Eltoron, Inc. v. Zoning Hearing Bd. of City of Aliquippa
Eltoron, Inc. v. Zoning Hearing Bd. of City of Aliquippa
Opinion of the Court
Eltoron, Inc. (Eltoron) appeals from an order of the Court of Common Pleas of Beaver County (trial court) which affirmed an order of the Zoning Hearing Board of the City of Aliquippa (Zoning Board). The Zoning Board’s order affirmed the revocation of a building permit previously issued to Eltoron by the City of Aliquippa (City). This appeal presents three issues for our review. First, whether Eltoron preserved the issue of proper permit revocation notice by the City. Second, if so preserved, whether the City’s permit revocation notice complied with the requirements of § 616.1 of the Municipalities Planning Code (MPC).
On or about June 6, 1997, Eltoron submitted a building permit application to the City for the property located at 1 Constitution Boulevard (Property). Eltoron completed the City’s pre-printed permit application form by checking the appropriate boxes requesting a building permit for the purpose of repairing and remodeling the existing structure located on the Property.
Eltoron timely appealed the permit revocation to the Zoning Board. The Zoning Board granted party status to citizens Jeanette Price and Flossie Gipson who intervened in this matter as persons immediately affected by the permit application pursuant to MPC § 908(3). 58 P.S. § 10908(3). The Zoning Board received extensive testimony regarding revocation of the building permit at hearings conduct
In addressing the issue of the permit revocation the Zoning Officer testified as follows. Eltoron submitted its building permit application to the City through its counsel, Myron Sainovich, a partner in the law firm of Sainovich, Santacolla and Co-lafella. Attorney Sainovich apparently was also the City’s Solicitor during the building permit application process. (9/16/97 Hearing Transcript at 18; Trial Court Opinion at 5). Eltoron’s building permit application arrived at the zoning office in an envelope reflecting the return address of the Sainovich, Santacolla and Colafella law firm. The Zoning Officer contacted Solicitor Sainovich to inquire into Eltoron’s intended use of the Property given that the bar or restaurant apparent from the plans submitted with its application would not be a permitted use within a conservation district. Solicitor Sainovich revealed to the Zoning Officer that the actual intended use was a nude dance club and that the zoning classification of the Property had been changed to highway commercial or light industrial where said use would be permitted.
Through subsequent investigation the Zoning Officer determined that the rezoning of the district to highway commercial or light industry was part of a redevelopment proposal which Beaver County officials never acted upon. The district in question had not been rezoned and was therefore still zoned as a conservation district. (9/16/97 Hearing Transcript at 36, 49-50). The Zoning Officer stated that he was in the process of preparing a revocation notice when the Aliquippa City Council passed a resolution directing that he revoke the building permit. The Zoning Officer issued the revocation notice on July 14, 1997, upon concluding that Eltoron’s permit application contained “apparent errors and/or inaccurate information and/or incomplete information.” (Permit Revocation Letter, City Exhibit 3).
The Zoning Board dismissed Eltoron’s appeal by order dated November 20, 1997. Eltoron appealed to the trial court,
Any party to an appeal before this Court who fails to strictly comply with all provisions of the Pennsylvania Rules of Appellate Procedure (Rules) is in peril of having its appeal dismissed. Our review of the record reveals that Eltoron’s only discussion of its zoning enforcement proceeding argument appears in footnote ten (10) of its trial court brief. This lone assertion of an appeal issue before the trial court falls short of the developed argument anticipated by the Rules.
Having disposed of the City’s waiver argument, we now reach the merits of Eltoron’s appeal. Eltoron asserts that both courts below erred by affirming the building permit revocation since the Zoning Officer did not issue a zoning enforcement notice in accordance with MPC § 616.1. 53 P.S. § 10616.1. The City counters that it did not institute a zoning enforcement proceeding against Eltoron, and therefore, its permit revocation notice was not subject to the requirements of MPC § 616.1. The City further asserts that it was fully justified in revoking Elto-ron’s building permit on misrepresentation grounds.
Please accept this letter as formal notice that the Building Permit formerly issued regarding the above address is hereby revoked. The reasons for revocation in-*154 elude apparent errors and/or inaccurate information and/or incomplete information regarding the Application for Permit. All work must stop immediately and you shall not occupy said structure. You have the right to appeal to the Zoning Hearing Board within thirty (30) days.
(R.R. at 2a).
Eltoron maintains that this revocation notice is deficient since it failed to address the zoning enforcement provisions of MPC § 616.1.
The Property is located in a conservation district that only permits recreation and residential development uses. The City’s zoning ordinance does not permit commercial businesses in conservation districts. The record reflects that Eltoron intended to operate a nude dance club for profit.
Eltoron’s final argument questions whether the matter was properly before the Zoning Board. Eltoron asserts that the BOCA National Building Code of 1996
ORDER
AND NOW, this 14 th day of April, 1999, the order of the Court of Common Pleas of Beaver County, dated August 21, 1998, is hereby affirmed.
. Section 616.1 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, added by § 60 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10616.1.
. In describing its remodeling plans, Eltoron specified that it proposed to install two restrooms, a kitchen, office space, seating areas, a serving area, glass block, certain stairwells and a front entrance at an estimated cost of $20,000.00. (City of Aliquippa Permit Application, City Exhibit 2).
.Conservation districts are created to protect sensitive environmental areas existing at the time the zoning ordinance is enacted. Typically, conservation districts encompass floodplains, wetlands and steep slope areas, and permit only the most restrictive zoning uses. (12/9/97 Hearing Transcript at 89). Section 707 of the City’s zoning ordinance defines three permitted uses within a conservation district including recreational, single-family residential and mobile home park uses. (City of Aliquippa Zoning Ordinance § 707).
. At the time of Eltoron’s permit application, the City did not have an ordinance of any type prohibiting adult related businesses within the City. (Zoning Board Adjudication, Finding of Fact No. 16).
. The trial court addressed the following six issues raised by Eltoron:
1. Was the revocation of Eltoron’s building permit in compliance and authorized in accordance with the laws and ordinances of the City?
2. Did Eltoron make any false statements or misrepresentations of fact in the application or on the plans on which the permit or approval was based?
3. Did Eltoron acquire vested rights in the building permit?
4. Does the Zoning Board have jurisdiction to hear a building code case?
5. Did the Zoning Board err in permitting intervention by the Citizens?
6.Did the City revoke the building permit beyond the 30-day limitation period as specified in 53 P.S. § 10914.1
(Eltoron’s Trial Court Brief at 3-4). Eltoron waived all but its jurisdictional question for failure to preserve each issue on appeal before this Court.
.In zoning cases where the trial court did not take any additional evidence, this Court’s scope of review is limited to determining whether the Zoning Board committed an error of law or a manifest abuse of discretion. Teazers, Inc. v. Zoning Board of Adjustment of the City of Philadelphia, 682 A.2d 856 (Pa.Cmwlth. 1996). The Zoning Board abuses its discretion, only if its findings are not supported by substantial evidence, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
. We are mindful of the fact that the Rules do not apply to appeals brought before a county court of common pleas from an administrative agency, except where the trial court specifically adopts the Rules or unless an applicable statute specifically provides that the Rules shall govern appeals to the trial court. See 1 G. Ronald Darlington, et al., Pennsylvania Appellate Practice, §§ 103.1 and 103.2 (2d ed. 1998). However, litigants are charged with knowledge of the Rules and how their actions at each litigation stage might impact any future appeal.
. In addition to failing to disclose the commercial nature of Eltoron’s intended use of the Property, the Zoning Board found that Eltoron’s permit application contained other defects including omissions and defects in its renovation plans and seriously underestimating the cost of renovation. (Finding of Fact Nos. 26, 27, 28, 31, 32, 33, 39 and 41).
. Section 616.1 of the MPC provides in pertinent part:(a)
If it appears to the municipality that a violation of any zoning ordinance ... has occurred, the municipality shall initiate enforcement proceedings by sending an enforcement notice as provided in this section.
(c) An enforcement notice shall state at least the following:
(1) The name of the owner of record and any other person against whom the municipality intends to take action.
(2) The location of the property in violation.
(3) The specific violation with a description of the requirements which have not been met, citing in each instance the applicable provisions of the ordinance.
(4) The date before which the steps for compliance must be commenced and the date before which the steps must be completed.
(5) That the recipient of the notice has the right to appeal to the zoning hearing board within a prescribed period of time in accordance with procedures set forth in the ordinance.
(6) That failure to comply with the notice within the time specified, unless extended by appeal to the zoning hearing board, constitutes a violation, with possible sanctions clearly described;
53P.S. § 10616.1.
. Eltoron intended to charge five dollars ($5.00) per soft drink ticket per patron at the door. (Finding of Fact No. 18). It is unlikely that the “amusement and recreation” provide ed to the club’s patrons would be delivered free of charge.
. The Building Officials and Code Administrators (BOCA) National Building Code is a model set of standards and guidelines assembled and adopted by an international organization of builders and code administrators. The BOCA Code is revised every three years with the last revision occurring in 1996. (BOCA National Building Code (13 th ed. 1996)).
. MPC § 909.1(a) provides: "The zoning hearing board shall have exclusive jurisdiction to hear and render final adjudications in the following matters: ... (3) Appeals from the determination of the zoning officer, including, but not limited to, the granting or denial of any permit-” Section 909.1 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, added by § 87 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10909.1.
Dissenting Opinion
dissenting.
I respectfully dissent. Unlike the majority, I do not believe that the record contains substantial evidence to support the Zoning Hearing Board’s (ZHB) determination that Eltoron, Inc. (Eltoron) obtained its building permit from the City of Aliquippa (City) through misrepresentation. {See Majority op. at 154.) Thus, I would conclude that the notice requirements of section 616.1 of the Pennsylvania Municipalities Planning Code (MPC)
Eltoron applied for a building permit to renovate the property at 1 Constitution Boulevard in the City for use as a nude dance club. Part C of the City’s pre-printed permit application form asks the applicant to designate the proposed use of the property by marking the appropriate box. The first box is labeled “Amusement, recreation,” and the last box is labeled “Other - Specify.” Obviously, it would only be necessary to place a mark in the last box if none of the enumerated uses applied. Eltoron marked the “Amusement, recreation” box, believing that its nude dance club would be recreational.
The majority concludes otherwise because Eltoron planned to operate its nude dance club for profit. (Majority op. at 154.) Thus, the majority interprets the phrase “Amusement, recreation” on the City’s permit application form to mean non-commercial amusement and recreational uses. I see no reason to depart from the plain words on the application form. Indeed, no applicant could possibly know that the words “amusement” and “recreation” actually mean “non-commercial amusement” and “non-commercial recreation.” If those words really had such meanings, then applicants who are seeking permits to renovate bowling alleys, video arcades, miniature golf courses, movie theaters or any other commercial amusement or recreational establishment could not mark the “Amusement, recreation” box. This is absurd.
The majority believes that Eltoron concealed its intended commercial use of the property on the application form because: “The City’s zoning ordinance does not permit commercial businesses in conservation districts.” (Majority op. at 154.) However, the majority does not cite any provision of the City’s Official Zoning Ordinance (Zoning Ordinance) to support this statement. Indeed, nothing in the Zoning Ordinance prohibits commercial recreational uses in conservation districts. Quite the contrary, section 707 of the Zoning Ordinance permits “Recreational uses,” without restriction, in conservation districts.
The majority’s interpretation of the Zoning Ordinance flies in the face of at least three established rules of statutory construction.
Second, when words are clear and free from all ambiguity, they are not to be disregarded under the pretext of pursuing their spirit. Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(b). Here, the phrase “Recreational uses” in section 707 of the Zoning Ordinance is clear and free from ambiguity. Thus, we are not free to ignore its plain meaning because of a procrustean desire to achieve another result.
Third, “absent express limitation, permissive phrases in zoning ordinances are given their broadest meaning, ... and any ambiguities are resolved in favor of the landowner.” Gilbert v. Montgomery Township Zoning Hearing Board, 58 Pa.Cmwlth. 296, 427 A.2d 776, 780 (1981) (citations omitted). Here, section 707 of the Zoning Ordinance puts no limitation, let alone an “express limitation,” on recreational uses in conservation districts. Thus, we are constrained to give the phrase “Recreational uses” its broadest meaning. Moreover, if the phrase were ambiguous, we would be required to resolve any ambiguity in favor of Eltoron
Finally, I note that when the drafters of the Zoning Ordinance intended to limit recreational uses in a particular zoning district, they did so explicitly. For example, in section 702 of the Zoning Ordinance, the drafters permitted only “recreational uses (non-commercial)” in high-density residential districts. The omission of such limiting language in section 707 of the Zoning Ordinance demonstrates that the drafters intended to allow commercial recreational uses in conservation districts.
Because I do not find substantial evidence in the record to support the ZHB’s determination that Eltoron misrepresented its proposed use on the City’s permit application form, I would conclude that the notice requirements of section 616.1 of the MPC apply here. Thus, I would reverse the order of the trial court.
. Section 616.1 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, added by section 60 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10616.1.
. The word “recreation” means diversion, play, amusement, entertainment or pleasurable diversion. See Hawkins v. Zoning Hearing Board, 76 Pa.Cmwlth. 470, 463 A.2d 1291 (1983).
. We presume that a lawmaker does not intend a result that is absurd. Section 1922(1) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(1).
.The rules of statutory construction apply to both statutes and ordinances. See Commonwealth v. Geigley, 168 Pa.Cmwlth. 531, 650 A.2d 1224 (1994), appeal denied, 540 Pa. 638, 659 A.2d 557 (1995).
Reference
- Full Case Name
- ELTORON, INC., Appellant, v. ZONING HEARING BOARD OF the CITY OF ALIQUIPPA v. Jeanette Price and Flossie Gipson. the City of Aliquippa
- Cited By
- 9 cases
- Status
- Published