In re Appeal of Ryan

13 Pa. D. & C.5th 129
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedNovember 16, 2009
Docketno. 08-06653
StatusPublished

This text of 13 Pa. D. & C.5th 129 (In re Appeal of Ryan) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County 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 Ryan, 13 Pa. D. & C.5th 129 (Pa. Super. Ct. 2009).

Opinion

ALBRIGHT, J.,

Georgette Moyer, Ryan Moyer and Blaine Moyer appeal from this court’s order, dated January 14,2009, which denied their land use appeal and affirmed the February 13, 2008 decision of the West Pottsgrove Township Zoning Hearing Board. For the reasons that follow, the undersigned believes that the Moyers’ appeal is without merit and that the trial court’s decision of January 14, 2009 should he affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On July 31, 2007, Georgette and Ryan Moyer (applicants) purchased two parcels of ground located in West Pottsgrove Township and zoned R-2 Residential.1 These parcels are identified as units 30 and 31 in the Montgomery County Fax Map Block 42. On August 8, 2007, the Township conducted an inspection of the premises and discovered, among other things, a trailer in which the Moyers were living, a blue van, gas tanks, propane tanks, tires, a recreational vehicle with a camper, a separate camper top, trucks with gas pumps on them, a front end loader, a stake-body truck with junk on it, metal debris, a gas-powered generator, a blue storage trailer, and several red trucks. (N.T. 10/10/07, at 26-28.) Two days later, the township’s manager, Mr. Edward Whetstone, issued a notice of violation and cease and desist order, dated August 10, 2007, which asserted not only that the applicants were “storing junk vehicles, abandoned ve[131]*131hides, tires, propane, gas pumps and other junk and rubbish on the property,” but that they “were conducting an unlawful business and maintaining an unlawful structure by establishing a trailer/mobile home as their residence” in violation of “article V §§700, 701 and 701.1” of the West Pottsgrove Township Zoning Ordinance (Board’s decision, 2/13/08, at 3.) The notice of violation stated that the applicants had “10 days from the receipt” of the notice to appeal the township’s zoning decision to the board. (Notice of Violation, 8/10/07, at 4.)

On August 24, 2007, the applicants filed an appeal from the above-referenced notice and order to the board, as well as an application seeking an interpretation of and a variance from article VII sections 700, 701 and 701.1 and article IV, sections 405 and 421 of the ordinance to permit a recycling and salvage business on their newly purchased lots. On October 10,2007, at the first of three hearings before the board, the applicants amended their application by withdrawing their request for a variance and by amending their prior request for relief to include the operation of a “recycling and salvage yard business.” On February 13, 2008, following three public hearings on the applicants’ appeal and application held on October 10, 2007, November 8, 2007, December 6, 2007, the board issued its 10 page decision and the following order:

“The West Pottsgrove Township Zoning hearing board finds that the applicants have violated §§701 and 701.1 of the West Pottsgrove Township Zoning Ordinance continuously from August 8, 2007 and through the December 6, 2007 zoning hearing board hearing and up[132]*132holds the West Pottsgrove Township Zoning Officer’s Notice of Violation as it relates to §§400, 700 and 701.1 and sustains the applicants’ appeal as to §§405 and 421.” (Board’s decision, 2/13/08, at 11.)

Responding to the board’s adverse ruling, the applicants, on March 14, 2008, filed their notice of land use appeal with the prothonotary of Montgomery County, the township and Mr. Blaine Moyer thereafter securing their status as intervenors in this case by stipulation filed on May 29,2008. The parties’ positions were eventually briefed and argued before the undersigned, whose order of January 14, 2009, denying the subject appeal and affirming the board’s decision, stated, in part, that:

“The board’s findings and conclusions that the appellants, in violation of the applicable provisions of the township zoning ordinance, were conducting a recycling, salvage, scrap and/or junkyard business upon the subject premises were amply supported by the substantial evidence produced during the course of the three hearings held in this case. That same evidence further demonstrated unequivocally that any such use of the property in question, claimed by the appellants to be a lawful nonconforming use thereof, had, in fact, been abandoned many years prior to the appellants ’ purchase of the premises on July 31,2007. Having reached that conclusion in rejecting the landowners’ application for relief, the zoning hearing board of West Pottsgrove Township neither abused its discretion nor committed an error of law.

“Furthermore, the appellants’ assertion that the appellee-township’s issuance of an allegedly defective notice by someone unauthorized to attend to that responsibility [133]*133in some manner violated the appellants’ constitutional right to due process and so undermined the board’s decision as to suggest that, on that basis alone, it be overturned and reversed, is without foundation or support in the law.” (Tr. ct. order, 1/14/09.)

Subsequent petitions filed by Georgette and Ryan Moyer and Blaine Moyer seeking the trial court’s reconsideration of its order of January 14, 2009 were denied on February 11,2009. On February 13,2009, Georgette, Ryan and Blaine Moyer filed a joint notice of appeal to the Commonwealth Court of Pennsylvania, and, shortly thereafter, Georgette and Ryan Moyer filed and served upon the undersigned their statement of matters complained of on appeal (1925(b) statement), which consists of the following:2

“(a) The court failed to recognize that the notice of violation issued by the township manager is invalid and unenforceable. The court erred in law and/or abused its discretion in failing to reverse the zoning hearing board due to the defective notice of violation. Section 1800 of the West Pottsgrove Township Zoning Ordinance specifically states that the zoning officer ‘shall not hold any other office in the municipality.’ The court ignored such provision despite the fact that Edward Whetstone was the township manager, and signed the notice of violation as the township manager. He may not also hold the office of zoning officer, it violates the township’s zoning ordinance.

“(b) The court committed an error of law and/or abused its discretion in failing to recognize that the township [134]*134violated section 1801 of the township’s zoning ordinance. Such section sets forth the power and duties of the zoning officer. Since Mr. Whetstone was not a legal zoning officer, he is without the power to enforce the township’s zoning ordinance. The court failed to recognize that Mr. Whetstone was without proper authority to attempt to enforce the township’s zoning ordinance.

“(c) The court committed an error or law and/or abused its discretion when it failed to recognize that appellants’ due process rights were violated to the degree the warrants the zoning hearing board’s decision to be reversed. The court failed to recognize that section 1806 of the township’s zoning ordinance allows 30 days within which to appeal a notice of violation and related issues. It is undisputed that the township only allowed 10 days within which to file an appeal. (See notice of violation.) Such violation of due process materially effected the claims and/or defenses appellants could have pursued. The zoning hearing board refused to grant appellants a continuance on the first day of the zoning hearing to amend their zoning appeal application.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Puleo v. Zoning Hearing Board
722 A.2d 789 (Commonwealth Court of Pennsylvania, 1999)
Hertzberg v. Zoning Board of Adjustment
721 A.2d 43 (Supreme Court of Pennsylvania, 1998)
McGrath Construction, Inc. v. Upper Saucon Township Board of Supervisors
952 A.2d 718 (Commonwealth Court of Pennsylvania, 2008)
In Re Appeal of McGlynn
974 A.2d 525 (Commonwealth Court of Pennsylvania, 2009)
Morris v. South Coventry Township Board of Supervisors
898 A.2d 1213 (Commonwealth Court of Pennsylvania, 2006)
Heichel v. Springfield Township Zoning Hearing Board
830 A.2d 1081 (Commonwealth Court of Pennsylvania, 2003)
In Re Appeal of Kreider
808 A.2d 340 (Commonwealth Court of Pennsylvania, 2002)
Commonwealth v. Dowling
778 A.2d 683 (Superior Court of Pennsylvania, 2001)
Commonwealth v. Lemon
804 A.2d 34 (Superior Court of Pennsylvania, 2002)
Latrobe Speedway, Inc. v. Zoning Hearing Board of Unity Township
720 A.2d 127 (Supreme Court of Pennsylvania, 1998)
Zitelli v. ZONING HEARING BD. OF MUNHALL
850 A.2d 769 (Commonwealth Court of Pennsylvania, 2004)
Valley View Civic Ass'n v. Zoning Board of Adjustment
462 A.2d 637 (Supreme Court of Pennsylvania, 1983)
Mazur v. Washington County Redevelopment Authority
900 A.2d 1024 (Commonwealth Court of Pennsylvania, 2006)
Keystone Outdoor Advertising v. Commonwealth, Department of Transportation
687 A.2d 47 (Commonwealth Court of Pennsylvania, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
13 Pa. D. & C.5th 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-appeal-of-ryan-pactcomplmontgo-2009.