S. Rollins v. Middle Smithfield Twp. ZHB v. Twp. of Middle Smithfield ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sandra Rollins, :
Appellant :
:
v. :
:
Middle Smithfield Township Zoning :
Hearing Board :
:
v. :
: No. 42 C.D. 2016
Township of Middle Smithfield : Submitted: August 12, 2016
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: December 8, 2016
Sandra Rollins (Rollins) appeals from the Monroe County Common
Pleas Court’s (trial court) December 8, 2015 order denying her appeal from the July
16, 2015 decision of the Middle Smithfield Township (Township) Zoning Hearing
Board (ZHB) which upheld the Township Zoning Officer’s (Zoning Officer) October
7, 2014 enforcement notice (Enforcement Notice). The issue before this Court is
whether the ZHB erred by upholding the Enforcement Notice. After review, we
affirm.
Rollins purchased the property at 6773 Timothy Lake Road in East
Stroudsburg, Pennsylvania (Property) in 2007, but she has never lived there. The
Property consists of two parcels totaling approximately one acre, and is located in an
R-1 Residential Zoning District (R-1 Zoning District) (primarily single-family
dwellings). The Property’s permitted use is as a single-family residential home. At
the time Rollins purchased the Property, it was fully wooded, with a single
manufactured home located thereon. Rollins subsequently cleared trees and obtained
a permit to attach a second manufactured home to the existing one.1 Although
Rollins brought the second manufactured home to the Property, the homes remain
unattached and neither is habitable.2
Neighbors began noticing items accumulating on the Property. The
items included numerous vehicles, such as trucks, trailers and a bus with flat tires and
broken windows, which was filled with other materials. Many of the vehicles had
been transported onto the Property by tow truck and flatbed truck and were pushed
into place. Other items on the Property included a camper, an electric golf cart, a
drum barrel, pails of plaster, storage sheds, a Snapple refrigeration machine, two
boats, a tarp-covered hot tub, rusting propane tanks and restaurant equipment, such as
a large fryer and vending carts.
On October 7, 2014, the Zoning Officer issued the Enforcement Notice
to Rollins listing the following violations:
1. Establishing a new use on, and/or changing the use of,
the . . . [P]roperty, without first obtaining a Zoning Permit
from the Zoning Officer in violation of [Sections] 010-060,
[] 010-090 and [] 082-010 of the [Township’s Zoning
Ordinance (Ordinance)]. You have established a G5
Junkyard on the [P]roperty and have not obtained a zoning
permit for this new and/or change in use on the [P]roperty.
2. Establishment of a G5 Junkyard use on the . . . [P]roperty
in violation of [Section] 041-010, [Section] 041-020 and
Table of Use Regulations Within Zoning Districts. The
[P]roperty is located in the R[-]1 Zoning District and a G5
Junkyard is prohibited within the [R-1 Zoning] District.
1
Rollins was permitted to attach the second manufactured home to the first, but Rollins was
prohibited in the R-1 Zoning District from having two separate dwellings on the Property.
2
The original manufactured home has no front steps and, thus, the front door is not
accessible. The second manufactured home has a large hole in the side of the structure.
2
3. Establishment of a G5 Junkyard use on the . . . [P]roperty
without first obtaining a Certificate of Compliance from the
Zoning Officer in violation of [Section] 082-020.
Reproduced Record (R.R.) Item No. 2 at 1-2.
Section 020-020 of the Ordinance defines “[j]unkyard” as “land or
structure used in whole or in part for the collection, storage, dismantling, processing
and/or sale of junk.” Id. “Junk” is defined as “any discarded material or article,
including, but not limited to, scrap metal, scrapped, abandoned or junked motor
vehicles, machinery, equipment, paper, glass, containers and structures. It shall not
include, however, refuse or garbage kept in a proper container for the purpose of
prompt disposal.” Id. Further, “[j]unk [v]ehicle” is defined as:
Includ[ing] any vehicle or trailer for which commercial gain
is not the primary objective, and that meets any of the
following conditions: (A) [c]annot be moved under its own
power, in regard[] to a vehicle designed to move under its
own power, other than a vehicle clearly needing only minor
repairs; (B) [c]annot be towed, such as a trailer designed to
be towed; (C) [h]as been demolished beyond repair; (D) has
been separated from its axles, engine, body or chassis; (E)
[i]ncludes only the axle, engine, body parts and/or chassis,
separated from the remainder of the vehicle; and/or (F) [i]s
unregistered and uninsured.
Id.
On October 27, 2014, Rollins appealed from the Enforcement Notice to
the ZHB. The ZHB held public hearings on February 17, 2015 and April 21, 2015, at
which several neighbors, the Zoning Officer and Rollins testified.
The Zoning Officer and the neighbors explained that Rollins had been
using the Property to store abandoned material, debris and vehicles. The Zoning
Officer testified that the manufactured homes on the Property are not occupied, and
that one of the homes has a large hole in its side. According to the Zoning Officer, he
also observed at the Property a bus, boats, campers, trucks, flatbed trailers, parts of
3
fences, two rusted shipping containers, inoperable junk vehicles, an old golf cart,
stainless steel items, carts, doors, kitchen parts from stoves, storage sheds, trailers
with flat tires and other apparently-discarded items. He presented aerial photographs
showing the Property in 2005, 2008 and 2012 and the accumulation of vehicles and
other items thereon. The neighbors testified that they rarely saw Rollins at the
Property, and that numerous vehicles and objects and debris that occupied the
Property were presumably brought to the Property at night. By the time the April 23,
2015 hearing took place, Rollins had removed some of the items from the Property,
but many remained.
Rollins presented evidence showing that she had performed substantial
work at the Property at significant cost, including installing a fence, landscaping and
cleaning it up. According to Rollins, she had been required to erect a $10,000.00
barn, and had spent $3,000.00 upgrading the electric and over $4,000.00 on
landscaping. She also testified that the Property has running water and working
bathroom facilities and that she intended to repair the manufactured homes when her
husband can assist her. She offered evidence that several of the vehicles, including
the trailers and bus were properly registered, and explained that although the bus was
not insured and had not been used since it was brought to the Property four years
earlier, New Jersey law did not require that it be insured until it was operated.
Rollins related that even though the trailers were not individually insured, she
believed the trailers were insured by the vehicles that pull them.
Rollins admitted that no one has lived at the Property since 2007, and
that the manufactured homes are not habitable, but Rollins and two witnesses testified
that Rollins frequently hosted family barbecues there. Rollins further represented that
nothing on the Property was junk, because it was useable. She stated that she used
the food carts for business. She also admitted that she had last used one of the two
boats 5-6 years before the hearing, and the other boat had been left on the Property by
4
an unknown individual. Rollins further acknowledged that materials she intended to
use to repair the manufactured homes were stored inside one of the campers.
On July 16, 2015, the ZHB upheld the Enforcement Notice, finding that:
(1) Rollins had used the Property as a junkyard in violation of the Ordinance; (2)
Rollins had changed the Property’s permitted use without obtaining a zoning permit;
and, (3) Rollins had used the Property as a junkyard without applying for or receiving
a Certificate of Compliance. The ZHB reasoned:
What [Rollins’] intentions might be and what is and has
been the current state of affairs are two different matters.
What one hopes to do cannot be the distinguishing or
determining factor. What one has done or failed to do and
the resulting and ongoing condition of the structures and the
lot is indicative of what both of these two [manufactured
home] structures truly and currently are [. . .] and that is
‘junk.’
If an individual could simply accumulate uninhabitable
structures for a period of close to seven years and claim that
someday they [sic] hope to make the structure habitable and
to join them together, these totally uninhabitable structures
could remain so for many, many years. By way of example,
if [Rollins] indicated that she intended to add damaged
structures to the Property and rehabilitate them and put
them together and do so within the space of 25 years, it
would defy common sense to deny, after a fair number of
years, that the structures were junk. If the mere expression
of an intention would permit an ongoing collection or
storage of such structures, then any zoning ordinance which
would characterize such structures as junk and prohibit their
collection or storage on someone’s land would be incapable
of enforcement. All one would have to do is to claim that
they [sic] intend at some point to rehabilitate and join the
structures. 2007 to 2015 is a period of eight (8) years.
Simply intending to rehabilitate structures at some far[-]off
date does not negate the current and ongoing activity of
maintaining junk.
The same reasoning holds true with respect to accumulated
trailers, campers, boats, parts, tanks, etc., that have
accumulated [sic] on the [P]roperty since [Rollins’]
5
acquisition of the Property in 2007. This is particularly so
if the intention, as expressed by [Rollins], was to have all of
these items on the Property be utilized in connection with
residential use. The Property has not been used as a
residence since [Rollins] acquired the Property in 2007 and,
instead, by her own admission, has been utilized for the
storage of these materials (which she brought with her from
New Jersey over a period of time after she acquired the
Property – [] having been in storage in New Jersey prior to
being located on the Property).
ZHB July 16, 2015 Decision and Order, R.R. Item No. 3 (ZHB Decision) at 6-7. The
ZHB concluded that “[t]he material stored on the premises which constitutes junk is .
. . essentially all of the material[s] on the [P]roperty with the exception of . . . three []
licensed trailers, (two [] of which are believed to be on the [P]roperty) and the
licensed and registered bus.” ZHB Decision at 17.
Rollins appealed from the ZHB’s decision to the trial court, and moved
to offer additional evidence. On December 8, 2015, the trial court denied Rollins’
motion and her appeal.3 Rollins appealed to this Court.4
3
In its responsive brief to this Court, the Township argues that Rollins waived her right to
appellate review because she failed to file a pre-argument brief in support of her land use appeal in
the trial court as required by local rules. The Township further contends that Rollins inadequately
briefed her argument to this Court. Although “failure to comply with local rules concerning the
briefing of post-verdict motions will result in waiver of issues for appeal purposes[,]” we decline to
find that Rollins’ failure to adhere to a local rule requiring a pre-argument brief constituted waiver,
especially where the trial court did not find waiver. Commonwealth v. Prisznyak, 452 A.2d 253,
254 (Pa. Super. 1982). Further, with respect to Rollins’ brief to this Court, although significantly
lacking in legal authority, the brief is minimally adequate to set forth and argue her position. Thus,
we reject the Township’s waiver argument.
4
“Where a trial court has taken no additional evidence, our scope of review is limited to
deciding whether the ZHB committed an abuse of discretion or an error of law.” Boyer v. Zoning
Hearing Bd. of Franklin Twp., 987 A.2d 219, 221 n.6 (Pa. Cmwlth. 2010). A ZHB abuses its
discretion if its findings are not supported by substantial evidence. See Valley View Civic Ass’n v.
Zoning Bd. of Adjustment, 462 A.2d 640 (Pa. 1983) “By ‘substantial evidence’ we mean such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at
640.
Rollins does not raise in this appeal that the trial court erred when it denied her motion to
offer additional evidence. Accordingly, that issue is not before the Court.
6
Rollins argues that the evidence presented to the ZHB did not establish
that she is operating a junkyard on her Property, that the ZHB failed to liberally
construe the Ordinance to favor the property owner, and that the ZHB disregarded
Rollins’ evidence.
Initially, we recognize that
it is well settled that ‘a zoning hearing board’s
interpretation of its own zoning ordinance is entitled to
great weight and deference. Such deference is appropriate
because a zoning hearing board, as the entity charged with
administering a zoning ordinance, possesses knowledge and
expertise in interpreting that ordinance.’ Risker v. Smith
T[wp.] Zoning Hearing B[d.], 886 A.2d 727, 731 (Pa.
Cmwlth. 2005). Similarly, ‘because [a township’s zoning
officer] is charged with the administration and execution of
the [ordinance], his interpretation of the ordinance is
entitled to deference and should not be disregarded unless
shown to be clearly erroneous.’ McIntyre v. B[d.] of
Supervisors of Shohola T[wp.], . . . 614 A.2d 335, 337 ([Pa.
Cmwlth.] 1992).
Kohl v. New Sewickley Twp. Zoning Hearing Bd., 108 A.3d 961, 968-69 (Pa.
Cmwlth. 2015) (citations omitted). Further, “[i]n a land use proceeding, the [ZHB] is
the ultimate fact-finder and the exclusive arbiter of credibility and evidentiary
weight.” Joseph v. N. Whitehall Twp. Bd. of Supervisors, 16 A.3d 1209, 1218 (Pa.
Cmwlth. 2011). Notably:
the language of the zoning ordinance should be interpreted,
where doubt exists, in favor of the property owner and
against any implied extension of restrictions upon the use of
one’s property. However, this rule of construction is
inapplicable where, as here, the words of the zoning
ordinance are clear and free from any ambiguity.
