Kalimootoo v. Middle Smithfield Township, 111219 PACCA, 125 C.D. 2019

Docket Nº:125 C.D. 2019
Opinion Judge:ROBERT SIMPSON, SENIOR JUDGE.
Party Name:Chitrakha Kalimootoo and Leslie Kalimootoo, Appellants v. Middle Smithfield Township and Zoning Hearing Board of Middle Smithfield Township
Judge Panel:BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE ROBERT SIMPSON, Senior Judge.
Case Date:November 12, 2019
Court:Commonwealth Court of Pennsylvania
 
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Chitrakha Kalimootoo and Leslie Kalimootoo, Appellants

v.

Middle Smithfield Township and Zoning Hearing Board of Middle Smithfield Township

No. 125 C.D. 2019

Commonwealth Court of Pennsylvania

November 12, 2019

OPINION NOT REPORTED

Argued: September 9, 2019

BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE ROBERT SIMPSON, Senior Judge.

MEMORANDUM OPINION

ROBERT SIMPSON, SENIOR JUDGE.

I. Introduction

Chitrakha Kalimootoo (C.K.) and her husband, Leslie Kalimootoo (L.K.) (collectively, Owners), appeal from an order of the Court of Common Pleas of Monroe County (trial court)[1] that affirmed a decision of the Middle Smithfield Township (Township) Zoning Hearing Board (ZHB) upholding a 2017 enforcement notice. The ZHB found that Owners violated the Township's 2010 zoning ordinance (2010 Ordinance) by building accessory structures and raising farm animals on their property. Owners contend their appeal should be granted for the following reasons: (1) their use of the property constitutes a prior, nonconforming use; (2) they were denied a fair hearing before the ZHB; (3) the 2017 zoning enforcement proceeding was barred by collateral estoppel; (4) the Township violated their substantive and procedural due process rights; and (5) the changes in the 2010 Ordinance were procedurally defective. Upon review, we affirm.

II. Background

A. Purchase of Property; Ordinances; Accessory Structures

In October 1998, Owners purchased the property located at 5200 Reservoir Road, which is 5.389 acres in size.[2] At that time, the property was wooded and vacant. The Township's 1977 zoning ordinance (1977 Ordinance) in effect at the time of Owners' purchase required a property owner to obtain a zoning permit prior to the erection or addition of any building, structure or portion thereof. The 1977 Ordinance defined a structure to include accessory sheds and fences.

The Township's 2004 zoning ordinance (2004 Ordinance), which became effective in September 2004, also required a permit for accessory structures, which included sheds and fences. The Township's current zoning ordinance (2010 Ordinance), which became effective in December 2010, also requires that a permit be obtained to erect residential accessory structures.

Sometime after purchasing the property, Owners erected five accessory structures, including a fence. Owners never applied for a zoning permit to erect these structures.

Former Zoning Officer Wayne Rohner (Z.O. Rohner) testified as a witness for Owners. Z.O. Rohner recalled that during his first tenure, from October 1995 through November 2000, there were no accessory structures on the property other than a garage, for which Owners obtained a permit.

Sometime during his second tenure as zoning officer, which ran from March 2007 through May 2013, Z.O. Rohner became aware of five more accessory structures currently on the property (sheds, a canopy and fencing for management of chickens, ducks and goats). He noticed the structures while driving by the property. Z.O. Rohner did not issue any permits for the accessory structures. L.K. claimed Z.O. Rohner told him he did not need a zoning permit for the accessory structures. However, Z.O. Rohner never testified that he told Owners, or that they ever asked, whether they needed a permit for the accessory structures.

B. 2001 Enforcement Notice (Agricultural Use: Livestock)

Sometime in 2001, Owners began keeping livestock on the property. In May 2001, Deb Ogden (Z.O. Ogden), the zoning officer at the time, issued an enforcement notice asserting a violation of Section 5.202-B of the 1977 Ordinance by conducting animal husbandry on a property of less than 10 acres. The enforcement notice also asserted a violation of Section 5.202-B of the 1977 Ordinance by keeping livestock within 200 feet of a property line or road right-of-way.

L.K., who operates a home insulation business, claimed he entered into an agreement with the abutting property owner to the rear enabling him to lease enough land to meet the 10-acre requirement. In exchange for use of the property, L.K. insulated the neighbor's house. L.K. further claimed Z.O. Ogden told him the arrangement was okay to meet the 10-acre requirement and resolve the matter.

However, L.K. admitted he never appealed the 2001 enforcement notice, and he had nothing in writing from Z.O. Ogden indicating resolution of the violation. Further, although L.K. claimed he once had a written agreement with his neighbor (who passed away), L.K. indicated he no longer had that written document.

C. 2004 and 2010 Ordinances (Agricultural Use: Livestock)

The 2004 Ordinance permitted the keeping of livestock in Owners' zoning district (Low Density Residential District) by special exception. Owners acknowledged they kept livestock on the property prior to and throughout the time that the 2004 Ordinance remained in effect. However, Owners never applied for a special exception for the use. The 2010 Ordinance prohibits agricultural uses, including the keeping of livestock in Owners' zoning district, now classified as R-2 Residential.

D. 2017 Enforcement Notice (Agricultural Use; Accessory Structures)

In September 2017, the Township's current zoning officer, Shawn McGlynn (Z.O. McGlynn) issued C.K. (the current sole owner of the property) a formal enforcement notice listing the following violations: 1. Established a new use on, and/or change the use of, the subject property, without first obtaining a Zoning Permit from the Zoning Officer in violation of §010-060, §010-090, and §082-010 of the [2010 Ordinance]. You have established an A1 Agricultural, general use on the property and have not obtained a zoning permit for this new and/or change in use on the property.

2. Established an A1 Agricultural, general use on the subject property in violation of §041-010 and §043-010 of the [2010 Ordinance]. The property is located in the R2 Zoning District where an A1 use is prohibited.

3. Constructed residential accessory structures without first obtaining a Zoning Permit from the Zoning Officer in violation of §010-060, §010-090, and §082-010 of the [2010 Ordinance].

ZHB Op., 7/5/18, Finding of Fact (F.F.) No. 16. L.K., on behalf of C.K., timely appealed the enforcement notice.

E. ZHB's Decision

Following four hearings, the ZHB issued a comprehensive decision upholding the 2017 enforcement notice. In its decision, the ZHB determined Owners failed to establish a prior nonconforming use for the keeping of livestock that would have predated the 1977, 2004 and 2010 Ordinances. Conclusion of Law (C.L.) No. 1. Further, Owners did not appeal Z.O. Ogden's 2001 enforcement notice regarding the keeping of livestock (chickens, ducks and goats) on property with less than 10 acres. C.L. No. 2. Consequently, the 2001 enforcement notice remained controlling, and clearly indicates that Owners did not prove a nonconforming use under the 1977 Ordinance. C.L. No. 3.

Moreover, Owners did not seek a special exception for livestock under the 2004 Ordinance. C.L. No. 4. Under the 2004 Ordinance, Owners' property was zoned Low Density Residential.

Owners continued to keep livestock as of the 2017 enforcement notice and final ZHB hearing in March 2018. C.L. No. 5. Under the 2010 Ordinance, the keeping of livestock constitutes an...

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