Opinion
No. 2169 C.D. 2011
05-23-2012
Douglas Vieldhouse, Appellant v. Warwick Township Zoning Hearing Board
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Douglas Vieldhouse appeals from the October 17, 2011, order of the Court of Common Pleas of Chester County (trial court) affirming the decision of the Warwick Township Zoning Hearing Board (ZHB), which denied Vieldhouse's appeal from a "Notice of Violation and Cease and Desist Order Enforcement Notice" (Notice). We affirm.
Vieldhouse owns property located at 131 Hill Road, Elverson, Pennsylvania (Property), which is in the residential-agricultural (R-A) district in Warwick Township (Township). The Property consists of an 8.4-acre lot improved with a dwelling and farm buildings. In November 2010, Township Zoning Officer Steven Morse observed, on multiple occasions, pick-up trucks and a van bearing a commercial logo and the name "Aire Serv Heating & Air Conditioning" parked on the Property. He also observed the storage of new heating and air conditioning equipment on the Property and the delivery and redistribution of materials to Aire Serv vehicles. Morse further observed the piling and burning of construction debris.
The debris included ductwork, metal, fiberglass insulation, cardboard boxes, radiators, and fuel tanks. (N.T., 3/23/11, at 12-13.)
On November 26, 2010, Morse issued the Notice to Vieldhouse by mailing it to the Property address, which is also Vieldhouse's address of record. In the Notice, Morse stated that he had observed activities constituting the operation of a business on the Property, which is a prohibited use in the R-A district. The Notice required Vieldhouse to begin correcting the violation by December 14, 2010, and to complete the corrections by December 30, 2010.
The Notice stated that Vieldhouse was in violation of section 401 of the Township Zoning Ordinance because "[t]he operation of, and the facilitation of the operation of, [a] business is not a permitted use or accessory use of land in your area designated R-A." (Notice at 3.)
Vieldhouse timely appealed to the ZHB, which held a hearing on March 23, 2011. At the hearing, Morse testified to his observations at the Property and admitted into evidence several photographs that he had taken at the Property. Vieldhouse testified that neither he nor anyone else conducted business on the Property. (N.T., 3/23/11, at 36, 38.) Vieldhouse testified that his two sons were employed by Aire Serv but that he was not. (Id. at 35.) According to Vieldhouse, his sons came to visit him on occasion and parked the Aire Serv vehicles on the Property during their visits. (Id. at 39-40.) Vieldhouse testified that construction debris had been burned on the Property without his permission. (Id. at 38.) He also admitted that heating and air conditioning materials were stored on the Property when one of his sons' jobs was cancelled, but the items were removed a few days later. (Id. at 43- 44.) The ZHB ultimately credited Morse's testimony and found sufficient evidence that Vieldhouse had committed a zoning violation at the time the Notice was issued. Therefore, the ZHB sustained the Notice and denied Vieldhouse's appeal.
Vieldhouse timely appealed to the trial court, which affirmed. Vieldhouse now appeals from that decision.
Where no additional evidence is taken after a zoning hearing board's decision, our scope of review is limited to determining whether the zoning hearing board committed an error of law or a manifest abuse of discretion. Cottone v. Zoning Hearing Board, 954 A.2d 1271, 1275 n.2 (Pa. Cmwlth. 2008). We will find an abuse of discretion only if the board's findings are unsupported by substantial evidence. Id.
First, Vieldhouse argues that the Notice was deficient because it failed to sufficiently identify the location of the subject Property in violation of section 616.1 of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. §10616.1. This claim lacks merit.
Act of July 31, 1968, P.L. 805, as amended, added by Section 60 of the Act of December 21, 1988, P.L. 1329. Section 616.1 of the MPC provides that an enforcement notice shall state, inter alia, "[t]he name of the owner of record and any other person against whom the municipality intends to take action" and "[t]he location of the property in violation." 53 P.S. §10616.1(c)(1) & (2).
