Omatick v. Cecil Township Zoning Hearing Bd.

286 A.3d 413

Jeffrey A. OMATICK

v.CECIL TOWNSHIP ZONING HEARING BOARD

v.Cecil Township Board of Supervisors, Appellant

No. 920 C.D. 2021

Commonwealth Court of Pennsylvania.

Argued May 16, 2022

Decided November 30, 2022

Kathleen M. Mannard, Pittsburgh, for Appellant.

Stephen J. Taczak, Canonsburg, for Appellee Jeffrey A. Omatick.

Christopher L. Voltz, Pittsburgh, for Appellee Cecil Township Zoning Hearing Board.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION BY JUDGE COVEY

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 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.

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, 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.

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.

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 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...