A.S. Kanofsky v. City of Bethlehem ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alvin S. Kanofsky, :
Appellant :
:
v. :
: No. 2163 C.D. 2015
City of Bethlehem : Submitted: September 2, 2016
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: September 28, 2016
Alvin S. Kanofsky (Kanofsky) appeals, pro se, from the order of the
Court of Common Pleas of Northampton County (trial court) finding that he violated
certain provisions of the International Property Maintenance Code (IPMC) (2009 ed.)
which have been made part of the Codified Ordinances of the City of Bethlehem
(Ordinance). We affirm.
I.
A.
Kanofsky is the owner of commercial property located at 30 East Third
Street (Building) in the City of Bethlehem (City), Northampton County,
Pennsylvania. On February 25, 2014, the City’s Bureau of Inspections (Bureau)
issued a notice of violation (First Notice) to Kanofsky because an inspection of the
Building revealed violations of the IPMC provision contained at Article 1733,
Section 304.1 of the Ordinance. That provision requires that “[t]he exterior of a
structure shall be maintained in good repair, structurally sound and sanitary so as not
to pose a threat to the public health, safety or welfare.” (Supplemental Reproduced
Record (S.R.R.) at 1a.) The First Notice listed the following violations: the soffit
above the garage door on the Adams Street side of the Building was missing and
needed replaced; the soffit above the second garage door on the Adams Street side of
the Building was falling off and needed repaired or replaced; facia material just
below the roof line on the Adams Street side of the Building was falling off and
needed repaired or replaced; brick on the rear and courtyard side of the Building was
deteriorating and in need of pointing; and water was bleeding through the brick,
which required finding and repairing the source of the leak. The First Notice stated
that Kanofsky had 60 days to comply with the order and if the corrections were not
completed within the 60 days, the Bureau would issue a citation.
Kanofsky filed a timely appeal of the First Notice to the City’s Codes
Board of Appeals (Board) and a hearing was scheduled for March 27, 2014.
Kanofsky failed to attend the hearing and the Board voted unanimously to deny his
appeal. Kanofsky then appealed the Board’s decision to the trial court.
B.
On March 27, 2015, the City’s Bureau of Code Enforcement issued a
notice of violation (Second Notice) to Kanofsky as an inspection of the Building
revealed numerous roof leaks. The IPMC provision contained in Article 1733,
Section 304.2 of the Ordinance, requires the exterior of a building to be maintained in
2
such a manner that it is weather resistant. The inspection also revealed that material
was being stored in the Building without a valid certificate of occupancy in violation
of Article 1731, Section 403.46 of the Ordinance. The Second Notice stated that
Kanofsky had 15 days to repair the roof and remove all stored material from within
the Building or acquire a certificate of occupancy or else be subject to fines.
Kanofsky filed a timely appeal of the Second Notice to the Board.
During a hearing on May 28, 2015, Kanofsky acknowledged that the Building’s roof
leaked and that he was storing items inside the Building. The Board again voted
unanimously to deny Kanofsky’s appeal, and Kanofsky then appealed the Board’s
decision to the trial court.
C.
The appeals from the First and Second Notices were consolidated for
trial. Craig Hynes (Hynes), chief code official for the City, testified that he
performed the inspection that formed the basis for the First Notice. Hynes stated that
the soffit above the garage door on the east side of the building was completely
missing, allowing access for animals or individuals into the Building. A portion of
the soffit above the second garage door was also missing. The metal facia that
protects the wood and roof structure was partially hanging off, and Hynes testified
that it could blow or fall off the Building. This would also allow the wood to
deteriorate and water to enter the Building. Hynes testified that he observed moisture
in the brick of the Building and the mortar was missing in spots, with some bricks
appearing to be loose. Kanofsky was provided 60 days to make the necessary repairs
3
outlined in the First Notice, but failed to do so. Hynes stated that as of the day before
the hearing, the repairs still had not been made.
As for the Second Notice, Hynes testified that he received a police
incident report dated March 24, 2015, after two officers entered the Building upon
receiving a complaint that the front door was open for an extended period of time.
Hynes himself never entered the Building as Kanofsky denied his requests for access.
However, Hynes was able to view through the front window that there was artwork,
boxes and furniture inside the Building, and testified that there were still items stored
in the Building as of the day before the hearing. Hynes testified that storage was a
use that required a certificate of occupancy as per the Ordinance, and that Kanofsky
did not have a certificate of occupancy for the Building. Hynes issued the Second
Notice to Kanofsky based upon information garnered from the police report. Hynes
confirmed that during the hearing on the Second Notice, Kanofsky admitted that he
was storing materials in the Building and that the roof leaked.