The Notice identified both the postal address of the Property as well as the Property's tax identification number. As the trial court points out, there was no dispute in the proceedings before the ZHB regarding the location of the subject Property. In fact, Vieldhouse himself used the tax identification number to identify the Property in his appeal to the ZHB, and he testified that he is the record owner of the Property about which the enforcement proceeding had been instituted (N.T., 3/23/11, at 35). Thus, we agree with the trial court that the Property was sufficiently identified in the Notice.
Second, Vieldhouse asserts that the ZHB erroneously considered the issue on appeal to be whether the Notice was properly issued rather than whether the alleged violation was timely abated. We disagree.
Contrary to Vieldhouse's assertion, it is not within the ZHB's purview to determine whether a zoning violation has been abated within the time prescribed in the enforcement notice or to levy fines against the landowner. Rather, in an appeal from an enforcement notice, the ZHB's function is to determine whether there has been a violation of the zoning ordinance. See Section 909.1(a)(3) of the MPC, 53 P.S. §10909.1(a)(3), added by Section 87 of the Act of December 21, 1988, P.L. 1329 (providing that the zoning hearing board has exclusive jurisdiction to render a final adjudication in appeals from a zoning officer's determination, including "the issuance of any cease and desist order"); Moon Township v. Cammel, 687 A.2d 1181, 1185 (Pa. Cmwlth. 1997) (noting that "only the zoning hearing board can determine the correctness of the notice of violation"). If the ZHB determines that a violation has occurred, then the municipality may pursue an enforcement remedy under section 617 or section 617.2 of the MPC. See Woll v. Monaghan Township, 948 A.2d 933, 937-38 (Pa. Cmwlth. 2008).
Section 617 of the MPC authorizes the municipality to file an action in equity to abate the violation. See 53 P.S. §10617. Section 617.2 of the MPC authorizes the municipality to file a civil proceeding seeking the imposition of sanctions before a district justice. See 53 P.S. §10617.2, added by Section 62 of the Act of December 21, 1988, P.L. 1329. --------
As the trial court correctly explained, "[t]he purpose of the appeal [to the ZHB] was to determine whether there was sufficient evidence of a violation to uphold the Enforcement Notice." (Trial Ct. Op., 10/17/11, at 4.) Here, the ZHB determined, based on the evidence presented at the hearing, that Vieldhouse committed a zoning violation at the time the Notice was issued. Once Vieldhouse has exhausted his appeal rights, the Township may choose to seek an enforcement remedy if the Property has not been brought into compliance with the zoning ordinance. If the Property has been brought into compliance, the Township may choose not to seek an enforcement remedy. That decision is not within the purview of the ZHB. See Omnipoint Communications, Inc. v. Zoning Hearing Board, 4 F. Supp. 2d 366, 370 (M.D. Pa. 1998) (stating that the zoning hearing board, as a quasi-judicial administrative body, lacks the power to affirmatively enforce township ordinances).
Finally, Vieldhouse argues that the ZHB's determination that he committed a zoning violation is unsupported by substantial evidence. We disagree. Morse testified that he has worked in the construction industry for twenty-five years and is familiar with heating and air conditioning materials. (N.T., 3/23/11, at 13.) Morse further testified that he observed activities consistent with the operation of a business at the Property, including the parking of commercial vehicles, the storage of heating and air conditioning equipment, and the burning of construction debris. (Id. at 11-16, 19.) Morse also admitted into evidence several photographs depicting these activities. (See id., Ex. T-4.) The ZHB believed Morse's testimony and disbelieved Vieldhouse's testimony that neither he nor his sons used the Property for commercial purposes. As a reviewing court, we "must accept the credibility determinations made by the municipal body which hears the testimony, evaluates the credibility of the witnesses and serves as fact finder." In re Thompson, 896 A.2d 659, 668 (Pa. Cmwlth. 2006). Here, the evidence credited by the ZHB was sufficient to support the conclusion that Vieldhouse committed a zoning violation. We find no abuse of discretion.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 23rd day of May, 2012, we hereby affirm the October 17, 2011, order of the Court of Common Pleas of Chester County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge