“a party required to prove a negative is saddled with a ‘virtually impossible burden’” and “courts generally ‘do not require litigants to prove a negative because it cannot be done’”
How later courts described this case
- “a party required to prove a negative is saddled with a ‘virtually impossible burden’” and “courts generally ‘do not require litigants to prove a negative because it cannot be done’”
- “[An applicant] is not entitled to an expansion as of right of the nonconforming use over property which has not been used to further the nonconforming purpose.”
- it is an applicant’s “burden to prove that [the] portion of [its] property was previously devoted to [its] nonconforming uses”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey A. Omatick :
:
v. :
:
Cecil Township Zoning :
Hearing Board :
:
v. :
:
Cecil Township Board of :
Supervisors, : No. 920 C.D. 2021
Appellant : Argued: May 16, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION BY
JUDGE COVEY FILED: November 30, 2022
Cecil Township (Township) Board of Supervisors (Appellant)1 appeals
from the Washington County Common Pleas Court’s (trial court) July 19, 2021 order
reversing and vacating the Township’s Zoning Hearing Board’s (ZHB) decision that
denied Jeffrey A. Omatick’s (Applicant) application. Therein, Applicant requested
to use his mobile home as a lawful nonconforming use2 on the R-1 Low Density
Residential District (R-1 District) portion (R-1 Portion) of a 41.44-acre split-zoned
parcel located at 349 Grange Road, McDonald, Pennsylvania (Property), or, in the
alternative, that the ZHB grant a variance for such use based on an alleged hardship
on the R-4 Mobile Home Park Residential District (R-4 District) portion (R-4
1
The Township’s Zoning Hearing Board joined in Appellant’s brief to this Court.
2
“A lawful nonconforming use is a use that predates the enactment of a prohibitory zoning
restriction.” Sowich v. Zoning Hearing Bd. of Brown Twp., 245 A.3d 1188, 1195 (Pa. Cmwlth.
2021).
Portion) of his Property (Application). Appellant presents three issues for this
Court’s review: whether the trial court erred and/or abused its discretion by: (1)
disturbing the ZHB’s factual findings and credibility determinations; (2) raising an
issue sua sponte, and reversing the ZHB’s determination based thereon; and (3)
reversing and vacating the ZHB’s decision rather than vacating the decision and
remanding the matter to the ZHB.3 After review, this Court reverses.
Background
The Township enacted its Unified Development Ordinance4 (UDO) on
or about May 17, 2000. See Reproduced Record (R.R.) at 7a-137a. In November
2000, Applicant’s parents deeded the Property to him.5 The Property is located in
the R-1 District and the R-4 District in the Township. Applicant’s residence is
located on the R-1 Portion,6 and a mobile home park is located on the R-4 Portion.
The R-4 Portion has continuously been used as a mobile home park since the 1980s.
In February 2018, after a landslide on the R-4 Portion impacted three
of the nine mobile homes located thereon, Applicant requested two homeowners to
vacate. Applicant owned the third impacted mobile home, which he planned to
relocate to the R-1 Portion. In August 2018, Applicant applied to the Washington
County Sewage Council for a 10-acre exception to sewage planning requirements
on the basis that the proposed on-lot septic system would serve a residential structure
on the R-1 Portion. See R.R. at 151a-152a.
3
This Court has rephrased the issues for clarity.
4
Cecil Township, Pa., Unified Development Ordinance, Ordinance No. 5-00, May 17,
2000, as amended, Oct. 8, 2007.
5
Applicant’s parents had owned the Property since approximately the 1960s. See R.R. at
249a.
6
There has never been a second residence on the R-1 Portion.
2
On August 8, 2019, Applicant applied to the Township for a zoning and
construction permit (Construction Permit), representing therein that he was
“converting [a] mobile home into [a] storage area[.]” R.R. at 147a. The Township
issued the Construction Permit. On August 21, 2019, Township Zoning Officer
Elizabeth Ross (Officer Ross) sent Applicant a letter referencing the Township’s
recent Construction Permit and explaining that the Township had been made aware
that Applicant had expressed his intention that the mobile home relocated to the R-
1 Portion would be occupied. Officer Ross notified Applicant that such was not
permissible, and further informed him that the Property was split-zoned between an
R-1 District and an R-4 District;7 Applicant’s personal residence was located in the
R-1 District; the proposed storage shed would also be located in the R-1 District;
only one building could be used for residential purposes on the R-1 Portion; and the
Township would investigate the mobile home’s occupancy. See R.R. at 153a-154a.
On May 12, 2020, Officer Ross issued a Notice of Violation (Notice)
to Applicant stating that the mobile home had been relocated to the R-1 Portion and
was being used as a residence in violation of Section 1202 of the UDO.8 See R.R.
at 157a-158a. The Notice also informed Applicant that, in order to bring the
Property into compliance, he must submit an application to the Township within 15
days to subdivide the Property. See id. Applicant requested an extension to submit
the subdivision application, which the Township granted until July 10, 2020.
However, Applicant did not submit a subdivision application. Rather, on June 24,
7
Section 804 of the UDO states in relevant part: “Whenever a single lot greater than two
acres in size is located within two or more different zoning districts, each portion of that lot shall
be subject to all the regulations applicable to the district in which it is located.” UDO § 804, R.R.
at 97a.
8
Section 1202 of the UDO provides that “[i]n no case shall there be more than one principal
building used for residential purposes located on one property, except as otherwise provided in
this Chapter for a Mobile Home Park, Planned Development, or Land Development.” UDO §
1202, R.R. at 121a.
3
2020, Applicant filed the Application seeking the ZHB’s approval “[f]or a
continuance of a nonconforming usage for the [Property.]” R.R. at 138a. In the
alternative, Applicant requested a variance based on an alleged hardship imposed by
the 2018 landslide on the R-4 Portion. See id.
Facts
The ZHB held hearings on the Application on August 17 and September
21, 2020. At the August 17, 2020 ZHB hearing, Applicant’s neighbor and friend
Patricia Mowry (Mowry), although not an attorney, spoke on behalf of Applicant.
While she asserted reasons why Applicant did not submit a subdivision application,
no evidence was presented to support her assertions. Applicant testified that he did
not want to subdivide the Property because his daughter, at some point, would inherit
it all. After much discussion concerning the R-1 Portion and the R-4 Portion among
the ZHB members, Mowry, and Applicant, Mowry stated that she was not aware of
“split parceling” and stated she believed the use of the entire parcel was
“nonconforming.” R.R. at 192a. Thus, Mowry and Applicant requested a
continuance so Applicant could be represented by an attorney, which the ZHB
granted.
At the September 21, 2020 ZHB hearing, Applicant’s counsel
(Counsel) stated:
Just so the [ZHB] understands the [A]pplication, for a
continuation of a non[]conforming use a variance is not
needed. So the first request would be that he be allowed
to continue his – actually he has a right at law to continue
his non[]conforming use. He could get an interpretation
from the [ZHB] to continue his non[]conforming use. But
even if he doesn’t have that he could still continue it.
The second request and alternative would be a variance as
to the use of his [P]roperty.
4
R.R. at 244a-245a. After questioning from the ZHB concerning the lack of
advertisement for a variance, Counsel repeated: “So again, I want you to understand,
he doesn’t need a variance to continue a non[]conforming use.” R.R. at 246a. In
trying to clarify what was before the ZHB, Counsel expressly stated: “[Applicant] is
not seeking a subdivision at this time, I don’t know what this is in reference to.”
R.R. at 248a (emphasis added). When questioned again regarding whether Applicant
was seeking a subdivision, Counsel responded: “Not at this point. Not until he gets
a determination from the [ZHB] on the continuation of his non[]conforming use.”
Id. (emphasis added).
Applicant testified on direct examination, in relevant part:
Q Now, recently did you have to relocate one of the
trailers?
A I bought it off the bank and moved my daughter into it.
And had a landslide. [sic] Which I had to either take a
loss because insurance would not cover it. [sic] So I
decided to move it down below the hill to stable ground[;]
I lost three trailers up there in the process of the landslide.
Q And it’s still on your same parcel of [P]roperty?
A Yes.
Q Okay. And did it move across a zoning line, though?
A At the time I didn’t know the zoning line was there.
Apparently[,] it did.
Q Okay. And were the soils unstable there where it used
to be located?
A Yes.
Q And did that create a hardship for you with locating the
trailer?
A Yes.
5
Q And where you relocated it now does that have stable
soil?
A Yes, it does.
Q And you are here today to ask the [ZHB] to be able to
continue your non[]conforming use of that 42-acre parcel
with the trailers on it?
A Yes, I am.
[Counsel] Okay. That’s all the questions I have for
[Applicant].
R.R. at 250a-251a. Counsel presented only one additional witness, Officer Ross, of
whom Counsel solely inquired: “[W]ere there trailers there on that [P]roperty before
it was zoned R-4?” R.R. at 280a. Officer Ross responded: “I believe so.” Id.
Counsel’s entire position before the ZHB was summed up when
Township Solicitor Christopher Voltz, attempting to clarify Counsel’s position,
asked Counsel:
Q . . . . And maybe that’s the point of this case. So is it
your position that since the parcel existed prior to the
zoning and that there were trailer homes on this entire
parcel prior to the zoning that he is able to move the trailer
homes anywhere on that parcel even after zoning is
established?
A Yes, that is exactly right. Not only that, he can add
trailer homes. . . .
R.R. at 277a. At the conclusion of the hearing, the ZHB voted unanimously to deny
the Application and, thereafter, issued Findings of Fact, Conclusions of Law, and an
Adjudication (Decision) in support thereof.
In its Decision, the ZHB found as a fact: “[A]t the time the [UDO] was
enacted, the mobile home park was located in the R-4 [P]ortion . . . and the single[-
]family residence owned by Applicant [] was located in the R-1 [P]ortion . . . .” R.R.
at 365a. It also found that, “[a]t no time has there ever been a second single[-]family
6
residence located in the R-1 [P]ortion . . . .” R.R. at 366a. The ZHB concluded, in
relevant part, that Applicant’s “testimony confirmed that only one single[-]family
residence existed on the R-1 [P]ortion . . . before and after the enactment of the
[UDO] in 2000[,]” R.R. at 369a; thus, “the second mobile home that was installed
on the R-1 [P]ortion . . . [was] not a nonconforming use.” R.R. at 370a. The ZHB
further concluded: “[E]ven if Applicant [] had demonstrated that there had been a
preexisting nonconforming use on the Property, which he did not, he would not be
permitted to move the mobile home from one location to another because he did not
establish that he satisfied the requirements for a variance.” R.R. at 372a. On October
6, 2020, Applicant appealed to the trial court, and the Township intervened.
On July 19, 2021, the trial court, without taking any additional
evidence, reversed and vacated the ZHB’s decision. The trial court sua sponte raised
the issue of whether the mobile home was a building as defined by the UDO and,
thus, whether Section 1202 of the UDO, which prohibits “more than one principal
building used for residential purposes . . . on one property,” barred Applicant from
relocating it to the R-1 Portion. R.R. at 121a (emphasis added). The trial court
concluded that, since the record lacked substantial evidence demonstrating that the
mobile home was a building or a principal building, Applicant was not prohibited
from placing the mobile home on the R-1 Portion. Appellant appealed to this Court.9
9
Appellate review of a decision of a zoning hearing board, where the
trial court does not take any additional evidence, is limited to
determining whether the [zoning hearing] board abused its
discretion or committed an error of law. An abuse of discretion
occurs where the [zoning hearing] board’s findings are not
supported by substantial evidence. Substantial evidence is such
relevant evidence that a reasonable person would accept as adequate
to support the conclusion reached.
Friends of Lackawanna v. Dunmore Borough Zoning Hearing Bd., 186 A.3d 525, 531 n.6 (Pa.
Cmwlth. 2018) (citations omitted). “In deciding a question of law, our scope of review is
7
Discussion
Preliminarily, the trial court did not address the substantive issues
raised on appeal because it sua sponte determined that the record lacked evidence to
demonstrate that the relocated mobile home met the UDO’s definition of a building.
Notwithstanding that the trial court did not address the substantive issues, this Court
may do so.
The ZHB’s record is complete, the parties have fully briefed the issues,
and only legal questions remain. Section 754(b) of the Local Agency Law, 2 Pa.C.S.
§ 754(b), pertains to cases where, as here, a full and complete record was made
before the ZHB, and provides that the trial court reviews the ZHB’s decision in an
appellate capacity. Given the ZHB’s complete record, the trial court below was to
review the ZHB’s decision for abuses of discretion and legal error, not act as fact-
finder. Because this Court reviews the ZHB’s decision, not the trial court’s
decision, and the issues before the Court “may be resolved as a matter of law based
on the existing record, a remand is unnecessary.” 41 Valley Assocs. v. Bd. of
Supervisors of London Grove Twp., 882 A.2d 5, 17 (Pa. Cmwlth. 2005); see also
Bernotas v. Zoning Hearing Bd. of the City of Bethlehem, 68 A.3d 1042 (Pa. Cmwlth.
2013). This statement is especially true where, as here, a remand would be an
unnecessary use of judicial resources and impose added expenses on the parties.
This Court recently explained:
[T]he [t]rial [c]ourt’s [failure to address the issues] does
not stand as an impediment to our ability to address [the]
issue[s]. This is for two reasons: first, . . . it is the [zoning
hearing b]oard’s decision, rather than the [t]rial [c]ourt’s,
which we are inspecting for abuses of discretion and errors
of law; second, th[e] issue[s] present[] question[s] of law,
for which our “standard of review is de novo and . . . scope
of review is plenary.” City of Clairton v. Zoning Hearing
plenary and standard of review is de novo.” Cook v. City of Phila. Civ. Serv. Comm’n, 246 A.3d
347, 353 (Pa. Cmwlth. 2021) (emphasis added).
8
Bd. of City of Clairton, 246 A.3d 890, 897 n.8 (Pa.
Cmwlth. 2021).
AUUE, Inc. v. Borough of Jefferson Hills Zoning Hearing Bd. (Pa. Cmwlth. No. 871
C.D. 2020, filed Aug. 9, 2021), slip op. at 14 n.8, petition for allowance of appeal
granted on other grounds, (Pa. No. 329 WAL 2021, filed June 22, 2022); see also
Herbert v. W. Reading Borough Zoning Hearing Bd. (Pa. Cmwlth. No. 1113 C.D.
2020, filed Oct. 14, 2021) (reversing the trial court’s order that reversed the zoning
hearing board’s order denying the property owner’s appeal from an enforcement
notice.10 There, “[t]he trial court’s opinion did not address [various issues], but both
sides . . . presented arguments on [them] in their briefs and [this Court addressed
them] as . . . alternative ground[s] for reversal of the trial court’s determination.”
Id., slip op. at 11 n.11; see also id. at 7, n.7, 14 n.12).11
10
Unreported decisions of this Court, while not binding, may be cited for their persuasive
value. Section 414(a) of the Internal Operating Procedures of the Commonwealth Court, 210 Pa.
Code § 69.414(a). AUUE and Herbert are cited for their persuasive value.
11
Setting forth the law regarding trial court review of local agency decisions, the Dissent
states: “Consistent with this legislative paradigm, our general rule has been to order a remand
where the trial court has overlooked, or refused to address, the issues raised by the [A]ppellant.”
Omatick v. Cecil Twp. Zoning Hearing Bd., ___ A.3d ___, ___ (Pa. Cmwlth. No. 920 C.D. 2021,
filed Nov. 30, 2022) (Leavitt, S.J., Concurring/Dissenting), slip op. at 2 (emphasis added). The
Dissent opines that a remand is necessary when a trial court overlooks or refuses to address an
issue. However, here, the trial court did neither. Instead, it raised an issue sua sponte and reversed
on that basis alone. Finally, the Dissent notes that AUUE and Herbert are anomalies, see Omatick
(Leavitt, S.J., Concurring/Dissenting), slip op. at 2 n.2, when in fact those cases aptly applied the
law as the Majority does herein. Accordingly, because there are only questions of law before this
Court, the Majority properly addresses the issues, rather than remanding to the trial court.
Quoting the Pennsylvania Supreme Court’s decision in Chwatek v. Parks, 299 A.2d 631
(Pa. 1972), the Dissent claims that “[t]his jurisprudential policy [of allowing a trial court to correct
its errors] has been established by the Pennsylvania Supreme Court in decisions ‘consistently’
holding that ‘issues not raised or passed upon in the court of original jurisdiction should not be
considered on appeal,’ and its refusal to ‘depart[] from that rule.’” Omatick (Leavitt, S.J.,
Concurring/Dissenting), slip op. at 3 (footnote omitted) (quoting Chwatek, 299 A.3d at 633).
Importantly, in zoning cases, where a complete record is made by the ZHB, the trial court reviews
the ZHB’s decision in an appellate capacity. Nevertheless, the Dissent speculates that “the trial
court did not exercise its authority to take additional evidence because it decided that the true issue
was whether a mobile home is even a building, not whether it was a principal building.” Id. at 3
n.4 (emphasis added). Such is pure speculation, unsubstantiated by the record evidence.
9
Initially, “[i]t is well[-]settled law in Pennsylvania that a municipality
may enact zoning ordinances reasonably restricting the property right to protect and
promote the public health, safety[,] and welfare under its police power.” Woll v.
Monaghan Twp., 948 A.2d 933, 938 (Pa. Cmwlth. 2008).
A basic purpose of zoning is to ensure an orderly physical
development of the city, borough, township or other
community by confining particular uses of property to
certain defined areas. With such a purpose nonconforming
uses are inconsistent. The continuance of nonconforming
uses under zoning ordinances is countenanced because it
avoids the imposition of a hardship upon the property
owner and because the refusal of the continuance of a
nonconforming use would be of doubtful constitutionality.
Significantly, the Dissent cites Department of Environmental Resources v. Marra, 594
A.2d 646, 648 (Pa. 1991), Therres v. Zoning Hearing Board of Borough of Rose Valley, 947 A.2d
226 (Pa. Cmwlth. 2008), Cook v. City of Philadelphia Civil Service Commission, 201 A.3d 922,
929 (Pa. Cmwlth. 2019), and Branton v. Nicholas Meat, LLC, 159 A.3d 540 (Pa. Super. 2017), to
support its position that a remand is required. However, Marra involved the Pennsylvania
Supreme Court’s review of this Court’s order granting an injunction, not an appellate court’s
review of a local agency’s decision where, the Court reviews the local agency’s decision, not the
trial court’s. In Therres, the trial court quashed the appeals from two orders. This Court noted
“that had [it] reversed the trial court’s order quashing the appeal, the appropriate remedy would
have been to remand the matter to the trial court for consideration of the merits.” Therres, 947
A.2d at 233 n.6. Here, the trial court did not quash the appeal. Rather, it decided the merits of the
appeal, albeit on an issue it raised sua sponte. In Cook, the trial court improperly dismissed the
appellant’s local agency appeal sua sponte, because the plaintiff failed to file a brief. Thus, the
erroneous order was based on a procedural, rather than substantive, issue. Further, in Cook, the
local agency did not hold a hearing, so no record could be filed in the trial court. Finally, unlike
here, where this Court reviews the ZHB’s decision for error, the Cook Court reviewed the trial
court’s decision. In Branton, unlike the instant matter, “[n]o party briefed or argued [the
unaddressed] issue before [the appellate] Court.” Id. at 540, 562 n.21. Further, Branton did not
involve an appellate court’s review of a local agency’s decision where, as here, this Court reviews
the ZHB’s decision, rather than the trial court’s decision.
Contrary to the Dissent’s characterization that “[b]y deciding a local agency appeal in place
of the court of common pleas, we deny an appellee his full appellate rights, which includes review
by the trial court[,]” the trial court did review the ZHB’s decision but erred. Omatick (Leavitt,
S.J., Concurring/Dissenting), slip op. at 8. This Court now simply reviews the ZHB’s decision, as
it is required to do.
10
Hanna v. Bd. of Adjustment of the Borough of Forest Hills, 183 A.2d 539, 543 (Pa.
1962) (citation omitted).
“A lawful nonconforming use is a use predating the
enactment of a prohibitory zoning restriction.” DoMiJo,
LLC v. McLain, 41 A.3d 967, 972 (Pa. Cmwlth. 2012).
However, “[t]he right to maintain a pre[]existing
nonconformity is available only for uses that were
lawful when they came into existence and which existed
when the ordinance took effect.” Hager v. W[.] Rockhill
T[wp.] Zoning Hearing B[d.], 795 A.2d 1104, 1110 (Pa.
Cmwlth. 2002). When a lawful nonconforming use
exists, “the right to continue such use is afforded the
constitutional protections of due process.” DoMiJo, 41
A.3d at 972. Thus, “[a] municipality is without power to
compel a change in the nature of a use where property was
not restricted when purchased and is being used for a
lawful use.” Paulson v. Zoning Hearing B[d.] of Wallace
T[wp.], 712 A.2d 785, 788, (Pa. Cmwlth. 1998). “[A]
property owner’s right to continue operating a legal
nonconforming use on its property is an interest that runs
with the land, so long as it is not abandoned.” DoMiJo, 41
A.3d at 972.
PAJ Ventures, LP v. Zoning Hearing Bd. of Moore Twp., 225 A.3d 891, 898 (Pa.
Cmwlth. 2020) (bold and underline emphasis added).
The burden of proving the existence of a nonconforming
use lies with the property owner. Jones v. T[wp.] of N[.]
Huntingdon Zoning Hearing B[d.], . . . 467 A.2d 1206,
1207 ([Pa. Cmwlth.] 1983). To establish a prior
nonconforming use, the property owner must provide
“objective evidence that the subject land was devoted to
such use at the time the zoning ordinance was enacted.”
Smalley v. Zoning Hearing B[d.] of Middletown
T[wp.], . . . 834 A.2d 535, 538-39 ([Pa.] 2003). Satisfying
this burden requires [“]conclusive proof by way of
objective evidence of the precise extent, nature, time of
creation[,] and continuation of the alleged nonconforming
use.” Jones, 467 A.2d at 1207.
11
Sowich v. Zoning Hearing Bd. of Brown Twp., 245 A.3d 1188, 1195-96 (Pa. Cmwlth.
2021) (emphasis added).
Importantly, a nonconforming use “must not enlarge beyond its natural
expectations, nor can it be moved from its original setting. To do either is not the
original nonconforming use around which the zoning law was presumabl[y]
designed, but rather a new venture, and new ventures must qualify under existing
zoning laws.” Bachman v. Zoning Hearing Bd. of Bern Twp., 494 A.2d 1102, 1106
(Pa. 1985) (emphasis added). Thus, in Malakoff v. Board of Adjustment of the City
of Pittsburgh, 456 A.2d 1110 (Pa. Cmwlth. 1983), this Court agreed with the
appellant objectors that “since [a] portion of the property . . . had never before been
devoted to a nonconforming use, and there are no provisions in the [zoning c]ode to
allow that use as a special exception, [the proposed use] may only be accomplished
by the grant of a variance.” Id. at 1112 (emphasis added); see also City of Phila. v.
Angelone, 280 A.2d 672, 677 (Pa. Cmwlth. 1971) (“Structures may be erected on
open land previously devoted to a nonconforming use, as of right.” “However, the
erection of structures upon land not previously so used, may only be accomplished
by way of variance, the requisites of which are hardship to the owner and absence
of detriment to the public interest.”).
I. ZHB’s Factual Findings and Credibility Determinations
Appellant first argues that the trial court erred and/or abused its
discretion when it disturbed the ZHB’s determinations regarding the Application.
Specifically, Appellant contends that the ZHB properly denied the Application
because it found that the relocated mobile home was a prohibited nonconforming
use on the R-1 Portion, that Applicant failed to prove a preexisting nonconforming
use on the R-1 Portion, and that Applicant did not satisfy the necessary variance
criteria.
12
A. Existence of a Preexisting Nonconforming Use
Appellant asserts that the ZHB properly concluded that Applicant’s
mobile home use on the R-1 Portion is not a nonconforming use. Appellant
references Applicant’s acknowledgement that the mobile home’s intended use is as
a residence for Applicant’s daughter.
The intended use of the [mobile] home remains the same.
[Applicant’s] daughter lived in the [mobile] home before
and his daughter intends to move back into the unit. . . .
Alterations planned to the [mobile] home are to make it
more ascetically [sic] appealing, and to match the
surrounding structures on the [P]roperty.
R.R. at 141a. Appellant further references Applicant’s admission during his
testimony that the mobile home would be a second home on the Property, for his
daughter. See R.R. at 187a. Appellant argues that there is no record evidence of a
preexisting nonconforming use of multiple principal buildings for residential
purposes, or mobile homes on the R-1 Portion. Accordingly, it contends that the
ZHB did not err when it concluded that Applicant’s mobile home relocation on the
R-1 Portion for use as his daughter’s residence would not be a nonconforming use
given Section 1202 of the UDO’s prohibition on “more than one principal
building[12] used for residential purposes located on one property[.]” R.R. at 121a.
Applicant rejoins:
[P]rior to the adoption of the [UDO], [Applicant’s] father
had placed mobile homes on the single parcel of
[P]roperty. . . . With the adoption of the [UDO], the
[T]ownship drew zoning lines around the mobile homes
12
Applicant did not argue to either the ZHB or the trial court that the mobile home was not
a building under the UDO, which defines such as “[a]ny structure . . . permanently affixed to land.”
UDO § 202, R.R. at 21a. Accordingly, apart from Officer Ross’s testimony that the mobile home
was “anchored down,” R.R. at 287a, Appellant did not offer evidence that the mobile home, which
is defined in the UDO as “[a] transportable, single[-]family dwelling . . . that . . . may be used with
or without a permanent foundation[,]” was permanently affixed to the ground. UDO § 202, R.R.
at 34a.
13
and classified that land as R[-]4 while the rest of the parcel
remained R[-]1. . . . [Applicant’s] action of moving the
mobile home merely continued the nonconforming use of
the single parcel of [P]roperty.
Applicant Br. at 5 (emphasis added). Thus, Applicant contends that using any part
of the Property before the passage of the UDO in a manner that would be
nonconforming thereafter constitutes use on the entire parcel and renders the
subsequent use elsewhere on the Property a lawful nonconforming use. Applicant
asserts that the pre-UDO mobile home use on the portion of the Property that became
the R-4 Portion constitutes a preexisting nonconforming use on the entire Property
– including the R-1 Portion.
This Court’s decisions in Hodge v. Zoning Hearing Board of West
Bradford Township, 312 A.2d 813 (Pa. Cmwlth. 1973), and Colonial Park for
Mobile Homes, Inc. v. New Britain Borough Zoning Hearing Board, 290 A.2d 719
(Pa. Cmwlth. 1972), are instructive. In Hodge, the applicant property owners (the
Hodges) challenged the zoning hearing board’s decision denying their application,
wherein they asserted that their mobile home park was a preexisting nonconforming
use and sought an extension thereof. The Hodges owned approximately 137 acres
on the east side of a dividing road and 188 acres on the dividing road’s west side. In
addition to operating an orchard on their property, the Hodges began installing
mobile homes on both sides of the dividing road. Thereafter, the township adopted
a zoning ordinance that permitted mobile home parks only in commercial districts
by special exception. The Hodges’ land was split-zoned, part residential and part
commercial, with the mobile home park being partly in a residential district. The
township subsequently amended the zoning map to encompass the Hodges’ entire
mobile home park in a commercial district. Thus, the commercial district
encompassed land on both sides of the dividing road. Thereafter, the Hodges sought
14
a special exception for the mobile home park, which the zoning hearing board
granted.
Subsequently, the Hodges filed an application with the zoning officer
for permission to install 300 mobile homes on the land on the west side of the
dividing road, largely in the zoned residential portion of the property. The
application was denied and the Hodges appealed to the zoning hearing board, which,
after conducting hearings, rejected the application. The zoning hearing board
concluded that the majority of the mobile homes would be placed in a residential
district where such homes were prohibited, and that the application did not constitute
an expansion of a nonconforming use because the mobile home park on the west
side of the dividing road where the mobile homes would be placed was a conforming
use, and that the mobile home park on the east side of the dividing road had been a
conforming use since the township had amended the zoning map. The Hodges
appealed to the common pleas court, which affirmed the zoning hearing board’s
order.
On further appeal, this Court affirmed the trial court’s order, reasoning:
The question in this case . . . is whether or not a
nonconforming use actually did exist, or if in fact the
original construction in [the mobile home park]
constituted a use compatible with the terms of the zoning
ordinance. It would be specious to contend that the
doctrine of nonconforming use ensures one who
engages in a permitted use in one zoning district the
right to engage in the same use in an adjoining district
where such use is prohibited. Moreover, in determining
whether or not a nonconforming use existed, “[o]nly
physical evidence manifested in the most tangible and
palpable form can bring about the application of
nonconforming clauses in a zoning ordinance. Before a
supposed nonconforming use may be protected, it must
exist somewhere outside the property owner’s mind.”
Cook v. Bensalem T[wp.] Zoning B[d.] of Adjustment, . . .
196 A.2d 327, 330 ([Pa.] 1964).
15
As found by the [zoning hearing board and the common
pleas court], and as supported by substantial evidence in
the record, the Hodges’ mobile home park on the west side
of the [dividing] road, where the planned expansion is to
take place, was in conformance with the zoning ordinance
as of the date of its enactment. On the east side of the
[dividing] road, where apparently no expansion is
presently planned, part of the mobile home park was in
conformance as of the date of enactment of the ordinance
and the entire park was in conformance following the
amendment of the ordinance on March 14, 1971. . . .
We must agree with the [zoning hearing board] and the
lower court, therefore, that the Hodges had not established
a mobile home park as a nonconforming use, and that,
because their mobile home park does in fact conform to
the dictates of the zoning ordinance, there is no right of
expansion available to them now.
Hodge, 312 A.2d at 817 (emphasis added; citation omitted).
Similarly, in Colonial Park, this Court rejected an appellant’s
contention that the use of his land as a mobile home park established a preexisting
nonconforming use of land in an adjacent property. This Court concluded that there
was no record evidence establishing that the mobile home park use was
nonconforming. The Colonial Park Court explained:
If in fact the appellant’s use of its land for a mobile home
park conformed to regulations of the [t]ownship . . . [the]
appellant had no nonconforming use anywhere, and is left
with the palpably specious contention that the doctrine of
nonconforming use ensures one who engages in a
permitted use in one zoning district the right to engage in
the same use in an adjoining district where such use is
prohibited.
Colonial Park, 290 A.2d at 722.
Here, at the time the UDO was adopted, the mobile home park was
located on the R-4 Portion. Applicant’s single-family residence was located on the
R-1 Portion. Thus, the Township’s UDO adoption did not render the existing mobile
16
home use (on the R-4 Portion) or the residence (on the R-1 Portion) nonconforming.
Rather, the mobile home park located on the R-4 Portion and the residence located
on the R-1 Portion were permissible uses under the UDO. Accordingly, there was
no nonconforming use occurring at the Property at the time the Township
adopted the UDO, and the fact that multiple mobile homes are permissible on the
adjacent R-4 Portion does not confer on Applicant the “right to engage in the same
use in an adjoining district where such use is prohibited.”13 Hodge, 312 A.2d at 817;
see also Colonial Park.
13
See also O’Kane v. Zoning Hearing Bd. of Haverford Twp., 582 A.2d 716, 718 n.4 (Pa.
Cmwlth. 1990) (it is an applicant’s “burden to prove that [the] portion of [its] property was
previously devoted to [its] nonconforming uses”) (emphasis added); but see R.K. Kibblehouse
Quarries v. Marlborough Twp. Zoning Hearing Bd., 630 A.2d 937 (Pa. Cmwlth. 1993). In
Kibblehouse, a property was split-zoned, with part of the property Limited Industrial (LI) and
another part Residential-Agricultural (RA-1). The zoning hearing board denied the applicant’s
appeal of the township zoning officer’s refusal to declare a quarry operation on the north side of
the applicant’s property as a valid nonconforming use and permit its expansion over the entire
property, because it concluded that the quarrying activities were not nonconforming, since at the
time of the township’s adoption of its zoning ordinance, quarrying activities were entirely confined
within the LI district, where quarrying was a permitted use. On appeal, the trial court reversed the
zoning hearing board’s decision. On further appeal, this Court concluded that the quarrying
activities were a preexisting nonconforming use on the property’s north side, explaining:
In order to establish a prior nonconforming use, the landowner is
required to provide objective evidence that the subject land was
devoted to such use at the time the zoning ordinance was enacted.
The burden of proving the extent or existence of a
nonconforming use rests with the property owner who would
claim the benefit of the rights accorded property with that
status.
The [zoning hearing] board concluded that [the applicant] did not
establish a nonconforming use on the north side. The [zoning
hearing] board reasoned that when the ordinance was enacted in
1970, the LI district was specifically delineated to encompass the
entire quarrying operation and accommodate its reasonable future
expansion throughout that same district.
On appeal to the trial court, [the applicant] argued that it established
the existence of a nonconforming use by showing that a portion of
the quarrying activity being conducted on the north side had not
17
B. Expansion or Relocation of a Nonconforming Use
Assuming arguendo that, in the instant matter, the mobile home use on
the R-4 Portion had become nonconforming upon the UDO’s adoption, such
preexisting use would not authorize mobile home placement for Applicant’s use as
a residence on the R-1 Portion either as a relocation or expansion of a nonconforming
use. A permitted preexisting nonconforming use is limited to the portion of the
property upon which the use was located when the UDO was adopted and may
not be moved.14 See Bachman; Malakoff; Angelone.
With respect to expansion of a nonconforming use, this Court’s
decision in Overstreet v. Zoning Hearing Board of Schuylkill Township, 412 A.2d
169 (Pa. Cmwlth. 1980), is instructive. Therein, owners of a property that housed a
mobile home park on the western portion of their tract of land challenged the zoning
hearing board’s denial of their request to expand the mobile home use to the
remainder of the tract. The Overstreet Court explained:
The owners’ [] argument takes issue with the
determination that their lawful nonconforming use
extended only over the western section of the tract, and
contends that their right to expand that use extends to
been captured within the LI district at the time the ordinance
was enacted; therefore, quarrying had also been occurring on
land that would be zoned RA-1 by enactment of the ordinance.
Kibblehouse, 630 A.2d at 941 (emphasis added; citations omitted). This Court agreed that the
applicant had proven that a portion of the quarry was operating outside of the LI district, on the
north side and, thus, a nonconforming use was occurring there at the time the zoning ordinance
was enacted. Here, unlike in Kibblehouse, there is no record evidence that the R-1 Portion was
ever used for a mobile home or for a second primary residence before the Township adopted the
UDO.
14
This Court is aware that this rule is subject to the doctrine of natural expansion. “The
right to expand a nonconforming use to provide for the natural expansion and accommodation of
increased trade ‘is a constitutional right protected by the due process clause.’” Jenkintown Towing
Serv. v. Zoning Hearing Bd. of Upper Moreland Twp., 446 A.2d 716, 718 (Pa. Cmwlth. 1982)
(quoting Silver v. Zoning Bd. of Adjustment, 255 A.2d 506-07 (Pa. 1969)). However, as explained
below, Applicant did not present any evidence of expansion herein.
18
the whole of the tract, because the tract was devoted in
its entirety to the mobile[]home operation.
The burden of proving the extent or existence of a
nonconforming use rests on the property owner who
would claim the benefit of the rights accorded property
with that status. Further, that proof must be by way of
objective evidence.
Our review of the record reveals that the evidence before
the referee was conflicting as to the extent of the
nonconformity. Although [the owners] and one of his
predecessors in interest testified with regard to peripheral
or passive uses of the eastern portions of the tract, there
was also considerable testimony to the effect that such
portion was unused in any manner whatsoever. The
evidence does not compel a conclusion that the entire
tract was devoted to the operation; we see no basis
upon which to override the decision below that only the
western half of the property was so devoted.
Id. at 171-72 (emphasis added; citations omitted); see also Piecknick v. S. Strabane
Twp. Zoning Hearing Bd., 607 A.2d 829, 836 (Pa. Cmwlth. 1992) (“If . . . the
expansion is to occur over an area of the property not previously used in furtherance
of the nonconforming use but is reasonably necessary to accommodate the
requirements of the natural growth of the business, the [applicants] must obtain a
variance before they can build.”); Llewellyn’s Mobile Home Court, Inc. v.
Springfield Twp. Zoning Hearing Bd., 485 A.2d 883, 886 (Pa. Cmwlth. 1984) (“[An
applicant] is not entitled to an expansion as of right of the nonconforming use over
property which has not been used to further the nonconforming purpose.”);
Jenkintown Towing Serv. v. Zoning Hearing Bd. of Upper Moreland Twp., 446 A.2d
716 (Pa. Cmwlth. 1982). Thus, even if Applicant’s mobile home use on the R-4
Portion was nonconforming, Applicant is not entitled to expand such preexisting
nonconforming use absent evidence that the R-1 Portion had been used in
furtherance of the proposed use, and the record is devoid of such evidence.
19
C. Variance
Appellant contends that the ZHB correctly concluded that Applicant
had failed to satisfy the UDO’s variance requirements and that the ZHB’s findings
thereon are supported by substantial evidence. Notably, Applicant does not
challenge the ZHB’s variance denial at all before this Court. Applicant does not
respond to the Township’s specific argument in its brief that the ZHB properly
denied the variance, and does not otherwise discuss or challenge the denial of
the variance in his responsive brief.15 See Applicant Br. at 2. The entirety of
Applicant’s brief addresses the nonconforming use issue and the trial court’s sua
sponte determination.
With respect to Applicant’s requested variance, Section 404.A.1 of the
UDO states:
The variance procedure is intended to provide a narrowly
circumscribed means by which relief may be granted from
unforeseen particular applications of sections of this
Chapter not relating to subdivision requirements. When
such hardships may be more appropriately remedied,
if at all, pursuant to other provisions of this Chapter,
the variance procedure is inappropriate. No
nonconforming use of neighboring lands, structures, or
15
Pennsylvania Rule of Appellate Procedure (Rule) 2112 states in relevant part:
The brief of the appellee, except as otherwise prescribed by these
rules, need contain only a summary of argument and the complete
argument for appellee, and may also include counter-statements of
any of the matters required in the appellant’s brief as stated in [Rule]
2111(a). Unless the appellee does so, or the brief of the appellee
otherwise challenges the matters set forth in the appellant’s
brief, it will be assumed the appellee is satisfied with them, or
with such parts of them as remain unchallenged.
Pa.R.A.P. 2112 (emphasis added). See, e.g., Twyman v. Workers’ Comp. Appeal Bd. (Pa. Dep’t
of Transp.), 720 A.2d 780, 783 n.5 (Pa. Cmwlth. 1998) (wherein this Court noted that because the
appellee’s brief did not contain a Counter-Statement of Questions Involved, it is “assumed that
[the appellee] is satisfied with the issues raised by the appellant and any others remain
unchallenged in the proper manner in accordance with [Rule] 2112”).
20
buildings in the same district and no permitted or
nonconforming uses of lands, structures, or buildings
in other districts shall be considered grounds for
issuance of a variance. Upon appeal from an order or
determination of the Zoning Officer or upon application,
the [ZHB] shall have the power to vary or adjust the strict
application of rules and requirements in accordance with
the provisions of the Pennsylvania Municipalities
Planning Code,[16] provided that the following findings are
made where relevant in a given case:
a. That there are unique physical circumstances or
conditions, including irregularity, narrowness, or
shallowness of lot size or shape, or exceptional
topographical or other physical conditions peculiar to
the particular property and that the unnecessary
hardship is due to such conditions and not the
circumstances or conditions generally created by the
provisions of the zoning ordinance in the neighborhood
or district in which the property is located.
b. That because of such physical circumstances or
conditions, there is no possibility that the property can
be developed in strict conformity with the provisions
of the zoning ordinance and that the authorization of a
variance is therefore necessary to enable the reasonable
use of the property.
c. That such unnecessary hardship has not been created
by the applicant.
d. That the variance, if authorized, will not alter the
essential character of the neighborhood or district in
which the property is located, nor substantially or
permanently impair the appropriate use or development
of adjacent property, nor be detrimental to the public
welfare.
e. That the variance, if authorized, will represent the
minimum variance that will afford relief and will
represent the least modification possible of the
regulation in issue.
16
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
21
UDO § 404.A.1, R.R. at 68a-69a (emphasis added). The law is well established that
“[v]ariances are generally granted only under exceptional circumstances and an
applicant must satisfy all criteria necessary for the grant of a variance.” Larsen v.
Zoning Bd. of Adjustment of the City of Pittsburgh, 654 A.2d 256, 261 (Pa. Cmwlth.
1995), aff’d, 672 A.2d 286 (Pa. 1996) (bold and underline emphasis added).
In the instant matter, the ZHB concluded that “Applicant [] did not
satisfy any of the[] [UDO variance] requirements.” R.R. at 371a (emphasis added).
The ZHB correctly noted that regarding the first factor, Applicant did not present
any evidence that the landslide on the R-4 Portion constituted an unnecessary
hardship on the entire R-4 Portion.17 See R.R. at 371a. The mobile home park on
the R-4 Portion still operates, just with three fewer homes. This Court has held that
where property is being used productively, a mere showing of economic
hardship or that a property could be utilized more profitably is insufficient to
support the grant of a variance. See Society Created to Reduce Urban Blight
(SCRUB) v. Zoning Bd. of Adjustment of City of Phila., 771 A.2d 874 (Pa. Cmwlth.
2001). Applicant’s inability to use the R-4 Portion for Applicant’s desired nine,
rather than six, mobile homes is not sufficient to support the grant of the variance.
The ZHB further reasoned that Section 404.A.1 of the UDO requires that, to the
extent any hardship does exist, it must be remedied by subdividing the R-1 Portion
rather than by variance.18 See R.R. at 371a.
17
Notwithstanding, the Dissent states: “In any case, I would not affirm the [ZHB’s] denial
of [Applicant’s] request for a variance to allow the mobile home, displaced from its prior location
by a landslide, to be moved elsewhere on his property.” Omatick (Leavitt, S.J.,
Concurring/Dissenting), slip op. at 5.
18
The Dissent mischaracterizes the ZHB’s reasoning as follows:
[T]he [ZHB] reasoned that [Applicant’s] hardship “can be remedied
by subdividing the [P]roperty and complying with the [z]oning
[o]rdinance instead of seeking a variance.” [R.R.] at 372a []. I
22
Appellant contends that Applicant “did not present any evidence of
expense as a reason for not subdividing his property, ultimately testifying that he
just doesn’t ‘want to subdivide’ (R.[R. at] 367a; R.[R. at] 271a).”19 Appellant Br. at
14. In fact, Applicant does not argue in his brief to this Court that the ZHB erred
when it concluded that he had not demonstrated the necessary hardship to support
the grant of a variance.20
disagree that, as a matter of law, the subdivision alternative disposed
of the [ZHB’s] hardship inquiry.
Omatick (Leavitt, S.J., Concurring/Dissenting), slip op. at 6. Rather, the ZHB expressly
concluded:
20. Courts addressing nonconforming use variances have uniformly
assumed, with little or no discussion, the existence of the first
requirement, requiring “unique physical . . . conditions.” Richards
v. Borough of Coudersport Zoning [Hearing] Bd., 979 A.2d 957,
967 (Pa. [Cmwlth.] 2009). However, in this case, there is no
preexisting nonconforming use, so the first requirement is not
[presumed] satisfied.
21. In addition, Applicant [] did not present any evidence that the
2018 landslide constituted an unnecessary hardship affecting the
entire portion of the Property located in the R-4 zoning district.
R.R. at 371a (emphasis added). Despite the ZHB’s above-quoted Findings of Fact, the Dissent
asserts: “[T]he [ZHB] did not address the hardship caused by the unstable soil on the land that
required three of the nine mobile homes to be removed after a landslide. The [ZHB] then ignored
[Applicant’s] evidence that one of the three was moved to a place that involved the least
disturbance to and impact on the environment.” Omatick (Leavitt, S.J., Concurring/Dissenting),
slip op. at 7.
19
The ZHB found as fact that Applicant did not submit an application to subdivide the
Property, that “[n]o credible evidence was submitted that subdivision would be cost prohibitive or
impractical[,]” and that Applicant “testified that he did not want to subdivide the Property because
his daughter, at some point, would inherit it all.” R.R. at 367a. It was for the ZHB as fact-finder
to determine credibility, weigh the evidence, and discern Applicant’s true motivation in refusing
to subdivide the Property.
20
Notwithstanding, the Dissent maintains that evidence on the subdivision was required
and sua sponte raises its own factual questions pertaining thereto, such as whether Applicant would
“be subject to roll-back taxes” if he subdivides. Omatick (Leavitt, S.J., Concurring/Dissenting),
slip op. at 6. Said issues are not before this Court as Counsel made it clear that Applicant would
not consider subdividing until after he received a decision from the ZHB. See R.R. at 248a.
23
With respect to the second factor, the ZHB correctly observed that as
evidenced by the Property’s current use (a residence currently and legally exists on
the R-1 Portion, and a mobile home park legally exists on the R-4 Portion), the
Property can be developed in strict conformity with the UDO. See id. The ZHB
further concluded that Applicant did not meet the third factor because, although the
landslide was responsible for the removal of the mobile homes on the R-4 Portion,
there was no evidence demonstrating that the mobile home must be moved to the R-
1 Portion, as opposed to another location on the R-4 Portion.21 See R.R. at 372a.
Instead, that was Applicant’s choice. Regarding the fourth factor, the ZHB found
that allowing two residences on the same property, which is explicitly prohibited by
the UDO, would alter the essential character of the neighborhood in the R-1 District.
Applicant offered no evidence to show otherwise. See id. Finally, with respect to
the fifth factor, the ZHB correctly concluded that granting a variance would not
“represent the least modification possible of the regulation in issue[,]” since the
Property could be subdivided without modifying the regulation at all. R.R. at 69a.22
“It is the function of the [ZHB] to determine whether the evidence
satisfies the criteria for granting a variance. The [ZHB], as fact-finder, is the sole
judge of credibility.” Marshall v. City of Phila., 97 A.3d 323, 331 (Pa. 2014)
Further, the record is devoid of any mention of roll-back taxes, and it is not the ZHB’s or this
Court’s role to advocate for a party.
21
The Dissent asserts that “[t]here was no evidence that there was space remaining in that
zoning district after the landslide. Even so, [Applicant] was not required to prove a negative.”
Omatick (Leavitt, S.J., Concurring/Dissenting), slip op. at 7. Contrary to the Dissent’s
characterization, requiring Applicant to demonstrate that the subject zoned area is too small to
accommodate a mobile home at a different location thereon is not “requir[ing Applicant] to prove
a negative[,]” but rather, requires that Applicant must satisfy evidentiary requirements supporting
Applicant’s hardship claim.
22
The ZHB found that Applicant did not submit an application to subdivide the Property,
and observed that no credible record evidence was submitted showing that subdivision would be
cost prohibitive or impractical. Rather, Applicant chose not to subdivide the Property because his
daughter would, at some point, inherit all of the Property. See R.R. at 367a.
24
(emphasis added; citation omitted). The ZHB has the “exclusive authority to
determine matters of witness credibility and evidentiary weight . . . .” Pham v. Upper
Merion Twp. Zoning Hearing Bd., 113 A.3d 879, 893 (Pa. Cmwlth. 2015). Given
that Applicant had the burden to satisfy all the variance criteria and failed to do so,
the ZHB properly denied the variance.
II. Trial Court’s Sua Sponte Consideration
Appellant next contends that the trial court erred when it, sua sponte,
declared that the relocated mobile home was not a building as defined in the UDO,
and reversed and vacated the ZHB’s Decision based on that conclusion. Explaining
that the “trial court is unable to reconcile the plain language of [Section 1202 of the
UDO] with the interpretation the parties and the ZHB have given to it[,]” the trial
court examined the UDO’s restriction limiting principal buildings on Township
properties. Specifically, the trial court considered that Section 1202 of the UDO
prohibits the use of “more than one principal building . . . for residential purposes
located on one property[.]” R.R. at 121a (emphasis added). It further examined
Section 202 of the UDO which defines the term principal building, in relevant part,
as “[t]he building in which the primary use of the lot is conducted,” R.R. at 36a
(emphasis added), and building as “[a]ny structure, with walls and a roof, designed,
built, and used for the shelter, protection, or enclosure of persons, animals, or
property, and which is permanently affixed to the land.” R.R. at 21a (emphasis
added). The trial court contrasted the definition of building in Section 202 of the
UDO with the UDO’s definition of mobile home, which is “[a] transportable, single[-
]family dwelling intended for permanent occupancy . . . constructed so that it may
be used with or without a permanent foundation.” R.R. at 34a. Based thereon, the
trial court concluded that, since there was no record evidence that the mobile home
was “permanently affixed to the land” and, therefore, was not a building as defined
25
in the UDO, its presence on the R-1 Portion did not violate Section 1202 of the UDO.
Importantly, neither Applicant nor any other party raised or argued this
issue to the ZHB or the trial court.23 This Court declared in Department of
Transportation, Bureau of Traffic Safety v. Malone, 520 A.2d 120 (Pa. Cmwlth.
1987),
while it is among the functions of the trial court to clarify
the issues, that function does not cast it in the role of
advocate. Accordingly, [the Pennsylvania Supreme Court
in Hrivnak v. Perrone, 372 A.2d 730 (Pa. 1977),] held that
it [is] error for a trial judge to introduce theories not raised
by the parties.
Malone, 520 A.2d at 122.
[I]t has long been held that a court may not raise an issue
sua sponte that does not involve the court’s subject matter
jurisdiction. “Sua sponte consideration of an issue
deprives counsel of the opportunity to brief and argue the
issue[] and the [zoning hearing b]oard of the benefit of
counsel’s advocacy.” Miller v. Workmen’s Comp. Appeal
Bd. (Giant Food Stores, Inc.), 715 A.2d 564, 566 (Pa.
Cmwlth. 1998) (quoting Follett v. Workmen’s Comp.
Appeal Bd. (Mass. Mut. Ins. Co.), . . . 551 A.2d 616, 621
([Pa. Cmwlth.] 1988) . . . ). Moreover, “raising issues sua
sponte after the record is closed and without notice to the
parties constitutes a due process violation.” [Malone, 520
A.2d at 122].
Orange Stones Co. v. Borough of Hamburg Zoning Hearing Bd., 991 A.2d 996, 999
(Pa. Cmwlth. 2010) (citation omitted). Because neither Applicant nor Appellant
raised the issue of whether the mobile home was a building under the UDO, the trial
court erred by raising that issue sua sponte and basing its decision thereon.
23
Where a party fails to raise an issue before a zoning hearing board or in its notice of
appeal or brief to the trial court, the party waives the issue. See Carroll Sign Co., Inc. v. Adams
Cnty. Zoning Hearing Bd., 606 A.2d 1250 (Pa. Cmwlth. 1992).
26
For all of the above reasons, the trial court’s order is reversed.24
_________________________________
ANNE E. COVEY, Judge
24
Given this Court’s disposition of the first two issues, it does not reach Appellant’s third
issue.
27
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey A. Omatick :
:
v. :
:
Cecil Township Zoning :
Hearing Board :
:
v. :
:
Cecil Township Board of :
Supervisors, : No. 920 C.D. 2021
Appellant :
ORDER
AND NOW, this 30th day of November, 2022, the Washington County
Common Pleas Court’s July 19, 2021 order is reversed.
_________________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey A. Omatick :
:
v. : No. 920 C.D. 2021
: Argued: May 16, 2022
Cecil Township Zoning :
Hearing Board :
:
v. :
:
Cecil Township Board of :
Supervisors, :
Appellant :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
CONCURRING AND DISSENTING
OPINION
BY SENIOR JUDGE LEAVITT FILED: November 30, 2022
The Court of Common Pleas of Washington County (trial court)
concluded that neither the Cecil Township Board of Supervisors nor the Cecil
Township Zoning Hearing Board (Zoning Board) (collectively, Cecil Township)
presented any evidence that the mobile home in question was a building, let alone a
principal building, subject to the Township’s Unified Development Ordinance.1 On
that basis, the trial court sustained the appeal of Jeffrey A. Omatick (Landowner)
challenging the notice of violation issued by Cecil Township. I concur in the panel’s
holding that the trial court erred in deciding Landowner’s appeal on an issue not
raised by Landowner or Cecil Township. Given that holding, I would remand the
matter to the trial court to decide the issues that were presented to the trial court but
1
Cecil Twp., Washington Cnty., Pa., UNIFIED DEVELOPMENT ORDINANCE §§101-1904 (2007).
disregarded altogether. Instead, the majority decides those issues for the trial court.
Respectfully, I dissent from this order on procedural and substantive grounds.
The Local Agency Law provides that a person “aggrieved by an
adjudication of a local agency” shall appeal to the court of common pleas where the
local agency is located. 2 Pa. C.S. §752. The court of common pleas’ review
determines, inter alia, whether a complete record was made by the local agency,
which can only be resolved with reference to the discrete legal questions in the
appeal, as may arise under the Pennsylvania or the United States Constitution, a
statute, or an ordinance. 2 Pa. C.S. §754(b). If the record is incomplete on a
particular issue or a finding is not supported by substantial evidence, the trial court
may remand the matter to the local agency or conduct additional evidentiary hearings
itself. 2 Pa. C.S. §754(a). Where the court does not affirm the local agency, the
court may reverse and remand. 2 Pa. C.S. §754(b) (citing 42 Pa. C.S. §706).
Consistent with this legislative paradigm, our general rule has been to order a remand
where the trial court has overlooked, or refused to address, the issues raised by the
appellant.2
A trial court must be allowed an opportunity to correct its errors,
including legal errors, so that it may reconsider the claims anew before those legal
2
There have been recent anomalies. In AUUE, Inc. v. Borough of Jefferson Hills Zoning Hearing
Board (Pa. Cmwlth., No. 871 C.D. 2020, filed August 9, 2021) (unreported), this Court reversed
the trial court, which had affirmed a decision of a zoning hearing board. In doing so, we decided
another issue raised to the trial court but not addressed because of its erroneous conclusion on the
first issue. In Herbert v. West Reading Borough Zoning Hearing Board (Pa. Cmwlth., No. 1113
C.D. 2020, filed October 14, 2021) (unreported), this Court addressed the code enforcement
officer’s authority to issue an enforcement notice and the validity of that notice notwithstanding
that the trial court did not address the issue because it was preserved at the trial court level and
briefed by the parties.
In each case, the trial court addressed at least one issue raised by the landowner. Here, the
trial court did not address either issue raised by Landowner.
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claims are presented to an appellate court. See, e.g., Cook v. City of Philadelphia
Civil Service Commission, 201 A.3d 922, 929 (Pa. Cmwlth. 2019). This
jurisprudential policy has been established by the Pennsylvania Supreme Court3 in
decisions “consistently” holding that “issues not raised or passed upon in the court
of original jurisdiction should not be considered on appeal,” and its refusal to
“depart[] from that rule.” Chwatek v. Parks, 299 A.2d 631, 633 (Pa. 1972) (emphasis
added).4
For example, in Department of Environmental Resources v. Marra, 594
A.2d 646, 648 (Pa. 1991), this Court granted an injunction requiring the landowner
to disclose the location of paint solvents and waste removed from his property, and
the landowner appealed. The Supreme Court agreed with the department that the
appeal was not ripe for review, explaining:
The jurisprudential policies behind the [department’s] assertion
that the case is not ripe for decision, ultimately, are that lower
courts must be given an opportunity to correct errors before
3
“[T]he setting of jurisprudential policy is principally the task of the Pennsylvania Supreme
Court.” Donald J. Harris, Due Process v. Helping Kids in Trouble: Implementing the Right to
Appeal from Adjudications of Delinquency in Pennsylvania, 98 Dickinson Law Review 209, 210
(Winter, 1994). In In re Stout, 559 A.2d 489, 495, 497 (Pa. 1989), the Supreme Court emphasized
its role in setting such policy, noting “we are charged with charting a definite course of action for
the judiciary, and to select our method of action from various alternatives at hand and in light of
these conditions to guide and determine the present and future course of this branch of
government.”
4
The majority states that “in zoning cases, where a complete record is made by the [Zoning Board],
the trial court reviews the [Zoning Board’s] decision in an appellate capacity.” Majority at 9 n.12
(emphasis omitted). In zoning board appeals, the trial court also has the discretion to hold a hearing
to take additional evidence and make findings of fact. 2 Pa. C.S. §754(a) (“the court may hear the
appeal de novo, or may remand the proceedings to the agency for the purpose of making a full and
complete record or for further disposition in accordance with the order of the court.”). Here, the
trial court did not exercise its authority to take additional evidence because it decided that the true
issue was whether a mobile home is even a building, not whether it was a principal building. Had
the trial court addressed the actual issues raised on appeal, it may have decided to take additional
evidence.
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alleged errors are addressed by appellate courts and that courts
may only address cases which have reached a procedural posture
in which the dispute between the parties is clearly extant and
certainly defined.
Id. (emphasis added). Likewise, here, the majority decides issues not ripe for our
review.
This Court and the Superior Court have long followed this
jurisprudential policy of allowing the trial court to correct its errors. In Therres v.
Zoning Hearing Board of Borough of Rose Valley, 947 A.2d 226 (Pa. Cmwlth.
2008), our Court affirmed the trial court’s order to quash an appeal. We noted,
further, that had we held otherwise, the appropriate remedy was
to remand the matter to the trial court for consideration of the
merits. The arguments as to whether the [zoning hearing board]
abused its discretion go to the merits of the underlying appeal,
and they have not yet been addressed by the trial court.
Id. at 233 n.6 (emphasis added). Similarly, in Cook, where the trial court abused its
discretion by sua sponte dismissing the appellant’s local agency appeal for failing to
file a timely brief, this Court remanded the matter to the trial court to address the
issues in the first instance, citing the general policy set out in Marra. Cook, 201
A.3d at 929. In Branton v. Nicholas Meat, LLC, 159 A.3d 540, 562 n.21 (Pa. Super.
2017), where the trial court did not address an issue in its opinion granting summary
judgment, the Superior Court remanded the matter so that the trial court could decide
the issue in the first instance.
Remanding where a trial court has failed to address an issue allows the
court to correct its error and is consistent with the principle of judicial economy.
This has been explained as follows:
Consider . . . the scenario of the “apparently overlooked
argument.” That is a decision that appears, based on the opinion
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below, to have overlooked one of the losing party’s facially
plausible contentions. It would be time-consuming for the Court
to figure out whether the overlooked contention actually has
merit and would materially affect the outcome . . . but it is easy
enough to vacate and remand for the lower court to address the
matter (or clarify that it already did).
Aaron-Andrew P. Bruhl, The Remand Power and the Supreme Court’s Role, 96
Notre Dame Law Review 171, 183 (2020). The treatise Standard Pennsylvania
Practice states:
The application of an erroneous legal standard may require a
remand for a proper determination by the trial court.[] The
reaching of an incorrect legal determination, leaving an
essential matter unresolved, may also require a remand for a
limited purpose.[]
17 STANDARD PENNSYLVANIA PRACTICE 2d §92:103 (2022) (footnotes omitted and
emphasis added). Here, the trial court left two essential matters unresolved, i.e., the
two issues raised by Landowner.
The appropriate prudent approach is to follow the established practice
of our Supreme Court, this Court, and our sister appellate Court, and allow the trial
court an opportunity to correct its error by addressing the issues raised by
Landowner. In Orange Stones Co. v. Borough of Hamburg Zoning Hearing Board,
991 A.2d 996 (Pa. Cmwlth. 2010), the trial court, as in this case, improperly decided
a land use appeal on an issue raised by the court sua sponte. We reversed and
remanded the matter to the trial court for its decision on the issues raised. I would
do so here as well.
In any case, I would not affirm the Zoning Board’s denial of
Landowner’s request for a variance to allow the mobile home, displaced from its
prior location by a landslide, to be moved elsewhere on his property. Rather, I would
reverse the Zoning Board.
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First, I reject the Zoning Board’s stated conclusion of law that because
Landowner can subdivide his 40-acre property to create a separate lot for the mobile
home, he cannot show the hardship needed for a variance. Specifically, the Zoning
Board reasoned that Landowner’s hardship “can be remedied by subdividing the
[p]roperty and complying with the [z]oning [o]rdinance instead of seeking a
variance.” Reproduced Record at 372a (R.R. __). I disagree that, as a matter of law,
the subdivision alternative disposed of the Zoning Board’s hardship inquiry. Rather,
evidence on the subdivision option was required, and none was offered. Here, 36.44
acres of Landowner’s 41.44 total acres are enrolled in the Clean and Green program
established in the Pennsylvania Farmland and Forest Land Assessment Act of 1974
(Act).5 R.R. 168a. And, “[a] landowner who participates in the Clean and Green
program may be subject to roll-back taxes[6] if he ‘conducts [a] split-off’ of the land.”
Maula v. Northampton County Division of Assessment, 149 A.3d 442, 445 (Pa.
Cmwlth. 2016) (citing Section 6(a.1)(1) of the Act, 72 P.S. §5490.6(a.1)(1)).
Landowner could be required to pay a very high price for a subdivision that creates
a lot that is less than 10 acres in size, which undermines the Zoning Board’s breezy
dismissal of Landowner’s claim of hardship.7
5
Act of December 19, 1974, P.L. 973, as amended, 72 P.S. §§5490.1-5490.13 (Act). The Act is
commonly known as the Clean and Green program.
6
A roll-back tax is:
The amount equal to the difference between the taxes paid or payable on the basis
of the valuation and the assessment authorized hereunder and the taxes that would
have been paid or payable had that land been valued, assessed and taxed as other
land in the taxing district in the current tax year, the year of change, and in six of
the previous tax years or the number of years of preferential assessment up to seven.
Section 2 of the Act, 72 P.S. §5490.2.
7
The majority notes that Landowner did not raise the issue of roll-back taxes. Landowner did raise
his enrollment in the Clean and Green program at the hearing, and roll-back taxes are an integral
(Footnote continued on next page…)
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Second, the Zoning Board did not address the hardship caused by the
unstable soil on the land that required three of the nine mobile homes to be removed
after a landslide. The Zoning Board then ignored Landowner’s evidence that one of
the three was moved to a place that involved the least disturbance to and impact on
the environment. R.R. 171a, 203a. The other two mobile homes were simply
removed from Landowner’s property. The failure to address evidence relevant to
hardship constitutes error and abuse of discretion by the Zoning Board.
Third, the Zoning Board erred in concluding that it was Landowner’s
burden to show that the mobile home could not be moved elsewhere in the one-acre
part of his property that formerly held nine mobile homes. To create a mobile home
district, Cecil Township “drew [] lines” around the 9 existing mobile homes on
Landowner’s property sited next to a road that bordered his 42-acre parcel.8
Landowner Brief at 5. There was no evidence that there was space remaining in that
zoning district after the landslide. Even so, Landowner was not required to prove a
negative. See Commonwealth v. 1997 Chevrolet, 106 A.3d 836, 869 (Pa. Cmwlth.
2014) (“a party required to prove a negative is saddled with a ‘virtually impossible
burden’” and “courts generally ‘do not require litigants to prove a negative because
it cannot be done’”) (citations omitted). Landowner showed a hardship and that a
relocation of the mobile home a short distance from its original site was the minimal
relief needed. That is all that was required to meet his burden.
Citing PA. R.A.P. 2112, the majority states that Landowner’s brief to
the Court did not adequately respond to Cecil Township’s argument in support of
part of the Clean and Green program. The Zoning Board has to consider the implications of
Landowner’s participation in the Clean and Green program before dismissing Landowner’s
hardship claim on the basis of a subdivision option.
8
Although Landowner challenges the zoning ordinance elimination of the right to have nine
mobile homes on his property on constitutional grounds, he did not raise the issue of “spot zoning.”
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the Zoning Board’s denial of the variance. Landowner prevailed at the trial court
level and, as expected, offered full-throated support of the trial court’s determination
in his favor. Cecil Township chose to raise issues in its brief to this Court beyond
the trial court’s error. A remand decision should not turn on how the appellant has
chosen to pursue its appeal. Had Cecil Township limited its brief to the error of the
trial court, a remand would be the only possible outcome. The court, not the parties,
should make the decision on remand.
The majority cites 41 Valley Associates v. Board of Supervisors of
London Grove Township, 882 A.2d 5, 17 (Pa. Cmwlth. 2005), for the proposition
that this Court reviews the zoning hearing board’s decision, not the trial court’s
decision, and thus, we can decide the merits of the zoning board’s decision “on the
existing record.” In 41 Valley Associates, the issue was whether the trial court erred.
We affirmed the trial court on other grounds; here, the majority reverses the trial
court on grounds it has not yet considered. 41 Valley Associates does not stand for
the proposition that this Court should decide the merits of a local agency appeal in
place of a court of common pleas.
The Local Agency Law provides, in pertinent part, that “[a]ny person
aggrieved by an adjudication of a local agency . . . shall have the right to appeal” to
a court of common pleas. 2 Pa. C.S. §752. The Judicial Code then provides for an
appeal to this Court from an order of a court of common pleas that involves the
enforcement of an ordinance. 42 Pa. C.S. §762(a)(4). By deciding a local agency
appeal in place of the court of common pleas, we deny an appellee his full appellate
rights, which includes review by the trial court.9
9
A right of appeal is guaranteed by the Pennsylvania Constitution, which provides:
(Footnote continued on next page…)
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Accordingly, I would reverse the trial court and remand the matter to
the trial court.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
There shall be a right of appeal in all cases to a court of record from a court not of
record; and there shall also be a right of appeal from a court of record or from an
administrative agency to a court of record or to an appellate court, the selection of
such court to be as provided by law; and there shall be such other rights of appeal
as may be provided by law.
PA. CONST. art. V, §9.
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