Seneca Mineral Co. v. McKean Township Zoning Hearing Board

556 A.2d 496, 124 Pa. Commw. 389, 1989 Pa. Commw. LEXIS 174
CourtCommonwealth Court of Pennsylvania
DecidedMarch 23, 1989
DocketAppeal No. 2032 C.D. 1988
StatusPublished
Cited by12 cases

This text of 556 A.2d 496 (Seneca Mineral Co. v. McKean Township Zoning Hearing Board) 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
Seneca Mineral Co. v. McKean Township Zoning Hearing Board, 556 A.2d 496, 124 Pa. Commw. 389, 1989 Pa. Commw. LEXIS 174 (Pa. Ct. App. 1989).

Opinion

Opinion by

Judge Barry,

Seneca Mineral Company, Inc. (the tenant) appeals from an order of the Court of Common Pleas of Erie County which affirmed a decision of the Zoning Hearing Board of McKean Township (Board). That decision reversed a decision of the McKean Township Zoning Administrator to issue to the tenant a building permit which allowed for the construction of a one-story garage.

Tenant leases subject property at 7200 Grubb Road which is currently zoned as R-2 (Suburban Residential). It had been using the property for the purpose of pumping, storing and distributing salt brine. That use was permitted in the R-2 District only as a legally nonconforming use. On May 6, 1987, tenant applied for a building permit and certificate of occupancy which would allow for the construction of a one story garage. The permit and certificate were granted that same day. No notice of their issuance was provided to any other person.

Tenant began work on the construction project on or about May 13, 1987. On or about June 17, 1987, James D. McDonald, Jr., (referred hereinafter together with his wife, Mary Helen McDonald, as “the protestants”), observed construction of the garage on the subject property. Subsequently he requested and received from the Zoning Administrator, on June 23, 1987, a copy of the building permit and certificate of occupancy issued to the tenant. On July 13,1987, protestants filed an appeal from the Zoning Administrator’s decision to issue the permit and certificate to the tenant. It was their contention that the garage constituted an expansion of and/or change in the tenant’s nonconforming use and that the Zoning Administrator lacked the power to issue a building permit and certificate of occupancy which would allow for the expansion of and/or change in a nonconforming use. Following a hearing on the matter, the Board declared [392]*392that the permit issued by the Zoning Administrator was null and void. The tenant then filed an appeal to the court of common pleas which, without taking additional evidence, affirmed the Board’s decision. This appeal followed.

When a trial court takes no additional evidence in reviewing the decision of a zoning hearing board, this Court’s scope of review is limited to determining whether the zoning hearing board has committed a manifest abuse of discretion or error of law. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). An abuse of discretion can be found only if the Board’s findings are not supported by substantial evidence. Id.

The tenant argues that the Board erred in concluding that protestants’ appeal was timely filed. It contends that the Board should have found that protestants had constructive notice of the construction activities on the subject property within the thirty day period that followed the issuance of the building permit on May 6, 1987. The tenant urges us to conclude that, therefore, because protestants did not file their appeal within that thirty day period, their appeal was untimely.

Under Section 915 of the Municipal Planning Code (Code), Act of July 31, 1968, P.L. 8Q5, as amended, 53 P.S. §10915, an appeal from the decision of a zoning officer to approve an application for development must be filed within thirty days after such approval has been granted unless the person seeking to appeal that decision alleges and proves that he had no notice, knowledge or reason to believe that such approval had been given. The effect of this provision is to permit a protestant to file an appeal challenging the issuance of a zoning permit within 30 days after the issuance of the permit or, at the latest, within 30 days after he has notice, knowledge or reason [393]*393to believe that the permit has been issued. See Mars Area Residents for a Safe Community v. Zoning Hearing Board of Adams Township, 108 Pa. Commonwealth Ct. 505, 529 A.2d 1198 (1987).

At the hearing before the Board, four witnesses gave testimony relevant to the issue of the timeliness of protestants’ appeal.

Douglas Painter, a shareholder in, and secretary-treasurer and manager of the tenant, testified that, on approximately May 13,1987, initial work on the construction of the garage began. This consisted of clearing oif top soil from the site where the garage was to be situated by the use of a highlift and bulldozer, hauling in gravel to level off the surface and erecting some posts and batter boards. Following these activities there was a hiatus of approximately ten days to two weeks when no construction activity occurred before the pole framework of the garage was erected in the first week of June of 1987. The construction work on the garage was completed on or about July 8, 1987. Mr. Painter also submitted photographs which he had taken on July 10, 1987. These photographs depicted, inter alia, several views of the garage in question from different spots on Grubb Road, including one from directly in front of one of the facades of the garage and one from a curve in Grubb Road located between the subject property and protestants’ residence.

Roy B. Korrell, one of the owners of the property, testified on direct examination that he was on the property on approximately May 10,1987, and that at that time he observed a bulldozer and backhoe being used. Later, on or before June 15, 1987, he saw the pole framework of the garage being erected. On cross-examination, however, he stated that he did not believe that it was possible that erection of the pole framework began as late as June 15, 1987.

[394]*394Mr. McDonald testified that he first observed construction of the garage on the subject property on June 17, 1987. After having done so, he called the McKean Township office that same day to inquire whether a building permit authorizing the construction activity had been issued. It was on June 23, 1987 that he received a packet in the mail which included a copy of the building permit at issue. Mr. McDonald stated that he would drive by the subject property at least once, and normally twice,' a day and, on cross-examination, admitted that he had driven past the property twice a day during the period of May 12, 1987 through June 17, 1987.

Frank Kroto, another homeowner on Grubb Road, gave the following testimony on direct examination:

‘Mr. Painter says they brought in a high lift and a bulldozer. There’s always construction equipment on the site. There always has been construction equipment on the site. They’re moving drilling rigs in and out regularly. There has been a bulldozer or a backhoe in the back part of the property, somewhat behind the last tank. There’s a lot of down trees and various constructions that have been going on back there, I’m going to guess for months. So the significance of someone driving by and seeing a backhoe or a bulldozer in that area isn’t all unusual. Obviously did not come to my alarm, [sic] I saw a pad going in, that isn’t unusual either. Because pads went in. They went in when they put the tank in. ... But these things all go on. But there’s always all kinds of equipment around. ...’ (RR 56-57).

On cross-examination, Mr. Kroto admitted to having seen the pad for the garage being installed but could not recall when he made such an observation.

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SENECA M. CO., INC. v. McKEAN TZHB
556 A.2d 496 (Commonwealth Court of Pennsylvania, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
556 A.2d 496, 124 Pa. Commw. 389, 1989 Pa. Commw. LEXIS 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seneca-mineral-co-v-mckean-township-zoning-hearing-board-pacommwct-1989.