McLogie Properties Inc. v. Kidder Twp. ZHB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
McLogie Properties Inc., :
Appellant :
:
v. :
:
Kidder Township Zoning : No. 1136 C.D. 2021
Hearing Board : Submitted: June 7, 2023
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION
BY JUDGE FIZZANO CANNON FILED: June 30, 2023
McLogie Properties Inc. (McLogie) appeals from an order of the Court
of Common Pleas of Carbon County (trial court) docketed on September 16, 2021.
The trial court affirmed a May 2021 decision of the Kidder Township (Township)
Zoning Hearing Board (ZHB) denying McLogie’s request for variance relief. Upon
review, we reverse the trial court’s order.
I. Background
In June 2019, McLogie purchased an unimproved lot located in the
Township. Reproduced Record (RR) at 256a & 317a-20a. On August 9, 2019,
McLogie filed a zoning permit application with the Township to build a three-story
single-family residence on the property. RR at 44a; Township Br., App.
At that time, Robert Dobosh (Dobosh) was the Township’s zoning and
building/code enforcement officer. As such, Dobosh worked with McLogie during
preliminary inspections of the property. See RR at 30a-31a, 227a & 271a. Dobosh
then retired, and two different individuals filled his two positions: Cindy Norato
(Norato) became the Township’s zoning officer, and the Township outsourced the
position of building/code enforcement officer to Dave Williams (Williams) of
Building Inspection Underwriters. See id. at 31a, 226a-27a, 236a & 249a.
Norato approved McLogie’s zoning application in September 2019 and
issued McLogie a zoning permit for a house and deck on the property. RR at 46a &
226a. Once the zoning permit was in place as required, Willams issued McLogie a
building permit in October 2019, which allowed McLogie to begin construction of
the house and deck in accordance with the plan. Id. at 226a.
After construction was underway, McLogie discovered that the
foundation’s front elevation was approximately 11 feet lower than what had been
portrayed in its original plans. RR at 261a & 272a. McLogie halted construction in
November 2019 and sought guidance from Williams, who told McLogie to submit
an updated plan to the Township showing McLogie’s proposal for moving forward.
Id. at 247a & 260a-63a. McLogie revised the plan to add a basement with a ceiling
height of eight and one-half feet. RR at 261a-62a & 273a-75a. Williams approved
the revised plan. RR at 247a-50a; Supplemental Reproduced Record (SRR) at 727b-
28b. Williams neither informed Norato of the revised plan nor instructed McLogie
to do so. Williams did not revoke the building permit that was in place.
2
McLogie completed construction according to the revised plan. RR at
263a-64a. Township personnel inspected the home multiple times while it was being
built and then issued a certificate of occupancy to McLogie in July 2020. Id. at 66a
& 263a-64a. However, Norato did not learn of the revised plan until Williams
mentioned it in a telephone call in September 2020. Id. at 227a. In October 2020,
Norato sent an enforcement notice to McLogie, asserting that McLogie had
constructed the basement without obtaining a required zoning permit. Id. at 300a.
Norato relied on Section 180-19 of the Township’s Zoning Ordinance,1 which limits
the maximum height of all buildings on lots zoned R2 residential, like the McLogie
property, to no more than 35 feet and 3 stories. Id. at 300a. With the added
basement, the building exceeded both the height limit and the maximum number of
stories. Id.
McLogie appealed the enforcement notice to the ZHB and also sought
a variance for the home as already constructed. RR at 303a-06a & 314a-15a. The
ZHB held a public hearing in April 2021, at which both Norato and Williams
testified.
Norato explained that she had issued a zoning permit to McLogie in
September 2019 based on the original plan, had been unaware of the revised plan
until September 2020, and had promptly issued a citation once she learned of
McLogie’s noncompliance with the Zoning Ordinance. RR at 222a, 225a-32a, 234a-
35a & 238a-39a. Norato admitted that no one had informed McLogie in 2019 that
Dobosh’s responsibilities had been divided between Norato and Williams, and she
acknowledged that this lack of communication may have caused some confusion.
Id. at 235a-37a.
1
Kidder Township Zoning Ordinance, Carbon County, Pa., as amended (2017).
3
Williams testified that as the Township’s building/code enforcement
officer, he had no authority to compel compliance with the Zoning Ordinance.2 RR
at 246a-48a. He stated that he had reviewed the revised plan only for compliance
with the Pennsylvania Construction Code Act.3 Id.
One of McLogie’s principals, Kevin Kolodgie (Kolodgie), testified that
the company’s representatives had been unaware that they needed separate zoning
approval from Norato, as they had dealt solely with Williams after Dobosh’s
retirement and had believed that only Williams’s approval was needed for
construction to move forward. RR at 260a-66a. Kolodgie also estimated that
bringing the home into compliance with the Zoning Ordinance’s height restrictions
would cost more than $50,000. Id. at 266a. Thomas O’Connell, a contractor
employed by McLogie for the project, likewise testified that he and other McLogie
representatives had discussed the need for a revised plan with Williams in 2019 and
had gone to Williams for guidance and for approval of the revised plan. Id. at 272a-
74a.
In April 2021, the ZHB denied both McLogie’s appeal of the zoning
enforcement notice and its request for a dimensional variance. RR at 298a, 393a. In
its subsequent written decision in May 2021, the ZHB found McLogie’s evidence
concerning Williams’s approval of the revised plan to be neither credible nor
probative. The ZHB also determined that the Township had provided adequate
reasons for issuing the enforcement notice. The ZHB held that McLogie had failed
to satisfy the standard for obtaining a dimensional variance, was not entitled to a
2
However, as discussed in Section II, the building/code enforcement officer has related
responsibilities, such as informing the applicant of all needed permits (including zoning permits)
and revoking or refusing to issue a building permit until a needed zoning permit has been obtained.
3
Act of November 10, 1999, P.L. 491, as amended, 35 P.S. §§ 7210.101-7210.1103.
4
variance by estoppel or a vested right variance, and had waived its right to obtain
relief via equitable estoppel. ZHB Decision, Findings of Fact (F.F.) ¶¶ 36-44;
Conclusions of Law (C.L.) ¶¶ 6-17.
McLogie appealed the ZHB’s decision to the trial court, asserting that
McLogie was entitled to a variance by estoppel or, in the alternative, that the
Township was equitably estopped from enforcing the Zoning Ordinance’s height and
story restrictions in this instance. RR at 21a-24a & 404a-17a. The trial court took
no additional evidence. In an order docketed on September 16, 2021, the trial court
denied McLogie’s appeal. Trial Ct. Order, 9/16/21 at 1-2. The trial court determined
that McLogie had properly preserved its equitable estoppel claim but that substantial
evidence supported both the ZHB’s denial of relief under that theory and its refusal
to grant McLogie a variance by estoppel. Id. McLogie then appealed to this Court.
II. Discussion
On appeal to this Court, McLogie repeats its assertions that the ZHB
abused its discretion by denying a variance by estoppel and, similarly, by failing to
conclude that with regard to the property at issue, the Township was equitably
estopped from enforcing the Zoning Ordinance’s restrictions on residential building
heights and number of stories. McLogie’s Br. at 19-30. The material facts are
undisputed; thus, these assertions present issues of law.4 We agree with McLogie
that it is entitled to a variance by estoppel and, in the alternative, that the ZHB should
4
Where a trial court reviewing a zoning decision takes no additional evidence, our review
is limited to a determination of whether the ZHB committed an abuse of discretion or an error of
law. Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637, 639-40 (Pa. 1983).
However, where the issues presented on appeal are questions of law, our standard of review is de
novo and the scope of review is plenary. City of Clairton v. Zoning Hearing Bd. of Clairton, 246
A.3d 890, 896 n.8 (Pa. Cmwlth. 2021) (citing Braun v. Wal-Mart Stores, Inc., 106 A.3d 656, 663
n.8 (Pa. 2014)).
5
be equitably estopped from enforcing the height and story restrictions of the Zoning
Ordinance under the circumstances of this case.5
The ZHB insists that neither a variance by estoppel nor equitable
estoppel is available to McLogie. The ZHB suggests that McLogie, rather than the
building/code enforcement officer, was required to inform the zoning officer of the
changes to the construction plan, and that McLogie knew or should have known it
had to get zoning approval separate and apart from the building/code enforcement
officer’s approval. ZHB Br. at 2. We reject these assertions by the ZHB.6
5
Although McLogie has not couched its argument in terms of a vested right, we note that
the circumstances here satisfy the requirements for relief on that ground, as well: (1) due diligence
in attempting to comply with the zoning ordinance; (2) good faith throughout the proceedings; (3)
expenditure of substantial unrecoverable funds; (4) expiration, without appeal, of the period during
which an appeal could have been taken from approval of the permit; and (5) failure to prove that
individual property rights or the public health, safety or welfare would be adversely affected by
the use of the permit. Petrosky v. Zoning Hearing Bd. of Upper Chichester Twp., 402 A.2d 1385(Pa. 1979).
6
We note that McLogie’s legal argument contains few citations of authority, which raises
a potential waiver under Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure,
Pa.R.A.P. 2119(a). As this Court has explained, however:
Rule 2119(a) . . . does not mandate citations to authority for every
argument. The rule requires parties to support their arguments with
“such discussion and citation of authorities as are deemed
pertinent.” [Pa.R.A.P. 2119(a).] This Court declines to find waiver
of arguments that contain no legal citations but are otherwise
sufficiently developed to allow meaningful appellate review. See,
e.g., Herzog v. Unemployment Comp. Bd. of Rev[.] (Pa. Cmwlth.,
No. 437 C.D. 2010, . . . filed October 14, 2010), . . . (petitioner’s
failure to provide legal citation did not waive uncomplicated
argument that was factually developed); Arthur v. Unemployment
Comp. Bd. of Rev[.] (Pa. Cmwlth., No. 593 C.D. 2009, . . . , filed
October 20, 2009), . . . (appellate court will not refuse to review an
issue based solely on absence of legal citations, if the argument is
sufficiently developed to permit meaningful review). These
decisions are consistent with the provisions of Rule 2119(a) and
offer persuasive authority on this issue. See 210 Pa. Code
§69.414(a).
6
A. Variance by Estoppel
A party seeking a variance by estoppel must satisfy four elements: (1)
the municipality’s failure to enforce the zoning ordinance for a long period, when
the municipality knew or should have known of the violation but acquiesced in the
illegal use; (2) good faith and innocent reliance by the landowner on the validity of
the use throughout the proceedings; (3) substantial expenditures by the landowner
in reliance on the belief that the use was permitted; and (4) unnecessary hardship
from denial of the variance, such as the cost to demolish an existing building.
Skarvelis v. Zoning Hearing Bd. of Dormont, 679 A.2d 278, 281 (Pa. Cmwlth. 1996).
Here, regarding the first element, acquiescence by the municipality,
there is no dispute that the Township failed to enforce the zoning ordinance’s height
and story restrictions for a year while construction was ongoing, and that, during that
time, the Township knew about the change in the building plan, conducted multiple
inspections as the construction progressed, and issued an occupancy permit for the
finished house. Although a year of inaction is a comparatively short time to support
this element, the ongoing construction, the Township’s knowledge, and Williams’s
Hillside Villas Condo. Ass’n v. Bottaro Dev. Co., 177 A.3d 456, 465 n.9 (Pa. Cmwlth. 2018).
Here, McLogie’s argument presented a sufficiently developed argument to allow
meaningful appellate review, as well as to preserve the issue it raised. McLogie cited and quoted
multiple admissions by Township witnesses – facts that are not disputed – and cited, at least
minimally, the requirements of the Uniform Construction Code, 34 Pa. Code §§ 401.1-405.42, as
adopted by the Township. See Kidder Twp. Code, § 83-2 (adopting the Uniform Construction
Code and incorporating it by reference). As explained further in the next section, those
requirements include informing a building permit applicant of other permit requirements or
approvals needed, as well as assuring that those other permits or approvals have been obtained
before issuing a building permit. McLogie may not have cited the specific sections of the Uniform
Construction Code and accompanying regulations on which it was relying, but it nonetheless stated
the requirements of those sections and explained the Township’s undisputed failure to meet those
requirements. Accordingly, we will not decline to entertain McLogie’s argument based on the
lack of legal citations.
7
express approval of the revised building plan, along with the multiple inspections
and the occupancy permit, all establish acquiescence by the Township. Cf. Skarvelis,
679 A.2d at 281-82 (citing Knake v. Zoning Hearing Bd. of Dormont, 459 A.2d 1331(Pa. Cmwlth. 1983) (variance by estoppel where borough knew the use was
impermissible for 27 years but issued a building permit for the impermissible use);
Three Rivers Youth v. Zoning Bd. of Adjustment for the City of Pittsburgh, 437 A.2d
1064 (Pa. Cmwlth. 1981) (inaction by municipality for 7 years plus issuance of
building permit by municipality and reliance by landowner on zoning officer’s
interpretation of zoning regulation); Twp. of Haverford v. Spica, 328 A.2d 878 (Pa.
Cmwlth. 1974) (inaction by municipality for 36 years and issuance of building
permit with knowledge of intended construction)).
Regarding the second element, good faith reliance by the landowner,
the record establishes that no one told McLogie that Dobosh’s former work functions
had been divided between two separate people and were not being performed solely
by Williams. Importantly, the applicable statute and regulations all appeared to
indicate that the building code officer was responsible for approving the revised
building plan. The Township adopted all of these provisions and incorporated them
by reference in its code or ordinances when it adopted the Uniform Construction
Code. Kidder Twp. Code, § 83-2.
The applicable statutory provision states, in pertinent part:
A code administrator shall review a construction plan of a
building permit application upon submission and shall
issue a notice of construction plan approval on a building
permit application within the periods set forth in this
section if the construction plans comply with the
Construction Code Act and any other applicable municipal
construction code ordinance. The municipality shall also
provide a list of all other required permits necessary prior
8
to issuance of the building permit. The municipality will
not be liable for the completeness of any list. When a
construction plan has been approved, a code administrator
shall issue a building permit immediately upon receipt of
all other required permits or approvals related to the
construction . . . .
Section 502(a)(1) of the Construction Code Act, 35 P.S. § 7210.502(a)(1) (emphasis
added). A “code administrator” is “[a] municipal code official, a construction code
official, a third-party agency or the Department of Labor and Industry.” Section 103
of the Construction Code Act, 35 P.S. § 7210.103 (emphasis added). Thus,
Williams, as a construction code official employed by Building Inspection
Underwriters, the Township’s contracted third-party agency, was the Township’s
“code administrator” with the statutory responsibilities accompanying that title.
Three important requirements emerge from this provision: (1) the building/code
enforcement officer was the primary contact and the person responsible to assure
that other needed permits or approvals had been procured before issuing a building
permit; (2) the Township was required to inform McLogie of all required permits –
not the converse; and (3) all such permits had to be obtained before the code officer
issued a building permit.
The building/code enforcement officer’s function in this regard is
underscored by the following related Uniform Construction Code provisions:
§ 403.62. Permit requirements and exemptions.
(a) An owner or authorized agent who intends to
construct, enlarge, alter, repair, move, demolish or change
the occupancy of a residential building or erect, install,
enlarge, alter, repair, remove, convert or replace an
electrical, gas, mechanical or plumbing system regulated
by the Uniform Construction Code shall first apply to the
building code official and obtain the required permit under
§ 403.62a (relating to permit application). [Emphasis
added.]
9
34 Pa. Code § 403.62(a).
§ 403.62a. Permit application.
(a) Applications for a permit required under § 403.62
(relating to permit requirements and exemptions) shall be
submitted to the building code official in accordance with
this section.
(b) A permit applicant shall submit an application to the
building code official and attach construction documents
with plans and specifications and all other permits or
approvals related to the construction required by § 403.102(n)
(relating to municipalities electing to enforce the Uniform
Construction Code).
....
(e) The application must contain a site plan showing the
size and location of the new construction and existing
structures on the site and the structures’ distance from lot
lines. If the construction involves demolition, the site plan
must indicate construction that is to be demolished and the
size and location of existing structures and construction
that will remain on the site or plot. A building code official
may waive or modify the site plan requirement when the
permit application is for an alteration or a repair or if the
waiver is warranted for other reasons. [Emphasis added.]
34 Pa. Code § 403.62a(a), (b) & (e).
§ 403.63. Grant, denial and effect of permits.
(a) A building code official shall grant or deny a permit
application, in whole or in part, within 15 business days of
the filing date or the application is deemed approved. If
the drawings were prepared by a design professional who
is licensed or registered under the laws and regulations of
the Commonwealth and the application contains a
certification by the licensed or registered design
professional that the plans meet the applicable standards
of the Uniform Construction Code and ordinance as
appropriate, a building code official shall grant or deny a
permit application, in whole or in part, within 5 business
days of the filing date or the application is deemed
10
approved. Reasons for denial must be in writing,
identifying the elements of the application which are not
in compliance with the relevant provisions of the Uniform
Construction Code and ordinance as appropriate and
providing a citation to the relevant provisions of the
Uniform Construction Code and ordinance as appropriate,
and sent to the permit applicant. The building code official
and the applicant may agree in writing to extend the
deadline by a specific number of days.
(b) A building code official shall examine the construction
documents and shall determine whether the construction
indicated and described is in accordance with the Uniform
Construction Code and other pertinent laws or ordinances
as part of the application process. [Emphasis added.]
34 Pa. Code § 403.63(a) & (b).
§ 403.65. Certificate of occupancy.
(a) A residential building may not be used or occupied
without a certificate of occupancy issued by a building
code official.
(b) A building code official shall issue a certificate of
occupancy after receipt of a final inspection report that
indicates compliance with the Uniform Construction Code
and ordinance within 5 business days or within 10 business
days in cities of the first class . . . . [Emphasis added.]
34 Pa. Code § 403.65(a) & (b).
§ 403.102 Municipalities Electing to Enforce the Uniform
Construction Code
....
(n) A municipality will provide a list of all other required
permits necessary before issuance of the building permit.
A municipality will not be liable for the completeness of
any list. [Emphasis added.]
34 Pa. Code § 403.102(n).
11
The Uniform Construction Code provisions above demonstrate that an
applicant for a building permit does not inform the Township that additional zoning
approval is required for a revised plan; the Township informs the applicant. Here,
the building permit was issued in October 2019 by Williams, the Township’s
building/code enforcement officer. As the Uniform Construction Code indicates,
the building permit could not have been issued if the necessary zoning permits or
approvals had not been obtained first.7 See 34 Pa. Code §§ 403.62(a); 403.62a(a),
(b) & (e); 403.63(a) & (b); 403.65(a) & (b); 403.102(n). It was the Township’s duty
to assure that those approvals were in place.
Similarly, the building permit could be revoked only by the building
code official following a change in the construction plan if he determined that the
change mandated additional permit approvals. The Construction Code Act requires
a code administrator to review a construction plan to confirm the issuance of all other
required permits before approving the construction and issuing a building permit.
35 P.S. § 7210.502. Thereafter, “[a]ll revisions or changes to construction plans so
7
We note that the Township’s web page relating to zoning and development regulations
states:
Attention:
Kidder Township is contracted with Building Inspection
Underwriters of Pennsylvania, Inc. [(BIU)] to issue all Township
Building Permits and provide services such as review of plans and
other construction documents, inspect construction, plumbing and
mechanical inspections. Please be advised that BIU will not
commence work on building permits until Kidder Township has first
issued a zoning permit authorizing such work and shall not take any
action until all fees are paid and all required documents are properly
submitted.
Kidder Twp., “Zoning and Building,” https://kiddertownship.org/zoning-and-building/ (last
visited June 29, 2023).
12
approved . . . shall necessitate an additional plan review prior to the issuing of the
building permit.” Id. The clear import of this statute is that the code administrator
must review all plan changes to determine whether all other necessary permits have
been obtained, just as he reviewed the original plan. See id. If the plan changes
require additional permits, the code administrator must either withhold approval of
the changes or revoke the building permit pending the issuance of the additional
permits. Pennsylvania courts have long applied the maxim omnia praesumuntur rite
esse acta, which this Court has explained as follows:
It is, as a general rule, presumed that a public official
properly and regularly discharges his duties, or performs
acts required by law, in accordance with the law and the
authority conferred on him, and that he will not do any act
contrary to his official duty or omit to do anything which
such duty may require.
Collier v. City of Phila. (Pa. Cmwlth., No. 649 C.D. 2016, filed Mar. 6, 2017), slip
op. at 9 n.108 (quoting Beacom v. Robison, 43 A.2d 640, 643 (Pa. Super. 1945))9
(quotation marks omitted). Our courts have applied this maxim in various contexts.
For example, in Harshman v. Dunbar Township, 11 Pa. Super. 638,
642-44 (1899), a township had a standing contract for road repair under which the
regular contractor failed to perform. A statute required the township to give the
regular contractor advance notice and an opportunity to cure its breach before hiring
a new contractor. Thus, the township argued that its agreement with the new
contractor was invalid and it did not have to pay him. However, the Superior Court
explained that the new contractor could rely on its agreement with the township and
8
This unreported decision is cited as persuasive authority pursuant to Section 414(a) of
this Court’s Internal Operating Procedures. 210 Pa. Code § 69.414(a).
9
Superior Court decisions are persuasive authority for this Court. Lerch v. Unemployment
Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
13
had no duty to inquire whether the proper notice had been given to the original
contractor before he accepted a contract from the township:
He had the right to presume that the preliminary acts
necessary to enable the [township] commissioners to enter
into the contract had been performed by them. It was not
his imperative duty to inquire of the contractors whether
or not the notice required by the act had been given. That
was an official duty incumbent upon the commissioners.
When the commissioners made the contract, they must be
deemed to have asserted that the preliminaries necessary
to the making of that contract had been performed. As was
said in the argument of the appellee, the plaintiff was
bound to know the law, but he was not bound to know
facts. As to the latter, so far as the duties of the
commissioners were concerned, he could rightfully
presume their existence and that the duties of the
commissioners under the law had been performed.
Id. at 644. Similarly, in Danville State Hospital for the Insane v. Bellefonte Borough
Overseers of the Poor, 129 A. 901 (Pa. 1894), our Supreme Court held that, where
a borough’s overseers of the poor had statutory authority to send insane paupers to
a state mental hospital, others dealing with the overseers were not required to inquire
into the regularity of their official actions before accepting and expecting payment
for such patients; the overseers’ acts were presumed to be rightly done. Id. at 902 &
904. See also Alexander v. Zerbe Twp. Poor Dist., 63 Pa. Super. 356, 359, 361-62
(1916) (holding that a doctor contracted to provide medical services to the poor was
entitled to payment and was not required to inquire into the regularity of the
overseers’ directive that he provide shots to specific patients; the overseers’ acts
were presumed to be rightly done).
Here, as set forth above, before approving the change in the
construction plan, the Township, through its code administrator, had a legal duty to
ascertain whether a new zoning permit would be required for the particular plan
14
change. See 35 P.S. § 7210.502. Notably, the Township’s duty also included the
Zoning Officer’s obligation to inspect the construction for compliance with the
zoning ordinance before a certificate of use10 was issued. Kidder Twp. Code § 180-
170.G.(3) (mandating that “[t]he Zoning Officer shall inspect such structure or land
related to an application for [a] certificate [of use]. If the Zoning Officer determines
. . . that such work conforms with this chapter and applicable Township codes,
approvals and permits, then the certificate of use shall be issued.”). We therefore
conclude that the maxim omnia praesumuntur rite esse acta should be applied in this
case as well. Thus, as a matter of law, McLogie was entitled to assume the Township
had performed its statutory and regulatory duties to assure that the plan change
complied with applicable zoning. Accordingly, as a matter of law, McLogie acted
reasonably in relying on Williams’s approval of the revised building plan,
Williams’s failure to revoke the existing permit upon plan revision, the Township’s
acquiescence in the construction under the originally issued building permit, and the
Township’s subsequent issuance of the occupancy permit. The trial court erred in
viewing McLogie’s reasonable reliance as a question of fact and ruling on that issue
on the basis of a credibility finding. The law provided the basis for McLogie’s
reliance.
Regarding the third element, substantial expenditures in reliance on the
validity of the use, McLogie built a basement with an eight and one-half foot ceiling
in reliance on the validity of its building permit. Regarding the fourth element,
unnecessary hardship from denial of a variance, there was testimony that McLogie
10
The Township’s zoning ordinance defines a “certificate of use” as “[a] document issued
by the Township stating that a newly constructed or altered building, structure, and/or use complies
with [the zoning ordinance].” Kidder Twp. Code § 180-12. Although the Kidder Township Code
does not define an “occupancy permit,” the two terms appear to be synonymous.
15
would have to expend about $50,000 to fill in the basement. Thus, the last two
elements are related here, in that McLogie incurred additional construction expense
to build the basement and would incur substantial additional expense again in order
to fill and regrade the area. Both expenses could have been avoided had the
Township followed its own ordinance provisions.
Finally, we note that the record does not suggest that the height and
story violations create any practical problem of obscuring anyone’s view or access
to light and air. Indeed, the Township’s proposed solution is not to reduce the height
of the residence by removing the upper story, but rather, to fill in and raise the ground
level so as to eliminate one of the home’s exits, that from the basement level – in
other words, to raise the ground, not lower the building. Such a requirement would
make no difference in the height of the house in relation to neighboring structures.
In summary, the original plan here did not require any zoning relief
before the original building permit was issued. Later, an issue arose regarding the
front elevation of the property, and a basement was added to the plan. The revised
plan showing the change was presented to the same building/code enforcement
officer in November 2019 and he, at a minimum, approved the new foundation for
the basement at that time. The same building/code enforcement officer did not
indicate that any zoning relief was required or that another plan needed to be
submitted. The Township did not revoke the building permit, which it should have
done if it believed zoning relief was required in connection with the building plan
change shown in the new plan. Instead, the Township allowed McLogie to continue
to build under the prior building permit over the next nine months. The Township
inspected the property multiple times while it was being built. The Township issued
a certificate of occupancy for the property in July 2020, indicating that the property
16
was in compliance with Township codes and ready for use. In September 2020, the
zoning officer realized that the property was not in compliance as built, and in
October 2020, almost a year after approval of the revised building plan, the zoning
officer issued an enforcement notice. Denial of a variance by estoppel under these
undisputed facts was an error of law.
B. Equitable Estoppel
Refusal to apply equitable estoppel here was also an error of law. We
recognize that the Township cannot be “liable” under the Uniform Construction
Code for failing to notify McLogie of the need for zoning relief. 35 P.S. § 7210.502(a);
see also 34 Pa. Code § 403.102(n). However, that does not mean that the Township
cannot be equitably estopped from imposing an untimely zoning requirement.
Black’s Law Dictionary defines “liable” as: “1. Responsible or answerable in law;
legally obligated . . . . 2. Subject to or likely to incur a fine, penalty, etc.” Liable,
Black’s Law Dictionary (11th ed. 2019). By contrast, it defines “estoppel” as:
1. A bar that prevents one from asserting a claim or right
that contradicts what one has said or done before or what
has been legally established as true. . . . 3. An affirmative
defense alleging good-faith reliance on a misleading
representation and an injury or detrimental change in
position resulting from that reliance.
