Robertson v. Henry Clay Zoning Hearing Bd.

• Decision Date: 14 November 2006
• Citation: 911 A.2d 207
• Parties: Cynthia ROBERTSON, Appellant v. HENRY CLAY TOWNSHIP ZONING HEARING BOARD and Henry Clay, Township.
• Court: Pennsylvania Commonwealth Court

911 A.2d 207

Cynthia ROBERTSON, Appellant v. HENRY CLAY TOWNSHIP ZONING HEARING BOARD and Henry Clay, Township.

Commonwealth Court of Pennsylvania.

Argued October 17, 2006.

Decided November 14, 2006.

Robert W. Kennedy, Jr., Pittsburgh, for appellant.

Valerie M. Schwab, Uniontown, for appellee, Henry Clay Township Zoning Hearing Board.

Mary L. Hajduk, Uniontown, for appellee, Henry Clay Township Board of Supervisors.

BEFORE: FRIEDMAN, Judge, and LEADBETTER, Judge, and LEAVITT, Judge.

Opinion by Judge LEADBETTER.

Cynthia Robertson appeals from the order of the Court of Common Pleas of Fayette County (common pleas), which, following a de novo hearing, ruled, in agreement with the Township's Zoning Hearing Board (ZHB), that Robertson violated the zoning ordinance when she erected a structure on her small creek-side lot without first obtaining a permit, and denied her request for variances from setback requirements.¹ We affirm as to the enforcement issue but reverse and remand for the grant of variances.

Robertson owns a .26-acre lot, located in the Township's Agricultural Zoning District, where the permitted uses are limited to: agricultural, greenhouses, group care facilities, breweries, public areas and buildings, nurseries, single-household detached dwellings and wineries.² The lot runs long and very narrow between the road in front and the creek in back; it is only 35-feet at its widest point between the road and the creek. Beginning in the 1950's, when Robertson's aunt and uncle owned the property, the extended family used it as a weekend/vacation retreat, staying in a camper/recreational vehicle with an attached wooden porch that remained on the site. Robertson testified that the original camper plus porch measured approximately 15 by 28 feet. Robertson's parents took over control of the property in approximately 1973, continuing the same use with the same camper on the property. Some time before the early 1970's, the family dug a well and erected a cinder block outhouse with electric service. In 2001, Robertson acquired the property and, in 2002, removed the old camper, which had deteriorated. In 2003, Robertson applied to the Township for a permit to construct a "block/frame" structure measuring approximately 16 by 24 feet in order to continue use of the property as a "camp." The Township denied her application in a letter stating, as the only reason, the lack of compliance with setbacks under Article VII, Section 700 of the zoning ordinance. Article VII establishes the regulations applicable to the Agricultural District, providing: "No structure may be built, constructed, or enlarged unless the following minimum yard setback requirements will be complied with: Front: 100 feet; Rear: 50 feet; Side: 20 feet."

Despite the lack of a permit, Robertson commenced construction of a structure, she described as a "trailer," 14 by 28 feet in size. Robertson's contractor, Jim Merschat, explained that he built the structure on the site rather than towing a completed structure onto the site. He described the structure as wood frame construction bolted atop a metal frame that has two axles with wheels and an attached towing ball; concrete blocks under the metal frame lift and stabilize the structure. Merschat explained that he roughed in some plumbing for possible eventual sink hook-up to the well but did not provide for a bathroom. After construction began, the Township's zoning officer issued an enforcement letter, informing Robertson that construction without a permit violated Section 1302 of the zoning ordinance and directing removal of the structure within ten days. Robertson appealed the enforcement notice to the ZHB, challenging the zoning officer's conclusion that a zoning permit was required in order to replace the old camper. Robertson asserted that the camper was either not regulated under the zoning ordinance or a pre-existing nonconforming use she is entitled to continue.³ In the alternative, Robertson requested variances necessary to permit erection of a structure on an undersized lot and with encroachment into the set backs. Following a hearing, the ZHB rejected Robertson's contention that the new structure merely continued the pre-existing nonconforming use. The ZHB distinguished the new structure from the prior camper on the ground that it lacks the mobility of the camper in that it was built on site and, due to two trees blocking its passage, it cannot readily be driven off the site. Furthermore, it lacks the on-board sewage containment that existed in the earlier camper. Finally, the ZHB opined that Robertson was not entitled to variances because any hardship was self-created. Based on these findings and conclusions, the ZHB denied relief, opining that it "is not dissuading Petitioner from the use of her lot. She certainly can utilize it as she has in the past. She cannot, however, utilize a structure which clearly violates the Ordinance." ZHB Decision at 5. Robertson appealed to common pleas.

Without objection, common pleas conducted a de novo hearing. Common pleas found that Robertson abandoned the pre-existing nonconforming use as a camp, desired a permanent structure on the property and, when denied a permit therefore, proceeded to construct a "building," not a "trailer," without the prerequisite zoning permit, and failed to establish grounds justifying a variance. Finally, common pleas rejected Robertson's assertion that the Township violated state and federal constitutional due process rights, opining that, in her averments accompanying her land use appeal, she failed to state facts supporting this claim. Therefore, common pleas sustained the decision of the ZHB. Thereafter, Robertson filed the present appeal.

On appeal, Robertson challenges the findings that the structure is a "building," a permanent structure requiring a permit, rather than a "trailer," a temporary structure to which Robertson contends the zoning ordinance does not apply, and that she abandoned her pre-existing use of the previous structure. Robertson also challenges the denial of variance relief, contending that the dimensions of her lot preclude compliance with any dimensional requirements. Finally, Robertson reasserts that the Township violated her constitutional rights and asserts that this entitles her to an order directing the Township to pay her attorney's fees. Robertson premises her procedural and substantive due process claims on allegations she believes demonstrate that the supervisors and zoning officer acted improperly in directing cessation of construction and that a ZHB member made a statement that showed bias against her application for zoning relief.⁴ Robertson also contends that the ZHB discriminated against her in refusing to approve her structure while permitting similar structures on other lots.

Based on an assumption shared by the parties, common pleas undertook an analysis that distinguished a trailer, which all agreed did not require a permit, from a building, which required a permit, and found that Robertson's structure was a building. Section 1302 of the ordinance, however, provides:

Building Permit: No building, structure, or sign shall be erected, constructed, moved, added to, or structurally altered, nor land be put to use without a permit therefore, issued by the Zoning Officer. No such permit shall be issued except in conformity with the provisions of this Ordinance, or upon written order from the Zoning Hearing Board in the form of an administrative review, special exception, or variance as provided by this Ordinance or by the Court.

This requirement does not make the distinction assumed crucial by the parties and the trial court. Rather, the ordinance requires a permit for any structure, a term broadly defined therein as, "[a]ny man-made object having an ascertainable stationary location on or in land or water, whether or not affixed to land." This definition encompasses a building, defined as, "[a]ny structure having a roof supported by columns or walls, for the shelter, housing, or enclosure of any individual, animal, process, equipment, goods or materials of any kind," as well as a trailer, defined as, "[a] structure standing on wheels, towed or hauled by another vehicle, and used for short-term human occupancy, carrying of materials, goods or objects, or as a temporary office." Consequently, regardless of which label applies to Robertson's structure, she violated the ordinance by undertaking construction without the prerequisite permit.⁵ The Township appropriately ordered the construction stopped until she obtained a permit.

In order to obtain a permit, Robertson must demonstrate compliance with applicable ordinance regulations, both use and dimensional, or establish a right to maintain pre-existing nonconformities or obtain a variance from applicable regulations. The activities for which Robertson intends to use the property do not amount to a use explicitly allowed in the district; therefore, Robertson may legally continue this use only if it is an unabandoned pre-existing nonconforming use or she obtains a use variance, a request she has not made. It is undisputed that, for many years pre-dating the enactment of the zoning ordinance, Robertson's family used the permanently located camper as a cabin-like structure for camping. In addition, they dug a well and built an outhouse. The salient characteristics of the use are family camping and recreation, on weekends and vacations, employing a small shelter with a hard roof and walls, but without indoor plumbing.⁶ Without explicitly labeling this use, common pleas ruled that Robertson abandoned it when she removed the camper.

Robertson correctly asserts that the evidence is insufficient to establish that she abandoned the long-standing use of the property for family camping and recreation on weekends and vacations. The Township, as the party asserting abandonment, had the burden to prove that Robertson intended to and...