Rooftop Equipment, Inc. a/k/a Rooftop Holdings, LLC v. Wilmington Twp. ZHB and Wilmington Twp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rooftop Equipment, Inc., a/k/a :
Rooftop Holdings, LLC, :
Appellant :
:
v. : No. 1794 C.D. 2016
: SUBMITTED: November 13, 2017
Wilmington Township Zoning :
Hearing Board and Wilmington :
Township :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: December 27, 2017
Rooftop Equipment, Inc., a/k/a Rooftop Holdings, LLC (Rooftop),
appeals from the September 29, 2016, order of the Court of Common Pleas of Mercer
County (trial court), which denied Rooftop’s appeal from a decision of the
Wilmington Township Zoning Hearing Board (Board) granting Rooftop a variance.
The trial court denied the appeal because Rooftop lacked standing to appeal from
the Board’s decision. We affirm.
Rooftop is the owner of property located at 4617 New Castle Road,
New Wilmington, PA 16142 (Property). The Property is improved with a
commercial building. Disagreement exists over the zoning classification of the
Property. Rooftop argues that the Property is zoned for commercial activity, while
the Board argues that the Property is zoned R-1-A (Rural Agricultural/Residential)
and that Rooftop’s present use is a lawful, non-conforming use.
Rooftop applied to the Wilmington Township (Township) zoning
officer for a building permit to construct a 1600 square foot addition to Rooftop’s
existing commercial building. The zoning officer denied the request, stating that
Board approval was required to enlarge non-conforming structures and non-
conforming uses per Township Zoning Ordinance sections 1003.1 and 1004.1,
respectively. (Supplemental Reproduced Record (S.R.R.) at 11b.) The zoning
officer suggested a variance. (S.R.R. at 11b.) Rooftop appealed the zoning officer’s
decision to the Board. In its Notice of Appeal on a pre-printed form, Rooftop
checked the line indicating it appeals from the zoning officer’s denial of a building
permit. (S.R.R. at 8b.) Subsequently, Rooftop’s counsel filed a “Petition to Clarify
Zoning Classification and Direct Zoning Officer to Issue Building Permit” (Petition)
with the Board. (Reproduced Record (R.R.) at 4a.) The Board held a hearing at
which Rooftop appeared, represented by counsel. (R.R. at 9a.) No witnesses
appeared. At the hearing, there was discussion among Board members, counsel for
the Board and counsel for Rooftop regarding whether a variance was needed.
Ultimately, the Board voted unanimously to approve a variance.1
Rooftop then appealed to the trial court.2 The trial court denied
Rooftop’s appeal, stating that Rooftop lacked standing to appeal because it prevailed
below and therefore was not aggrieved by the Board’s decision. (Trial court opinion
1
For purposes of context, it appears that, in March of 1998, Rooftop President Bob Burns
submitted an “Application for Declaration of Non-Conformance, Land Use Approval and/or
Zoning Change” to the Township Board of Supervisors when he was under contract to purchase
the Property. The Board of Supervisors’ March 1998 Minutes state, “Granted Bob Burns use for
commercial activity on Leonard’s property Rt. # 18 until permanent ordinance is amended.” (R.R.
at 43a.)
2
The Township intervened before the trial court. Before this Court, the Township joins in
the Board’s brief. (Letter filed February 10, 2017.)
2
at 4.) The trial court noted that Rooftop was entitled to construct the 1600 square-
foot addition, and thus its appeal of the permit denial was successful.
Before this Court, Rooftop raises three issues. As standing to appeal is
a threshold issue, we will address that issue first. Rooftop argues that it has standing
to appeal because it is an aggrieved person. Rooftop argues it did not request a
variance and it does not want a variance. Rooftop points out that in the concluding
paragraph of its Petition filed with the Board, Rooftop requested that the Board
“render a ruling clarifying the zoning classification for the property in question,
vacating the permit denial of January 18, 2016 and directing the zoning officer to
issue a permit as requested.” (R.R. at 7a.) Rooftop further argues that it will be
adversely affected if the Board’s decision is allowed to stand. Rooftop maintains
that the trial court erroneously refused to receive additional evidence which would
have established that the Property would have a lower value if it is zoned R-1-A
rather than commercial, and thus, that Rooftop is aggrieved. In effect, Rooftop
makes an unusual argument in that it asks this Court to reverse the trial court’s
decision which leaves in place the Board’s decision granting a variance-- a variance
which permits Rooftop to expand the structure and use of its Property, just as
Rooftop sought to do.
It is well-settled that only an aggrieved party may appeal. In re Chester
County Outdoor, LLC, 64 A.3d 1148, 1151 (Pa. Cmwlth. 2013). “Generally, a party
is aggrieved when he has an adverse, direct, immediate and substantial interest in a
decision, as opposed to a remote and speculative interest.” Thompson v. Zoning
Hearing Board of Horsham Township, 963 A.2d 622, 624 n. 2 (Pa. Cmwlth. 2009).
“A prevailing party that disagrees with the legal reasoning of an order or [sic] a court
or agency or may have had a particular issue decided against it lacks standing to
3
appeal because it is not adversely affected by the order.” Maple Street A.M.E. Zion
Church v. City of Williamsport, 7 A.3d 319, 322 (Pa. Cmwlth. 2010).
Contrary to Rooftop’s assertion, the Board recognized that Rooftop’s
appeal sought clarification of the zoning classification. Indeed, the Board stated it
“granted [Rooftop’s] request for clarifying the zoning classification for the
[P]roperty ….” (Board decision at 1.) The Board then determined that the present
zoning classification for the Property is R-1-A. (Findings of Fact No. 3.) The Board
further confirmed the decision of the Township zoning officer that Board approval
was required in order to expand existing non-conforming structures and uses of non-
conforming structures pursuant to Sections 1003.1 and 1004.1 of the Township
Zoning Ordinance, respectively. The Board confirmed the decision of the zoning
officer, who recommended a variance, and the Board granted Rooftop a variance for
the construction of the 1600 square-foot addition to the currently existing
commercial building. (Board’s decision at 1, Conclusions of Law No. 1.)
The Board clarified the zoning classification, just as Rooftop asked.
Ultimately, the Board granted Rooftop a variance to make use of the Property in
exactly the manner it sought to do. Consequently, Rooftop is the prevailing party.
As such, Rooftop is not aggrieved and therefore lacks standing to appeal. See Maple
Street.
Nonetheless, Rooftop argues that the Board erred because Rooftop did
not ask for a variance. However, Rooftop has waived the right to argue that it did
not seek a variance, because Rooftop failed to object when the Board stated it would
consider a request for a variance.3 See Duffy v. Department of Transportation,
3
At the hearing, the Board’s solicitor asked if the matter was being considered as an appeal
or if it was a request for a variance. (R.R. at 19a.) The solicitor stated that in terms of economy,
4
Bureau of Driver Licensing, 694 A.2d 6 (Pa. Cmwlth. 1997) (stating a litigant who
fails to raise at trial an available objection waives it on appeal); cf. Bristol Township
Water Authority v. Lower Bucks County Joint Municipal Authority, 567 A.2d 1110
(Pa. Cmwlth. 1989) (stating that a party who fails to object before the judge when
the asserted impediment or alleged conflict of interest is known waives the right to
raise the issue as a basis for invalidating the judgment). Accordingly, even if we
believed that Rooftop was aggrieved by the grant of a variance, Rooftop may not
now raise this argument.
Accordingly, we affirm the order of the trial court.4
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
he felt it was okay for the Board to consider it as a variance because in the appeal documents filed
with the Board, Rooftop cited to a variance by estoppel, which is a request for a variance. (R.R.
at 19a; see R.R. at 5a-6a.) The solicitor stated that Rooftop’s use still required a variance because
it was an expansion of a non-conforming use. (R.R. at 20a.) A board member then asked if the
Board could call it a request for a variance and proceed. (R.R. at 20a.) A discussion ensued in
which Rooftop’s counsel expressed concern that his client was looking for certainty regarding the
zoning classification because the client is concerned that he will have difficulties selling the
property if he dies or retires and if a variance is required each time there is a change. (R.R. at 21a.)
There was additional discussion. At no time did anyone testify on behalf of Rooftop. A Board
member then stated, “[w]e will call it a request for a variance and ask the Board for a motion.”
(R.R. at 27a.) A motion was made to approve the expansion of the nonconforming use, and
Rooftop did not object. (R.R. at 27a-28a.)
4
Because Rooftop lacks standing to appeal, we will not reach the other issues raised by
Rooftop.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rooftop Equipment, Inc., a/k/a :
Rooftop Holdings, LLC, :
Appellant :
:
v. : No. 1794 C.D. 2016
:
Wilmington Township Zoning :
Hearing Board and Wilmington :
Township :
ORDER
AND NOW, this 27th day of December, 2017, the order of the Court of
Common Pleas of Mercer County is hereby affirmed.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge