Berrier v. Penn Twp. Zoning Hearing Bd.
| Decision Date | 30 June 2010 |
| Docket Number | No. 1765 C.D. 2009,1765 C.D. 2009 |
| Parties | Gray H. Berrier, Appellant v. Penn Township Zoning Hearing Board |
| Court | Pennsylvania Commonwealth Court |
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
Gray H. Berrier (Berrier) challenges the rear setback dimensional variance approved for Jacqueline B. Radocha and her husband, Bernard P. Radocha, to construct a garage on their property (subject property). The Court of Common Pleas of the Forty-First Judicial District, Perry County Division (trial court) affirmed the Penn Township Zoning Hearing Board's (ZHB) grant of the variance. As discussed below, we conclude the ZHB erred in determining that the Radochas satisfied the requirements for a variance, but the ZHB did not err in determining that the Radochas were entitled to a variance under an estoppel theory. Accordingly, we affirm the trial court.
1. Factual and Procedural Background
At its essence, this case involves a dispute between family members about the construction of a garage near the southern border of two adjacent
properties. Although only one property is currently at issue, an understanding of the broader conflict is helpful.
The Radochas initially applied for a nonconforming use permit to replace nonconforming sheds with a garage on an adjacent property (Berrier property). The Berrier property borders the subject property on the east. Both properties are bordered on the south by a railroad right-of-way. The right-of-way contains railroad tracks that parallel the southern boundaries of both the subject property (to the west) and the Berrier property (to the east).
The Radochas are one-fourth owners of the Berrier property. The remaining owners are Jacqueline Radocha's three brothers, which include Berrier. The Radochas intended to replace two nonconforming sheds with a garage. The ZHB granted the variance for the garage on the Berrier property. Apparently, the Radochas built the garage on the Berrier property in a location equivalent to that occupied by the nonconforming sheds. Thus, the garage maintained the same setback from the southern border.
Berrier informed the ZHB that he did not consent to Radochas constructing the garage on the Berrier property.1 The ZHB therefore revoked the variance, and the Radochas removed the garage.
During this time, the Radochas began the process of obtaining permission for the garage on the subject property. All the parties concede that the Radochas were essentially trying to move the garage from the Berrier property to the adjacent subject property.
The Radochas are the sole owners of the subject property. The subject property is 124 feet by 346 feet and is improved with a dwelling and accessory structures. It is located in an R-1 district. The subject property is bordered on the north by the Susquehanna River and on the south by the railroad right-of-way. A narrow, 10 foot wide private road provides access to the subject property. The road runs east and west on the property, and is parallel with, and 80 feet away from, the southern boundary. The road bisects the property into two parcels. The house is on the northern part. The garage at issue is on the southern part.
The garage is 24 feet by 32 feet. It is located approximately 15 feet from the southern boundary and 15.5 feet from the eastern boundary. The Penn Township Zoning Ordinance (Ordinance) requires 25 foot rear setbacks.
The Radochas informally consulted with a zoning officer and asked if they could build the garage on the subject property the same distance from the railroad tracks as they built the garage on the adjacent Berrier property. The zoning officer informed them that they could.
During this consultation, the Radochas sketched a drawing of the property. The zoning officer assisted them in preparing this drawing. The drawing indicated the garage would be 40 feet from the "R.R." The zoning officer took this to mean the garage would be 40 feet from the railroad right-of-way at the southern border of the property. The zoning officer informed the Radochas the garage could be built at the proposed location. He based this decision on his belief the garage would be placed outside the 25 foot rear setback required by the zoning ordinance.
The zoning officer did not measure the actual distance between the proposed location of the garage and the southern border. The zoning officer assisted the Radochas in completing a zoning application permit for the garage. The zoning officer then signed his approval on the permit. After the permit was issued, the Radochas built the garage on the subject property.
Berrier contacted the ZHB, complaining the garage did not comply with the Ordinance's rear setback requirements. The zoning officer measured the garage and determined the garage was 15 feet from the railroad right-of-way and 40 feet from railroad tracks within the right of way. The zoning officer issued the Radochas a written notice of violation because the garage was built within the 25 foot rear setback provision.
Subsequently, the Radochas applied for a variance from the rear setback requirement. The ZHB conducted a hearing at which the Radochas and Berrier testified. After various proceedings, the ZHB granted the variance.2
The ZHB found that the Radochas moved the garage from the Berrier property to the subject property because of a dispute among the owners of the Berrier property. ZHB Op., Findings of Fact (F.F.) No. 13. Berrier does not dispute this finding.
The ZHB also made the following relevant findings, which Berrier challenges in this appeal:
ZHB Op., F.F. Nos. 17, 20, 21.
The ZHB reasoned the "the location of the subject property between the river and railroad right of way, the location of the structures thereon, and the access drive through the southern portion of the subject property combine to create an unnecessary hardship." ZHB Op., Concl. of Law | 6. The ZHB concluded the Radochas did not intentionally build the garage in a location in violation of the setback requirements. The ZHB concluded both the Radochas and the zoning officer had been innocently mistaken as to the location of the rear boundary of the subject property.
The ZHB reasoned the rear setback is intended to benefit the adjoining rear property owner. The ZHB noted the rear property owner in this case, the Norfolk Southern Railroad, did not object to the garage. The ZHB concluded the Radochas established each of the prerequisites for a variance. Alternatively, the ZHB also concluded the Radochas were entitled to the variance under the doctrine of equitable estoppel.
Berrier appealed to the trial court. Without taking any evidence, the trial court affirmed.
II. Issues
Berrier appeals to this Court raising three issues. First, Berrier argues the ZHB's findings of fact numbers 17, 20, and 21, are not supported by substantialevidence. Second, Berrier argues the ZHB and trial court erred in granting the variance when the garage could have been placed on another portion of the subject property in compliance with the setback provisions. Third, Berrier argues the ZHB erred in concluding it was equitably estopped from denying the variance. The Radochas and the ZHB filed briefs challenging Berrier's arguments.
Our standard of review of an appeal of a zoning decision where the trial court did not take any additional evidence is whether the ZHB committed an abuse of discretion or an error of law. HHI Trucking & Supply, Inc. v. Borough Council of the Borough of Oakmont, 990 A.2d 152 (Pa. Cmwlth. 2010). A ZHB abuses its discretion when it makes material findings of fact not supported by substantial evidence. Id.
III. Variance Requirements
Berrier argues the Radochas did not establish the prerequisites for obtaining a dimensional variance. Berrier contends unnecessary hardship was not established because the garage could have been built in compliance with the zoning ordinance.
We agree with Berrier's arguments on the unnecessary hardship issue. However, as discussed more fully below, we agree that the Radochas satisfy requirements for variance by estoppel. Because the estoppel rationale alone is sufficient to support the ZHB's action, no further discussion of this issue is needed.IV. Equitable Estoppel
Berrier argues the ZHB erred in concluding the Radochas were entitled to a variance under equitable estoppel. Berrier contends that the Radochas did not act in good faith. As to this issue, he argues in part that the failure of the Radochas to present a professional land survey in their possession supports a finding of bad faith. He also argues that the Radochas failed to establish substantial hardship because they failed to present evidence of what the cost of removing the garage would be.
The Radochas argue that substantial evidence supports the conclusion their mistake was innocent. The Radochas argue their testimony consistently evinces an honest mistake on their part as to the boundary line.
"[E]quitable relief is available in zoning cases to rectify inequities created by a landowner's good faith reliance on government action." Vaughn v. Zoning Hearing Bd. of Twp. of Shaler, 947 A.2d 218, 223 n.11 (Pa. Cmwlth. 2008). Where a municipality intentionally or negligently misrepresented its...
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