Isaacs v. Wilkes-Barre City Zoning Hearing Bd., 612 A.2d 559, 561 (Pa. Cmwlth.
1992) (citations omitted; emphasis added).
7
The ZHB, as it was empowered to do, found the Township’s witnesses
credible, and was free to determine the weight to give the evidence. As recognized
by the trial court, “the ZHB was presented with considerable evidence and testimony
which established that most of the personal property on [Rollins’] land has been
discarded and is therefore properly categorized as ‘junk’ under the [O]rdinance.”
Trial Ct. Op. at 8. Specifically, the trial court referenced the following:
The Zoning Officer . . . testified that the primary mobile
home does not have steps leading to the front door. N.T.
2/17/15, p. 23. He further stated that the second mobile
[home] currently has a large hole in its side, exposing the
interior to the elements. Id. Clark Edrehi owns property
adjacent to [] Rollins’ land. Id. at 62. He testified that the
flooring inside of the primary mobile home has been
removed in such a way that the ground beneath is visible.
Id. at 68. He also witnessed vehicles being brought onto the
[P]roperty by tow truck and flatbed trucks, but has never
seen any of the vehicles being driven and considers them to
be inoperable. Id. at 67. He further testified that the bus
has broken windows, flat tires and is full of debris. Id. at
77. He has also observed a hot tub, golf cart, burning barrel
drum, pails of plaster for dry walling, pieces of a fence, a
‘Snapple’ machine, restaurant equipment, milk containers, a
carpet laid out on the ground and rusted propane tanks on
the [P]roperty. Id. at 74, 77-[7]9. These items are clearly
visible from Mr. Edrehi’s property and he has never seen
any of them being used. Id. John Henning owns the
property across the street from [the P]roperty. N.T.
4/21/15, p. 157. He testified that he believes that the
principle [sic] use of [the P]roperty is for storage because
he has never seen anyone on the [P]roperty or witnessed
anyone using the items or removing them from the
[P]roperty. Id. at 158-[15]9. He also testified that he is
concerned about what [Rollins] may have in the storage
containers on her [P]roperty and the possible adverse
environmental effects on the neighboring wells and nearby
lake. Id. at 205. Maria Swenson owns property next to Mr.
Edrehi. Id. at 162. She testified that the previous owners of
[the P]roperty used it for residential purposes and that she
has never seen anyone living on or maintaining [the
P]roperty. Id. at 163.
8
Trial Ct. Op. at 8-9 n.2. Further:
The aerial photographs provided by the [Zoning Officer]
show an accumulation of materials unrelated to residential
use since 2007. Several of [] Rollins’ neighbors also
testified that they have never seen anyone using the
materials stored on the [P]roperty. The photographs of the
[P]roperty submitted by the [T]ownship show deteriorating
vehicles and debris on the [P]roperty. Additionally,
[Rollins] presented proof of registration for two trailers and
a bus currently situated on her [P]roperty. She did not
present registration certificates for the remaining motor
vehicles, allowing the ZHB to draw an adverse inference
that they were unregistered.
Id. at 8-9.
We agree with the trial court that the aforementioned record evidence
constituted substantial evidence to support the ZHB’s decision. See 8131 Roosevelt
Corp. v. Zoning Bd. of Adjustment of the City of Phila., 794 A.2d 963 (Pa. Cmwlth.
2002). Although Rollins testified that the items on her Property were not discarded
and that she intended to continue to fix up the Property, the ZHB, as fact finder, was
free to assess Rollins’ credibility and weigh her testimony in the context of the
Township’s witnesses’ testimony. Because substantial evidence supports that the
items and structures on the Property were discarded and/or abandoned, the ZHB did
not err in concluding that the Property was being used as a junkyard. Accordingly,
the trial court properly denied Rollins’ appeal.
For all of the above reasons, the trial court’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sandra Rollins, :
Appellant :
:
v. :
:
Middle Smithfield Township Zoning :
Hearing Board :
:
v. :
: No. 42 C.D. 2016
Township of Middle Smithfield :
ORDER
AND NOW, this 8th day of December, 2016, the Monroe County
Common Pleas Court’s December 8, 2015 order is affirmed.
___________________________
ANNE E. COVEY, Judge