Opinion
No. 1291 C.D. 2013
05-12-2014
The Township of Hempfield v. Nick J. Blazowich, t/d/b/a Nick's 24 Hr Towing and Auto Body, Appellant
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Nick J. Blazowich, t/d/b/a Nick's 24 Hour Towing and Auto Body (Blazowich) appeals from the Westmoreland County Common Pleas Court's (trial court) June 28, 2013 order denying his appeal from the Hempfield Township (Township) Board of Supervisors' (Board) determination that Blazowich violated Section 72-13(C) of the Township Code. The sole issue before the Court is whether there was substantial evidence to support the Board's ruling that Blazowich disturbed more than 5,000 square feet of his land without a proper permit. After review, we affirm.
Blazowich owns three parcels of real property along Radebaugh Road in the Township on which he operates Grapeville Junk Yard (Tax Map Nos. 50-14-01-0-013, 50-14-01-0-014 and 50-14-02-0-023) (Junk Yard Property). Blazowich also owns a parcel of real property along Thomas Street in the Township (Tax Map No. 50-08-13-0-001) (Chew Property), a short distance from the Junk Yard Property.
On December 7, 2011, Township Zoning/Ordinance Officer Leonard Dellera (Dellera) visited and took photographs of the Junk Yard Property and the Chew Property. By December 14, 2011 enforcement notices (Notices), Dellera informed Blazowich that he was in violation of Chapter 72 of the Township Code because he disturbed more than 5,000 square feet of land on each Property without a permit. The letters afforded Blazowich 7 days to abate the violations or face civil penalties of up to $500.00 per day. Blazowich appealed, and a hearing was held before the Board on April 25, 2012, at which Blazowich and Dellera testified and Dellera's photographs were admitted into evidence. On June 25, 2012, the Board sustained the Notices and denied Blazowich's appeal. Blazowich appealed to the trial court, which entertained arguments from the parties, but did not accept new evidence. By June 28, 2013 order, the trial court denied Blazowich's appeal. Blazowich appealed to this Court.
In a case where the trial court takes no additional evidence, the appellate court's standard of review is limited to determining whether a township board of supervisors abused its discretion or committed an error of law. Morris v. S. Coventry Twp. Bd. of Supervisors, 898 A.2d 1213 (Pa. Cmwlth. 2006). "An abuse of discretion occurs when the findings of the Board are not supported by substantial evidence." Catholic Soc. Servs. Hous. Corp. v. Zoning Hearing Bd. of Edwardsville Borough, 18 A.3d 404, 407 n.2 (Pa. Cmwlth. 2011).
Blazowich argues that "[w]ithout measurements, without a surveyor or an engineer to testify about the amount of land which was disturbed, there was not substantial evidence upon which the Township could base its decision[.]" Blazowich Br. at 11. Specifically, Blazowich contends that evidence consisting solely of Dellera's testimony that the disturbed area was bigger than 50 by 100 feet was not sufficient.
The Township, as a second class township, is subject to the powers and limitations in The Second Class Township Code. Section 2704 of The Second Class Township Code authorized the Board to "enact storm water management ordinances and require persons conducting earthmoving activities to obtain approval from the board of supervisors for those activities." 53 P.S. § 67704. Here, Township Code Section 72-13(C) required permits "[f]or all land disturbance activities greater than 5,000 square feet of disturbed area, a full post construction stormwater management plan that meets all of the requirements of this chapter shall be provided." Certified Record. The Township had the burden of proving Blazowich's violation.
Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§ 65101-68701.
Added by Section 1 of the Act of November 9, 1995, P.L. 350.
At the Board hearing, Dellera testified that he has been the Township's Code Officer for 23 years. He reported that he visited and took photos of Blazowich's Junk Yard Property on August 1, 2006 and December 12, 2007. Dellera stated that he also visited the Junk Yard Property and the Chew Property on December 7, 2011 and February 27, 2012 and took photos. Dellera explained that from his 2011 and 2012 visits and the photos therefrom he could see that there was freshly-exposed dirt and a gabion wall being built near the yellow building on the Junk Yard Property, and that a mound of dirt had been created at the edge of the Chew Property. Dellera testified that "[i]t appeared . . . the elevation of the ground was lower." Reproduced Record (R.R.) at 43a. He said that before December 2011, the contour of the ground near the yellow building was such that a car was parked at the corner of the building. Dellera described that the brush was gone, and the contour of the ground near the yellow building as of December 2011 and February 2012 had changed. According to Dellera, Blazowich did not apply for and the Township has not issued permits to excavate more than 5,000 square feet of either of Blazowich's properties.
A gabion wall consists of rocks in a wire mesh cage. See Reproduced Record at 92a-93a, 97a.
At the Board hearing, the parties jointly admitted an excerpt from Dellera's March 12, 2012 deposition during which the following exchange took place:
Blazowich's deposition testimony was taken relative to another Township case (No. 1967 of 2010).
Q. How many square feet of ground did [Blazowich] disturb?R.R. at 100a (emphasis added). Dellera observed that Blazowich "has excavated or done work in most of the junkyard." R.R. at 100a (emphasis added).
A. I don't know.
. . . .
Q. Did you do any measurements to determine that it was more than 5,000 square feet?
A. No.
Q. Did anyone else on behalf of [the Township] do any such measurements?
A. No.
Q. So it's fair to say that you don't know how many square feet of ground [Blazowich] has disturbed; is that right?
A. I'm basing it on looking through the fence. It appears to me to be bigger than 50 by 100.
Blazowich testified at the Board hearing that he built the estimated 30-60 foot Junk Yard Property retaining wall approximately one year before the hearing (i.e., April 2011). He explained that there had been an old tire wall in that location which fell over, and the Department of Environmental Protection (DEP) ordered that he replace it to prevent standing water and mosquitoes. Blazowich contends that he took the tire wall out and smoothed down the ground in the area of the yellow building, but he did not excavate or otherwise change the elevation of the ground near the building. He described that he removed the dirt that fell behind the tire wall and moved it to the left side of the building. He also stated that the fresh earth in the photos was exposed when the Township required that he remove the tree, bushes, weeds and debris. He claimed that the grade of the weeds and brush was between where the blue vehicle is shown in the 2006 photo and where the dump truck is evident in the 2012 photos. Blazowich also asserted that the vehicle seen at the corner of the yellow building depicted in the 2006 and 2007 photos is not sitting on the ground, but rather atop another vehicle.
Blazowich explained that within the year before the hearing he removed 6 to 10 dump truck loads of dirt from the property he owns adjacent to the Junk Yard Property (Smith Property) and dug into the bank on the Smith Property. He put the dirt removed from the Smith Property on the Chew Property. The Board took judicial notice that in order for Blazowich to have a salvor's license, his Junk Yard Property had to consist of at least 5,000 square feet. Blazowich estimated that his Junk Yard Property is "at most [6,000] square feet," but acknowledged that he has not surveyed that Property. R.R. at 71a.
This Court has held: "[T]he Supervisors are the fact-finder . . . , with exclusive province over matters of credibility and weight to be afforded the evidence. As such, the Supervisors may reject even uncontradicted testimony if they find it lacking credibility. We will not engage in fact-finding or disturb the Supervisors' credibility determinations on appeal." Caln Nether Co., L.P. v. Bd. of Supervisors of Thornbury Twp., 840 A.2d 484, 490-91 (Pa. Cmwlth. 2004) (citations omitted).
Based upon the evidence presented, the Board made the following pertinent findings:
4. A photograph of the Junk Yard [P]roperty taken December 12, 2007 (Township Exhibit 7 [R.R. at 96a]) clearly shows a light[-]colored sedan vehicle parked right
up against back right corner of a building which has yellow or light[-]colored siding.Board Dec. at 4-5 (R.R. 158a-159a). The Board concluded, in relevant part:
5. Photographs of the back right corner of the same building taken on December 7, 2011 (Township Exhibit 8 [R.R. at 97a]) and again on February 27, 2012 (Township Exhibits 3 & 4 [R.R. at 92a-93a]), clearly show that the area where the light[-]colored sedan vehicle had been parked right up against the back right corner of the building, was excavated and the elevation was lowered to accommodate the construction of a retaining wall which is shown in Township Exhibits 3, 4 and 8 [R.R. at 92a-93a, 97a].
6. Blazowich admitted that, prior to December 7, 2011, the terrain in the area behind the building allowed for the parking of a car right against the back right corner of the building. Tr. 5-6 [R.R. at 19a-21a].
7. However, as of December 7, 2011 and February 27, 2012, when the photographs marked Township Exhibits 8, 3 and 4 were taken, the earth along the entire back wall of the building had been excavated to accommodate a new retaining wall, and no vehicles can be parked along the back right corner of the building. Tr. p. 5-6 [R.R. at 23a-24a, 46a, 92a-93a, 97a].
8. [Dellera] testified that he took the photographs in 2006, 2007, 2011 and 2012 (Township Exhibits 3 through 9 [R.R. at 92a-98a]), and that the elevation of the area of the Junk Yard depicted in the photographs taken on December 7, 2011 and February 27, 2012 was lower than the elevation he observed in 2006 and 2007. Tr. p. 15 [R.R. at 43a.]
9. Blazowich admitted that he has used heavy equipment on the Junk Yard [P]roperty to move dirt when building the retaining wall. Tr. p. 7 [R.R. at 24a].
10. The length of the new retaining wall constructed by Blazowich is between forty and sixty feet. Tr. p. 8 [R.R. at 25a].
1. The Board finds the testimony of Dellera credible; and, meets the required burden of proving a violation of [Township Code Section 72-13(C)].
. . . .Board Dec. at 5-6 (R.R. at 160a) (bold emphasis and italics added).
3. Overall, the photographic evidence, [Blazowich]'s testimony, and the testimony of [Dellera] that the disturbed area of the Junk Yard [P]roperty 'was bigger than 50 ft. X 100 ft.' is sufficient to establish a violation of Section 72-13(C). Commonwealth v. O'Shell, 4 A.3d 828 (Pa. Cmwlth. 2010) (copy attached).
4. There is substantial, credible evidence that Blazowich had engaged in land disturbance activities greater than five thousand (5,000) square feet of disturbed area on the Junk Yard and Chew [P]roperties, however, Blazowich did not apply for and obtain a land disturbance permit.
Based upon the Board's record and the parties' arguments, the trial court likewise concluded, in pertinent part:
Based upon [Dellera]'s observations, he testified that the disturbed area of the excavated property 'was bigger than 50 feet by 100 feet,' or in other words, over 5,000 square feet. No evidence to the contrary was introduced.Trial Ct. Op. at 3.
Accordingly, we find that the photographic evidence, [Blazowich's] testimony and [Dellera's] testimony cumulatively support the Board's finding that [Blazowich] engaged in land disturbance activities affecting greater than 5,000 square feet of surface area on land owned by him. Because he did not apply for and obtain a land disturbance permit, we find no error in the Board's conclusion that [Blazowich] was in violation of Chapter 72, Section 72-13(C) of the [Township] Code.
"Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Catholic Soc. Servs. Hous. Corp. v. Zoning Hearing Bd. of Edwardsville Borough, 18 A.3d 404, 407 n.2 (Pa. Cmwlth. 2011). Blazowich's argument that Dellera's testimony is not substantial evidence, and that the Township cannot prove its case without measurements or the testimony of a surveyor or engineer is without merit. "Every person is competent to be a witness except as otherwise provided by statute or in [the Pennsylvania Rules of Evidence]." Pa.R.E. 601. Pursuant to Pennsylvania Rule of Evidence 602, "[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. . . ." Pa.R.E. 602. Moreover, Pennsylvania Rule of Evidence 701 provides:
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:Pa.R.E. 701.
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Our research did not disclose and Blazowich did not cite any reported case that prohibits a lay witness from estimating a measurement. Because Dellera's testimony met the requirements of Pennsylvania Rule of Evidence 701, he was competent to render an opinion regarding the square footage of disturbed land on Blazowich's Junk Yard Property.
"[U]ncertain estimates cannot prevail over actual measurements by competent witnesses." Kuntz v. City of Pittsburgh, 187 A. 287, 288 (Pa. Super. 1936). Here, however, neither party offered actual measurements. --------
Under circumstances in which Dellera was not at liberty to enter Blazowich's private property; Dellera has enforced the Township Code for 23 years; Dellera estimated the measurement based upon his experience, particularly with the Junk Yard Property; Dellera qualified his measurement with his estimation that Blazowich excavated "most of the junkyard [R.R. at 100a]," which Blazowich guessed was "at most [6,000] square feet" [R.R. at 71a]; and photographs which supported Dellera's testimony, we hold that there was "such relevant evidence as a reasonable mind might accept as adequate to support" the Board's conclusion that Blazowich violated Township Code Section 72-13(C). Catholic Soc. Servs. Hous. Corp., 18 A.3d at 407 n.2. Finding no error, and since this Court cannot "engage in fact-finding or disturb the [Board's] credibility determinations on appeal," this Court must affirm the trial court's order. Caln Nether Co., L.P., 840 A.2d at 491.
Based upon the foregoing, the trial court's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 12th day of May, 2014, the Westmoreland County Common Pleas Court's June 28, 2013 order is affirmed.
/s/_________
ANNE E. COVEY, Judge