Estoppel, Black’s Law Dictionary (11th ed. 2019). Thus, the two terms are not
interchangeable. A provision restricting the Township’s liability should not be read
as precluding the application of estoppel principles where appropriate.
Equitable estoppel may arise from “an informal promise implied by
one’s words, deeds, or representations” that induces reasonable reliance by another
to his detriment. In re Jackson, 280 A.3d 1074, 1083 (Pa. Cmwlth. 2022). Thus,
17
the two essential elements of equitable estoppel are inducement and justifiable
reliance. Belleville v. David Cutler Grp., 118 A.3d 1184, 1199 (Pa. Cmwlth. 2015).
Equitable estoppel may be asserted against the government. Jackson, 280 A.3d at
1083; see also Chester Extended Care Ctr. v. Dep’t of Pub. Welfare, 586 A.2d 379,
382 (Pa. 1991). “The inducement may be words or conduct and the acts that are
induced may be by commission or forbearance provided that a change in condition
results causing disadvantage to the one induced.” Belleville, 118 A.3d at 1199(quoting Zitelli v. Dermatology Educ. & Rsch. Found., 633 A.2d 134, 139 (Pa.
1993)); see also Jackson, 280 A.3d at 1083.
Here, McLogie relied to its detriment on Williams’s approval of the
revised construction plan, failure to revoke the building permit upon plan revision,
and failure to inform McLogie that additional zoning approval must be sought; it
also relied on the Township’s multiple inspections during the construction, and the
issuance of an occupancy permit when construction was complete. If the ZHB is
allowed to enforce the zoning ordinance against McLogie now, the property either
cannot be used, or extreme measures must be taken. Either will be a clear detriment
to McLogie.
For these reasons, we conclude that McLogie has established both
inducement and reliance. Accordingly, besides a variance by estoppel, McLogie is
also entitled, in the alternative, to the application of the doctrine of equitable estoppel
to preclude the Township from enforcing the height and story limitations to the
building construction at issue. The ZHB and the trial court erred by concluding
otherwise.
18
III. Conclusion
Based on the foregoing discussion, we conclude that McLogie is
entitled to a variance by estoppel, and further, that the ZHB is equitably estopped
from enforcing the zoning ordinance’s height and story limitations against McLogie
in the circumstances of this case. Accordingly, the trial court’s order affirming the
ZHB’s decision is reversed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
McLogie Properties Inc., :
Appellant :
:
v. :
:
Kidder Township Zoning : No. 1136 C.D. 2021
Hearing Board :
ORDER
AND NOW, this 30th day of June, 2023, the order of the Court of
Common Pleas of Carbon County docketed on September 16, 2021 is REVERSED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
McLogie Properties Inc., :
Appellant :
:
v. : No. 1136 C.D. 2021
:
Kidder Township Zoning Hearing :
Board : Submitted: June 7, 2023
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
DISSENTING OPINION
BY JUDGE CEISLER FILED: June 30, 2023
I respectfully dissent from the majority’s conclusion that Appellant McLogie
Properties Inc. (McLogie) is entitled to estoppel-based relief regarding its revised
plans. This is for two reasons. First, from a procedural standpoint, I believe that
McLogie has waived this argument. As our Supreme Court has explained,
our rules of appellate procedure are explicit that the
argument contained within a brief must contain “such
discussion and citation of authorities as are deemed
pertinent.” Pa. R.A.P. 2119(a). “[W]here an appellate brief
fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is
waived. It is not the obligation of [an appellate court . . . ]
to formulate [an a]ppellant’s arguments for him.” Com[.]
v. Johnson, . . . 985 A.2d 915, 924 ([Pa.] 2009) (internal
citations omitted). Moreover, because the burden rests
with the appealing party to develop the argument
sufficiently, an appellee’s failure to advocate for waiver is
of no moment. See Connor v. Crozer Keystone Health
Sys., 832 A.2d 1112, 1118 (Pa. Super. 2003).
Wirth v. Com., 95 A.3d 822, 837 (Pa. 2014).
Here, McLogie argued that Dave Williams, Kidder Township’s building/code
enforcement officer, was legally required to notify it regarding the need for
additional zoning approvals, but did not support this assertion with cites to specific
ordinances or statutory provisions or, for that matter, any legal analysis. Instead,
McLogie presented this argument through two passing references in its brief to the
Uniform Construction Code (Uniform Construction Code or UCC),1 which read as
follows:
Mr. Williams’ testimony . . . reflects miscommunication
related to the project. ([Reproduced Record (R.R.)] at
529a-254a). Mr. Williams testified that the “Pennsylvania
UCC requires that I tell applicants for building permits that
they might need to go through zoning and get a zoning
permit for their work. That is the expressed limit of my
responsibility regarding zoning.” ([R.R.] at 248a). Yet,
despite this requirement, Mr. Williams could not recall
whether he advised McLogie of this or informed McLogie
that [it] had to proceed separately with zoning. (Id.).
McLogie’s Br. at 14.
Here, the record is replete with evidence of negligence.
(See Hearing Transcript, generally). Mr. Williams, as
testified by himself, Ms. Norato, Kidder Township’s
zoning officer,] Mr. Kolodgie, [one of McLogie’s
principals,] and Mr. O’Connell, [a contractor employed by
McLogie for the project,] approved the Revised Plans.
(See [i]d.). Mr. Williams further advised McLogie
following his approval that it was “good to go” with
construction of the residence as modified. (See [i]d.). This
was clearly a negligent misrepresentation on behalf of
[Kidder] Township given the position taken by [Appellee
Kidder Township Zoning Hearing Board (Board)] that Mr.
