MUNICIPALITY OF MONROEVILLE ZONING HEARING BOARD OCTOBER 7, 2009 MINUTES. The meeting was called to order by Vice-Chairman Walter Forrest at 7:30 p.m.

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1 MUNICIPALITY OF MONROEVILLE ZONING HEARING BOARD OCTOBER 7, 2009 MINUTES The meeting was called to order by Vice-Chairman Walter Forrest at 7:30 p.m. PLEDGE OF ALLEGIANCE AND MOMENT OF SILENCE The Pledge of Allegiance was recited and a moment of silence was observed. ROLL CALL The Recording Secretary, Sharon McIndoe, called roll and the following were present: Walter Forrest, Andrew Richmond, Frank Rawson, Robert Bell, Scott Dellett, and Mark Ciufo. Mr. Grimes was absent. APPROVAL OF MINUTES There being no correction, additions or deletions to the minutes of the regular meeting of September 2, 2009, a motion was duly made by Mr. Bell to approve them, as submitted, and Mr. Rawson seconded it. Upon a roll call vote, the motion carried with three affirmative votes and one abstention by Mr. Richmond. NEW BUSINESS A DAVID V. FALVO The applicant is requesting a variance from Section 207.3, of the Monroeville Zoning Ordinance No. 1443, as amended, to permit the construction of a shed closer than the required 10-foot setback in the rear yard and side yard on property located at 162 Kelvington Drive, Allegheny County Lot and Block No. 860-R-185 in the R-2, Single- Family Residential Zoning District. Mr. David Falvo, the applicant, came forward to explain his request. He indicated he wants to build a shed in his back yard within 10 feet of the property line because his yard is so small. There being no further discussion, Mr. Rawson duly made a motion to approve Application No A and Mr. Bell seconded it. Upon a roll call vote, the motion carried unanimously.

2 Regular Meeting 2 October 7, A JOHN AND PATRICIA LOWE The applicant is requesting a variance from Section of the Monroeville Zoning Ordinance No. 1443, as amended, to permit the construction of a shed closer than the required 10-foot setback in the side yard on property located at 424 Woodhaven Drive, Allegheny County Lot and Block No. 855-A-253 in the R-2, Single-Family Residential Zoning District. Mrs. Patricia Lowe, the applicant, came forward to explain her request. She indicated she wanted to build a shed in her yard within the 10-foot setback of the side yard. There being no further discussion, Mr. Richmond duly made a motion to approve Application No A and Mr. Rawson seconded it. Upon a roll call vote, the motion carried unanimously A HOLLY GREENE The applicant is requesting a variance from Section of the Monroeville Zoning Ordinance No. 1443, as amended, to permit the construction of a shed closer than the required 10-foot setback in the rear yard on property located at 105 Sunset Drive, Allegheny County Block and Lot No. 858-E-147 in the R-1, Single-Family Residential Zoning District. Ms. Holly Green, the applicant, came forward to explain her request. She stated she unknowingly erected a shed without a permit seven feet within the 10-foot setback. She requested permission to keep it at its current location. There being no further discussion, Mr. Rawson duly made a motion to approve Application No A and Mr. Bell seconded it. Upon a roll call vote, the motion carried unanimously A STEVEN AND DANNY MOY/ CODY S RESTAURANT The applicant is requesting an appeal to the zoning officer s revocation of the zoning occupancy permit pursuant to Section 503.1, Zoning Occupancy Permits, of the Monroeville Zoning Ordinance No. 1443, as amended that permits the restaurant use on property located at 4341 Northern Pike Allegheny County Block and Lot No. 977-N-351, in the C-2, Business/Commercial Zoning District for failure to comply with Section 308, Off-Street Parking and 503.1, Zoning Occupancy Permits of the Zoning Ordinance.

