Slack v. Slack

256 A.3d 472

Wanda SLACK, Appellant

v.Frederick J. SLACK, Jr., and James D. Lonergan

No. 231 C.D. 2020

Commonwealth Court of Pennsylvania.

Argued March 18, 2021

Decided April 16, 2021

Reargument Denied May 26, 2021

John A. VanLuvanee, Doylestown, for Appellant.

Douglas C. Maloney, Langhorne, for Appellees.

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE J. ANDREW CROMPTON, Judge

OPINION BY JUDGE FIZZANO CANNON

Wanda Slack (Appellant) appeals the February 7, 2020 order entered by the Court of Common Pleas of Bucks County (trial court) denying post-trial relief following the October 4, 2019 non-jury verdict entered by the trial court finding in favor of Frederick J. Slack, Jr. (Fred Slack, Jr.) and James D. Lonergan (Lonergan) (collectively, Appellees) that the private airstrip located on Fred Slack, Jr.’s property was not in violation of local zoning ordinances and would be permitted to continue operation. Upon review, we affirm.

I. Background

In the late 1950s, brothers Miles Slack and Frederick Slack, Sr. constructed a private airstrip¹ on a property they jointly owned in Buckingham Township, Bucks County, Pennsylvania, and which they later subdivided in 1966 into adjoining properties owned by each and hereinafter referred to as the "Miles Slack Property" and the "Fred Slack Property." See Trial Court Verdict entered October 4, 2019 (Verdict) at 2 & 8, Findings of Fact (F.F.) 4-6 & 46. The Miles Slack Property contains approximately 43 acres located at 2224 Forest Grove Road, Buckingham Township. See Verdict at 1, F.F. 1. Miles Slack co-owned the Miles Slack Property with Appellant, his wife, until his death in 2011, at which time Appellant acquired full ownership rights in the Miles Slack Property. See Verdict at 3, F.F. 11. The Fred Slack Property contains approximately 37 acres located at 1948 Forest Grove Road, Buckingham Township. See Verdict at 1-2, F.F. 2. Frederick Slack, Sr. co-owned the Fred Slack Property with his wife, Evelyn A. Slack, until her death in 2012, at which time he became the sole owner of the Fred Slack Property until his death in 2013. See Verdict at 2-3, F.F. 5 & 11. Upon the death of Frederick Slack, Sr., Fred Slack, Jr. obtained 10-year estates in both the Fred Slack Property and the adjoining Heritage Property, which estates do not lapse until the end of October 2023. See Verdict at 4, F.F. 19. The Slack brothers’ private airstrip straddled and operated on both the Miles Slack Property and the Fred Slack Property following the subdivision of the property and became known as the "Slack Airport." See Verdict at 2-3, F.F. 6 & 9.

The Miles Slack Property and the Fred Slack Property are located within Buckingham Township's AG-1 Agricultural-1 Zoning District.² See Verdict at 2, F.F. 4. When the Slack brothers established the Slack Airport together in 1959, an air landing strip was not a permitted use under the then-effective Buckingham Township Zoning Ordinance (Zoning Ordinance)³ on their combined property or on either the Miles Slack Property or the Fred Slack Property individually. See Verdict at 2, F.F. 7. In fact, in 1959, the Zoning Ordinance made no mention whatsoever of airports or airstrips. See Verdict at 8, F.F. 44. In 1985, however, an amendment to the Zoning Ordinance made an airport landing strip a permitted accessory use in Buckingham Township's agricultural zoning district. See Verdict at 3 & 7, F.F. 8 & 37-40.

The Slack Airport has been in continual existence since its establishment in 1959. See Verdict at 8, F.F. 42 & 44; see also Trial Court Opinion dated June 13, 2020 (Trial Court Opinion) at 1. Further, the Commonwealth of Pennsylvania, through the Pennsylvania Department of Transportation (PennDOT), Bureau of Aviation, has continually licensed the Slack Airport since that time, and its existence has at all times been open, notorious, and otherwise well known to Buckingham Township. See Verdict at 8, F.F. 41 & 45. From 1959 to 1996, Frederick Slack, Sr. and his brother, Miles Slack, enjoyed continual use of the airstrip. See Verdict at 8, F.F. 41-42 & 44-45. Additionally, from 1996 to the present, Lonergan has leased a portion of the Fred Slack Property for the purpose of housing and operating his airplanes.⁴ See Verdict at 2 & 5, F.F. 3 & 29.

In 1999, Frederick Slack, Sr. and Evelyn A. Slack purchased from the Heritage Conservancy a 28-acre parcel of land located adjacent to the Fred Slack Property on the opposite side of the Fred Slack Property from the Miles Slack Property (the Heritage Property). See Verdict at 3, F.F. 10. In addition to operating on the Miles Slack Property and the Fred Slack Property, the Slack Airport operated airplane taxiways across the Heritage Property. See Verdict at 3, F.F. 9.

In August 2000, Lonergan applied for and received approval from Buckingham Township to construct a hangar on the Fred Slack Property portion of the airstrip. See Verdict at 6, F.F. 31. Appellant had full knowledge of and consented to the construction of this hangar structure, and subsequently permitted use of the hangar and collected rents thereon. See Verdict at 8, F.F. 47.

Following Miles Slack's death in 2011, Appellant acquired the entire ownership interest in the Miles Slack Property. See Verdict at 3, F.F. 11. Thereafter in 2011, Appellant first lodged an objection to the continued use of the Slack Airport airstrip on the Miles Slack Property, indicating that she intended to fence her property off to protect it from deer. See Verdict at 8, F.F. 48. Appellant made no mention of or objection to aircraft noise at the time. See id.

On February 3, 2013, Appellant informed PennDOT by letter that she no longer wished to have the Slack Airport operate on the Miles Slack Property and that she intended to fence off the portion of the runway located on her property. See Verdict at 3, F.F. 13. Thereafter, on February 27, 2013, PennDOT sent Frederick Slack, Sr. a letter notifying him that the Slack Airport was "officially closed" because, as a result of Appellant's intention to fence off the portion of the runway located on the Miles Slack Property, the airstrip would no longer meet PennDOT's 1200-foot minimum runway length requirement for private airports. See Verdict at 3-4, F.F. 14-15. PennDOT's letter informed Frederick Slack, Sr. that the submission of a runway realignment request would be required to initiate a re-licensing action for the continued operation of the Slack Airport.⁵ See Verdict at 4, F.F. 16-17.

On March 4, 2013, Fred Slack, Jr. completed the required runway realignment request by submitting a completed PennDOT Form AV-19, Notice of Airport Alteration (Reconfiguration Application). See Verdict at 4, F.F. 18 & 23. The Reconfiguration Application proposed a reconfiguration of the airstrip located completely on Fred Slack, Jr.’s property, with no portion of Appellant's Miles Slack Property being used for aircraft take offs. See Verdict at 4 & 6-7, F.F. 21-22, 34 & 36. PennDOT permitted the new runway configuration by letter dated March 22, 2013, and, following an inspection of the new runway in May 2013, authorized flight operations from the Slack Airport's realigned runway on June 13, 2013. See Verdict at 5, F.F. 22-24.⁶

On July 8, 2014, Fred Slack, Jr. submitted to PennDOT a license renewal application for the Slack Airport (Renewal Application). See Verdict at 4, F.F. 20. PennDOT granted the Renewal Application and issued an airport license for the Slack Airport on July 15, 2014.⁷ See Verdict at 5, F.F. 26. Thereafter, Lonergan began operating aircraft from the newly reconfigured airstrip, which now employed the portion of the Heritage Property previously used as a taxiway as part of the runway span, allowing the newly configured runway to comply with PennDOT's 1200-foot minimum runway length without extending onto Appellant's property. See Verdict at 5-6, F.F. 29-30.

On March 30, 2017, Appellant, through counsel, forwarded to Buckingham Township a letter requesting that Buckingham Township enjoin Appellees from operating Slack Airport. See Letter from Appellant's Counsel to Buckingham Township dated March 30, 2017, Reproduced Record (R.R.) at 212a-38a. When Buckingham Township took no action in response to her letter, Appellant filed her Complaint against Appellees in the trial court on May 17, 2017.⁸ See Complaint filed May 17, 2017 (Complaint), R.R. at 1a-24a. The trial court conducted a non-jury trial of the matter on June 5, 2019 and issued the Verdict in Appellees’ favor on October 4, 2019. See Verdict. After the trial court denied Appellant's Motion for Post-Trial Relief by order dated February 7, 2020, Appellant timely appealed to this Court.

II. Issues

Appellant presents three claims on appeal.⁹ See Appellant's Br. at 4. First, Appellant claims the trial court erred by concluding that the Slack Airport is a lawful use under the Zoning Ordinance. See Appellant's Br. at 4 & 13-24. Next, Appellant alleges that the trial court erred by failing to enjoin the operation of the Slack Airport because she proved that she and her property are substantially affected by the operation of the airstrip. See Appellant's Br. at 4 & 25-31. Third, Appellant claims the trial court abused its discretion by allowing Appellees to argue the affirmative defenses of laches and acquiescence at the trial of this matter. See Appellant's Br. at 4 & 31-41.

III. Discussion

A. Whether the Slack Airport is a lawful use under the Zoning Ordinance.

Appellant bases her first argument solely on the requirements contained in the version of the Zoning Ordinance that became effective in October of 2006 (2006 Zoning Ordinance)¹⁰ and the current version of the Zoning Ordinance (Current Zoning Ordinance),¹¹ both of which list the operation of an airstrip as a conditional use in Buckingham Township's agricultural districts. See Appellant's Br. at 13-24; see also 2006 Zoning Ordinance at 83 & 93-94, R.R. at 427a-29a; Current Zoning Ordinance at 91-92...