In re Appeal of Borough of Akron

633 A.2d 1244, 159 Pa. Commw. 420, 1993 Pa. Commw. LEXIS 675
CourtCommonwealth Court of Pennsylvania
DecidedNovember 4, 1993
DocketNo. 57 C.D. 1993
StatusPublished
Cited by1 cases

This text of 633 A.2d 1244 (In re Appeal of Borough of Akron) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Appeal of Borough of Akron, 633 A.2d 1244, 159 Pa. Commw. 420, 1993 Pa. Commw. LEXIS 675 (Pa. Ct. App. 1993).

Opinion

KELTON, Senior Judge.

Mark Hollinger and Dorothy Hollinger (Objectors) appeal from the December 9, 1992 order of the Court of Common Pleas of Lancaster County, in which the court affirmed the decision of the Zoning Hearing Board of Akron Borough (the Board) directing the issuance of a building and zoning use permit to Paul E. Weaver (Landowner)1 to construct six townhouses and to convert an existing single family house into two dwelling units.

The property in question is a six acre tract formerly located in Ephrata Township. On April 1, 1968, Akron Borough (the Borough) enacted an ordinance annexing the tract into the Borough. At that time, Section 13032 of the Borough. Zoning Ordinance provided for automatic assignment of an R-l (single family) zoning designation to annexed land. The Borough [423]*423did not, either then or thereafter, pass an ordinance assigning a zoning classification to the property.

There are three principal issues: 1) whether the Board and the trial court correctly determined that the property has remained unzoned since the date of annexation by the Borough; 2) whether Landowner is estopped from denying that the property is zoned R-l; and 3) whether the trial court correctly concluded that the property is “freely developable.” (R.R. 492a).

We agree with the trial judge, the Honorable Louis J. Farina, that the property remains unzoned and that Landowner is not estopped from using it for the purposes requested in his permit application. However, we also conclude that the order approving Landowner’s application does not eliminate the requirement that Landowner comply with other generally applicable Borough regulations.

FACTUAL HISTORY

The facts as found by the Board may be summarized as follows. Since the date of annexation in 1968, the Borough’s zoning map has identified the parcel as zoned R-l. Landowner has sold portions of the property, which were then developed with single family dwellings.

In 1991, Landowner sought a building and zoning use permit to construct six townhouse dwellings and to convert a single family dwelling into two units. Landowner’s application identified the property as either unzoned or zoned R-2 residential, a district permitting multi-family uses. By letter of December 23, 1991, the Zoning Officer denied Landowner’s application. However, on appeal, the Board, in a May 1, 1992 decision, determined that Landowner’s permit application was deemed approved because of the failure of the Zoning Officer to act timely upon the request. The Board noted in its conclusion that the deemed approval of the application did not serve to waive any other applicable ordinances or regulations with respect to the use and development of the property.

[424]*424On appeal by the Borough, the trial court remanded the case to the Board for additional findings of fact and conclusions of law. In a September 1,1992 supplement to its May 1, 1992 decision, the Board, relying on Cameron v. Board of Adjustment, 3 Pa. Commonwealth Ct. 209, 281 A.2d 271 (1971), held invalid Section 1303 of the zoning ordinance, which provided for the automatic assignment of an R-l zoning classification to land annexed by the Borough. The Board concluded that because no ordinance establishing a zoning classification for Landowner’s property had been effectively enacted, the property remains unzoned. The Board, therefore, directed the Borough to issue Landowner’s requested permit.

The trial court affirmed the Board’s conclusion that the property remains unzoned. The court determined that, under Cameron, the automatic R-l designation is invalid. According to the court, the property remained unzoned at the time that the Pennsylvania Municipalities Planning Code (MPC)3 took effect in 1969. Finding that the Borough Council did not enact an ordinance assigning a zoning district classification to the property pursuant to the substantive and procedural requirements of the MPC, the court concluded that the property remains unzoned.

In reaching this conclusion, the trial court rejected Objectors’ argument that the Borough’s zoning map has the legal effect of zoning the property as R-l. The court held that the Borough Council, in creating the map, did not follow the required statutory procedures to zone the land.

Further, the trial court denied Objectors’ motion to introduce as additional evidence a 1972 decision of the Board erroneously identifying the property as zoned R-l. The court found that the 1972. decision, ruling on Landowner’s request for a special exception for a setback requirement, was irrelevant to the zoning classification of the property.4

[425]*425On appeal to this court, Objectors argue that equitable principles analogous to the doctrine of variance by estoppel should preclude application of the Cameron rule to this case. In support of their argument, Objectors contend that where Landowner has delayed over twenty years in asserting the invalidity of the zoning classification, the Cameron rule should not be applied to defeat the community’s reliance on the apparent R-l designation of the property.

According to Objectors, the community’s reliance on the R-1 designation resulted in part from the 1972 Board decision which identifies the property as zoned R-l. Further, the unappealed 1972 decision, according to Objectors, collaterally estops Landowner from denying that his property is zoned as R-l. Therefore, Objectors argue that the trial court abused its discretion in refusing to admit the 1972 decision, which is necessary to complete the record.

Additionally, Objectors argue that the community rightfully relied upon the R-l designation of the property represented on the Borough’s zoning map, which Objectors contend was adopted after notice and a public hearing.

Objectors also argue that the trial court erroneously found the property to be “freely developable” and, inferentially, not subject to any other valid provisions of the zoning ordinance.

DISCUSSION

In Cameron, this court held that where the zoning enabling statute requires notice and a public hearing prior to the enactment of an ordinance, the automatic zoning of newly annexed land is invalid. Both the MPC5 and the Borough Code6 applicable at the time of annexation in our case required the Borough Council to publish notice of proposed zoning ordinance amendments. There is no evidence that the Borough Council published notice of any proposed zoning [426]*426classification for Landowner’s property at any time. Following Cameron, therefore, we hold that the automatic zoning classification assigned to Landowner’s property was invalid. No ordinance was ever effectively enacted pursuant to the Borough Code or the MPC to zone this specific property.

We turn, therefore, to Objectors’ argument that estoppel principles should preclude the application of the Cameron rule to this case. Without deciding the applicability of the doctrine of equitable estoppel to this case, we note that under the law of Pennsylvania, a finding of estoppel must be predicated on a showing of detrimental reliance by the individual asserting the doctrine. Card v.

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Bluebook (online)
633 A.2d 1244, 159 Pa. Commw. 420, 1993 Pa. Commw. LEXIS 675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-appeal-of-borough-of-akron-pacommwct-1993.