IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert D. Ray and Diane Ray, : : Appellants : : v. : No. 1163 C.D. 2015 : Zoning Hearing Board for : Submitted: December 18, 2015 Murrysville, Pennsylvania :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge1 HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: April 28, 2016
Robert D. Ray and Diane Ray (together, Appellants) appeal from the March 12, 2015 Order of the Court of Common Pleas of Westmoreland County (common pleas) denying Appellants’ appeal of the Decision of the Zoning Hearing Board for Murrysville, Pennsylvania (ZHB). For its part, the ZHB denied Appellants’ request for a “de minimis dimensional zoning variance” on the basis that a previous ZHB decision governed the case. We affirm.2
1 This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt became President Judge. 2 This appeal was initially filed in the Superior Court of Pennsylvania. Upon a Motion from the ZHB, the Superior Court transferred the case to this Court on July 7, 2015. The property at issue is a developed lot owned by Appellants located in the Municipality of Murrysville’s (Murrysville) Rural Residential (RR) Zoning District (hereafter, “the Property”). (ZHB Decision, October 16, 2014 (2014 ZHB Decision), Findings of Fact (FOF) ¶ 1, R.R. at 36a.) “The [P]roperty consists of a [two]-story residence, [three]-car detached garage, swimming pool[,] and sports court consisting of a basketball court.” (FOF ¶ 5.) Under Murrysville’s Zoning Ordinance (Ordinance), properties located in the RR Zoning District are required to have a fifty-foot front lot setback and “no accessory use or building [is] authorized in the front yard.” (FOF ¶¶ 2-3; Ordinance §§ 220-14, 220-15.) Appellants built a basketball court, measuring seventy feet by forty-two feet, in their front yard “several years ago without applying [for] or obtaining any permit to do so.” (FOF ¶ 7.) In the spring of 2012, Appellants constructed a batting cage on the Property adjacent to the basketball court. (ZHB Decision, August 24, 2012 (2012 ZHB Decision), FOF ¶ 9, R.R. at 9a.) On April 18, 2012, Murrysville’s Zoning Officer sent Appellants a Zoning Enforcement Notice notifying Appellants that they were in violation of Section 220-15A of the Ordinance as the Property contained a “Sports Court” in the front yard and “[n]o accessory use or building [is] authorized in the front yard.” (Enforcement Notice, April 18, 2012 (2012 Enforcement Notice), R.R. at 1a.) The notice stated that “[y]ou must begin action to bring this situation into compliance within five days of the mail date of this notice.” (2012 Enforcement Notice, R.R at 1a.) Appellants then appealed to the ZHB for a special exception and variance “relat[ed] to the use, frontage, and yard requirements of the Ordinance in regard to the . . . batting cage and basketball court.” (2012 ZHB Decision at 2, R.R. at 7a.) Upon review, the ZHB found that “the sports court consisting of the batting cage
2 and basketball court substantially extends beyond the fifty[-]foot building line restriction in the front yard,” and that “the sports court batting cage is located within the twenty[-]foot side yard restricted area.” (2012 ZHB Decision, FOF ¶¶ 11-12, R.R. at 9a.) Appellants argued that installing the sports court in the front of the yard is less hazardous to the neighbors than placing it in the back of the lot. The ZHB noted that Appellants testified that there is no room in the back yard for the sports court due to topography and the presence of a sand mound, a swimming pool, and a three-car garage. (2012 ZHB Decision at 8, R.R. at 13a.) The ZHB concluded that “[a]ll of the obstacles except for the topography of the rear lot are the making of the [A]ppellants or former owners[,] not the [O]rdinance,” (2012 ZHB Decision at 8, R.R. at 13a), and denied the appeal, holding that “[t]he [A]ppellants have failed to meet the criteria of establishing a hardship not of their own making and one not created by the ordinance itself.” (2012 ZHB Decision at 9, R.R. at 14a.) Appellants appealed to common pleas, but the appeal was subsequently “withdrawn with prejudice.” (2014 ZHB Decision at 5.) As no further appeal was taken from the 2012 ZHB Decision, that Decision conclusively resolved the issues addressed therein. Following the 2012 ZHB Decision, Appellants moved the batting cage to the other side of the yard. (Hr’g Tr. at 10-11, R.R. at 50a-51a.) Murrysville’s Zoning Officer issued an Enforcement Notice on August 23, 2013 providing notice to Appellants that the basketball court violates the Ordinance and the 2012 ZHB Decision and must be removed. (Enforcement Notice, August 23, 2013, R.R. at 16a.)3 Appellants subsequently filed the instant appeal where they request “a de
3 The Enforcement Action is currently held in abeyance pending outcome of the instant matter.
3 minimis dimensional zoning variance for their basketball court.” (Statement of Appellants attached to the Notice of Appeal, R.R. at 22a.) The ZHB held a public hearing on September 4, 2014 where Appellants and their neighbor testified and various photographs and a survey of the Property were placed into evidence. Appellants testified to their frustration with the ZHB’s interpretation of the Ordinance.4 Mr. Ray testified that the basketball court is detached from the driveway and sits about ten feet from the driveway, but opined this distinction did not render the basketball court any different from neighboring properties that have basketball hoops installed on their driveways, which are not considered a violation of the Ordinance. (Hr’g Tr. at 16-17, R.R. at 56a-57a.) Appellants’ neighbor opposed the issuing of a variance and argued that “[t]he character of the neighborhood is deserving of protection from placing these accessories in the front yard.” (Hr’g Tr. at 25, R.R. at 65a.) Upon review of the testimony, surveys of the Property, and photographs of the basketball court, the ZHB denied Appellants’ appeal. According to the ZHB:
once [Appellant]s’ testimony was closed, it became clear to the Board that the application was nothing more than a subterfuge to avoid the argument that the previous decision is res judicata [on] this appeal. Section 220-15A [of the Ordinance] provides that in the RR District . . . no accessory use or building is authorized in the front yard. This means that the use of any part of the front yard for an accessory use to the main dwelling is prohibited and can only be changed by virtue of a use variance. A use variance was already considered by the Board in the previous appeal and, therefore, [Appellants] are estopped to raise the issue now.
4 Mr. Ray’s testimony is found on pages 49a-57a of the reproduced record. Mrs. Ray’s testimony is found on pages 58a-60a of the reproduced record.
4 (2014 ZHB Decision at 7.) Appellants appealed the matter to common pleas, and Murrysville intervened in opposition to the appeal. Common pleas reviewed the Ordinance and the facts in the record and concluded that:
we agree with the Board and the [Intervenor] that the Appellants’ current application is nothing more than a subterfuge to avoid the argument that the previous 2012 decision governs the disposition of this matter. . . . The use of any part of the front yard for an accessory use to the main dwelling is prohibited and can only be changed with the issuance of a use variance. In the previous appeal, the Board considered and rejected Appellants’ application for a use variance and specifically referenced both the batting cage and the basketball court. The fact that the batting cage is no longer there is of no moment; the basketball court that crosses well over the setback boundary lines still remains as it existed in 2012 when the Board first considered this matter.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert D. Ray and Diane Ray, : : Appellants : : v. : No. 1163 C.D. 2015 : Zoning Hearing Board for : Submitted: December 18, 2015 Murrysville, Pennsylvania :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge1 HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: April 28, 2016
Robert D. Ray and Diane Ray (together, Appellants) appeal from the March 12, 2015 Order of the Court of Common Pleas of Westmoreland County (common pleas) denying Appellants’ appeal of the Decision of the Zoning Hearing Board for Murrysville, Pennsylvania (ZHB). For its part, the ZHB denied Appellants’ request for a “de minimis dimensional zoning variance” on the basis that a previous ZHB decision governed the case. We affirm.2
1 This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt became President Judge. 2 This appeal was initially filed in the Superior Court of Pennsylvania. Upon a Motion from the ZHB, the Superior Court transferred the case to this Court on July 7, 2015. The property at issue is a developed lot owned by Appellants located in the Municipality of Murrysville’s (Murrysville) Rural Residential (RR) Zoning District (hereafter, “the Property”). (ZHB Decision, October 16, 2014 (2014 ZHB Decision), Findings of Fact (FOF) ¶ 1, R.R. at 36a.) “The [P]roperty consists of a [two]-story residence, [three]-car detached garage, swimming pool[,] and sports court consisting of a basketball court.” (FOF ¶ 5.) Under Murrysville’s Zoning Ordinance (Ordinance), properties located in the RR Zoning District are required to have a fifty-foot front lot setback and “no accessory use or building [is] authorized in the front yard.” (FOF ¶¶ 2-3; Ordinance §§ 220-14, 220-15.) Appellants built a basketball court, measuring seventy feet by forty-two feet, in their front yard “several years ago without applying [for] or obtaining any permit to do so.” (FOF ¶ 7.) In the spring of 2012, Appellants constructed a batting cage on the Property adjacent to the basketball court. (ZHB Decision, August 24, 2012 (2012 ZHB Decision), FOF ¶ 9, R.R. at 9a.) On April 18, 2012, Murrysville’s Zoning Officer sent Appellants a Zoning Enforcement Notice notifying Appellants that they were in violation of Section 220-15A of the Ordinance as the Property contained a “Sports Court” in the front yard and “[n]o accessory use or building [is] authorized in the front yard.” (Enforcement Notice, April 18, 2012 (2012 Enforcement Notice), R.R. at 1a.) The notice stated that “[y]ou must begin action to bring this situation into compliance within five days of the mail date of this notice.” (2012 Enforcement Notice, R.R at 1a.) Appellants then appealed to the ZHB for a special exception and variance “relat[ed] to the use, frontage, and yard requirements of the Ordinance in regard to the . . . batting cage and basketball court.” (2012 ZHB Decision at 2, R.R. at 7a.) Upon review, the ZHB found that “the sports court consisting of the batting cage
2 and basketball court substantially extends beyond the fifty[-]foot building line restriction in the front yard,” and that “the sports court batting cage is located within the twenty[-]foot side yard restricted area.” (2012 ZHB Decision, FOF ¶¶ 11-12, R.R. at 9a.) Appellants argued that installing the sports court in the front of the yard is less hazardous to the neighbors than placing it in the back of the lot. The ZHB noted that Appellants testified that there is no room in the back yard for the sports court due to topography and the presence of a sand mound, a swimming pool, and a three-car garage. (2012 ZHB Decision at 8, R.R. at 13a.) The ZHB concluded that “[a]ll of the obstacles except for the topography of the rear lot are the making of the [A]ppellants or former owners[,] not the [O]rdinance,” (2012 ZHB Decision at 8, R.R. at 13a), and denied the appeal, holding that “[t]he [A]ppellants have failed to meet the criteria of establishing a hardship not of their own making and one not created by the ordinance itself.” (2012 ZHB Decision at 9, R.R. at 14a.) Appellants appealed to common pleas, but the appeal was subsequently “withdrawn with prejudice.” (2014 ZHB Decision at 5.) As no further appeal was taken from the 2012 ZHB Decision, that Decision conclusively resolved the issues addressed therein. Following the 2012 ZHB Decision, Appellants moved the batting cage to the other side of the yard. (Hr’g Tr. at 10-11, R.R. at 50a-51a.) Murrysville’s Zoning Officer issued an Enforcement Notice on August 23, 2013 providing notice to Appellants that the basketball court violates the Ordinance and the 2012 ZHB Decision and must be removed. (Enforcement Notice, August 23, 2013, R.R. at 16a.)3 Appellants subsequently filed the instant appeal where they request “a de
3 The Enforcement Action is currently held in abeyance pending outcome of the instant matter.
3 minimis dimensional zoning variance for their basketball court.” (Statement of Appellants attached to the Notice of Appeal, R.R. at 22a.) The ZHB held a public hearing on September 4, 2014 where Appellants and their neighbor testified and various photographs and a survey of the Property were placed into evidence. Appellants testified to their frustration with the ZHB’s interpretation of the Ordinance.4 Mr. Ray testified that the basketball court is detached from the driveway and sits about ten feet from the driveway, but opined this distinction did not render the basketball court any different from neighboring properties that have basketball hoops installed on their driveways, which are not considered a violation of the Ordinance. (Hr’g Tr. at 16-17, R.R. at 56a-57a.) Appellants’ neighbor opposed the issuing of a variance and argued that “[t]he character of the neighborhood is deserving of protection from placing these accessories in the front yard.” (Hr’g Tr. at 25, R.R. at 65a.) Upon review of the testimony, surveys of the Property, and photographs of the basketball court, the ZHB denied Appellants’ appeal. According to the ZHB:
once [Appellant]s’ testimony was closed, it became clear to the Board that the application was nothing more than a subterfuge to avoid the argument that the previous decision is res judicata [on] this appeal. Section 220-15A [of the Ordinance] provides that in the RR District . . . no accessory use or building is authorized in the front yard. This means that the use of any part of the front yard for an accessory use to the main dwelling is prohibited and can only be changed by virtue of a use variance. A use variance was already considered by the Board in the previous appeal and, therefore, [Appellants] are estopped to raise the issue now.
4 Mr. Ray’s testimony is found on pages 49a-57a of the reproduced record. Mrs. Ray’s testimony is found on pages 58a-60a of the reproduced record.
4 (2014 ZHB Decision at 7.) Appellants appealed the matter to common pleas, and Murrysville intervened in opposition to the appeal. Common pleas reviewed the Ordinance and the facts in the record and concluded that:
we agree with the Board and the [Intervenor] that the Appellants’ current application is nothing more than a subterfuge to avoid the argument that the previous 2012 decision governs the disposition of this matter. . . . The use of any part of the front yard for an accessory use to the main dwelling is prohibited and can only be changed with the issuance of a use variance. In the previous appeal, the Board considered and rejected Appellants’ application for a use variance and specifically referenced both the batting cage and the basketball court. The fact that the batting cage is no longer there is of no moment; the basketball court that crosses well over the setback boundary lines still remains as it existed in 2012 when the Board first considered this matter.
(Common pleas op. at 3 (emphasis added).) Thus, common pleas held that “the [ZHB] carefully considered the law and the facts of this case, and that it committed no error of law or abuse of discretion when it [denied Appellants’ appeal and request for a de minimis dimensional variance].” (Common pleas op. at 5.) This appeal followed.5 On appeal to this Court, Appellants argue that common pleas erred by: (1) “fail[ing] to determine that the Appellant[s’] basketball court constituted a sports court,” (Appellants’ Amended Br. at iv); (2) applying res judicata in denying the 5 “Where the trial court has taken no additional evidence, appellate review is limited to determining whether the zoning hearing board committed an error of law or a manifest abuse of discretion.” Schwartz v. Philadelphia Zoning Board of Adjustment, 126 A.3d 1032, 1035 n.5 (Pa. Cmwlth. 2015).
5 request for a dimensional variance; and (3) ignoring the Pennsylvania Supreme Court’s decision in Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 721 A.2d 43, 50 (Pa. 1998), where the Pennsylvania Supreme Court announced a less stringent standard for obtaining a dimensional zoning variance.
Appellant’s brief includes a “Statement of Questions Involved” that states “[common pleas] fail[ed] to determine that the Appellant[’s] basketball court constituted a sports court.” (Appellants’ Amended Br. at iv) While the heading in the Argument section of their brief also includes this assertion, (Appellants’ Amended Br. at 4), Appellants do not put forth any argument on this point in the Argument section or otherwise. Pursuant to Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure, the argument section of an appellate brief “shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part--in distinctive type or in type distinctively displayed--the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.” Pa. R.A.P. 2119 (emphasis added). “Arguments not properly developed in a brief will be deemed waived.” In re Condemnation of Land for the South East Central Business District Redevelopment Area No.1 (405 Madison St., City of Chester), 946 A.2d 1154, 1156 (Pa. Cmwlth. 2008). Because addressing this issue would require us to invent arguments for Appellants, which we cannot do, we conclude that this issue is not preserved for appeal. The remaining issues raised in this appeal, specifically the application of res judicata and the Supreme Court’s holding in Hertzberg, were thoroughly and correctly analyzed and the matter was ably disposed of in the comprehensive and
6 well-reasoned opinion of President Judge Richard E. McCormick, Jr. Therefore, we affirm on the basis of his opinion in Ray v. Zoning Hearing Board for Murrysville, Pennsylvania (Westmoreland County, No. 5438 of 2014, filed March 12, 2015).6
________________________________ RENÉE COHN JUBELIRER, Judge
6 The ZHB argues in its brief that, while it was served a copy of Appellants’ brief and reproduced record on September 1, 2015, this Court rejected said brief and reproduced record on the basis that the brief did not include a copy of common pleas’ decision and the pages in the reproduced record were not properly numbered. (Order, September 8, 2015.) Our Order required Appellants to file an amended brief and reproduced record or the case would be dismissed. Id. The ZHB argues that it was never served with the amended versions of these documents and, as such, the appeal should be quashed and Appellants should be sanctioned for “perpetuation of a fraud upon the Court.” (ZHB’s Br. at 19 n.4.) We need not address this issue as it is rendered moot by our affirmance of common pleas’ order.
7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert D. Ray and Diane Ray, : : Appellants : : v. : No. 1163 C.D. 2015 : Zoning Hearing Board for : Murrysville, Pennsylvania :
ORDER
NOW, April 28, 2016, the Order of the Court of Common Pleas of Westmoreland County, entered in the above-captioned matter, is AFFIRMED on the basis of the well-reasoned opinion issued by the Honorable Richard E. McCormick, Jr. in Ray v. Zoning Hearing Board for Murrysville, Pennsylvania (Westmoreland County, No. 5438 of 2014, filed March 12, 2015).