Sico v. Indiana Township Zoning Hearing Board

646 A.2d 655, 166 Pa. Commw. 321, 1994 Pa. Commw. LEXIS 441
CourtCommonwealth Court of Pennsylvania
DecidedJuly 29, 1994
DocketNo. 2405 C.D. 1993
StatusPublished
Cited by3 cases

This text of 646 A.2d 655 (Sico v. Indiana 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
Sico v. Indiana Township Zoning Hearing Board, 646 A.2d 655, 166 Pa. Commw. 321, 1994 Pa. Commw. LEXIS 441 (Pa. Ct. App. 1994).

Opinion

CRAIG, President Judge.

The appellant, Audrey Sico, asks this court to reverse the decision of the Court of Common Pleas of Allegheny County in which the trial court affirmed the decision of the Indiana Township Zoning Hearing Board denying Sico’s request for a variance from the Township of Indiana Ordinance No. 217 as amended (“the ordinance” or “the zoning ordinance”) to validate the reconstruction, relocation and expansion of her private stable, which she had carried out before requesting the variances. We reverse in part and affirm in part.

The facts as found by the board and established in the record are as follows. Sico owns approximately two acres of property at 595 Dorseyville Road in Indiana Township. In 1966, Sico requested and received a building permit to erect a tool shed on her property. But, instead of constructing a tool shed, Sico erected a stable on the lot housing three horses. At that time, the lot was zoned R-l Agricultural Residence District, in which stables were essentially unregulated.

In 1972, her property was rezoned to R-2 Suburban Residential, and in 1990 the township enacted Ordinance No. 242, amending the zoning ordinance at § 304.3 to allow a stable as a permitted accessory use in the R-2 District, subject to stringent regulations and limitations, as follows:

304.3. A private stable as an accessory use to a one-family house in the R-2 and R-3 Districts subject to the following standards and criteria:
(a) A private stable may be permitted only for parcels of land containing three acres or more.
(b) The proposed private stable or any enlargement or addition to an existing private stable shall be of substantial construction and shall be architecturally compatible with the neighborhood where it will be built. No private stable or corral shall be located at a distance of less than one hundred (100) feet from any lot or street line.
(c)The number of horses or ponies to be kept in the proposed private stable shall not exceed two (2) for every three acres in the lot or parcel, provided that not more than two (2) foals less than nine (9) months in age may be added to the number of horses or ponies derived from the above calculation. Unless the Hearing Board makes specific findings that the lot or parcel of land and the surrounding community can accommodate more, no lot or parcel shall stable more than twenty-five (25) horses or ponies.

In 1992, Sico dismantled the original stable and a covered, three-sided “bulkhead” that had been built near the stable without any building permit some time after 1966, and which had previously been used to house two horses. Sico then built a new stable to house five horses that is larger than the original, and closer to her neighbor’s properly line. She then petitioned the board for building permits for the new stable, which the board denied. Later Sico requested a variance from lot-size and side-yard restrictions; the board denied the variance.

Sico’s new stable runs afoul of several zoning requirements. Initially, we note that § 304.3(a) of the ordinance limits stables to lots at least three acres in size. In addition, § 304.3(c) permits only two horses for each three acres of land on the lot. Sico has five horses and ponies on approximately two acres. Next, the board found that the new stable is closer to the property line than the old stable. Whereas the building permit issued in 1966, under which Sico constructed the original stable, authorized construction 30 feet from the property line, the new stable is 22 feet from the property line. Also, because Sico’s property is only 200 feet wide, and § 304.3(b) of the ordinance requires stables to be 100 feet from all property lines, any expansion of Sico’s original stable violates § 304.3(b).

Furthermore, § 301.5(A) of the ordinance, which is one of two ordinance sections dis[658]*658cussed in greater detail below, regulating the expansion of nonconforming uses by special exception, prohibits any increase in noncompliance by an expanded nonconforming use. Thus, even if Sico’s expansion of the stable fell under the special exception provisions, by violating the § 304.3(b) side-yard requirements, it also violates § 301.5(A) by increasing the stable’s nonconformity.

In addition, the board concluded that the original stable was not a legal nonconforming use because it had not been constructed pursuant to a building permit for a stable, but for a tool shed. Thus, the board concluded that Sico cannot be permitted to reconstruct or expand what, in the board’s view, was an illegal structure. The board also concluded that Sico failed to meet the burden of proof necessary to receive a variance, and denied her petition.

Sico appealed to the trial court, which did not take additional evidence. The trial court disagreed with the board’s characterization of the original stable as illegal. The language of the trial court, in pertinent part, is as follows:

First, a building permit was obtained for an accessory structure on the property, albeit not specifically for a stable.... Second, the stable was a permitted use when it was built, the only irregularity at the time of its inception being a lack of a permit. Finally there is no evidence that Mrs. Sico was ever cited or otherwise made aware of any problem with the original stable until the present difficulties arose. In fact, Mrs. Sico was granted another variance in 1972 permitting her to open a tack shop on the property. Any objection to the original barn by the Township should have been made long before the present time. [Thus] ... the stable as it existed prior to 1990 did constitute a legal nonconforming use, and as such Mrs. Sico has a right to continue it.

Nonetheless, the trial court agreed with the board that the original stable could not be expanded without a variance and that Sico did not present sufficient evidence to establish her eligibility for a variance. Thus the trial court affirmed the board’s decision, except for holding that the stable could only be kept on the property if it were to be reconstructed to its original size and location.

Now Sico comes before this court and asks that we reverse the decision of the trial court. Sico contends that the stable use has the status of a legal nonconforming use, so that what she has constructed is allowable under the doctrine of natural expansion of nonconforming uses. Sico also argues that the new construction is valid because she merely enclosed an open-air portion of a legal nonconforming use by incorporating the original stable and the bulkhead into the new stable.

After reviewing the record and the briefs, our summary of the issues presented in this case is the following:

1. DID THE ORIGINAL STABLE AND BULKHEAD CONSTITUTE A LEGAL NONCONFORMING USE, OR REST ON A VESTED RIGHT BY ESTOPPEL?
2. IS THE DOCTRINE ALLOWING A NATURAL EXPANSION OF BUSINESS USES APPLICABLE?
3. IS THE NEW CONSTRUCTION JUSTIFIED ON THE THEORY THAT IT ENCLOSED OPEN SPACE FORMERLY USED FOR THE NONCONFORMING USE?
4. IS THE SPECIAL EXCEPTION FOR EXPANSION OF ANY NONCONFORMING USE APPLICABLE?
5. WOULD THE RECONSTRUCTION OF THE ORIGINAL STABLE BE JUSTIFIED UNDER THE ORDINANCE PROVISION FOR THE RECONSTRUCTION OF NONCONFORMING USES?

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Bluebook (online)
646 A.2d 655, 166 Pa. Commw. 321, 1994 Pa. Commw. LEXIS 441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sico-v-indiana-township-zoning-hearing-board-pacommwct-1994.