W. Slack v. F.J. Slack, Jr., & J.D. Lonergan ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wanda Slack, :
Appellant :
:
v. :
:
Frederick J. Slack, Jr., : No. 231 C.D. 2020
and James D. Lonergan : Argued: March 18, 2021
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION
BY JUDGE FIZZANO CANNON FILED: April 16, 2021
Wanda Slack (Appellant) appeals the February 7, 2020 order entered
by the Court of Common Pleas of Bucks County (trial court) denying post-trial relief
following the October 4, 2019 non-jury verdict entered by the trial court finding in
favor of Frederick J. Slack, Jr. (Fred Slack, Jr.) and James D. Lonergan (Lonergan)
(collectively, Appellees) that the private airstrip located on Fred Slack, Jr.’s property
was not in violation of local zoning ordinances and would be permitted to continue
operation. Upon review, we affirm.
I. Background
In the late 1950s, brothers Miles Slack and Frederick Slack, Sr.
constructed a private airstrip1 on a property they jointly owned in Buckingham
1
The airstrip runway consists simply of a flat strip of mowed land. See Trial Court Verdict
entered October 4, 2019 (Verdict) at 6, Finding of Fact (F.F.) 35.
Township, Bucks County, Pennsylvania, and which they later subdivided in 1966
into adjoining properties owned by each and hereinafter referred to as the “Miles
Slack Property” and the “Fred Slack Property.” See Trial Court Verdict entered
October 4, 2019 (Verdict) at 2 & 8, Findings of Fact (F.F.) 4-6 & 46. The Miles
Slack Property contains approximately 43 acres located at 2224 Forest Grove Road,
Buckingham Township. See Verdict at 1, F.F. 1. Miles Slack co-owned the Miles
Slack Property with Appellant, his wife, until his death in 2011, at which time
Appellant acquired full ownership rights in the Miles Slack Property. See Verdict at
3, F.F. 11. The Fred Slack Property contains approximately 37 acres located at 1948
Forest Grove Road, Buckingham Township. See Verdict at 1-2, F.F. 2. Frederick
Slack, Sr. co-owned the Fred Slack Property with his wife, Evelyn A. Slack, until
her death in 2012, at which time he became the sole owner of the Fred Slack Property
until his death in 2013. See Verdict at 2-3, F.F. 5 & 11. Upon the death of Frederick
Slack, Sr., Fred Slack, Jr. obtained 10-year estates in both the Fred Slack Property
and the adjoining Heritage Property, which estates do not lapse until the end of
October 2023. See Verdict at 4, F.F. 19. The Slack brothers’ private airstrip
straddled and operated on both the Miles Slack Property and the Fred Slack Property
following the subdivision of the property and became known as the “Slack Airport.”
See Verdict at 2-3, F.F. 6 & 9.
The Miles Slack Property and the Fred Slack Property are located
within Buckingham Township’s AG-1 Agricultural-1 Zoning District.2 See Verdict
at 2, F.F. 4. When the Slack brothers established the Slack Airport together in 1959,
2
Prior to a 1994 amendment, Buckingham Township’s zoning ordinance (Zoning
Ordinance) provided for only one agricultural district, the AG district. Beginning with the 1994
amendment, the Zoning Ordinance categorized Buckingham Township’s agricultural districts as
either AG-1 or AG-2, the distinction between which is immaterial for the purposes of this opinion.
2
an air landing strip was not a permitted use under the then-effective Buckingham
Township Zoning Ordinance (Zoning Ordinance)3 on their combined property or on
either the Miles Slack Property or the Fred Slack Property individually. See Verdict
at 2, F.F. 7. In fact, in 1959, the Zoning Ordinance made no mention whatsoever of
airports or airstrips. See Verdict at 8, F.F. 44. In 1985, however, an amendment to
the Zoning Ordinance made an airport landing strip a permitted accessory use in
Buckingham Township’s agricultural zoning district. See Verdict at 3 & 7, F.F. 8 &
37-40.
The Slack Airport has been in continual existence since its
establishment in 1959. See Verdict at 8, F.F. 42 & 44; see also Trial Court Opinion
dated June 13, 2020 (Trial Court Opinion) at 1. Further, the Commonwealth of
Pennsylvania, through the Pennsylvania Department of Transportation (PennDOT),
Bureau of Aviation, has continually licensed the Slack Airport since that time, and
its existence has at all times been open, notorious, and otherwise well known to
Buckingham Township. See Verdict at 8, F.F. 41 & 45. From 1959 to 1996,
Frederick Slack, Sr. and his brother, Miles Slack, enjoyed continual use of the
airstrip. See Verdict at 8, F.F. 41-42 & 44-45. Additionally, from 1996 to the
present, Lonergan has leased a portion of the Fred Slack Property for the purpose of
housing and operating his airplanes.4 See Verdict at 2 & 5, F.F. 3 & 29.
3
We refer herein to Buckingham Township’s zoning ordinance generally as the Zoning
Ordinance. Later in the opinion, we will refer to particular versions and/or amendments of the
Zoning Ordinance more specifically by year enacted, where necessary and appropriate.
4
Lonergan is not the only individual aside from the Slack brothers to operate aircraft out
of the Slack Airport over the years. See Notes of Testimony, June 5, 2019 (N.T.) at 78-79 & 95,
Reproduced Record (R.R.) at 150a-51a & 167a; see also Deposition Testimony of Fritz Doerstling,
R.R. at 578a-642a. However, only Lonergan currently operates planes out of the Slack Airport.
3
In 1999, Frederick Slack, Sr. and Evelyn A. Slack purchased from the
Heritage Conservancy a 28-acre parcel of land located adjacent to the Fred Slack
Property on the opposite side of the Fred Slack Property from the Miles Slack
Property (the Heritage Property). See Verdict at 3, F.F. 10. In addition to operating
on the Miles Slack Property and the Fred Slack Property, the Slack Airport operated
airplane taxiways across the Heritage Property. See Verdict at 3, F.F. 9.
In August 2000, Lonergan applied for and received approval from
Buckingham Township to construct a hangar on the Fred Slack Property portion of
the airstrip. See Verdict at 6, F.F. 31. Appellant had full knowledge of and
consented to the construction of this hangar structure, and subsequently permitted
use of the hangar and collected rents thereon. See Verdict at 8, F.F. 47.
Following Miles Slack’s death in 2011, Appellant acquired the entire
ownership interest in the Miles Slack Property. See Verdict at 3, F.F. 11. Thereafter
in 2011, Appellant first lodged an objection to the continued use of the Slack Airport
airstrip on the Miles Slack Property, indicating that she intended to fence her
property off to protect it from deer. See Verdict at 8, F.F. 48. Appellant made no
mention of or objection to aircraft noise at the time. See id.
On February 3, 2013, Appellant informed PennDOT by letter that she
no longer wished to have the Slack Airport operate on the Miles Slack Property and
that she intended to fence off the portion of the runway located on her property. See
Verdict at 3, F.F. 13. Thereafter, on February 27, 2013, PennDOT sent Frederick
Slack, Sr. a letter notifying him that the Slack Airport was “officially closed”
because, as a result of Appellant’s intention to fence off the portion of the runway
located on the Miles Slack Property, the airstrip would no longer meet PennDOT’s
1200-foot minimum runway length requirement for private airports. See Verdict at
4
3-4, F.F. 14-15. PennDOT’s letter informed Frederick Slack, Sr. that the submission
of a runway realignment request would be required to initiate a re-licensing action
for the continued operation of the Slack Airport.5 See Verdict at 4, F.F. 16-17.
On March 4, 2013, Fred Slack, Jr. completed the required runway
realignment request by submitting a completed PennDOT Form AV-19, Notice of
Airport Alteration (Reconfiguration Application). See Verdict at 4, F.F. 18 & 23.
The Reconfiguration Application proposed a reconfiguration of the airstrip located
completely on Fred Slack, Jr.’s property, with no portion of Appellant’s Miles Slack
Property being used for aircraft take offs. See Verdict at 4 & 6-7, F.F. 21-22, 34 &
36. PennDOT permitted the new runway configuration by letter dated March 22,
2013, and, following an inspection of the new runway in May 2013, authorized flight
operations from the Slack Airport’s realigned runway on June 13, 2013. See Verdict
at 5, F.F. 22-24.6
On July 8, 2014, Fred Slack, Jr. submitted to PennDOT a license
renewal application for the Slack Airport (Renewal Application). See Verdict at 4,
F.F. 20. PennDOT granted the Renewal Application and issued an airport license
5
PennDOT originally advised that the submission of a PennDOT Form AV-4, Application
for a New Airport/Heliport, would be required to initiate an airport re-licensing action. See Verdict
at 4, F.F. 16. PennDOT later clarified that the appropriate form to be submitted regarding the
realignment of the runway was PennDOT Form AV-19, Notice of Airport/Heliport Alteration
and/or Change of Based Airport. See Verdict at 4, F.F. 17.
6
The final two Findings of Fact on page 4 of the Verdict are numbered 22 and 23. See
Verdict at 4. The next page of the Verdict, page 5, then begins with two different Findings of Fact
that are also numbered as Findings of Fact 22 and 23, although they contain different information
from the Findings of Fact from Verdict page 4, also numbered as Findings of Fact 22 and 23. See
Verdict at 5.
5
for the Slack Airport on July 15, 2014.7 See Verdict at 5, F.F. 26. Thereafter,
Lonergan began operating aircraft from the newly reconfigured airstrip, which now
employed the portion of the Heritage Property previously used as a taxiway as part
of the runway span, allowing the newly configured runway to comply with
PennDOT’s 1200-foot minimum runway length without extending onto Appellant’s
property. See Verdict at 5-6, F.F. 29-30.
On March 30, 2017, Appellant, through counsel, forwarded to
Buckingham Township a letter requesting that Buckingham Township enjoin
Appellees from operating Slack Airport. See Letter from Appellant’s Counsel to
Buckingham Township dated March 30, 2017, Reproduced Record (R.R.) at 212a-
38a. When Buckingham Township took no action in response to her letter,
Appellant filed her Complaint against Appellees in the trial court on May 17, 2017.8
See Complaint filed May 17, 2017 (Complaint), R.R. at 1a-24a. The trial court
conducted a non-jury trial of the matter on June 5, 2019 and issued the Verdict in
Appellees’ favor on October 4, 2019. See Verdict. After the trial court denied
Appellant’s Motion for Post-Trial Relief by order dated February 7, 2020, Appellant
timely appealed to this Court.
7
PennDOT actually issued the airport license to Lonergan, who also submitted an AV-19
Form to PennDOT on July 17, 2014, seeking to change the name of the Slack Airport to
“Lonergan’s.” See Verdict at 5, F.F. 27-28. On November 18, 2014, PennDOT granted the
application to change the name of the airport on the license from “Slack Airport” to “Lonergan’s.”
See Verdict at 6, F.F. 33. Notwithstanding the name change, this Court will continue to refer to
the airport/airstrip as the Slack Airport throughout this opinion.
8
Appellant had included a copy of the Complaint as an attachment to her March 30, 2017
letter to Buckingham Township in accordance with Section 617 of the Pennsylvania Municipalities
Planning Code, Act of July 31, 1968, P.L. 805, 53 P.S. § 10617, which requires a complainant to
serve upon a municipality a copy of a complaint that alleges land use in violation of an ordinance
at least 30 days prior to the institution of such an action.
6
II. Issues
Appellant presents three claims on appeal.9 See Appellant’s Br. at 4.
First, Appellant claims the trial court erred by concluding that the Slack Airport is a
lawful use under the Zoning Ordinance. See Appellant’s Br. at 4 & 13-24. Next,
Appellant alleges that the trial court erred by failing to enjoin the operation of the
Slack Airport because she proved that she and her property are substantially affected
by the operation of the airstrip. See Appellant’s Br. at 4 & 25-31. Third, Appellant
claims the trial court abused its discretion by allowing Appellees to argue the
affirmative defenses of laches and acquiescence at the trial of this matter. See
Appellant’s Br. at 4 & 31-41.
III. Discussion
A. Whether the Slack Airport is a lawful use under the Zoning Ordinance.
Appellant bases her first argument solely on the requirements contained
in the version of the Zoning Ordinance that became effective in October of 2006
(2006 Zoning Ordinance)10 and the current version of the Zoning Ordinance (Current
Zoning Ordinance),11 both of which list the operation of an airstrip as a conditional
use in Buckingham Township’s agricultural districts. See Appellant’s Br. at 13-24;
9
“Our standard of review of a non-jury trial is to determine whether the findings of the
trial court are supported by competent evidence, and whether an error of law was committed.”
City of Philadelphia v. Galdo, 181 A.3d 1289, 1291 n.2 (Pa. Cmwlth. 2018), aff’d, 217 A.3d 811(Pa. 2019) (quoting Swift v. Dep’t of Transp., 937 A.2d 1162, 1167 n.5 (Pa. Cmwlth. 2007), appeal
denied, 950 A.2d 270 (Pa. 2008)).
10
See Buckingham Township Zoning Ordinance of 1975, as amended to October 25, 2006,
R.R. at 426a-30a.
11
See Buckingham Township Zoning Ordinance of 1975, as amended to January 24, 2018,
R.R. at 431a-37a.
7
see also 2006 Zoning Ordinance at 83 & 93-94, R.R. at 427a-29a; Current Zoning
Ordinance at 91-92 & 100-01, R.R. at 433a-36a. Appellant’s argument lacks merit,
as it completely ignores the historical use of the Slack Airport as an accessory use
on the Fred Slack Property.
“Our Supreme Court has long recognized the rule that a property owner
may continue an existing use, notwithstanding adoption or change to
a zoning ordinance.” Hempfield Twp. v. Hapchuk, 620 A.2d 668, 671 (Pa. Cmwlth.
1993). Of this “grandfather” rule, the Supreme Court has explained:
The use of the property which the ordinance protects, or
“freezes”, is the use which was in existence at the time of
the passage of the ordinance or the change of a use district
but it offers no protection to a use different from the use in
existence when the ordinance was passed. The latter does
not render the ordinance invalid. The nonconforming use
which is within the orbit of protection of the law and the
Constitution is the nonconforming use which exists at the
time of the passage of the zoning ordinance or the change
in a use district under a zoning ordinance, not
a new or different nonconforming use.
Hanna v. Bd. of Adjustment of Borough of Forest Hills, 183 A.2d 539, 543-44 (Pa.
1962) (internal citation omitted) (emphasis in original). Thus, this Court has
explained that “[t]he adoption of a zoning ordinance does not mandate
discontinuance of the existing use of a property affected by the ordinance.
A zoning ordinance operates prospectively, only.” Hempfield Twp., 620 A.2d at
8
671; see also Column Realty, LLC v. Zoning Hearing Bd. of City of Allentown (Pa.
Cmwlth., No. 1544 C.D. 2014, filed Mar. 30, 2015),12 slip op. at 18.
Here, prior to 1984, no iteration of the Zoning Ordinance included any
provision requiring zoning approval to operate a private airstrip within Buckingham
Township. See Buckingham Township Ordinance No. 2 of 1951, adopted November
24, 1951 (1951 Zoning Ordinance), R.R. at 365a-88a; Buckingham Township
Zoning Ordinance of 1975, adopted March 6, 1975, as amended March 18, 1976
(1975 Zoning Ordinance), R.R. at 389a-404a. In fact, prior to 1984, the Zoning
Ordinance did not include any reference whatsoever to air landing fields or airstrips.
See id. Beginning in 1984, the Zoning Ordinance recognized an “Air Landing
Field,” defined as “[a] private, noncommercial air landing field,” as a permitted
accessory use13 in Buckingham Township’s agricultural zoning district. See
Buckingham Township Zoning Ordinance of 1975, as amended August 29, 1984
(1984 Zoning Ordinance) at 98, R.R. at 397a. Under the 1984 Zoning Ordinance,
qualification of an air landing field as an accessory use was conditioned on only one
requirement: approval from PennDOT’s Bureau of Aviation. See id.In 1994, Buckingham Township enacted the next iteration of its zoning
ordinance, which added further requirements for a use to qualify as what the zoning
ordinance now termed an “Air Landing Strip.”14 See Buckingham Township Zoning
12
Pursuant to Commonwealth Court Internal Operating Procedure 414(a), 210 Pa. Code §
69.414(a), unreported panel decisions of this Court issued after January 15, 2008, may be cited for
their persuasive value.
13
The Zoning Ordinance defines “accessory use” as “[a] use located on the same lot with
the principal use, and clearly incidental or subordinate to, and in connection with, the principal
use.” Verdict at 7, F.F. 39.
14
Specifically, the 1994 Zoning Ordinance provided:
9
Ordinance of 1994, enacted August 24, 1994 (1994 Zoning Ordinance) at 68; R.R.
at 408a. However, under the 1994 Zoning Ordinance and subsequent amendments,15
qualifying air landing strips located in Buckingham Township’s agricultural districts
H6 Air Landing Strip
A private airport landing strip may be permitted as an
accessory use to a single-family residence (Use B-1) or to
use A-1 in the [Agricultural] districts provided that the
following regulations are met:
A. The minimum lot size on which an airlanding strip is
permitted shall be 30 acres.
B. The outside limits of the air landing strip shall be located
300 feet from any property line and from any public road.
C. No commercial flight activities shall be permitted.
D. The private air landing strip shall meet all the
regulations of the Pennsylvania Department of
Transportation, Bureau of Aviation, and shall have the
approval of this agency and of any other airstrip licensing
agencies of the federal or state government.
E. No activities shall be permitted which will violate the
regulations of this Ordinance or any other Township
ordinance controlling noise, dust, dirt, electrical
disturbance, hazards or other nuisances.
F. No air strip shall be established if its flight pattern will
overlap with the flight pattern of any existing air landing
field or heliport.
G. All buildings associated with the air strip, including
hangars, landing pads, warm-up pads, refueling facilities,
lights, etc.[,] shall be placed at least 100 feet from the
property line of the lot.
1994 Zoning Ordinance at 68, R.R. at 408a.
15
The 1994 Zoning Ordinance was amended three times in 1995, twice in 1996, twice in
1997, and a further time in 1998. See R.R. at 406a.
10
remained categorized as permitted accessory uses. See 1994 Zoning Ordinance at
68 & 73-74, R.R. at 408a-10a.
In 2005, Buckingham Township enacted an updated zoning ordinance
that again identified an “Air Landing Strip” as a permitted accessory use in the
township’s agricultural districts. See Buckingham Township Zoning Ordinance of
1975, as amended to October 19, 2005 (2005 Zoning Ordinance) at 76-77, R.R. at
418a-19a. Not until the it was amended again in 2006 did the Zoning Ordinance
categorize an air landing strip as a conditional use requiring conditional use approval
under the Zoning Ordinance. See 2006 Zoning Ordinance at 94, R.R. at 429a.
All evidence presented at trial in the instant matter indicates that the
Slack Airport has been in continuous use and properly licensed through PennDOT’s
Bureau of Aviation since 1959. Therefore, upon the enactment of the 1984 Zoning
Ordinance that first categorized an air landing strip as an accessory use, the Slack
Airport was in compliance with the only requirement necessary under the Zoning
Ordinance for an airstrip to qualify as a permitted accessory use in an agricultural
zoning district: approval from PennDOT’s Bureau of Aviation. Therefore, the Slack
Airport was a permitted accessory use under the 1984 Zoning Ordinance. Further,
because amendments to zoning ordinances operate only prospectively, the
subsequent changes and amendments to the Zoning Ordinance, including the 2006
amendment that categorized airstrips as conditional uses thereafter, did not mandate
discontinuance of Appellees’ then preexisting lawful nonconforming use of the
Slack Airport as an accessory use, which use had continued uninterrupted for
decades preceding the 2006 Zoning Ordinance. Hanna; Hempfield Twp. As the trial
court expressly and correctly determined:
11
Even without conditional use approval, the operation of
the [Slack Airport] on these properties does not violate the
[] Zoning Ordinance because the airstrip has been in
existence, essentially in its current location, since at least
1959.
Verdict at 9, Conclusions of Law (C.L.) 3.
For these reasons, the trial court did not err by determining that the
Slack Airport was a lawful use under the Zoning Ordinance.16
B. Whether Appellant has proven that the operation of the Slack Airport
substantially affects the quiet enjoyment or use of her property.
Next, Appellant claims that the trial court erred by refusing to enjoin
the operation of the Slack Airport because her property is substantially affected by
considerable noise generated by planes taking off from the airstrip. See Appellant’s
Br. at 25-31. Appellant argues that violation of a zoning ordinance alone is enough
to justify an injunction preventing the violative action. See id. at 25-26. Further,
she claims that she proffered sufficient evidence that both she and her property are
substantially affected by the noise created by airplanes taking off at the Slack
Airport. See id. at 28-29. Appellant is not entitled to relief on this claim.
Appellant argues that the evidence presented at trial sufficiently
established that both she and her property are substantially affected by the operation
of the Slack Airport to merit injunctive relief. See Appellant’s Br. at 30-31.
Appellant testified that she can see and hear airplanes taking off from the Slack
Airport. See Notes of Testimony, June 5, 2019 (N.T.) at 69, R.R. at 141a. She
16
To the extent Appellant argues that the use of the Slack Airport as an accessory use
somehow would not inure to Lonergan because he does not reside at the Fred Slack Property or
the Heritage Property, see Appellant’s Br. at 17, we note that no version of the Zoning Ordinance
contains a pilot residency requirement that would in any way affect the Slack Airport’s zoning
status as an accessory use to the Fred Slack Property.
12
explained that Lonergan’s bi-plane makes considerable noise when it takes off over
her property, and that she can hear it from inside her house. See N.T. at 70; R.R. at
142a. Appellant testified that the airplanes taking off from Slack Airport pass over
her property at a height of only 50 feet. See N.T. at 71, R.R. at 143a. Appellant
originally described the noise created by the airplanes at the Slack Airport upon
takeoff as “[e]ar deafening[,]” but then stated, “[w]ell, maybe I can’t use that term[,]”
before revising her description to simply “very loud, very noisy – a lot of noise.”
N.T. at 70; R.R. at 142a. Further, Appellant testified that there is no limit to the
number of takeoffs and landings allowed at the Slack Airport. See N.T. at 116-17,
R.R. at 188a-89a. She argues that the admitted video of one of Lonergan’s takeoffs
illustrates the substantial noise generated by aircraft operation at the Slack Airport.
See N.T. at 87-89, R.R. at 159a-61a; see also Appellant’s Br. at 31. Ultimately,
Appellant testified that she and her property are directly affected by the operation of
the airstrip. See N.T. at 73, R.R. at 145a.
Lonergan testified at trial that he has been flying planes out of Slack
Airport since the mid-1990s. See N.T. at 93, R.R. at 165a. He explained that, when
he began using the Slack Airport, multiple individuals flew out of or maintained
aircraft at the airstrip. See N.T. at 95, R.R. at 167a. He testified that he used the
Slack Airport about 20 times in the preceding year, although he conceded that he
can take off as many times as he would like. See N.T. at 117-18, R.R. at 189a-90a.
He further explained that, while he is allowed to take off directly over the Miles
Slack Property, he rarely does so, and instead prefers to veer away from the Miles
Slack Property upon takeoff and prior to crossing the property line out of courtesy
13
to Appellant.17 See N.T. at 98-100 & 116-17, R.R. at 170a-72a & 188a-89a.
Additionally, Lonergan explained that the takeoff depicted in the admitted video
showed a relatively unique takeoff involving multiple special circumstances
occasioned by a number of factors that required him to fly directly over Appellant’s
property on that particular instance, but that the video did not represent his normal
post-takeoff flight path. See N.T. at 98-100, R.R. at 170a-72a.
“It is beyond peradventure that the trial court, sitting as the fact-finder,
is free to believe all, part or none of the evidence, to make all
credibility determinations, and to resolve all conflicts in the evidence.” Laurel Rd.
Homeowners Ass’n, Inc. v. Freas, 191 A.3d 938, 952 (Pa. Cmwlth. 2018). As has
been oft explained:
This Court . . . cannot upset the trial court’s credibility
determinations or reweigh the evidence to reach a finding
contrary to the trial court. Inconsistencies in the evidence
go to the weight of the evidence, and we will respect a trial
court’s findings with regard to the credibility and weight
of the evidence unless the Declarants can show that the
court’s determination was manifestly erroneous, arbitrary
and capricious or flagrantly contrary to the evidence.
Id. (internal citations and quotation marks omitted).
Contrary to Appellant’s suggestion that the evidence was sufficient to
entitle her to injunctive relief, the trial court considered the evidence presented,
including Appellant’s testimony and the admitted video, and expressly determined
that the Slack Airport’s “newly configured runway does not interfere with
17
In fact, Lonergan testified that the Federal Aviation Administration (FAA) and the
PennDOT Bureau of Aviation prefer that airplanes take off from the Slack Airport straight,
proceeding directly over the Miles Slack Property, but that deviating from that flight path does not
constitute an FAA flight operation violation. See N.T. at 116-17, R.R. at 188a-89a.
14
[Appellant’s] quiet enjoyment of her property[,]” “does not in any way infringe upon
[Appellant’s] property or prevent the construction of a fence for her property,” and
“does not negatively impact nor is it injurious to [Appellant’s] property.” Verdict at
9, C.L. 1 & 5-6. Notwithstanding Appellant’s own testimony, we find nothing in
the record to merit overturning the trial court’s determinations regarding the
credibility and weight of evidence presented before it – which determinations are
within the exclusive province of the trial court.
Further, we are unpersuaded by Appellant’s attempt to somehow
distinguish the fact that the trial court did not make a specific finding that Appellant
is not substantially affected by the operation of the Slack Airport, see Appellant’s
Br. at 29-30, from the multiple express findings the trial court did make, namely that
the Slack Airport does not interfere with or negatively impact the use or the quiet
enjoyment of her property. See Verdict at 9, C.L. 1 & 5-6. The trial court’s
conclusions of law leave no doubt that the trial court viewed the flight operations of
the Slack Airport as not substantially affecting Appellant or her property.
We further note that Appellant’s reliance on Siegmond v. Duschak, 714
A.2d 489 (Pa. Cmwlth. 1998), is misplaced. To the extent Siegmond stands for the
proposition that a landowner may be substantially affected by an increase in noise
and activity on adjacent land, the case is distinguishable on the facts. The evidence
in this matter did not reveal a marked increase in activity at the Slack Airport. If
anything, the evidence revealed that the Slack Airport now supports the operation of
fewer planes than in the past, during the time when Appellant and her husband were
using the airport themselves and/or collecting rents based on the operation thereof.
See supra note 4. Therefore, Appellant improperly relies on Siegmond to support
her alleged entitlement to injunctive relief.
15
For these reasons, Appellant’s second issue does not merit relief.
C. Whether the trial court erred by allowing Appellees to argue the equitable
defenses of laches and acquiescence.
In her third claim, Appellant alleges that the trial court erred by finding
that Appellees were entitled to argue the affirmative defenses of laches and
acquiescence in this matter. See Appellant’s Br. at 31-41. We do not agree.
“[T]he doctrine of laches [is] an equitable bar to the prosecution of stale
claims and is the practical application of the maxim that those who sleep on their
rights must awaken to the consequence that they have disappeared.” In re
Wilkinsburg Taxpayers & Residents Interest in Green St. Park Sale to a Private
Developer & Other Park-Sys. Conditions, 200 A.3d 634, 642 (Pa. Cmwlth. 2018)
(internal quotation marks omitted). “A claim is barred by laches where the party
failed to exercise due diligence, which resulted in prejudice to the opposing party.”
Id. “The test for due diligence is not what a party knows, but what he might have
known by the use of information within his reach. Prejudice may be found where
there has been some change in the condition or relations of the parties which occurs
during the period the complainant failed to act.” Id. (quoting White v. Township of
Upper St. Clair, 968 A.2d 806, 811 (Pa. Cmwlth. 2009), appeal denied, 995 A.2d
355 (Pa. 2010)).
In explaining its determination to allow Appellees to argue laches in
this matter, the trial court noted:
In this case, the airport has existed since 1959, and has
been in use since. Even after [Appellant’s] husband
passed away, she waited four (4) years to bring any claims
against [Appellees]. [Appellees] utilized and came to rely
upon the use of the runway during this period. Further,
after fifty (50) years of use with no issue, [Appellees] were
16
prejudiced by having to defend their use of the runway
after fifty (50) years have passed.
Trial Court Opinion at 8-9 (footnote omitted). We find no error in the trial court
allowing Appellees to argue the equitable defense of laches under the facts of this
case.
Similarly, the equitable concept of municipal acquiescence may
provide relief to an innocent landowner acting in good faith regarding an illegal land
use where the municipality has failed to enforce the law or otherwise somehow
acquiesced in the illegal use for a considerable period of time. See Caporali v. Ward,
493 A.2d 791, 793 (Pa. Cmwlth. 1985). Regarding its determination to allow
Appellees to argue acquiescence, the trial court explained:
In this case, the Township was aware of the runway, the
Township updated the Zoning Ordinance to make the
runway an accessory use, and the Township has taken no
action to enjoin the use of the runway. Further,
[Appellant] permitted the use of the runway on her
property for over fifty years, with her late husband
utilizing the runway to fly. The facts of this case clearly
establish that the affirmative defense of acquiescence
applies to this case.
Trial Court Opinion at 9. We agree with the trial court that the facts of this case
entitled Appellees to argue that the affirmative defense of acquiescence applied to
this matter and find that the trial court did not err by allowing Appellees to do so at
trial.
17
IV. Conclusion
For the above reasons, we affirm the February 7, 2020 trial court order
denying post-trial relief.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wanda Slack, :
Appellant :
:
v. :
:
Frederick J. Slack, Jr., : No. 231 C.D. 2020
and James D. Lonergan :
ORDER
AND NOW, this 16th day of April, 2021, the February 7, 2020 order
entered by the Court of Common Pleas of Bucks County is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge