nonconforming use. Because the "multifamily dwelling" use was not a nonconforming use, [Landowner] was seeking a variance for a new and different use.
Section 112-96.P. states:
Abandonment of use. Whenever a nonconforming use ... of a building or other structure or any portion thereof is abandoned or discontinued for a continuous period of one year or more, such abandonment or discontinuance shall be presumed to constitute an intention to abandon or discontinue such use. Any subsequent use of such building or structure ... shall be in conformity with the provisions of this chapter.
In June 2012, Landowner submitted a Rental & Student Home Registration Form that indicated that her property was a single-family dwelling unit occupied by four tenants and that she "applied for change back to original." (Reproduced Record (R.R.) at A-146, A-148, A-149). That same day, during a routine rental inspection, the Borough's Code Enforcement Officer saw more than four unrelated people residing at the property and issued a notice of violation of Section 112-19.A.(3) of the Zoning Ordinance directing Landowner to cease and desist this illegal use of her property within 30 days. (Id. at A-145).
The Borough's Director of Building and Housing also issued a notice of a number of Borough Code violations that were found to exist on the property on inspection. (R.R. at A-49).
In July 2012, Landowner appealed the enforcement notice to the Board, alleging: (1) she can continue the lawful nonconforming rooming house use recognized by this Court in Salahuddin under Section 112-96.B. of the Zoning Ordinance because it was never abandoned; (2) Section 112-19.C.(6) allows by special exception the "[c]onversion of an existing building to a multifamily dwelling ... provided that no exterior alteration is made to the structure;" and (3) she is entitled to a use variance under the MPC. (R.R. at A-139-A-140).
See Section 909.1(a)(3) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, added by Act of December 21, 1988, P.L. 1329 , as amended, 53 P.S. §10909.1(a)(3) ("The zoning hearing board shall have exclusive jurisdiction to hear and render final adjudications in ... [a]ppeals from the determination of the zoning officer, including, but not limited to, ... the issuance of any cease and desist order or the registration or refusal to register any nonconforming use, structure or lot.").
Section 112-96.B. of the Borough's Zoning Ordinance states that "[a]ny ... nonconforming use of a building or structure ... existing on the effective date of this chapter may be continued, except as otherwise provided in this section."
As part of this claim, Landowner also sought a variance from all of the objective requirements for granting a special exception listed in Section 112-23 of the Zoning Ordinance relating to parking; lot size; street line setback; front, side, and rear yard setbacks; lot width; building setbacks; and proximity to neighboring buildings.
The Board conducted hearings in September, November and December 2012 regarding the enforcement notice and Landowner's claims for a nonconforming rooming house use and special exception and variance. At the September hearing, the Borough's Code Enforcement Officer testified that the single-family dwelling was occupied by more than four and at least six unrelated people. He identified Landowner's form registering the property as a single-family dwelling and he did not locate any documents in the Borough's files suggesting that the property is authorized for use as a rooming house or multifamily dwelling. (R.R. at A-146, A-163-A-164, A-168).
Landowner testified that she is keeping the property as a secondary residence, but that she is not occupying it as her primary residence. (R.R. at A-178). She stated that the property had been continuously used as a rooming house by her and all of the prior owners, and that the Borough illegally abandoned the rooming house use. (Id. at A-185-A-186). She admitted that there are four people living on the property; that each of the tenants has a separate lease agreement; that each has the right to use a private room; and that she has, at times, collected rent from more than four people. (Id. at A-202-A-205, A-210-A-211). The hearing was continued for Landowner to hire an attorney and present additional evidence.
Landowner appeared at the November hearing with counsel who requested a continuance to complete Landowner's special exception request and to present additional evidence on the special exception and variance issues. (R.R. at A-281-A-284). At the conclusion of the November hearing, the Board voted unanimously to deny her appeal and affirm the enforcement notice and continued the hearing to December to allow Landowner to present evidence on her special exception and variance requests. (Id. at A-302-A-304).
In December 2012, the Board issued a written decision finding: (1) Landowner's property is developed as a single-family semi-detached dwelling which is permitted in the Zoning District; (2) a family as defined in the Zoning Ordinance may lawfully occupy the dwelling; (3) four individuals who are not related occupied Landowner's dwelling at the time of the enforcement notice; (4) the four tenants were living in separate rooms and not as a single housekeeping unit; (5) each tenant has an individual lease with her; (6) the lease gives each occupant the right to use a private room without specifying the exact location of the room; (7) each occupant typically pays his or her rent separately; and (8) Landowner has advertised the property as "rooms for rent." (R.R. at A-435-A-436).
Based on the foregoing, the Board concluded that Landowner's dwelling was a single-family semi-detached dwelling unit as defined in Section 112-7 of the Zoning Ordinance, and that it was being unlawfully used to house four unrelated individuals who were not living as a family as defined in the Zoning Ordinance when the enforcement notice was issued. (R.R. at A-436). As a result, the Board affirmed the enforcement notice (id. at A-437) and Landowner timely appealed the Board's decision to the trial court in January 2013 in which the Board intervened. (Id. at A-5-A-14, A-17-A-18).
Specifically, the Board stated:
[Landowner] filed a similar application with this Board in 2011 requesting relief necessary to use the Dwelling as a three-unit multi-family dwelling (Appeal No. 847). The Board entered a Decision and Order on that Appeal concluding that the Dwelling was a single-family dwelling unit as defined by the Zoning Ordinance and that the prior use of the Dwelling as a rooming house had been abandoned. On appeal by [Landowner], this Board's Decision was affirmed by the [trial court] and the Commonwealth Court of Pennsylvania. Despite these rulings, [Landowner] continues to use the dwelling as a rooming house in clear violation of the Zoning Ordinance.(R.R. at A-436-A-437).
The Board also held a hearing in December 2012 to permit Landowner to present more evidence in support of her special exception and variance requests. (R.R. at A-306-A-395). In February 2013, the Board issued another written decision denying Landowner's appeal finding: (1) the nonconforming rooming house use was abandoned; (2) the partitioning of the property for this use is not a physical circumstance or condition creating an unnecessary hardship; (3) if such hardship exists, it was created by Landowner by buying the property with knowledge that the nonconforming rooming house use was abandoned and a multifamily use was not permitted; and (4) Landowner failed to meet the objective requirements for a special exception and the Board could not grant a variance from those objective requirements. Landowner appealed to the trial court which affirmed.
Landowner submitted the Concise Statement of Errors that she filed in the prior appeal and our opinion in Salahuddin as Exhibits A-37 and A-40. (R.R. at A-357, A-359).
Specifically, the Board stated:
As to the non-conforming and multi-family variance claims, all the elements of res judicata are present. [Landowner] was given a full and fair opportunity to litigate the issues in the first case [before the trial court and this Court]. There has been no substantial change in conditions or circumstances to the Property itself since the denial of the first appeal. Therefore, the nonconformity and variance claims are barred.(R.R. at A-447-A-448).
* * *
Even if parts of this Appeal are not barred by collateral estoppel and res judicata, [Landowner]'s request for relief must be denied a second time. The non-conforming use of the Property as a boarding house was legally abandoned. This was decided prior to [Landowner]'s purchase by a 1995 decision of the Board. It was also decided by this Board in 2011; the Board's decision was affirmed by the [trial court] and the Commonwealth Court of Pennsylvania. Although the Commonwealth Court noted in dictum that a property cannot be legally abandoned during its ownership by a lender who forecloses, there was no reversal of the [trial court] decision confirming the abandonment.
Specifically, the trial court stated:
During a routine rental inspection of the property conducted on June 28, 2012, Code Enforcement Officer Adamek observed what appeared to be more than four unrelated persons residing at the property. [Landowner] testified that she advertises "rooms for rent," and that each of the four tenants has a separate lease agreement, and each has the right to use a private room. [Landowner] further testified that, on occasion, she has collected rent from more than four people. In fact, [Landowner] testified that, during the inspection, she did see six beds in the property and did see at least six people present. Given [Landowner]'s own unequivocal testimony on this factually determinative issue, the court cannot find that the Board abused its discretion or committed an error of law. The enforcement notice was properly issued, and the Board's December 11, 2012 Decision and Order must be affirmed. (Citations to record omitted).(R.R. at A-495).
In this appeal, Landowner claims that the trial court erred in determining that the nonconforming rooming house use has been abandoned. While we agreed in Salahuddin that the nonconforming rooming house use was not abandoned under Section 112-96.P. while PNC held the property from 1992 until 1996 when Landowner purchased the property, we also cited Landowner's testimony in the prior proceeding:
Where the trial court does not take any additional evidence, this Court's scope of review is limited to determining whether the Board committed an error of law or abused its discretion. Vaughn v. Zoning Hearing Board of Township of Shaler, 947 A.2d 218, 223 n.10 (Pa. Cmwlth.), appeal denied, 962 A.2d 1199 (Pa. 2008). This Court may find that the Board abused its discretion only if its findings of fact are not supported by substantial evidence. Id.
See Salahuddin, 55 A.3d at 1287 ("Abandonment of a nonconforming use requires: (1) intent to abandon and (2) actual abandonment. Intent to abandon will be presumed by a lack of occupancy of the nonconforming use for the prescribed period of time in a municipality with a discontinuation ordinance. However, if evidence of intent contrary to abandonment is introduced, then the presumption is rebutted and the burden of persuasion shifts back to the party claiming abandonment.") (citation omitted). --------
Landowner testified that she had "hopes of either converting [the property] [to a multifamily use] or if not allowed, of using it as a single-family [dwelling]." ([N.T., 3/14/11,] at 39.)] [Landowner] also used the dwelling as a "single-family dwelling" since the time she purchased it in 1996, although she did not use the second and third floors." (Id. at 4, 39).Salahuddin, 55 A.3d at 1287. As outlined above, this was the basis upon which we affirmed the Board's denial of Landowner's variance request because the property was used as a permitted single-family dwelling since 1996; converting the property to a permitted use was not financially prohibitive because it was already being used as a single-family dwelling; and the property had value for a permitted purpose because it was already being used as a single-family dwelling. Id. at 1288. Because Landowner intended and actually abandoned the nonconforming rooming house use after she purchased the single-family dwelling in 1996, the Board did not err in affirming the enforcement notice. See, e.g., In re Appeal of Lester M. Prange, 647 A.2d 279, 282-83 (Pa. Cmwlth. 1994) (holding that the nonconforming trucking service use was abandoned for more than 12 months as stated in the ordinance and could not be reestablished where the owner testified that he did not use the lot for the nonconforming use until seven years after purchase).
Accordingly, the trial court's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 13th day of November, 2014, the order of the Court of Common Pleas of Chester County dated December 18, 2013, at 2013-00218, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge