Granny N Pops, LLC v. E. Lampeter Twp. ZHB & E. Lampeter Twp. ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Granny N Pops, LLC, :
Appellant :
:
v. :
:
East Lampeter Township Zoning :
Hearing Board and East Lampeter : No. 278 C.D. 2019
Township : Argued: December 10, 2019
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: January 10, 2020
Granny N Pops, LLC (Applicant) appeals from the Lancaster County
Common Pleas Court’s (trial court) February 14, 2019 order denying Applicant’s
appeal from the East Lampeter Township (Township) Zoning Hearing Board’s
(Board) June 22, 2017 decision upholding the Township zoning officer’s
determination that Applicant’s boarding home violated the Township Zoning
Ordinance of 2016 (Zoning Ordinance) and denying Applicant a variance by
estoppel. The issue before this Court is whether the Board1 abused its discretion and
committed an error of law by denying Applicant a variance by estoppel. After
review, we affirm.
1
Applicant specifies the “trial court[’s]” errors with respect to the denial of the variance by
estoppel. Applicant Br. at 3. However, “[w]here[, as here,] the trial court took no additional
evidence, we are limited to determining whether the zoning hearing board abused its discretion or
committed an error of law.” Hafner v. Zoning Hearing Bd. of Allen Twp., 974 A.2d 1204, 1209 n.1
(Pa. Cmwlth. 2009) (emphasis added). Accordingly, herein, this Court shall address whether the
Board erred in denying the variance.
Applicant is a limited liability company whose members are Darren
Phillips (Mr. Phillips) and Vicki Lynn Phillips (Mrs. Phillips), husband and wife. On
June 19, 2015, Applicant acquired the property located at 2939 Lincoln Highway East
in East Lampeter Township, Lancaster County (Property), from Clifton Stuckey
(Stuckey). The Property includes a main building, garage and barn, and is used as a
14-unit boarding house.2 At the time of Applicant’s purchase, the Property was
marketed as a multi-family property with 13 units.3 The Property is a flag lot
containing approximately 1.3 acres, located in the Village Commercial (VC) District,
as identified in the Township’s official zoning map. Applicant did not contact
Township officials to determine the Property’s zoning status or the legality of its use
before purchasing it.
On May 27, 2016, a Township zoning officer issued and served an
enforcement notice (Enforcement Notice) charging that the Property’s use as a
boarding house was not permissible in a VC District and, thus, violated the Zoning
Ordinance. On June 24, 2016, Applicant filed an application (Application) with the
Board appealing from the Enforcement Notice and seeking a variance by estoppel to
permit Applicant to operate a boarding house at the Property.
On February 23, April 13 and May 11, 2017, the Board conducted public
hearings on the Application.4 Deborah Higgins (Higgins) appeared on Applicant’s
behalf and explained that the Property had been used as a boarding house in the
1990s and that she had been a tenant at the Property starting in 1999. However, in
2
Although Applicant used the term “rooming house,” the Zoning Ordinance does not define
that term, but rather defines “boarding house.”
There are 11 units in the main building, 2 units in the garage, and 1 unit in the barn.
3
After acquiring the Property, Applicant added an additional unit to the garage.
4
At the February 23, 2017 hearing, Applicant and the Township stipulated that a boarding
house is not a permitted use in a VC District under the Zoning Ordinance, nor was it a permitted use
under the prior 1990 Township Zoning ordinance, and that the Enforcement Notice was valid.
2
2001, she bought the neighboring property at 2937 Lincoln Highway East from Ross
Rhoades (Rhoades), and moved there in 2004.
Rhoades, who owns an auto body repair shop located at 2935 Lincoln
Highway East, stated that he moved to 2937 Lincoln Highway East when he was 14
years old, and that he lived and worked on properties surrounding the Property for
over 40 years. He further reported that the Property had been used as a boarding
house since the 1980s, when Lynne Cole (Cole) owned it.
Stuckey testified that he became a tenant at the Property in 1997 after
answering a “room for rent” newspaper advertisement. He represented that he began
to hold an equitable ownership interest in the Property in approximately 1999 or 2000
pursuant to an installment sale agreement with Cole. Stuckey explained that Cole
operated the Property as a boarding house since the 1980s, and Stuckey purchased it
because
[i]t was a [boarding] house before [he] got it. That’s what
[his] interest was. [He] would have never bought it just for
a house because [he] didn’t want a house. And the previous
owners had tenants. And so that sparked [his] interest.
Because, as [he] got older, retirement, [sic] it would have
been a good thing for retirement, yeah.
Board Certified Record (C.R.) Item No. 19, Notes of Testimony, April 13, 2017
(N.T.) at 24. Stuckey acknowledged that he did not know when he purchased the
Property that the Zoning Ordinance prohibited its use as a boarding house. Stuckey
also described that, in 1999 or 2000, he and Cole built an addition to the main
building, thereby adding three rooms.5 With respect to Township approval for the
addition, Stuckey testified:
Q[.] All right. So during that time, did you add units to the
[P]roperty?
5
Stuckey denied any knowledge that Cole filed a separate application in 1999 seeking
Township approval for a four-unit motel on the Property.
3
A[.] Yes.
Q[.] And did you get approval to do that?
A[.] Well, it was – it was in 2000, 1999. I didn’t do
anything after that.
Q[.] All Right. So you expanded without ever coming to
the [T]ownship and asking?
A[.] They told me I didn’t have to. And if I did, it was –
[Cole] was still there. [Cole and his wife (the Coles)] were
still there. It was their property. That would have been – I
couldn’t do anything without their approval.
Q[.] So you got the Coles’ approval to expand but you
never came to the [T]ownship and got approval?
A[.] No. I wouldn’t have to. Because it was [the Coles’]
property. All I did was help [Cole].
Q[.] Okay. To the best of your knowledge, [the Coles]
never got approval from the Township?
A[.] I don’t know.
N.T. at 38-39 (emphasis added). Thereafter, when Stuckey was asked if the
Township was aware of the expansion, Stuckey declared: “I would say, yes.” N.T. at
42. Stuckey contradicted his earlier testimony, and testified that Cole applied to the
Township for permits for the project, and he “believe[d]” the Township issued a
building permit.6 Id.
6
When Stuckey was again asked whether he applied for a permit, he responded:
[A.] I believe [Cole] did for the first initial [main building
improvements in 2000]. And[, in the mid 2000s,] I had applied for,
whenever I wanted to expand the garage area into [10] units, [8] or 10
units, and got that plot plan or that blueprint that the engineer drew
up.
[Q.] Were you given a permit?
[A.] No.
[Q.] Okay. But an application for a permit was submitted?
4
Stuckey further stated that Cole introduced him to (now) former
Township zoning officer Lee Young (Young),7 and that Cole informed Stuckey that
Young would provide guidance relative to any work at the Property. Stuckey
recounted that, sometime in the early to mid 2000s, he met with Young at the
Property on a couple of occasions because he wanted to add more rooms to the
Property by modifying the garage, and expand the boarding house use with another
building on the south side. According to Stuckey, pursuant to Young’s
recommendation, Stuckey commissioned an engineering plan and submitted it to the
Township, which held a hearing. Stuckey further testified that although the Board
liked Stuckey’s idea, it required certain conditions be met, including moving a pond,
adding blacktop to the driveway area, and installing a sidewalk from the house to
Route 30. Stuckey explained that he did not pursue the expansion because he did not
want to add the sidewalk and make the other improvements.8
Stuckey also described that other Township officials, including fire
company members, were aware of the Property’s boarding house use. Stuckey
[A.] Probably an application, yeah.
[Q.] But you’re saying not necessarily, it wasn’t necessarily you, it
wasn’t you that actually asked for the application? It wasn’t you?
Was your name on the application for the permit?
[A.] Well, yeah. If I applied for it, yes. And that would have been in
the mid 2000[]s.
N.T. at 47.
7
Significantly, neither party called Young as a witness. However, at the close of the April
13, 2017 hearing, the Township’s counsel requested a continuance to “consult with [Young and one
other witness] and to potentially have them testify.” N.T. at 110. Counsel explained: “I’m not sure
that both of them will testify. But we will need to talk to them to find out what they do know about
the situation.” Id. The continuance was granted, but the Township did not call Young as a witness
at the following hearing. Further, as noted by the Board, at no time did Applicant request the Board
to issue a subpoena to Young to secure his testimony.
8
The record reflects that there was some confusion at the hearings between the 2000 main
house expansion project Stuckey engaged in with Cole, and Stuckey’s proposed expansion of the
garage in the mid 2000s. See N.T. at 43-47.
5
claimed he did not hide the use, and even advertised for tenants in the newspaper.
Stuckey stated, despite openly operating the boarding house for 16 years, he never
received a complaint from the Township or anyone else. Stuckey admitted he did not
contact the Township to confirm that a boarding house was a permissible use prior to
advertising the Property as a multi-family dwelling.
Mr. Phillips testified that he has operated WD Dump Truck Service
(WD) for over five years at 2931 Lincoln Highway East (WD property), which is
contiguous to the Property. Mr. Phillips stated, when he first established WD, Young
told him about certain Township requirements for the WD property. According to
Mr. Phillips, during one of more than one-half dozen visits to the WD property,
[Young] kind of told [him] who was on both sides of [him].
[He] had [] Rhoades [] to the east of [him], of the [WD]
property [sic]. His brother, Virgil Rhoades, was to the west
of the [WD] property. And he said that on the other side
of [] Rhoades was a [boarding] house. And he said that
was [] Stuckey’s place. That’s all [he] ever knew him as.
And he said, you know, no one here -- no one will bother
you. You should be fine with what you’re doing as long as
you’re, you know, in accordance with the zoning rules.
N.T. at 59-60 (emphasis added). Mr. Phillips recounted that, based on Young’s
representations, he believed that the Township was aware of the Property’s boarding
house use. Further, Mr. Phillips also reported that he relied on the realtor listing
advertising the Property as a boarding house.
Mrs. Phillips testified that she was inexperienced in purchasing real
estate, and the Property was only the second real estate purchase she had ever made.9
According to Mrs. Phillips, Applicant purchased the Property for $450,000.00. She
described that the Property included a main house, garage structure and pool house
and explained that there are seven units and a kitchen on the main house’s first floor
9
Mrs. Phillips noted that she had worked as a full-time phlebotomist for the last 36 years.
6
and an additional four units and a kitchenette on the lower floor. She also noted there
were two units in the garage structure and one unit in the pool house. Mrs. Phillips
stated that Applicant had not changed the configuration of any buildings on the
Property, but made improvements to the Property costing between $130,000.00 and
$150,000.00.10
Mrs. Phillips explained that she had been aware of Stuckey’s boarding
house for approximately ten years before purchasing the Property, because she owned
WD on the contiguous WD property for five years and, before that, her children
attended school with Stuckey’s children. Mrs. Phillips admitted she did not research
the Property’s zoning status before purchasing it. She declared that she did not
discuss the Property’s zoning with Stuckey, because the Property had been an
operating boarding house for years, and she considered the Property purchase as
purchasing an ongoing business. She recounted that she also relied on the real estate
broker’s representations that the Property was a boarding house. She further recalled:
I had to prove to the bank that [the Property] wasn’t a
motel[,] [b]ecause the bank . . . would not loan me
$450,000[.00, since] they don’t finance motels. I had to
prove to them I had long term tenants there in order for
them to give me the loan . . . for the [boarding] house.[11]
10
Applicant’s improvements to the main house included painting, replacing the sewer pump,
central air-conditioning, a holding tank, light fixtures, outside lighting and some shower stalls, and
installing new washers/dryers and carpet. The garage structure improvements included painting,
adding new doors, windows and rain gutters, and replacing siding, flooring and bathroom fixtures.
The pool house structure improvements included replacing windows, siding, carpet and linoleum,
refurbishing the porch, and adding gutters. Applicant also filled in an existing swimming pool.
11
Notably, the bank’s appraisal report provides:
The subject’s current use as a rooming house is a special exception
use under the C-2 [Z]oning [O]rdinance. Additionally, the
[T]ownship [Zoning O]rdinance states that ‘not more than four rooms,
excluding bathrooms, may be used for the boarding of registered
tenants or overnight guests.’ However the subject has been utilized
continuously at its current capacity for the last 15 years. The subject
7
N.T. at 84-85. Mrs. Phillips further claimed she would not have purchased the
Property if she had known that its use was prohibited, and she would have been
unable to do so because the bank would not have lent her the money.
With respect to the hardship that would be incurred if the use was
prohibited, Mrs. Phillips stated:
I was looking at this for a retirement. If this gets closed, I
have none. . . . I would still have to pay back the bank for
all the money that I borrowed and no means to do it.
Because [if] my boarding house is closed, I have no income.
N.T. at 87. She expounded: “I can’t turn [the Property] into anything else. I have no
road frontage. I have a driveway hitting Route 30. Nobody knows I’m back there.
So I couldn’t turn it into anything [] other than a [boarding] house.” N.T. at 88.
However, later, Mrs. Phillips asserted that prohibiting the Property’s use as a
boarding house would not be a hardship for her, but for the residents. Specifically,
she related: “So is it going to impact it? Yes, it will. Not so much my finances. I
have my husband and his business. It’s these people that live there that I worry
about. It’s just not fair.” N.T. at 90 (emphasis added).
On June 22, 2017, the Board upheld the Township zoning officer’s
determination that Applicant’s boarding house violated the Zoning Ordinance, denied
Applicant a variance by estoppel and dismissed Applicant’s appeal.
The Board found as a fact, inter alia, that Mr. and Mrs. Phillips did not
contact Township officials before purchasing the Property to determine its status or
the permissibility of its use. The Board further found:
20. [] Higgins and [] Stuckey, witnesses for [] Applicant,
testified that they allegedly knew that the Property had been
used as a boarding house in the mid-to-late 1990s because
appears to be a non-conforming use that is most likely
grandfathered.
C.R. Item No. 8, Exhibit A-4, at 47 (emphasis added).
8
they both had resided on the Property, and [] Stuckey
subsequently acquired an equitable interest in the Property.
21. In 1999, the Property was involved in a zoning
application filed by [] Cole, the then-owner of the Property,
docketed as Case No. 99-37, in which [] Cole applied for a
variance to reduce the required front yard setback to allow a
four-unit motel on the Property.
....
23. In Finding of Fact No. 11 in the decision in Case No.
99-37, the Board described the Property as being
improved with a single[-]family dwelling, garage and
barn, not a boarding home.
....
27. Although both Mr. and Mrs. Phillips claimed to have
relied on others, including real estate professionals and the
appraiser, to determine the status of the Property, neither
person personally checked with the Township or made an
inquiry as to the zoning for the Property and the legality of
any use on the Property.
Bd. Dec. at 4-6 (emphasis added). The Board concluded, inter alia:
Notwithstanding contrary testimony from [] Stuckey and []
Higgins that the Property was used as a boarding house in
the mid-to-late 1990s, [] Cole, the then-owner of the
Property, represented to the Board in 1999 that the
Property was a single-family dwelling, as confirmed by
the written decision in Case No. 99-37, of which this Board
took administrative notice in this proceeding.
Bd. Dec. at 7, Conclusion of Law (COL) No. 8 (emphasis added). Further:
A property owner cannot acquire a right to a variance by
estoppel through the actions or representations of prior
owners, real estate agents, or other third parties who do not
speak for a municipality. A person who purchases
property based on the representations of the seller,
rather than making an independent investigation of the true
status of the property, proceeds at his or her own risk, and
cannot later complain that a variance should be granted if
those representations prove to be false.
9
Bd. Dec. at 9, COL No. 15 (emphasis added). Relying on Skarvelis v. Zoning
Hearing Board of the Borough of Dormont, 679 A.2d 278 (Pa. Cmwlth. 1996), the
Board explained that Applicant’s failure to ascertain the Property’s zoning status was
fatal to its entitlement to a variance by estoppel, noting that “whether a landowner’s
reliance upon municipal inaction is reasonable, a landowner is duty bound to check
the property’s zoning status before purchase.” Bd. Dec. at 9, COL No. 16. The
Board also concluded that Applicant had not established unnecessary hardship.12
Applicant appealed from the Board’s decision to the trial court which, on February
14, 2019, denied Applicant’s appeal. Applicant appealed to this Court.
Applicant challenges the Board’s denial of a variance by estoppel,
arguing that it met the requirements for such a variance.
Initially, “[a] variance by estoppel is an unusual remedy and is granted
only in the most extraordinary of circumstances.” Springfield Twp. v. Kim, 792 A.2d
717, 721 (Pa. Cmwlth. 2002). This Court has explained:
There are four factors relevant to whether a [zoning hearing
board] should grant a variance by estoppel.
Such variances are appropriate when a use
does not conform to the zoning ordinance and
the property owner establishes all of the
following: (1) a long period of municipal
failure to enforce the law, when the
municipality knew or should have known of
the violation, in conjunction with some form
of active acquiescence in the illegal use; (2)
the landowner acted in good faith and relied
innocently upon the validity of the use
throughout the proceeding; (3) the landowner
has made substantial expenditures in reliance
upon his belief that his use was permitted; and
(4) denial of the variance would impose an
unnecessary hardship on the applicant.
12
Board Chairman David Petrisek dissented.
10
Borough of Dormont v. Zoning Hearing Bd. of Borough of
Dormont, 850 A.2d 826, 828 (Pa. Cmwlth. 2004) (citations
omitted).
Hafner v. Zoning Hearing Bd. of Allen Twp., 974 A.2d 1204, 1212 (Pa. Cmwlth.
2009) (emphasis added). “For [a]pplicants to prevail under a variance by estoppel
theory, they must prove the essential factors by clear, precise and unequivocal
evidence.” Pietropaolo v. Zoning Hearing Bd. of Lower Merion Twp., 979 A.2d 969,
980 (Pa. Cmwlth. 2009).
In the instant matter, the Board denied the variance by estoppel,
concluding that Applicant failed to satisfy two of the required factors.13 The Board
determined that Applicant’s reliance was not reasonable, and that Applicant had
failed to prove unnecessary hardship.
With respect to Applicant’s reliance, Applicant argues that record
testimony supports that the Property had been used as a boarding house for
approximately 30 years, and that Applicant had long been aware of that use and
believed the use was permissible. Applicant also contends that record evidence
demonstrates that Young and other Township officials were aware of the boarding
13
Although the Board did not directly address the first factor, i.e., “a long period of
municipal failure to enforce the law, when the municipality knew or should have known of the
violation, in conjunction with some form of active acquiescence in the illegal use,” Hafner, 974
A.2d at 1212 (quoting Borough of Dormont, 850 A.2d at 828), the Board appeared to question the
credibility of witness testimony that the Property had long been used as a boarding house, where
such testimony contradicted the finding in Case No. 99-37 that the Property was a single-family
dwelling.
A zoning hearing board, ‘as fact finder, is the ultimate judge of
credibility and resolves all conflicts of evidence.’ In re Appeal of
Brickstone Realty Corp[.], 789 A.2d 333, 339 (Pa. Cmwlth. 2001).
Indeed, a zoning hearing board ‘has the power to reject even
uncontradicted testimony if [it] finds the testimony lacking in
credibility.’ Constantino v. Zoning Hearing B[d.] of the Borough of
Forest Hills, . . . 618 A.2d 1193, 1196 ([Pa. Cmwlth] 1992).
Frederick v. Allegheny Twp. Zoning Hearing Bd., 196 A.3d 677, 688 (Pa. Cmwlth. 2018).
11
house use but failed to stop it, that the Township approved Cole’s application to add
several units in the main house in 2000, and that, in the mid 2000s, the Board
considered Stuckey’s plan to add units to the garage. Finally, Applicant asserts that
the real estate listing described the Property as a multi-family property with 13 units.
However, “[m]unicipal inaction in enforcing an ordinance, without
more, cannot support the granting of a variance.” Klanke v. Zoning Bd. of Adjustment
of the City of Pittsburgh, 477 A.2d 907, 909 (Pa. Cmwlth. 1984). Therefore,
Applicant’s reliance on Mr. Phillips’ conversation with Young, wherein Young
allegedly acknowledged Stuckey’s use of the Property as a boarding house, does not
establish active acquiescence since even municipal inaction “coupled with some
knowledge of the violation by municipal officials” does not demonstrate such. In re
Appeal of Crawford, 531 A.2d 865, 869 (Pa. Cmwlth. 1987). “While the evidence
adduced by Appellants shows that municipal officials knew of the violation, it does
not show that the [t]ownship ‘actively’ acquiesced in [a]ppellants’ use.”14 Id. Rather,
14
In Green v. Zoning Board of Adjustment of the City of Pittsburgh, 490 A.2d 488, 491 (Pa.
Cmwlth. 1985), this Court held: “Although one member of the zoning hearing board stated on the
record that he knew [of the subject building’s use which violated the zoning code] that is not
sufficient evidence to establish a ‘clear awareness and strong, long-term acquiescence on the part of
the municipality.’” (quoting Draving v. Lower Southampton Twp. Zoning Hearing Bd., 397 A.2d
54, 56 (Pa. Cmwlth. 1979)).
In Center Township v. Zoning Hearing Board of Center Township, 522 A.2d 673 (Pa.
Cmwlth. 1987), the seller, a township supervisor, assured the purchaser that use of the property for
a machine shop was permissible. After the township’s zoning officer notified the purchaser that his
use was prohibited, the purchaser appealed to the township zoning hearing board which overruled
the zoning officer. On appeal, the county common pleas court reversed the township zoning
hearing board’s decision, holding that the purchaser did not demonstrate a right to a variance by
estoppel. Affirming the lower court’s decision, this Court reasoned:
Even if [the supervisor] knew of the illegal use, we cannot impute his
knowledge to the [t]ownship. [The supervisor] was only one of three
[t]ownship [s]upervisors and he had an apparent self-interest in telling
[the purchaser] that he could use the land in any way he wanted. It
was incumbent upon [the purchaser] to find out what the zoning law
was; the zoning ordinance and map were certainly available to him.
12
active acquiescence requires an affirmative act by the municipality, such as
“granting a building permit or reasonably leading a landowner to conclude his
use was lawful.”15 Pietropaolo, 979 A.2d at 981 (emphasis added).
Although evidence of the Township approvals Stuckey described might
reveal the Township’s active acquiescence, the only evidence referencing any such
applications or approvals thereof is found in Stuckey’s somewhat vague testimony.16
Moreover, there is no record evidence that Mr. or Mrs. Phillips, as landowners, were
even aware of the alleged aforementioned applications or approvals, let alone relied
upon them. In fact, the only detailed documentary evidence reflecting past Board
action with respect to the Property is the Board’s approval of a request to build a
Ctr. Twp., 522 A.2d at 676.
15
In Pietropaolo, this Court affirmed the township zoning hearing board’s denial of a
property owner’s appeal from an enforcement notice requiring the owners to cease use of their
residentially zoned property for a landscaping business. The owners argued, inter alia, that the
zoning hearing board had erred in denying their variance by estoppel request. In finding that the
owner failed to demonstrate that the township actively acquiesced in the use, the Pietropaolo Court
explained:
[I]n cases where this Court granted a variance by estoppel, the
municipalities did not passively stand by. Rather, they committed an
affirmative act, for example, granting a building permit or reasonably
leading a landowner to conclude his use was lawful. See, e.g., Knake
v. Zoning Hearing Bd. of Dormont, . . . 459 A.2d 1331 ([Pa. Cmwlth.]
1983) (variance by estoppel granted where borough failed to act for
44 years, knew the use was impermissible for 27 years, and issued a
building permit for the impermissible use); Three Rivers Youth v.
Zoning Bd. of Adjustment of [the] City of Pittsburgh, . . . 437 A.2d
1064 ([Pa. Cmwlth.] 1981) (inaction by municipality for seven years
plus issuance of building permit by municipality and reliance by
landowner on zoning officer’s interpretation of regulation); Twp. of
Haverford v. Spica, . . . 328 A.2d 878 ([Pa. Cmwlth.] 1974) (inaction
by municipality for 36 years and issuance of building permit where
municipality knew of intended construction).
Pietropaolo, 979 A.2d at 981 (emphasis in original).
16
Applicant did not offer documentary evidence of such applications or approvals.
13
four-room motel that described the Property’s use at the time as a single-family
dwelling with a garage and a barn.
Importantly, there is no testimony or other record evidence that Mr. or
Mrs. Phillips ever asked Young or inquired of anyone at the Township whether the
boarding house use was permissible. In fact, Mrs. Phillips admitted that she did not
ascertain the Property’s zoning status under the Zoning Ordinance prior to purchasing
the Property.
This Court has declared: “a landowner is duty-bound to check the
zoning status of a property prior to purchase. Where a landowner fails to
review the relevant zoning ordinance before purchasing a property, he may not
advance the resulting ignorance in support of a variance by estoppel.” Hafner,
974 A.2d at 1212 (emphasis added).17 Thus,
‘[o]ne who undertakes to make use of real estate for
commercial purposes without inquiring as to whether the
use is permitted by the municipality’s zoning ordinance,
does so at his own peril.’ Mucy v. Fallowfield T[wp.]
Zoning Hearing B[d.] of Washington C[ty.], . . . 609 A.2d
17
See also Skarvelis, wherein this Court stated:
In order to establish that he acted in good faith, a property owner is
required to show that he made a reasonable attempt to ascertain
the actual status of the property under the [z]oning [o]rdinance.
See Moses [v. Zoning Hearing Bd. of the Borough of Dormont, 487
A.2d 481 (Pa. Cmwlth. 1985)] (although owner determined that
multi-family dwelling was a permitted use generally in the district and
the subject property had previously been used for such use, owner
found not to have acted in good faith since an inquiry with the zoning
authority would have disclosed that an occupancy permit for that use
had never been issued for the property); Schaefer v. Zoning B[d.] of
Adjustment of the City of Pittsburgh, . . . 435 A.2d 289 ([Pa. Cmwlth.]
1981) (lack of knowledge is irrelevant where owner failed to make
inquiry with zoning authority as to true status of property or ask for
documentation demonstrating compliance from seller).
Skarvelis, 679 A.2d at 283 (emphasis added).
14
591, 594 ([Pa. Cmwlth.] 1992) (citation omitted). The
purchaser’s duty to inquire is not limited to whether a
particular use is permitted but, by implication, must also
encompass an inquiry into the limitations placed on the
manner in which the property may be used, e.g., a
recreational vehicle park was a permitted use but not for
permanent residences.
Kim, 792 A.2d at 722; see also Crawford, 531 A.2d at 868 (“[I]n assessing whether a
landowner’s reliance upon municipal inaction is reasonable, a landowner is, absent
some municipal validation of the use, ‘duty[-]bound to check the zoning status of the
property before purchase.’”) (quoting Hasage v. Phila. Zoning Bd. of Adjustment, 202
A.2d 61, 64 (Pa. 1964)). Here, Applicant did not do so.18
Finally, Applicant’s reliance on the real estate listing describing the
property as a boarding house does not support the grant of a variance by estoppel.
Absent a local ordinance provision to the contrary, the law
requires a prospective purchaser of real estate to make
certain the property is in compliance with local zoning
requirements, . . . and the purchaser may not rely on the
statements of others, including dishonest real estate
agents, to establish compliance. If this were not the law,
the doors would certainly open wide for unscrupulous
individuals to perpetrate a fraud on local municipalities.
Skarvelis, 679 A.2d at 282-83 (emphasis added). Thus, Applicant’s reliance on the
real estate listing, conversations with the realtor, or conversations with Stuckey are
misplaced. See Ctr. Twp. v. Zoning Hearing Bd. of Ctr. Twp., 522 A.2d 673 (Pa.
Cmwlth. 1987). Based on these considerations, the Board properly concluded that
Applicant failed to establish it “acted in good faith and relied innocently upon the
18
Even in those instances where applicants have inquired of township officials whether an
intended use was permitted, this Court has held that “[t]hese inquiries are not sufficient to establish
good faith reliance where [the a]pplicant never reviewed the relevant zoning ordinances.” Hafner,
974 A.2d at 1212; see also Moses, 487 A.2d at 485 (“While Appellants did make a minimum
inquiry [into how the property was zoned without investigating whether the proposed use was
permitted], we doubt that it was adequate to place them in the category of someone who innocently
relied upon the validity of the existing use before buying the property.”).
15
validity of the use throughout the proceeding[.]”19 Hafner, 974 A.2d at 1212 (quoting
Borough of Dormont, 850 A.2d at 828).
This Court is sensitive to the impact this decision will have on the
Property’s vulnerable tenants who shall be forced to find other housing. Despite such
concerns, the Court is bound to adhere to the well-established case law and precedent.
For all of the above reasons, the trial court’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
19
Because Applicant failed to satisfy one of the required factors for a variance by estoppel,
this Court need not address whether the Board properly determined that Applicant failed to prove
unnecessary hardship.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Granny N Pops, LLC, :
Appellant :
:
v. :
:
East Lampeter Township Zoning :
Hearing Board and East Lampeter : No. 278 C.D. 2019
Township :
ORDER
AND NOW, this 10th day of January, 2020, the Lancaster County
Common Pleas Court’s February 14, 2019 order is affirmed.
___________________________
ANNE E. COVEY, Judge