Sergeant Benjamin Hackett (Sgt. Hackett) with the City of Bethlehem
Police Department testified that on March 24, 2015, he and another supervisor
responded to a call they received about an open door at the Building. Sgt. Hackett
had his communications center attempt to contact the owner of the Building, but it
was unsuccessful. Sgt. Hackett and the other officer then entered the Building
through the open front door, announced their presence, and searched each room
ensuring there were no occupants or evidence of criminal activity. Sgt. Hackett
testified that the Building was full of old furniture, bicycles, newspapers and
magazines, clothes, boxes, cans, lumber and tools. These items were stored on each
4
floor of the Building, including the basement. Sgt. Hackett testified that there were
holes in the roof through which he could see daylight, the roof was falling in, and
there were large trash cans set up throughout the Building to collect rainwater. There
were parts of the Building that Sgt. Hackett deemed unsafe to search because there
was no floor or subfloor, only the rafters were visible. One window of the Building
was completely missing and there was a large gap over the garage door. As a result
of his inspection, Sgt. Hackett prepared an incident report which he then passed on to
the City building inspector.
Kanofsky admitted to the trial court that he had items stored in the
Building and that he did not have a certificate of occupancy. He argued that he was
previously told by a Magistrate Judge that he could store some items in the Building
and that he received a letter from the City’s Mayor stating that he could do so, but he
did not produce any documents to substantiate these claims. In his defense, Kanofsky
presented photographs depicting vines growing on the property adjacent to the
Building, which he claimed had crossed over onto his property and prevented him
from fixing the brick. Kanofsky admitted that he was in violation regarding the
soffit, but argued that it was not a major violation. He had no argument or evidence
as to why he was not in violation regarding the falling facia material.
The trial court found that the City met its burden of demonstrating that
Kanofsky was in violation of Sections 304.1, 304.2 and 403.46 of the Ordinance due
to the condition of the Building. The trial court found the testimony of Hynes and
Sgt. Hackett to be credible, and held that Kanofsky failed to present any credible
evidence that he was not in violation. Specifically, there was credible evidence that
5
Kanofsky was in violation of Section 304.1 regarding the exterior of the structure due
to the missing soffits, falling facia material, deteriorating brick and water bleeding
through the brick creating a public danger. There was credible evidence that
Kanofsky was storing items in the Building without a certificate of occupancy as
required by Section 403.46 of the Ordinance. Finally, the trial court found that there
was credible evidence that Kanofsky was in violation of Section 304.2 of the
Ordinance which requires the exterior of a building to be weather resistant because
there were holes in the roof. Kanofsky was given appropriate notice of these
violations and failed to remedy them. This appeal followed.1
II.
On appeal, Kanofsky appears to argue that he is not required to have a
certificate of occupancy for the Building because a Magistrate Judge previously ruled
that he could store a limited number of items in the Building. He also argues that the
City’s Mayor sent him a letter allowing him to store items in the Building. However,
Kanofsky failed to present any evidence before the trial court to substantiate these
claims, and he has not presented this Court with any legal argument to support his
position that a certificate of occupancy is not required. Moreover, Kanofsky admits
that the Magistrate Judge’s “ruling” concerned issues with the Building dating back
to 2007-2008, and that he is still storing items in the Building without a certificate of
occupancy.
1
Our review is limited to determining whether constitutional rights were violated or whether
the trial court abused its discretion or committed an error of law. Borough of Walnutport v. Dennis,
114 A.3d 11, 17 n.5 (Pa. Cmwlth. 2015).
6
Kanofsky also argues that the trial court erred in finding him responsible
for the violations because the issues with the Building were caused by vines spilling
onto his property from an adjacent property. The only evidence Kanofsky presented
to substantiate his claims regarding the vines were several pictures of his property.
As the trial court noted, any vines that may have infiltrated Kanofsky’s property from
the adjacent lot have nothing to do with the missing soffits, falling facia material,
holes in the roof or the storage of materials without a valid certificate of occupancy.
Kanofsky failed to present any credible evidence that the vines caused water to bleed
through the brick or any deterioration in the brick. Therefore, Kanofsky’s argument
is without merit, and there was competent evidence to support the trial court’s finding
that Kanofsky was in violation of Sections 304.1, 304.2 and 403.46 of the
Ordinance.2
Accordingly, the order of the trial court is affirmed.
____________________________________
DAN PELLEGRINI, Senior Judge
2
The remaining arguments Kanofsky attempts to make in his brief to this Court are either
not appropriate for our review or were not raised before the trial court or in his Rule 1925(b)
statement and, therefore, are waived. See Pa. R.A.P. 302(a); Commonwealth v. Hill, 16 A.3d 484,
494 (Pa. 2011).
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alvin S. Kanofsky, :
Appellant :
:
v. :
:
City of Bethlehem : No. 2163 C.D. 2015
ORDER
AND NOW, this 28th day of September, 2016, the order of the Court
of Common Pleas of Northampton County in the above-captioned matter is hereby
affirmed.
____________________________________
DAN PELLEGRINI, Senior Judge