Pizzo v. Zoning Hearing Board

26 Pa. D. & C.4th 39, 1995 Pa. Dist. & Cnty. Dec. LEXIS 129
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedJune 19, 1995
Docketno. 93-1244-18-5
StatusPublished

This text of 26 Pa. D. & C.4th 39 (Pizzo v. Zoning Hearing Board) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pizzo v. Zoning Hearing Board, 26 Pa. D. & C.4th 39, 1995 Pa. Dist. & Cnty. Dec. LEXIS 129 (Pa. Super. Ct. 1995).

Opinion

RUFE, J., J.,

This opinion is written pursuant to an appeal by Anthony and Patti Pizzo from the December 17,1992 decision of the Richland Township Zoning Hearing Board denying their application for a variance from sections 404 and 405 of the Quakertown Area Zoning Ordinance.

The record from the zoning board hearing of December 10, 1992, reveals the following facts. The property in question is tax parcel 36-38-19 located at 1147 Rich Hill Road, Quakertown, Pennsylvania. The property consists of approximately 41 acres and is currently the site of one single-family residence and a 60' x 40' concrete block building. The property is accessed by a driveway approximately 700 feet in length. The area is zoned rural agricultural under the local ordinance.

Prior to purchase by the Pizzos, the property was owned by William C. Hamilton who acquired it in 1976. In August of 1976, Mr. Hamilton applied for and obtained a building permit allowing him to construct the 60' x 40' concrete block building on the premises. The building has two bays accessed by overhead doors which are 12 feet wide and 14 feet high. One side of the building has a grease pit that runs the full depth of the building. The other side of the building has an equipment lift. The ceiling is 16 feet high. The building also contains an overhead crane that is used to remove engines. (N.T. 12-10-92, pp. 11-12, 23-24.) Evidence indicates that Mr. Hamilton used the building for the repair and storage of tractor-trailers. The use designated on the building permit issued to Mr. Hamilton from Richland Township was for the maintenance and storage of farm implements and acces[41]*41sory vehicles. (Exhibit A-33 Richland Township building permit.)

The Pizzos are the owners and operators of two businesses, Pizzo Tree Experts and Pizzo Land Clearing. When the Pizzos purchased the property in 1989, they intended to use the concrete block building for the maintenance and repair of the land-clearing equipment utilized in the businesses. There was also a need for some occasional storage of equipment. On January 12, 1990, the Pizzos were cited by Richland Township for operating a contracting business and truck terminal on the premises. On September 24, 1992, the Pizzos applied for a hearing in front of the zoning board on their application for a variance to allow for the occasional repair and storage of land-clearing equipment. The application was amended prior to the hearing to include the following issues: (1) a request for an interpretation that the use of the property for the maintenance and storage of equipment is a continuing nonconforming use; (2) an interpretation that the Pizzos had obtained a vested right in the use of the property for maintenance and storage of equipment; (3) an application for a variance to use the property for maintenance and storage of equipment based upon unique hardship; (4) an application for a variance by estoppel to use the property for maintenance and storage of equipment; and (5) a request for relief from the zoning ordinance’s requirement that lane lots may only be used for single-family dwellings.

Ahearing was held on December 10,1992. The Pizzos presented the affidavit of the previous owner, Mr. Hamilton, which indicated that he used the building to service and maintain his personal cars, tractor, backhoe and [42]*4210 tractor-trailers and three dump trucks. Both Patti Pizzo and Anthony Pizzo testified that they were informed by Mr. Hamilton that the building had never been used to store farm equipment, only for the repair of tractor-trailers. Ms. Pizzo further stated that she was not seeking to use the building for any purpose other than the periodic repair of equipment.

Intervenor, John Light, also testified at the hearing. Mr. Light is an adjacent property owner to the Pizzos’ property and opposed any grant of a variance. There were also several members of the neighborhood present at the hearing, some of whom testified as to disturbances created by the Pizzos’ use of the property.

The matter was taken under advisement and on December 17, 1992, the board voted to deny the Pizzos’ request for a variance. A written opinion was issued by the board on January 12, 1993. The board’s crucial findings were that: (a) the Pizzos did not present any evidence which would indicate that the parcel in question could not be used for any permitted use within a rural agricultural zoning district; (b) that the township never acquiesced in the illegal use of the property; (c) that the board was unconvinced that any hardship existed; and (d) that the requested relief would be injurious to the public welfare. The instant appeal followed.

Initially, we note that in cases where no additional evidence is produced on appeal, our scope of review is limited to a determination of whether the board abused its discretion, committed an error of law or made findings of fact not supported by substantial evidence in the record. Vanguard Cellular System Inc. v. Zoning [43]*43Hearing Board of Smithfield Township, 130 Pa. Commw. 371, 568 A.2d 703 (1989). “Substantial evidence” has been described as such relevant evidence as a reasonable person would accept as adequate to support a conclusion. Danwell Corporation v. Zoning Hearing Board of Plymouth Township, 115 Pa. Commw. 174, 540 A.2d 588 (1988).

In the instant matter, appellants, the Pizzos, have addressed several different errors allegedly committed by the zoning board. We find merit in appellants’ argument that the board committed an error of law by failing to determine that the Pizzos were entitled to a variance by estoppel.

In reviewing whether a party is entitled to a variance by estoppel, the relevant factors to consider include:

“(1) the municipality’s failure to enforce the ordinance for a long period of time;
“(2) that the municipality knew, or should have known, of the illegal use and ‘actively acquiesced’ in the illegal use;
“(3) reliance by the owner on the appearance of regularity that the municipality’s inaction has created;
“(4) hardship created by [the] cessation of the illegal use; and
“(5) that the variance will not be a threat to the health, safety or morals of the community.” Colelli v. Zoning Board of Adjustment of the City of Pittsburgh, 131 Pa. Commw. 615, 618, 571 A.2d 533, 535 (1990).

In concluding that the Pizzos failed to satisfy these requirements, the board specifically found that the Pizzos did not present any evidence of the township’s acquiescence in the illegal use of the property other [44]*44than the building permit, which indicated that the building was to be used for the maintenance and storage of farm equipment and accessories. (Decision of the Zoning Hearing Board of Richland Township, 1-12-93, p. 8.) Having reviewed the record established in this case, we find such a determination to be in complete disregard of the evidence produced by appellants at the hearing.

Appellants presented the sworn affidavit of William C. Hamilton in support of their application for a variance.

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Related

Township of Haverford v. Spica
328 A.2d 878 (Commonwealth Court of Pennsylvania, 1974)
Vanguard Cellular System, Inc. v. Zoning Hearing Board
568 A.2d 703 (Commonwealth Court of Pennsylvania, 1989)
Danwell Corp. v. Zoning Hearing Board
540 A.2d 588 (Commonwealth Court of Pennsylvania, 1988)
Colelli v. Zoning Board of Adjustment
571 A.2d 533 (Commonwealth Court of Pennsylvania, 1990)

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Bluebook (online)
26 Pa. D. & C.4th 39, 1995 Pa. Dist. & Cnty. Dec. LEXIS 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pizzo-v-zoning-hearing-board-pactcomplbucks-1995.