Williams’[] authority related to building issues only (even
though he, nor Ms. Norato, nor anyone else from [Kidder]
Township ever advised McLogie that Mr. Dobosh’s duties
1
34 Pa. Code §§ 401.1-405.42.
EC - 2
had been split between two individuals). (See [i]d.).
Additional evidence of negligence by [Kidder] Township
as detailed at length before includes:
....
Mr. Williams never advised McLogie that it might have to
get a zoning permit for the Revised Plans even though
“Pennsylvania UCC requires” that information be
conveyed. (Id. at 31:4-5, 50:10-20).
McLogie’s Br. at 29-30. This discussion falls far short of what can be considered a
sufficiently developed claim that Williams’ putative failure to fulfill his alleged
duties justifies relief in McLogie’s favor by estoppel. Therefore, to the extent that
such an argument could have been presented, McLogie has waived it.
Second, I believe that this argument, even if it had been properly presented to
us, would not justify reversal. In general, local municipalities are vested with
authority to adopt the UCC, through both the Construction Code Act2 and the
attendant regulations present in the Uniform Construction Code, via ordinance. See
35 P.S. § 7210.501(a);3 34 Pa. Code § 403.102. Kidder Township has exercised this
authority by adopting the UCC by reference. See Kidder Twp. Code § 83-2.4
Under the UCC, applicants are required to apply for and obtain building
permits from a municipality’s building code official for things that are regulated
under the UCC. See 34 Pa. Code §§ 403.62, 403.62a. The UCC delineates the
building code official’s authority and duties as follows, in relevant part:
(a) A building code official shall grant or deny a permit
application, in whole or in part, within 15 business days of
the filing date or the application is deemed approved. If
the drawings were prepared by a design professional who
2
Act of November 10, 1999, P.L. 491, as amended, 35 P.S. §§ 7210.101-7210.1103.
3
Section 501(a) of the Construction Code Act.
4
Kidder Township Code, Carbon County, Pa., as amended (2005).
EC - 3
is licensed or registered under the laws and regulations of
the Commonwealth and the application contains a
certification by the licensed or registered design
professional that the plans meet the applicable standards
of the Uniform Construction Code and ordinance as
appropriate, a building code official shall grant or deny a
permit application, in whole or in part, within 5 business
days of the filing date or the application is deemed
approved. Reasons for denial must be in writing,
identifying the elements of the application which are not
in compliance with the relevant provisions of the Uniform
Construction Code and ordinance as appropriate and
providing a citation to the relevant provisions of the
Uniform Construction Code and ordinance as appropriate,
and sent to the permit applicant. The building code official
and the applicant may agree in writing to extend the
deadline by a specific number of days.
(b) A building code official shall examine the construction
documents and shall determine whether the construction
indicated and described is in accordance with the Uniform
Construction Code and other pertinent laws or ordinances
as part of the application process.
(c) A building code official shall stamp or place a notation
on each page of the set of reviewed construction
documents that the documents were reviewed and
approved for Uniform Construction Code compliance
before the permit is issued. The building code official shall
clearly mark any required nondesign changes on the
construction documents. The building code official shall
return a set of the construction documents with this
notation and any required changes to the applicant. The
applicant shall keep a copy of the construction documents
at the work site open to inspection by the construction
code official or an authorized representative.
....
(e) A building code official may issue a permit for the
construction of the foundations or other parts of a building
or structure before the construction documents for the
whole building or structure are submitted if the permit
applicant previously filed adequate information and
detailed statements for the building or structure under the
EC - 4
Uniform Construction Code. Approval under this section
is not assurance that the building code official will issue a
permit for the entire building or structure.
(f) Issuance of a permit does not bar prosecution or other
legal action for violations of the [Construction Code A]ct,
the Uniform Construction Code or a construction
ordinance. A building code official may suspend or revoke
a permit issued under the Uniform Construction Code
when the owner does not make the required changes
directed by the building code official under subsection (c),
when the permit is issued in error, on the basis of
inaccurate or incomplete information or in violation of any
act, regulation, ordinance or the Uniform Construction
Code.
....
34 Pa. Code § 403.63(a)-(c), (e)-(f). The Construction Code Act contains similar
language and, in addition, explicitly states that a municipality must provide an
applicant with a list of necessary permits prior to issuing a building permit, but
cannot be held “liable” for the completeness of that list. See 35 P.S. § 7210.502(a).5
Finally, the UCC states that a building code official shall issue a certificate of
occupancy after receiving a final inspection report that shows compliance with the
Uniform Construction Code and the municipality’s ordinance adopting the UCC, but
“may suspend or revoke a certificate of occupancy when the certificate was issued
in error, on the basis of incorrect information supplied by the permit applicant, or
in violation of the Uniform Construction Code.” 34 Pa. Code § 403.65 (emphasis
added).
Tying all of this statutory and regulatory language together leads to the
following conclusions. First, a building code official is responsible for reviewing
building plan applications to ensure that they comply with the UCC and any local
construction code ordinances, and can approve such applications only in the event
5
Section 502(a) of the Construction Code Act.
EC - 5
that the official finds them to be compliant. Second, a building code official must
also review applications to determine whether they comply with “other pertinent
laws or ordinances,” but approval of an application is only contingent upon its
compliance with the UCC and local construction code ordinances. Third, before
issuing a building permit, a municipality must provide an applicant with a list of
what other permits they need to obtain, but the municipality cannot be held liable for
the completeness of that list. In other words, a municipality cannot be held
responsible if, for example, its officials issue a building permit but fail to inform an
applicant that they also need to obtain additional zoning permits in order to move
forward with the affected construction project. Finally, the issuance of a certificate
of occupancy is only predicated upon whether the building has been inspected for
compliance with the UCC, not upon whether the building is in compliance with all
relevant laws and ordinances. Accordingly, McLogie had no legal basis to rely on
Williams’ approval of the revised plans, the subsequent issuance of a certificate of
occupancy, and/or the fact that Williams did not tell McLogie that it needed to secure
additional zoning approval, as proof that it was free to move forward with
developing its parcel of land in accordance with the revised plans.
McLogie’s only recourse, then, was to argue that it relied in good faith upon
Williams’ actions when forming the belief that it did not need to secure additional
governmental review in order to move forward with construction, and thus was
entitled to estoppel-based relief. The Board, in relevant part, concluded that
[McLogie] knew it had to get zoning approval separate and
apart from [Williams’] approval; [McLogie] specifically
applied for a 34[-]foot[-]high building and submitted plans
to [Norato] with only three (3) stories; and . . . the Zoning
Permit itself was approved with the comment “as per
submitted plans[,]” meaning [McLogie] had actual
EC - 6
knowledge that the Zoning Permit was only approved as
per the plans showing three (3) stories.
Board’s Decision, Conclusions of Law ¶¶6, 8. Furthermore, McLogie was, at
minimum, put on notice by the zoning permit it received from Kidder Township on
September 6, 2019, that Norato was Kidder Township’s zoning officer, as well as
that this permit only authorized the construction of a “[n]ew home & deck [a]s per
[McLogie’s] plot plan [for its property.]” R.R. at 46a; Kidder Twp.’s Br., App. As
such, the Board did not abuse its discretion in determining that McLogie was not
entitled to a variance by estoppel, because, in the Board’s reasoned view, McLogie
had not innocently relied upon Williams’ approval of the revised plans and knew, or
should have known, that the only way it could get zoning approval for its revised
plans was through Norato, not Williams.6
Furthermore, though the Board erroneously concluded that McLogie had
waived its equitable estoppel argument, that error is ultimately harmless. See
DiSanto v. Bd. of Comm’rs of Susquehanna Twp. (Pa. Cmwlth., No. 679 C.D. 2016,
filed June 1, 2017), slip op. at 4-6, 2017 WL 2376522, at *2;7 In re Kreider, 808
A.2d 340, 343 (Pa. Cmwlth. 2002). What is fatal to that claim is the same thing that
deprived McLogie of the ability to secure a variance by estoppel: the Board’s
determination that McLogie unjustifiably relied on Williams’ approval of the revised
plans and failed to seek or gain a new zoning permit from Norato. See DiSanto, slip
6
A local governing body abuses its discretion when it makes factual findings that are not
supported by substantial evidence. Miravich v. Twp. of Exeter, Berks Cnty., 54 A.3d 106, 110 n.4
(Pa. Cmwlth. 2012). “Substantial evidence” constitutes “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Valley View Civic Ass’n v. Zoning Bd. of
Adjustment, 462 A.2d 637, 640 (Pa. 1983).
7
Unreported Commonwealth Court opinions issued after January 15, 2008, may be cited
for their persuasive value. See Internal Operating Procedures of the Commonwealth Court Section
414(a), 210 Pa. Code § 69.414(a).
EC - 7
op. at 7, 2017 WL 2376522, at *3 (“This Court has repeatedly held that equitable
estoppel will not lie where the party asserting estoppel knew or should have known
that the alleged promisor was without authority to effectuate the alleged promise.”).8
Given that the Board appropriately exercised its discretion as factfinder, we are
bound by its credibility determinations9 and cannot disturb its conclusion that
McLogie did not rely in good faith upon Williams’ approval of the revised plans.
In sum, I would affirm the Court of Common Pleas of Carbon County’s
(Common Pleas) September 16, 2021 order, through which Common Pleas affirmed
the Board’s denial of McLogie’s request for relief, and respectfully dissent from the
majority opinion on that basis.
__________________________________
ELLEN CEISLER, Judge
8
“It is well settled that this Court may affirm on other grounds where the grounds for
affirmance exist.” Thorpe v. Com., 214 A.3d 335, 339 n.8 (Pa. Cmwlth. 2019) (citing Karl Smith
Dev. Co. v. Borough of Aspinwall, 558 A.2d 181, 185 n.6 (Pa. Cmwlth.1989)).
9
It is well settled that we must avoid the inclination to measure and assess the multitude
of factors and considerations that support a zoning ruling, and “must exercise self-restraint as to
substituting our opinions far removed from the particular zoning hearing for the well-considered
decision of [the Board].” Cohen v. Zoning Bd. of Adjustment of City of Phila., 276 A.2d 352, 355
(Pa. Cmwlth. 1971). “It is, after all, the sole function of the Board, in the performance of its role
as fact finder, to evaluate witness credibility and assign evidentiary weight.” Lower Allen Citizens
Action Grp., Inc. v. Lower Allen Twp. Zoning Hearing Bd., 500 A.2d 1253, 1258 (Pa. Cmwlth.
1985) (punctuation omitted). Indeed, the “Board as fact finder is the ultimate judge of credibility
and resolves all conflicts in the evidence,” Eichlin v. Zoning Hearing Board of New Hope Borough,
671 A.2d 1173, 1175 (Pa. Cmwlth. 1996), and has “the power to reject even un-contradicted
testimony if it finds it lacking in credibility.” Lower Allen, 500 A.2d at 1258.
EC - 8