Walker v. Ehlinger

KELLEY, Judge,

dissenting.

I respectfully dissent. I believe that the decision of the trial court which concluded that a series of concrete blocks is a “structure” should be reversed. Contrary to the conclusion reached by the majority, I believe that an individual, non-permanent concrete block is not a “structure.”

The BOCA National Building Code/1990 has been adopted as the Building Code of the Borough of Doylestown (Code), with certain exceptions which are not relevant here. Section 201.0 of the Code states that a structure is “[tjhat which is built or constructed.” Furthermore, Black’s Law Dictionary 1276 (6th Ed.1990) states that a “structure” is “an edifice or building of any kind.” These definitions give rise to the conclusion that a “structure” is a permanent improvement on land.

In this particular case, nothing is being built or constructed on Walker’s property such as a dwelling or a commercial establishment. Quite to the contrary, the parties have stipulated that the concrete blocks are not joined or attached to each other in any way. Rather, the concrete blocks are freestanding, are not affixed to the ground and do not rest on footings. The parties have also stipulated that the concrete blocks are movable. As such, they cannot be considered a “structure” on Walker’s land.

I recognize the majority’s concern that these concrete pieces are large and will seemingly present an immovable mass blocking vehicular trespass once they are in place. However, the same could be said of a large hedge which I would certainly not consider to be a “structure.” The ramifications of the majority’s conclusion are very troubling. If the concrete blocks are considered to be a new “structure” upon Walker’s land, they can be assessed as an improvement to his property.

Therefore, I believe that the majority erred in holding that the concrete blocks constituted a “structure” whose placement required a building permit. Accordingly, the trial court’s order should be reversed.