In Re: Appeal of J.W. Smith & R.L. Whetstone from the Decision of the ZHB of W. Chester Borough ~ Appeal of: J.W. Smith & R.L. Whetstone ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Joanne W. Smith and :
Robert L. Whetstone from the Decision :
of the Zoning Hearing Board of West :
Chester Borough :
:
Appeal of: Joanne W. Smith and : No. 1715 C.D. 2018
Robert L. Whetstone :
:
:
Joanne W. Smith and :
Robert L. Whetstone :
:
v. :
:
Zoning Hearing Board of :
West Chester Borough :
:
v. :
:
StanAb, LP :
: No. 1725 C.D. 2018
Appeal of: StanAb, LP : Argued: November 12, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
JUDGE FIZZANO CANNON FILED: May 4, 2020
Joanne W. Smith and Robert L. Whetstone (together, Neighbors)
appeal from the November 27, 2018 order of the Court of Common Pleas of Chester
County (trial court), which affirmed the decision of the Zoning Hearing Board of the
Borough of West Chester (Board) denying their appeal of the issuance of a building
permit to StanAb, LP (Applicant).1 The building permit authorized the construction
of an “addition” to an existing office building owned by Applicant within the
Borough of West Chester (Borough). At issue here is whether Applicant has the
right to construct the “addition” for use as professional offices, which “addition”
was approved in a 1997 subdivision and land development application, where
professional office use is permitted in the applicable zoning district by conditional
use and no evidence was presented showing that conditional use approval was
obtained by Applicant or a predecessor in title. Upon review, we affirm on other
grounds.
The property at issue in this appeal is located at 535 North Church
Street (Property) in the Borough and is improved with a three-story brick building
commonly known as the Barclay Building, as well as an accessory building. Board’s
Findings of Fact (F.F.) 2-4. The Property is, and at all relevant times was, located
1
Neighbors’ appeal is docketed at No. 1715 C.D. 2018. Applicant filed a cross-appeal
from the trial court’s order, which is docketed at No. 1725 C.D. 2018. By order dated March 13,
2019, this Court consolidated the matters and named Neighbors as Designated Appellants pursuant
to Pa.R.A.P. 2136. We note that Applicant’s cross-appeal at No. 1725 C.D. 2018 appears to be a
protective cross-appeal and that one cannot appeal an order from which one is not aggrieved. See
ACS Enters., Inc. v. Norristown Borough Zoning Hearing Bd., 659 A.2d 651, 653 (Pa. Cmwlth.
1995) (stating, “a party who [sic] has prevailed in the proceeding below is not an aggrieved party
and consequently has no standing to appeal to this Court”). Nonetheless, Neighbors did not file a
motion to quash Applicant’s protective appeal at No. 1725 C.D. 2018, and as we may not raise this
issue sua sponte, we will not quash Applicant’s cross-appeal. See G. Ronald Darlington, et al., 20
Pennsylvania Appellate Practice § 501:16 (2018-19 ed.) (stating issue of standing to appeal is not
jurisdictional and, therefore, may not be raised by Court sua sponte; “[t]herefore, failure to raise a
standing to appeal issue in a motion to quash or dismiss or in an appellee’s brief will result in the
waiver of the issue”). Technically, the rationale for Applicant’s cross-appeal at No. 1725 C.D.
2018 is an alternate basis to affirm the trial court.
2
in the NC-1, Block Class B, Neighborhood Conservation zoning district and is in the
Professional Office Overlay District. F.F. 3; Joint Stipulation (Jt. Stip.) ¶¶ 5, 7-8,
Reproduced Record (R.R.) at 787a. Neighbors own adjacent property. F.F. 1-2.
Prior to 1998, the Barclay Building was used as a home for the care of
the elderly. F.F. 5. In 1996, the Borough amended its Zoning Ordinance.2 F.F. 6.
The amendment permitted by conditional use the “conversion of an existing
building” located in the NC-1, Neighborhood Conservation zoning district and in the
Professional Office Overlay District to a professional office. F.F. 6; see Borough’s
Zoning Ordinance § 112-12.D.3, R.R. at 607a.
In June 1996, JMA Properties, Inc. (JMA) entered into an agreement of
sale intending to acquire a parcel of land (Parcel), which included the Property, for
use as professional offices. See F.F. 7. JMA submitted a subdivision and land
development application, including nine sheets of plans, to the Borough for
subdivision of the Parcel into two lots, with “Lot 1” being the Property that is the
subject of this appeal, and for conversion of the Barclay Building to professional
offices. See F.F. 8, Jt. Stip. ¶ 9, R.R. at 787a-88a. Borough Council approved the
subdivision and land development application at its August 20, 1997 meeting. F.F.
9. Subsequently, portions of the approved subdivision and land development
application, namely, the Plan of Subdivision for the Barclay Building, Sheet 2, and
the Plan of Land Development for the Barclay Building, Sheet 3, were recorded as
Plan 14109 in the Chester County Recorder of Deeds (collectively, 1997 Plan). Jt.
Stip. ¶ 9, R.R. at 788a. The approved 1997 Plan depicted the following on Lot 1:
the Barclay Building with a gross floor area of 21,000 square feet (s.f.) and a building
footprint of 7,428 s.f.; a “Future Addition Building Envelope” (Future Addition)
2
Borough of W. Chester, Pa., Borough of West Chester Zoning Ordinance of 1988. Joint
Exhibit (Jt. Ex.) J-3, R.R. at 565a-751a.
3
with a gross floor area of 18,150 s.f. and a building footprint of 6,050 s.f.; and a
parking calculation based on a professional office use for the Barclay Building and
the Future Addition. F.F. 10(a-c). The approved 1997 Plan also indicated that the
building coverage equals 14,003 s.f. and includes the existing Barclay Building
footprint (7,428 s.f.), a new storage shed footprint (475 s.f.), and a future building
reserve area (6,100 s.f.). Original Record (O.R.), 1997 Plan, Sheet 3; R.R. at 753a.
Subsequent to the approval, JMA began alterations to the Barclay
Building and obtained several building permits, including one in 1998 for alterations
to the Barclay Building and a second permit, also issued in 1998, for construction of
an accessory building and a 700-square-foot addition to the second floor of the
Barclay Building. See F.F. 11-13. After the 700-square-foot addition was
constructed, the Borough issued a certificate of occupancy for the Barclay Building.
F.F. 14. No application for, or approval of, a conditional use to permit the use of the
Barclay Building as professional offices has been found. F.F. 15. “No appeals were
filed from the approval of the building permits or the certificates of occupancy issued
for office use of the Barclay Building.” F.F. 17. “The Barclay Building has been
continually used as professional offices since 1998.” F.F. 16.
In 2013, Applicant acquired the Parcel from JMA. F.F. 18 & 21. On
January 15, 2013, after signing the agreement of sale but before making settlement
to purchase the Property, Applicant requested that the Borough’s zoning officer
confirm that a building permit was the only requirement for permission to construct
an “addition” to the Barclay Building as contemplated by the previously approved
1997 Plan. F.F. 19; see F.F. 18 & 21. That same day, the zoning officer responded
that “he would look at the plans and if there were ‘no additional steps required by
4
the plans [the Borough] can review the building permit application.’”3 F.F. 20. On
February 28, 2013, Applicant settled on the purchase of the Property.4 F.F. 21. On
February 23, 2017, Applicant applied to the Borough for a building permit for an
“addition” to the Barclay Building. F.F. 22.
On May 5, 2017, the Borough issued a building permit for the Future
Addition. See F.F. 23. On May 24, 2017, Neighbors appealed the issuance of the
building permit to the Board. F.F. 24.
The Board held multiple hearings. Ultimately, at a public hearing held
on February 12, 2018, the Board denied Neighbors’ appeal by oral decision.
Thereafter, the Board issued a written decision, dated March 20, 2018, containing
findings of fact and conclusions of law. In its decision, the Board determined that
Neighbors timely appealed the building permit. Conclusion of Law (C.L.) 2. The
Board also concluded that “[a]lthough there is no evidence that a conditional use
was applied for at the time the Barclay Building was converted to professional
offices, [Neighbors] do not challenge the legality of the 1998 conversion to
professional offices, so that the current professional office use of [the] Barclay
Building is a legally permitted use.” C.L. 5. The Board noted that there is no
provision in the Zoning Ordinance that prohibits an “addition” to a legally permitted
3
We note Applicant also states, “JMA repeatedly requested, and the Borough repeatedly
approved extensions . . . to JMA’s right to build the Future Addition and its protection from any
change in the [Zoning Ordinance].” Applicant’s Brief at 9 (citing R.R. at 260a-61a & 791a-92a).
Neighbors mention that “no action was taken with regard to the proposed new building (except for
essentially meaningless extensions of the 5-year protection afforded by the [Pennsylvania
Municipalities Planning Code (MPC)] § 508, [Act of July 31, 1968, P.L. 805, as amended, 53 P.S.
§ 10508], since the ordinances did not change)[.]” Neighbors’ Brief at 48.
4
At the time Applicant acquired the Parcel, it consisted of Lots 1 and 2 as depicted on the
Plan. Jt. Stip. ¶ 2, R.R. at 786a-77a. Following acquisition, Applicant sold Lot 2 to the Borough
and retained ownership of Lot 1, i.e., the Property at issue here. Id.
5
professional office in the NC-1, Professional Office Overlay district. C.L. 7. The
Board also concluded that, by definition, the “conversion” of a building includes
structural changes and enlargements. C.L. 8. The Board concluded that the
alteration permitted by the building permit complies with the applicable Zoning
Ordinance requirements, reasoning that interpreting the Zoning Ordinance to permit
construction of an “addition” to the Barclay Building is supported by the prior
approvals of the use of, and construction on, the Property. C.L. 6 & 9.5
Neighbors filed an appeal from the Board’s oral decision, as well as an
appeal from the Board’s written decision. Trial Court Opinion6 (Tr. Ct. Op.) at 4.
The trial court consolidated the two appeals. Id. Applicant also appealed the
Board’s decision, but the trial court quashed that appeal based on Neighbors’ motion
challenging Applicant’s standing to prosecute an appeal as the prevailing party. Id.
at 5. Thereafter, the parties filed briefs with the trial court, and, ultimately, the trial
court denied Neighbors’ appeal and affirmed the Board’s decision. See Tr. Ct. Op.
at 5-10.
In its decision, the trial court first determined that Neighbors’ appeal
was timely. Tr. Ct. Op. at 6-7. Next, the trial court agreed with Neighbors that the
proposed building changes do not qualify as a “conversion” of the existing Barclay
Building. Id. at 8. Nevertheless, the trial court concluded that the “proposed changes
qualify as a permissible addition within the Professional [Office] Overlay District,
the second district within which the Barclay [P]roperty is located” and, therefore,
5
Conclusion of law “9” is actually numbered as 6, but appears after number 8.
6
All references to the trial court opinion are to the opinion dated November 27, 2018 unless
otherwise indicated.
6
issuance of the building permit was proper. Id. at 8 & 10. Accordingly, the trial
court denied Neighbors’ appeal. Id. at 10.
Neighbors then appealed to this court, and Applicant filed a cross-
appeal. See supra note 1. Thereafter, the parties each filed a concise statement of
errors complained of on appeal. On February 5, 2019, the trial court issued separate
opinions pertaining to each appeal, essentially reaffirming its prior opinion.
Before this Court,7 Neighbors argue that their appeal is timely and also
that the Board erred in determining the building permit was valid because: (1) the
Zoning Ordinance prohibits additions to existing professional office conversions in
the NC-1 zoning district; (2) the proposed building is neither an addition nor an
alteration, but a separate and distinct building; and (3) the building permit lacked
zoning approval.8
In response, Applicant argues: (1) it has the right to construct the Future
Addition approved in the 1997 Plan despite the Borough’s inability to produce
written evidence that conditional use approval was obtained by Applicant’s
predecessor in title; (2) Neighbors appeal is untimely because it seeks to reverse and
limit the 1997 Plan; and (3) the Zoning Ordinance does not prohibit additions to
7
Where, as here, the trial court does not take additional evidence, our scope of review is
limited to determining whether the Board committed an error of law or “a manifest abuse of
discretion.” Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637, 639 (Pa. 1983).
A zoning board abuses its discretion “only if its findings are not supported by substantial
evidence.” Id. at 640. The interpretation of an ordinance is a pure question of law. Kohl v. New
Sewickley Twp. Zoning Hearing Bd., 108 A.3d 961, 968 (Pa. Cmwlth. 2015). As to questions of
law, our standard of review is de novo and our scope of review is plenary. Comm’rs of Cheltenham
Twp. v. Hansen-Lloyd, L.P., 166 A.3d 496, 501 n.4 (Pa. Cmwlth. 2017).
8
By letter dated February 21, 2019, the Borough notified this Court that it would not be
filing a brief or appearing at oral argument in this matter. By order dated June 25, 2019, this Court
precluded the Board from filing a brief and participating in oral argument due to its failure to file
a brief as ordered by this Court on May 29, 2019.
7
buildings lawfully converted to professional office use in the NC-1 District if the
proposed addition meets the area and bulk requirements of the Zoning Ordinance.
Applicant’s Brief at 3.
Neighbors’ brief advances arguments with regard to whether the
Zoning Ordinance prohibits additions to existing professional office use conversions
in the NC-1 zoning district and whether the proposed building is really a new
building instead of an “addition.” We need not address these arguments or the
arguments regarding the timeliness of Neighbors’ appeal, however. Because we find
that the development of the Future Addition was already approved, we need not
decide whether it was an “addition” or a new building. Additionally, Applicant’s
counterstatement of the issue is dispositive, i.e., whether Applicant has the right to
construct the Future Addition approved in the 1997 Plan.
Whether building permit was properly issued / Whether Applicant
has right to building permit
Professional offices are permitted in the NC-1 zoning district as a
conditional use. In this regard, the Zoning Ordinance provides:
D. Conditional uses:
....
Conversion of an existing building to a professional office
in a designated Professional Office Overlay District in
accordance with §§112-14.E[9] and 112-22.B and .C.[10]
9
Section 112-14.E concerns area and bulk regulations. Zoning Ordinance § 112-14.E;
R.R. at 609a.
10
Section 112-22.B concerns parking, loading and signs in the Professional Office Overlay
District, and Section 112-22.C concerns a landscape plan in the Professional Office Overlay
District. Zoning Ordinance § 112-22.B, .C; R.R. at 622a.
8
Zoning Ordinance § 112-12.D(3); R.R. at 607a.
We begin our analysis of the role of the 1997 Plan approval as it relates
to zoning issues and the issuance of the building permit by noting that we have long
recognized “the distinction between land use approval and the concurrent need for
zoning approval.” Borough of Jenkintown v. Bd. of Comm’rs of Abington Twp., 858
A.2d 136, 142 (Pa. Cmwlth. 2004). In Dambman v. Board of Supervisors of
Whitemarsh Township, 171 A.3d 969 (Pa. Cmwlth. 2017), we noted that the MPC
grants the governing body the authority to regulate subdivisions and land
development. Dambman, 171 A.3d at 974 (citing Section 501 of the MPC, 53 P.S.
§ 10501). We also noted that, pursuant to the MPC, a municipality’s “zoning hearing
board has exclusive jurisdiction to hear and render final adjudications in ‘appeals
from the determination of the zoning officer, including but not limited to, the
granting or denying of any permit.’” Id. (quoting Section 909.1 of the MPC, added
by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10909.1). We described this
process as “dual tracks” and addressed the timing of these dual tracks, as the issue
before us was whether zoning approval was required prior to the governing body’s
approval of the land development plan. See id. at 970 & 974. We held that the
timing question is “governed by the terms of a municipality’s [subdivision and land
development ordinance].” Id. at 974 (citing Rickert v. Latimore Twp., 960 A.2d 912,
920 (Pa. Cmwlth. 2008) (holding that the order of land development and zoning
applications is determined by the applicable subdivision and land development
ordinance)).
9
Here, at the relevant time period of the application and approval of the
1997 Plan, the Borough’s Subdivision and Land Development Ordinance11
(SALDO) provided:
No plan of subdivision or land development shall be
approved which would result in lots or land use which
would in any way be inconsistent with Chapter 112,
Zoning of the Code of the Borough West Chester then in
effect for the zoning district in which the land to be
developed or subdivided is located.
Former SALDO § 97-26.D, Supplemental Reproduced Record (S.R.R.) at 30b. The
SALDO provided that the approved final plan shall be recorded. Former SALDO §
97-18, S.R.R. at 29b.
“The word ‘shall’ by definition is mandatory, and it is generally applied
as such.” Chanceford Aviation Props., L.L.P. v. Chanceford Twp. Bd. of
Supervisors, 923 A.2d 1099, 1104 (Pa. 2007). Where, as here, a statute is
unambiguous, “the term ‘shall’ is mandatory for purposes of statutory
construction[.]”12 Koken v. Reliance Ins. Co., 893 A.2d 70, 81 (Pa. 2006); see
Falkler v. Lower Windsor Twp. Zoning Hearing Bd., 988 A.2d 764, 768 (Pa.
11
Borough of W. Chester, Pa., West Chester Borough Subdivision and Land Development
Ordinance, ch. 97 of the Borough of West Chester Code. This operative version of the SALDO
was adopted by Borough Council on August 28, 1991, as Ordinance No. 16-1991, and was
effective as of August 1991. Applicant submitted a copy of that SALDO into evidence before the
Board as Exhibit SA-12. Portions of that SALDO are reproduced in Applicant’s supplemental
reproduced record. S.R.R. at 28b-30b. This version of the SALDO was repealed by Ordinance
No. 02-2019, effective March 19, 2019. See Borough of W. Chester, Pa., Ord. No. 02-2019.
Because of the repeal, citations to the operative version of the SALDO will read “Former
SALDO,” although our text will refer to it simply as the SALDO.
12
Although Neighbors argue this term is merely directory rather than mandatory they offer
no analysis or supporting authority for such statement, see Neighbors’ Brief at 50, and we disagree.
10
Cmwlth. 2010) (stating “in matters of statutory construction, when the language of
a statute is clear and free from all ambiguity, a court should not disregard the letter
of the statute in order to pursue its spirit”) (citing Section 1921(b) of the Statutory
Construction Act of 1972, 1 Pa.C.S. § 1921(b)).
Thus, in regard to the timing of the “dual tracks,” pursuant to the
Borough’s operative SALDO, any zoning approvals were to be resolved prior to the
governing body’s approval of the land development plan. This is consistent with
case law of this Court. See Jenkintown. Additionally, pursuant to the operative
SALDO, a plan “shall not” be approved if it is inconsistent with the Zoning
Ordinance. See Former SALDO § 97-26.D, S.R.R. at 30b. Our case law: recognizes
that the MPC is silent as to the timing of challenges to the zoning aspect of land
development approval; states that the terms of the municipality’s SALDO control
regarding the timing; and notes that “issues involving zoning in land development
should be resolved before a governing body may grant final approval.” Jenkintown,
858 A.2d at 141 (citing Graham v. Zoning Hearing Bd. of Upper Allen Twp., 555
A.2d 79 (Pa. 1989)).
Here, Neighbors argue that the Future Addition is inconsistent with the
Zoning Ordinance and not permitted in the NC-1 zoning district. If this is the case,
then those issues were to be resolved prior to the Borough’s approval of the 1997
Plan. Nevertheless, the 1997 Plan was approved, and it appears no appeals were
taken from the approval.
A review of the approved 1997 Plan reveals that it shows the existing
building and the Future Addition. O.R., Plan, Sheet 3; R.R. at 753a. There are no
conditions requiring the developer to obtain any zoning approvals. See generally
O.R., Plan, Sheets 2 & 3; R.R. at 752a-53a. While Neighbors argue the proposed
11
use of the Future Addition was not disclosed on the 1997 Plan, we disagree. Sheet
3 of the approved Plan states, “Zoning Requirements: Article IV – NC-1
Neighborhood Conservation District” and immediately below that line, the 1997
Plan explicitly states, “Proposed Use: Professional Offices.” O.R., 1997 Plan, Sheet
3; R.R. at 753a. Additionally, the approved 1997 Plan contains a note stating,
“Required parking for Professional Offices is 1 space per 750 s.f. Potential gross
floor area for parking calculations in the Barclay is 17,117 s.f. and 18,150 s.f. in the
proposed addition for a total gross floor area of 35,267 s.f.” O.R., 1997 Plan, Sheet
3, Note 4; R.R. at 753a. The gross floor area of the Future Addition is listed as
18,150 s.f. Id. The 1997 Plan also contains a note stating that building coverage
equals 14,003 s.f. and includes the existing Barclay Building footprint (7,428 s.f.), a
new storage shed footprint (475 s.f.), and “a future building reserve area (6,100 s.f.).”
O.R., 1997 Plan, Sheet 3, Note 2; R.R. at 753a. An additional note on the 1997 Plan
states that the impervious coverage includes 14,003 s.f. of building area and 24,946
s.f. of paving, which includes the future parking expansion area. O.R., 1997 Plan,
Sheet 3, Note 3; R.R. at 753a. Thus, it is apparent from the approved 1997 Plan that
the Future Addition was part of what was approved in 1997 and that the proposed
use of the buildings depicted in the approved 1997 Plan was for professional offices.
If this stated use was inconsistent with the Zoning Ordinance, then the
Borough should not have approved the 1997 Plan. See Former SALDO § 97-26.D.,
S.R.R. at 30b. But, it did.13 Alternatively, the Borough could have imposed a
13
Again, notably, Neighbors state they are not challenging the 1997 Plan. A challenge to
the 1997 Plan must have been brought within 30 days of the Borough’s approval of the 1997 Plan
unless such person challenging the approval alleges and proves he had no notice, knowledge, or
reason to believe that such approval had been given. See Section 914.1 of the MPC, added by the
Act of December 21, 1988, P.L. 1329, 53 P.S. § 10914.1. Neighbors never alleged, nor do they
12
condition requiring zoning approval, but it did not.14 See Section 508 of the MPC,
53 P.S. § 10508 (regarding imposing conditions); Jenkintown, 858 A.2d at 141 &
143 (stating issues involving zoning in land development should be resolved before
governing body grants approval, and vacating and remanding matter to governing
body with direction to amend approval of land development plan to make approval
conditional on developer’s receipt of necessary zoning approval).
Under the terms of the Borough’s SALDO, the approval implies that
the 1997 Plan is consistent with the Zoning Ordinance. See Former SALDO § 97-
26.D, S.R.R. at 30b. If such approval was in error, an appeal should have been taken
from that approval. See Jenkintown (holding in an appeal from an approval of a
development plan, where SALDO required governing body to consider whether
applicant complied with terms of zoning ordinance, and governing body erred in
concluding that proposal complied, governing body erred in approving development
proposal without imposing the condition of obtaining necessary zoning approval);
see also Former SALDO § 97-59 (stating appeals with respect to any application for
subdivision and land development approval shall be governed by the MPC).
argue before this Court, a lack of notice, knowledge or reason to believe that such approval had
been given.
14
We note the Borough imposed a condition regarding the construction of sidewalks. See
O.R., 1997 Plan, Sheet 2; R.R. at 752a; see also Jt. Ex. J-6 8/22/97 Letter; R.R. at 760a-61a (stating
that Borough Council approved the Plan with certain waivers and the condition that certain
language set forth therein be included on the plan and added as a deed restriction). The parties
stipulated that this letter constituted a decision of the Borough Council pursuant to Section 508 of
the MPC, 53 P.S. § 10508. Jt. Stip. ¶ 11, R.R. at 788a-89a. We also note the 1997 Plan states,
“General note regarding street trees along High Street: Final tree locations shall be subject to the
direction of the West Chester Borough Planning Commission.” O.R., 1997 Plan, Sheet 3; R.R. at
753a. The approved 1997 Plan also indicates that a highway occupancy permit is required. O.R.,
1997 Plan, Sheets 2 & 3, R.R. at 752a-53a.
13
At this point, we are faced with the recorded approved 1997 Plan that:
includes the Future Addition; notes that the total square footage of building coverage
includes both the existing Barclay Building and the Future Addition; and states that
the proposed use is “Professional Offices.” O.R., 1997 Plan, Sheet 3, R.R. at 753a.
Neighbors contend that, despite the approved 1997 Plan, the building permit lacks
zoning approval. Neighbors argue that allowing a building permit to be issued based
upon the approved 1997 Plan would have this Court hold that granting SALDO
approval without necessary zoning approvals waives zoning requirements once the
appeal period for the SALDO approval has expired. Neighbors’ Brief at 50.
Neighbors contend this effectively allows the governing body to waive zoning
requirements if it grants SALDO approval before zoning approvals have been
considered and obtained. Neighbors’ Brief at 50. We disagree.
Initially, we note that government actors are presumed to act legally.
See Office of Governor v. Donahue, 59 A.3d 1165, 1170 (Pa. Cmwlth. 2013) (stating,
“[n]o rule of law requires this Court to presume that an agency will act in bad faith
in complying with its statutory duties”), aff’d, 98 A.3d 1223 (Pa. 2014); Hughes v.
Chaplin, 132 A.2d 200, 202 (Pa. 1957) (stating presumption of regularity of acts of
public officers exists until the contrary appears). Therefore, we decline Neighbors’
implied invitation to presume that governing bodies will act beyond their authority
and improperly waive zoning requirements.
We acknowledge that, in arguing that the Board erred in determining
that the building permit was not invalid despite the lack of zoning approval,
Neighbors quote: Section 105.4 of the 2009 International Building Code which
Neighbors state the Borough adopted (stating that permits presuming to give
authority to violate the Zoning Ordinance shall not be valid); Section 104 of the
14
Zoning Ordinance (stating that “[n]o building permit shall be issued until the Zoning
Officer has certified that the proposed building . . . complies with the provisions of
this chapter and other applicable codes, regulations and ordinances”); and Section
108 of the Zoning Ordinance (stating that if zoning officer determines that
application is not in compliance with provisions of this chapter, i.e., the Zoning
Ordinance, “it shall be his/her duty to refuse the permit”). Neighbors’ Brief at 41-
42.
Thus, based on the foregoing, before issuing the building permit, the
zoning officer must ensure compliance with the Zoning Ordinance. However, here,
the SALDO makes clear that approval of a subdivision and land development plan
could not have been given if the plan was inconsistent with the applicable Zoning
Ordinance. See Former SALDO § 97-26.D, S.R.R. at 30b. Therefore, with no
conditions regarding outstanding zoning approvals noted on the approved 1997 Plan,
the zoning officer could interpret the 1997 Plan approval as a representation of
consistency with the Zoning Ordinance and, consequently, could issue the building
permit under the circumstances here.15 Cf. Former SALDO § 97-20.B (stating that
15
In support of their position, Neighbors rely on Highland Park Community Club of
Pittsburgh v. Zoning Board of Adjustment of City of Pittsburgh, 506 A.2d 887 (Pa. 1986).
Neighbors point out that in that case, the zoning administrator had approved a certificate of
occupancy on the assumption that the passage of time had converted an improper use into one that
was lawful. Neighbors’ Brief at 42 (citing Highland Park, 506 A.2d at 888). The Court held that
the permit was issued in error and that the property owner did not have vested rights in the permit.
That case is distinguishable. Here, we are not dealing with an assumed nonconforming use, nor
has Applicant argued vested rights. Instead, we are addressing the effect of a recorded approved
subdivision plan, which the zoning officer consulted prior to issuing the permit. See F.F. 20. As
stated, the zoning officer could rely on the 1997 Plan to determine that the permit being issued was
in accordance with the Zoning Ordinance, as well as the cited provision of the International
Building Code, which states that a permit cannot violate the Zoning Ordinance, because the
SALDO says that no plan shall be approved if it is inconsistent with the Zoning Ordinance— See
SALDO § 97-26.
15
no building permit under the Zoning Ordinance shall be issued until a final
subdivision or land development plan has been approved and recorded).
In the event one believes a governing body has incorrectly waived
zoning requirements, one has a remedy in the appeal process. See Section 914.1 of
the MPC, 53 P.S. § 10914.1; Jenkintown (finding that development plan was
defective for lack of zoning permit and vacating and remanding matter to governing
body with direction to amend approval of land development plan to make approval
conditional on developer’s receipt of necessary zoning approval). While Neighbors
contend there was no zoning approval that they or other potentially aggrieved
property owners could have appealed here, Neighbors’ Brief at 50, significantly, an
appeal could have been taken from the approval of the 1997 Plan.16 Again, we note
that it is the terms of the municipality’s SALDO that prescribes the timing of the
“dual tracks” for approval. Dambman. Where zoning approvals still need to be
obtained during the subdivision and land development process, the proper course is
16
As stated, Neighbors do not challenge a lack of notice of the 1997 Plan approval here.
See supra note 14. Neighbors raise general due process and public policy concerns, pointing out
the difference between the zoning and subdivision process, and contending that there is no notice
or public hearings in the subdivision process, “as these applications follow an administrative rather
than a quasi-judicial path to approval.” Neighbors’ Brief at 50-51; Neighbors’ Reply Brief at 30-
31. However, Neighbors make these arguments for the first time in their argument portion of their
brief to this Court. Accordingly, they are waived. See Teazers, Inc. v. Zoning Bd. of Adjustment
of City of Phila., 682 A.2d 856, 859 (Pa. Cmwlth. 1996) (ruling that where applicant never raised
argument before zoning board and attempted to raise issue for first time on appeal to the trial court,
issue was waived); Dehus v. Unemployment Comp. Bd. of Review, 545 A.2d 434, 436 (Pa. Cmwlth.
1988) (stating a party waives review of an issue by failing to raise it at the earliest possible
opportunity). Additionally, these arguments are essentially policy arguments not tied to any
specific harm to Neighbors here. Further, we note that with respect to Final Plan review by the
Borough Planning Commission, the SALDO states, “Owners of all land directly adjacent to the
subject tract, as well as any other landowner deemed by the Borough to be potentially affected by
the proposed development, shall be notified by the applicant, by letter, of the date and purpose of
the meeting at which the plan will be reviewed.” Former SALDO, § 97-15.B.1.a, O.R. Ex. SA-
12.
16
for the governing body to condition the approval on the developer obtaining such
approvals. See Jenkintown. As such, a remedy exists if one believes the governing
body has improperly waived zoning requirements. Thus, we reject Neighbors’
argument.
Because, for these reasons, we determine that the building permit was
not issued in error, we need not address Neighbors’ remaining arguments.17
Accordingly, we affirm the order of the trial court, albeit on other grounds.18
__________________________________
CHRISTINE FIZZANO CANNON, Judge
17
We note Neighbors complain that the building permit plans do not “match” the 1997
Plan because the proposed building is a different size, albeit smaller, than that depicted on the 1997
Plan. Neighbors’ Brief at 12-13. Applicant argues this issue is waived for failure to raise it before
the Board and because Neighbors fail to present argument or cite authorities on this issue.
Applicant’s Brief at 26; Applicant’s Reply Brief at 13. We agree that this is waived, as Neighbors
did not include this issue in their appeal to the Board. See generally Neighbors’ appeal application,
R.R. at 488a-91a.
18
This court may affirm the decision of the trial court on any grounds. Slusser v. Black
Creek Twp. Zoning Hearing Bd., 124 A.3d 771, 772 (Pa. Cmwlth. 2015).
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Joanne W. Smith and :
Robert L. Whetstone from the Decision :
of the Zoning Hearing Board of West :
Chester Borough :
:
Appeal of: Joanne W. Smith and : No. 1715 C.D. 2018
Robert L. Whetstone :
:
:
Joanne W. Smith and :
Robert L. Whetstone :
:
v. :
:
Zoning Hearing Board of :
West Chester Borough :
:
v. :
:
StanAb, LP :
: No. 1725 C.D. 2018
Appeal of: StanAb, LP :
ORDER
AND NOW, this 4th day of May, 2020, the November 27, 2018 order
of the Court of Common Pleas of Chester County is AFFIRMED on other grounds
consistent with this opinion.
__________________________________
CHRISTINE FIZZANO CANNON, Judge