3 Regular Meeting 3 October 7, 2009 Mr. David Montgomery, attorney representing the applicant, came forward to explain the request. He stated the applicant is appealing an August 7, 2009 enforcement letter from the Monroeville Zoning Officer. He indicated that he would explain why the enforcement notice was improper and should not have been sent but he cited the municipalities planning code places the burden on the municipality to justify that enforcement notice. Mr. Wratcher agreed and requested that all interested parties that would be giving testimony be sworn in at this time and they were severally sworn. Ms. Chelsea Dice, attorney, came forward representing the municipality. She called Mr. Scott Dellett, the zoning officer, as her first witness. She submitted Exhibit 1 for him to identify and he stated it was an application by Cody s Restaurant at 4341 Northern Pike for an appeal of the zoning officer dated August 5, 2009 of the zoning hearing board decision and a letter dated August 7, She inquired when the document was received and Mr. Dellett answered September 4, Ms. Dice requested he identify Exhibit No. 2 and Mr. Dellett answered it is a docket sheet for SA the appeal of the zoning hearing board decision of August 5, Ms. Dice clarified that it was an appeal to the court of common pleas. She requested he read into the record Paragraph B from Exhibit 1 and Mr. Dellett read as follows: the applicant hereby applies for either: A) a variance, B) special exception, C) certificate of nonconformity or other. He stated it indicated underneath that line the identification for the zoning ordinance section. Ms. Dice questioned whether the applicant identified the zoning ordinance section and Mr. Dellett answered negatively. Ms. Dice requested that he identify Paragraph C and Mr. Dellett stated it said, explain the details regarding above. Ms. Dice inquired whether the applicant provided any details and Mr. Dellett answered negatively. Ms. Dice referred to Paragraph 8 and Mr. Dellett read the following into the record: the applicant appellant believes the variance or special exception or certificate of nonconformity or other relief shall be granted for the following reasons: (explain hardship as it relates to the real estate if the request is for a variance.) Ms. Dice inquired whether there was an explanation under Paragraph E and Mr. Dellett answered negatively. Ms. Dice inquired whether this application and notice of appeal had been duly posted according to the Municipalities Planning Code (MPC) and Mr. Dellett answered affirmatively. Ms. Dice questioned whether it was advertised according to the MPC and Mr. Dellett answered it was scheduled to be advertised in the Tribune Review a week ago and two weeks ago. Ms. Dice referred to Exhibit 3 and Mr. Dellett cited it to be the approved Site Plan Application No ST approved by Monroeville Council December 11, 2007 Ms. Dice questioned whether that site plan was regarding the parcel at issue and Mr.Dellett answered affirmatively. Ms. Dice referred to Exhibit 4 and Mr. Dellett identified it as the meeting minutes from the December 11, 2007 Council meeting. Ms. Dice questioned whether the minutes reflect any conditions for approval of this site

4 Regular Meeting 4 October 7, 2009 plan and Mr. Dellett answered affirmatively. He read from the minutes as follows: Mayor Lomeo clarified that the patio cannot be used until the negotiations are final. He felt the negotiations were between the property owners and the Turnpike Commission. He further read, Mr. Dice concurred that the patio cannot be used until council approves the site plan. Ms. Dice inquired whether the site plan as shown in Exhibit 3 encroached on the abutting neighbor s property and Mr. Dellett answered affirmatively. Ms. Dice inquired about the abutting neighboring and Mr. Dellett answered it was the Turnpike Commission. Ms. Dice referred to Exhibit 5 and Mr. Dellett identified it as the letter dated December 12, 2007 the day after the council meeting written by the municipal manager to the applicant. He explained it was to inform the applicant that council adopted the resolution for Site Plan Application No ST. Ms. Dice inquired whether the letter provides conditions for approval and Mr. Dellett answered affirmatively. He read into the record Condition No. 4 as follows: Applicant agrees to comply with the requirements of Ordinance No concerning sidewalk construction and regulations as located and approved by the municipal engineer. Ms. Dice questioned whether he has been out to the site recently and Mr. Dellett answered affirmatively. He added it was that day. Mr. Montgomery stated he objected because the parameters of what are at issue are guided by the four-corners of the enforcement notice which includes two grounds. He stated one was the parking issue and the other was some other issue. Mr. Wratcher asserted the board would give the objection the appropriate weight when the decision is made. He explained the board follows a very liberal and permissive interpretation of evidence and then sorts through that evidence because the formal rules of evidence do not apply. Mr. Montgomery pointed out the enforcement notices have strict requirements and any violation by a zoning officer has to be laid out with particularity. He stated any other issue such as sidewalks has to be addressed by the zoning officer in the notice. Mr. Wratcher felt they were specifically addressed and explained the board will consider whatever is addressed or is not in the notice when making a decision. He stated the board understands what the enforcement notice says and what the grounds are. He added it is irrelevant if sidewalks are discussed but not in the enforcement notice. Ms. Dice questioned whether sidewalks have been installed and Mr. Dellett answered negatively. Ms. Dice referred to Paragraph No. 5 and Mr. Dellett read the following: Applicant agrees to provide handicapped parking spaces as shown in the site plan. These designated parking areas shall be marked with the proper signage showing the symbol of accessibility including a symbol sign mounted on a pole and a symbol painted on the asphalt parking surface. Mr. Montgomery again raised a continuing objection to anything not included in the enforcement notice or specifically addressed. Mr. Wratcher noted it for the record. Mr. Dellett continued to read: additional signage shall be provided by notifying patrons of Ordinance 1806 that establishes a fee of $200 for any violation of parking in handicapped parking areas. Ms. Dice inquired whether the appropriate handicapped signage had been mounted and Mr. Dellett answered there is a missing sign

5 Regular Meeting 5 October 7, 2009 designating a parking spot on the site. Ms. Dice questioned whether Ordinance No has been posted and Mr. Dellett answered negatively. Ms. Dice referred to Paragraph No. 10 of the conditions and Mr. Dellett read: the applicant agrees to comply with the conditions established in the solicitor s letter of September 6, 2007 Exhibit I until sign contract is executed with the Pennsylvania Turnpike Commission which is Exhibit II. Ms. Dice questioned whether Exhibit II was attached to the document and Mr. Dellett answered affirmatively. Ms. Dice inquired whether the condition has been met and Mr. Dellett answered negatively. Ms. Dice referred to Exhibit No. 6 which is a letter date April 22, 2009 and she inquired whether he advised the code enforcement officer to send the letter; Mr. Dellett answered affirmatively. Ms. Dice requested an explanation of why the letter was sent and Mr. Dellett answered because the approved conditions for Site Plan No ST had not been executed based on the municipal solicitor s letter dated September 6, He added as of that date the use of the patio area would be closed until all conditions of approval were completed. Ms. Dice questioned whether the patio area had been used prior to April 22, 2009 by the applicant and Mr. Dellett answered affirmatively. Mr. Montgomery objected to it because it was heresy and Mr. Forrest noted it. Ms. Dice questioned whether he was ever at Moy s during regular business hours and Mr. Dellett answered negatively. Ms. Dice referred to Exhibit No. 7 which was a letter dated April 28, 2009 and inquired why he drafted the letter. Mr. Dellett explained it was to serve as official notification to cease use of the patio subject to a revised site plan application to remedy the condition of not having control of the subject patio. Ms. Dice clarified the letter was sent certified mail and hand delivered; Mr. Dellett concurred. Ms. Dice referred to Exhibit No. 8 which is a site plan from Pilston Surveying Incorporated. Mr. Dellett stated it was submitted by the applicant on May 27, Ms. Dice inquired about the number of parking spaces reflected on the plan and Mr. Dellett answered 41. Ms. Dice questioned whether the plan identified any storm water management and Mr. Dellett answered negatively. Ms. Dice inquired whether the plan identified a fire lane and Mr. Dellett answered negatively. Ms. Dice referred to Exhibit No. 9 which is a letter dated June 2, 2009 and Mr. Dellett identified it as a letter drafted by the municipal code enforcement officer. Ms. Dice questioned why he requested the drafting of the letter and Mr. Dellett explained it was to indicate the parking requirement for the subject property. Ms. Dice inquired about the number of parking spaces that would be required for the subject parcel and Mr. Dellett answered 67. Ms. Dice referred to Exhibit No. 10 which is a letter dated June 19, 2009 and Mr. Dellett identified it as a letter he drafted in response to the site plan application submitted by the applicant. He stated the site plan was incomplete because of the following deficiencies: 1) Under Section 306.5(h), Storm Water Management, the applicant did not

6 Regular Meeting 6 October 7, 2009 provide any information regarding storm water management on the site and, 2) Section 308, Off-Street Parking, describing the number of parking spaces proposed for the site as 41 with 39 regular and 2 handicapped parking spaces. He pointed out it was noted in the correspondence dated June 2 that 67 parking spaces were required. He indicated it is the municipality s practice to require an applicant to first apply for a variance from the zoning hearing board before a site plan application is accepted. He added the applicant should take care of any ordinance requirements before the site plan is processed. Ms. Dice inquired whether the applicant requested a variance for off-street parking and Mr.Dellett answered affirmatively. Ms. Dice referred to Exhibit No. 11 which is an application for a variance for offstreet parking and Mr. Dellett identified the date of the application as July 2, Ms. Dice cited Section B of the application and Mr. Dellett read the following into the record: Hereby applies for a variance, zoning ordinance, Section 308, Off-Street Parking. Ms. Dice inquired whether the applicant requested any other variances and Mr. Dellett answered negatively. Ms. Dice questioned whether there had been any request for the fire official to review the site plan of Mr. Dellett answered affirmative and explained the zoning hearing board requested the fire official review the plan. Ms. Dice referred to Exhibit No. 12 which is the fire official exhibit and Mr. Dellett explained it is the fire official s review of the plan. He added it includes the fire lane requirement. Ms. Dice questioned whether there was someone present at the meeting who could testify to the actual proposed lane on the fire official s exhibit and Mr. Dellett answered Carl Mihoces was present. Mr. Montgomery again objected to the discussion of fire lanes because it was not addressed in the enforcement notice. Ms. Dice inquired whether the zoning hearing board made a decision on the request for a variance and Mr. Dellett answered affirmatively. Ms. Dice inquired whether Exhibit No. 13 reflected the zoning hearing board s decision and Mr. Dellett answered affirmatively. He added the decision was to deny the request for a variance and sustain the zoning officer s interpretation of the required 67 parking spaces. Ms. Dice clarified that was from the August 5, 2009 hearing and Mr. Dellett concurred. Ms. Dice referred to Exhibit No. 14 which is a letter of August 7, 2009 and Mr. Dellett explained since the applicant did not receive approval for the variance of the parking space, this letter was notice of revocation of the zoning occupancy permit based on the items listed in the letter. He cited the reasons as failure to comply with Section 308, Off-Street Parking and failure to meet the conditions of approval for Site Plan Application No ST specifically Condition No. 10 of Resolution No where the applicant agreed to comply with conditions sent in the municipal solicitor s letter dated September 6, Ms. Dice questioned whether he limited his reason for revoking the occupancy permit based on Condition No. 10 and Mr. Dellett answered

7 Regular Meeting 7 October 7, 2009 affirmatively. He added that was the basis of revoking the permit because the applicant no longer had control of that property. Mr. David Montgomery, attorney, came forward representing the appellant and distributed a booklet containing his exhibits. He explained many of the exhibits were a duplicate of what Ms. Dice submitted. Mr. Wratcher marked the entire book as Exhibit A. Mr. Montgomery cross-examined Mr. Dellett and inquired when he became involved in review of the file concerning the Moy s. Mr. Dellett answered approximately around April Mr. Montgomery questioned how the matter came to his attention and Mr. Dellett answered there was a dispute between the Moy s and the Pennsylvania Turnpike Commission involving the lease of the property concerning the patio area. He could not specifically recall how it was brought to his attention but suggested it may have come from the code enforcement officer or the manager. Mr. Montgomery referred to his exhibits under Tab 1 which is the amended complaint in equity that the municipality filed against the Moy s seeking injunctive relief to shut down the restaurant. He questioned whether he was aware that it was being filed and Mr. Dellett explained he was aware of the filing but he was not privy to the details. He stated he did not review the document but may have been familiar with some of the elements within it. Mr. Montgomery inquired whether he was concerned about the statements in the complaint regarding the parking requirements for the restaurant and questioned whether he was aware the amended complaint would make certain representations about the parking requirements for the Moy s Restaurant. Mr. Dellett answered he was aware of the discussions concerning the parking requirement but was not aware of the specific details of what was addressed in the complaint. Mr. Montgomery requested he read Footnote No. 1 of the complaint on Page 6. Mr. Dellett read, it should be noted that the plaintiff in their original complaint averred that the defendants were required to have 67 off-street parking spaces as per Exhibit H and I. However, after further review the plaintiff erroneously calculated off-street parking as if the restaurant was new construction and did not account for the pre-existing nonconforming status of the restaurant at 32 spaces. Mr. Montgomery inquired whether that footnote indicated the municipality was backing away from its assertion that 67 spaces were required for the restaurant and Mr. Dellett answered affirmatively according to his statement. Mr. Montgomery questioned whether he was part of the discussions with the municipality in putting together information that was included in that footnote and Mr. Dellett answered affirmatively. Mr. Montgomery inquired whether he knew when the amended complaint was filed that the municipality was no longer claiming that 67 spaces were required. Mr. Dellett stated he knew the issue was discussed but did not know the legal approach in terms of the amended filing. He explained there are two different things. He stated they based the calculations on the requirements in Section 106 of the ordinance when his department reviewed the application.

8 Regular Meeting 8 October 7, 2009 Mr. Montgomery again inquired whether the municipality backed away from its contention that 67 parking spaces were required when the amended complaint was filed. Mr. Dellett stated the complaint speaks for itself. Mr. Montgomery questioned whether he was consulted about the reasons for backing away from the representation of 67 spaces were required and Mr. Dellett answered what is stated in the complaint speaks for itself. Mr. Montgomery again inquired whether he was consulted about that representation and Ms. Dice objected because the question was asked and answered that the complaint speaks for itself. Mr. Wratcher added that Mr. Dellett stated he did not see the complaint. Mr. Montgomery indicated that his precise question was whether he was aware the municipality was backing away from its contention that 67 spaces were required. He felt that was entirely different than whether he had seen the complaint or whether it was asked and answered that it speaks for itself. He indicated that he wanted to know if this witness was aware. Mr. Wratcher questioned whether Mr. Dellett was aware or not. Mr. Dellett answered that there were discussions with the municipal solicitor and the exact number was determined with the legal filing. He stated the site plan was reviewed and the determination to back off of it did not come from him, as the zoning officer. Ms. Dice objected to the testimony about the calculations of whether or not there are 67 spots versus whether it was erroneously. She asserted the issue that the zoning hearing board had already determined 67 spaces is a statutory appeal before Judge James and what is at issue at this time is whether or not the zoning officer made the determination to revoke the occupancy permit today was reasonable of unreasonable according to the zoning ordinance not calculation for the 67 parking spaces. Mr. Montgomery rebutted that the four corners of the enforcement notice sent to the Moy s was addressing the issue of the 67 parking spaces. He felt the point that the municipality backed away from the 67 parking space representation in the enforcement letter is crucial. A brief discussion ensued regarding the term backed away. Mr. Wratcher indicated the question was asked and the witness answered and he stated the formal rules of evidence did not apply at this hearing like they would for a deposition. He suggested the attorney move on. Mr. Montgomery questioned whether that was the chairman s position and Mr. Forrest answered that the last case heard was a requirement for 67 spaces. Mr. Montgomery indicated that the foundation for that was erroneous as well. Mr. Forrest asserted that was what the applicant requested relief for. Mr. Montgomery suggested when someone comes before a board seeking relief, it relies upon the zoning officer to explain the requirements of the code. He stated the municipality has now filed a document in the court of common pleas backing away from that and according to Footnote No. 1, they backed away claiming only 50 spots were required. He contended that the board s approach may have been different if they had known the zoning officer s calculation was off by 17 spaces. He pointed out that at some point the zoning officer changed his mind. Mr. Wratcher asserted it is a fair argument that the board ought to know the number should be different based on the footnote. Mr. Forrest stated it had never been raised before this point. Mr. Montgomery stated the amended complaint was filed the

9 Regular Meeting 9 October 7, 2009 beginning of September so the board was not aware of the issue until now. Mr. Forrest added the nonconforming use was not raised during the last review and it should have been. Mr. Montgomery agreed and stated the board may not have scrutinized the request with specificity because it was an unrepresented party. He reported the minutes reflect that the applicant stated at the meeting that the restaurant has been there since 1970 and the applicant was not sure why he was requesting a variance. Mr. Montgomery indicated he requested the variance because he was told to by the municipal solicitor and then the municipality realized it was a nonconforming use being analyzed the wrong way. Mr. Wratcher clarified that he made his point that the number could be different than the 67. Ms. Dice added this is an issue that has already been on appeal before Judge James. Mr. Montgomery contended it is still the board s responsibility to decide whether the revocation notice was valid or not. He asserted it is not fair to his client that is a 35 year old business that employs 15 people to ignore the issue pending the decision of Judge James. Mr. Montgomery questioned whether Mr. Dellett was aware of the fact that the municipality is now claiming that 50 spots are required for the Moy s; Mr. Dellett answered affirmatively. Mr. Montgomery inquired whether he was familiar with the Monroeville Zoning Code requirements for calculating off-street parking. Mr. Dellett answered affirmatively and referred to Table 308 of the zoning ordinance. Mr. Montgomery questioned whether the term gross floor area was used and Mr. Dellett answered affirmatively. Mr. Montgomery stated the term outside dining was also referenced. Ms. Dice objected because Mr. Dellett did not draft the letter. Mr. Montgomery contended that the letter was done at his direction and Mr. Dellett agreed. Mr. Montgomery inquired whether he understood that gross floor area refers to the square footage of the structure. Mr. Dellett referred to the zoning ordinance and read the following: the sum of the horizontal area of all floors in the structure and its accessory buildings is measured between exterior faces of the walls. Mr. Montgomery indicated that he referred to an outside dining area and inquired whether it was included as part of the structure. Mr. Dellett answered that it is part of the calculations for the parking requirement because it was used as a dining area and is part of the structure pursuant to the site plan approval in Mr. Montgomery stated the definition in the code does not refer to patios as gross floor area and Mr. Dellett indicated he stated the definition. Mr. Montgomery clarified that he had never been to Moy s during business hours and Mr. Dellett agreed. Mr. Montgomery inquired whether he knew for sure whether or not the patio had been used in the Spring 2009 and Mr. Dellett explained he made his determination based on the code enforcement officer reporting to him about his inspections. Mr. Montgomery referred to Exhibit 5 which is a letter date December 12, 2007 from the municipal manager. He pointed out the Condition No. 10 states, agrees to comply with the conditions established in the solicitor s letter of September 6, He then read from a letter from the solicitor s letter follows: you are advised by virtue of this letter that you are not to use the patio until such time as a valid site plan has been

10 Regular Meeting 10 October 7, 2009 approved for that area as per the previous litigation. He indicated the letter was written when the site plan was approved by council and Mr. Dellett agreed. Mr. Montgomery suggested it could be concluded from the letter that the patio could not be used until the site plan was approved. Mr. Dellett concurred but added there was a condition placed on the approval that referenced an agreement with the Turnpike Commission to use their property. He suggested what happened was there was no longer a lease to use the property. Mr. Montgomery referred to the December 11, 2007 Council Meeting Minutes on Page 5 where the then Mayor Lomeo clarified that the patio cannot be used until the negotiations are final. He pointed out it also states that Mr. Dice concurs that the patio cannot be used until council approves the site plan. Mr. Montgomery questioned which way was correct and Mr. Dellett indicated that he could not answer because he was not an employee at the time. He added he did not review or was involved in any review comments or interpretation involving Site Plan 06-7-ST. Mr. Montgomery suggested that several letters were written to the Moy s in the Spring of 2009 up through June at his direction referencing the 67 space requirements and Mr. Dellett answered affirmatively. Mr. Montgomery questioned whether he was familiar with the concept of nonconforming valid use and Mr. Dellett answered the Moy s never contended they had a nonconforming use. Mr. Montgomery inquired whether he considered a nonconforming use when he did the analysis and Mr. Dellett stated his analysis and review were based on Section 106 of the zoning ordinance. He read it as follows: No structure shall be located, erected, constructed, reconstructed, moved, altered, conveyed or enlarged not shall any structure or land be altered or used except in full compliance with all the provisions of this ordinance and after the lawful issuance of all permits and certificates required by the ordinance. Mr. Montgomery again inquired whether it occurred to him that there was a nonconforming use at the property and Mr. Dellett answered the Moy s never asserted there was a nonconforming use as far as parking. He added they had the opportunity at the August Zoning Hearing Board. Mr. Montgomery inquired whether it is the municipality s practice not to suggest it may be a nonconforming use when an unsophisticated or unrepresented party has questions about businesses that have been in operation for 35 years. Mr. Dellett stated the interpretation was based on the section that he read. Mr. Montgomery inquired whether he was familiar with the Pennsylvania Municipalities Planning Code and Mr. Dellett answered affirmatively. Mr. Montgomery referred to a section that applies to enforcement notices, which is 53PS, Section describing the details of the requirements for an enforcement notice. He inquired whether his August 7, 2009 letter is an enforcement notice and Mr. Dellett answered affirmative. Mr. Montgomery questioned whether that enforcement notice sets in force criminal sanctions for violating the enforcement notice and Mr. Dellett answered the letter speaks for itself. Mr. Montgomery referred to a letter on Page 2 where it refers to citations and injunctive relief and he inquired whether it refers to criminal sanctions and Mr. Dellett answered negatively. Mr. Montgomery pointed out that the MPC requires enforcement notices under Subsection Six and he read that failure to comply

11 Regular Meeting 11 October 7, 2009 with the notice within the time specified unless extended by appeal to the zoning hearing board constitutes a violation with possible sanctions clearly described. Mr. Montgomery inquired whether he knew the municipality was sending criminal citations to the Moy s for the operation of the restaurant and Mr. Dellett answered affirmatively. Mr. Montgomery questioned whether he was aware the municipality was sending citations notices to the Moy s fining them $500 per day for operating their restaurant and Mr. Dellett answered affirmatively. Mr. Montgomery questioned whether that was pursuant to his August 7 letter and Mr. Dellett answered affirmatively. Mr. Montgomery stated that letter did not specifically state how much the citations would be and Mr. Dellett answered the letter speaks for itself. Mr. Montgomery asserted the MPC also requires a time period must be provided for compliance under Subsection Four and he read, the date before which the steps for compliance must be commenced and the date before which the steps must be completed. Mr. Dellett stated the subsequent letters were sent to the applicant prior to the August 7 letter. Mr. Montgomery questioned whether the Turnpike agreement was to rectify the encroachment on their property by giving permission and Mr. Dellett agreed. He added they needed some kind of permission or lease to use the property. Mr. Montgomery inquired whether he was aware that the Moy s were no longer using the patio or the encroachment area and Mr. Dellett deferred that question to the zoning enforcement officer who was more directly involved with the inspections. Mr. Montgomery questioned whether he attended the August 5 zoning hearing board meeting and whether the attorney from the Turnpike Commission was in attendance; Mr. Dellett answered affirmatively. Mr. Montgomery inquired whether he was aware that the minutes for that meeting reflect that the attorney stated the property is no longer being used and Mr. Dellett stated that was his contention. Mr. Montgomery pointed out there were two grounds for sending the letter to shut down the Moy s business; One, that 67 parking spaces were required; and Two, failure to negotiate a lease with the Turnpike. He questioned whether the failure to negotiate a lease with the Turnpike was a proper ground for enforcement if the Moy s were no longer using the space that was to be the subject for the easement. Mr. Dellett did not feel each condition could be dealt with individually that both of them had to be treated the same. He stated they did not comply with the municipality s interpretation of the number of parking spaces in the zoning ordinance and those were the reasons for the decision to revoke the permit. He indicated it could not be one or the other they had to comply with both. Mr. Montgomery questioned when he was requested to look at the fire lane and Mr. Dellett answered shortly before the meeting by the board solicitor. Mr. Montgomery inquired whether he was requested to look for other grounds on the application and Mr. Dellett explained the reason for reviewing the fire lane was to indicate whether the layout of the parking lot would conform to the other ordinances.

12 Regular Meeting 12 October 7, 2009 Mr. Wratcher explained the reason the fire lane was reviewed is because when an applicant applies for a parking variance, the zoning hearing board will state the number of spaces needed before the planning commission or the fire official have reviewed it. He stated then if the fire official s requirements need one or two more spaces, then the applicant has to re-apply for a parking variance for the number of spaces which can be costly to the applicant. Mr. Montgomery stated his client was not aware of the fire lane issue until they arrived at the meeting on August 5, 2009 and Mr. Wratcher indicated that the board is aware of it and it is noted in the record. Mr. Montgomery felt that was very relevant with regard to the fire lane issue and the amount of time and expense it caused his client. Mr. Montgomery referred to Tab 4 of the book of exhibits and Mr. Dellett identified it as the review by the director of building and engineering to him dated August 3, Mr. Montgomery indicated it referenced the parking for the fire lanes and Mr. Dellett concurred. Mr. Montgomery questioned when it was provided to the Moy s and Mr. Dellett answered that it was not. Ms. Dice redirected Mr. Dellett and referred to Exhibit 5, Paragraph 10 of the letter dated December 12, 2007 from the municipal manager listing the conditions. She inquired whether one of the requirements was to have a signed executed contract with the Turnpike Commission. Mr. Dellett answered affirmatively. Ms. Dice then referred to the Zoning Ordinance Section and Mr. Dellett read it into the record, a zoning certificate must be obtained by the owner of any nonconforming use as evidence that the use existed prior to the adoption of the provision which made the use nonconforming. Ms. Dice inquired whether the applicant has ever provided a certificate of nonconformity and Mr. Dellett answered negatively. Ms. Dice questioned whether the site plan submitted in 2009 included a certificate of nonconformity and Mr. Dellett answered negatively. Ms. Dice referred to Exhibit 9 dated June 2, 2009 and Mr. Dellett read the last paragraph, failure to submit a new site plan application with the following requested information within 30 days of this permit pursuant to Section of the Monroeville Ordinance No. 1443, as amended. Pursuant to Section 504 of the zoning ordinance, enforcement penalties and citations shall be filed with the district justice and fines in the amount of $500 per day shall be levied. Ms. Dice stated that according to the letter the applicant was notified that fines would be levied at $500 per day if they did not submit and Mr. Dellett agreed. Ms. Dice referred to Exhibit 7 of a letter dated April 28, 2009 and she questioned whether it allowed the applicant to cure any defects and Mr. Dellett answered affirmatively. He added it gave them a timeframe of 30 days. Ms. Dice inquired whether the June 12 letter also provided the applicant with a timeframe to cure the defects and Mr. Dellett answered 30 days.

13 Regular Meeting 13 October 7, 2009 Mr. Montgomery recross-examined Mr. Dellett. He inquired whether the April 28 letter sent to the Moy s advising them of the $500 per day fine was for the use of the patio and Mr. Dellett answered affirmatively. He indicated he advised them to cease use of the subject patio and submit a revised site plan application to remedy the condition. Mr. Montgomery indicated the issue at this point was the patio and Mr. Dellett stated it was also submitting the site plan application to address the situation regarding the property owned by the Turnpike Commission. Mr. Montgomery inquired whether the condition of concern in the letter is the use of the property encroaching on the Turnpike property. Mr. Dellett again explained that part of the parking spaces in the original approval encroached within the Turnpike Commission property and the applicant was required to submit a site plan application to remedy that condition demonstrating compliance with the parking requirements. Mr. Montgomery inquired whether they submitted a site plan and Mr. Dellett answered affirmatively. He state it was determined that it was incomplete based on his letter of June 19. Mr. Montgomery questioned whether they were then advised to seek a variance and Mr. Dellett answered affirmatively. Ms. Dice then called Mr. Mark Ciufo the code enforcement officer for the municipality. She inquired whether he was at the subject parcel and Mr. Cuifo answered affirmatively. He added he had visited the site approximately 15 times in his official capacity and frequented it as a patron. Ms. Dice referred to Exhibit 6 and inquired why he drafted the letter. Mr. Ciufo explained he wrote it after it was brought to his attention that the subject property of 4341 Northern pike did not meet the conditions of approval set forth by council at the December 2007 council meeting. Ms. Dice questioned what conditions of approval had not been met and Mr. Ciufo answered there was to be an execution of a lease agreement with the adjoining property owner. Ms. Dice inquired whether a lease agreement has been executed with the adjoining property owner and Mr. Cuifo answered negatively as of that date. Ms. Dice questioned when the site plan was approved and Mr. Ciufo answered in December 2007 by council. Ms. Dice inquired how long the property owner operated the business until this letter was sent and Mr. Ciufo answered a year and five months. Ms. Dice questioned whether the patio area had already been erected in 2007 when the site plan was approved and Mr. Cuifo answered affirmatively. Ms. Dice inquired since he frequented the site so much whether he witnessed patrons in the outside dining area and Mr. Cuifo answered affirmatively. Ms. Dice questioned whether he has been to the restaurant since April 22, 2009 and seen patrons dining in the outside area; Mr. Ciufo answered affirmatively. Ms. Dice inquired when he was at the site and Mr. Ciufo answered approximately two weeks ago. Ms. Dice questioned the last time he was there and witnessed patrons in the patio area; Mr. Ciufo indicated the last time was when he hand delivered a notice revoking the occupancy. Ms. Dice referred to Exhibit No. 14 and Mr. Ciufo identified it as a letter that informs the subject property, Cody s Restaurant, that they are in violation of the municipal zoning ordinance and the municipality was revoking the occupancy permit. Ms. Dice inquired whether the letter was hand delivered and Mr. Ciufo answered affirmatively. Ms. Dice questioned whether

14 Regular Meeting 14 October 7, 2009 that was the day he witnessed patrons outside on the patio and Mr. Ciufo answered affirmatively. Ms. Dice referred to Exhibit No. 9 a letter of June 2, 2009 and inquired how he came to the conclusions in the letter. Mr. Cuifo explained the letter was to remedy the site in accordance with the zoning ordinance and illustrate the total number of parking spaces required under the zoning ordinance. He stated it was to also rehabilitate the areas that were encroached upon in the adjoining property. Ms. Dice questioned whether parking was one of the issues and Mr. Cuifo answered affirmatively. Ms. Dice inquired about his determination of the number of parking spaces. Mr. Cuifo explained that he determined there was 4,974 square feet of structure area use as a restaurant and there was additional outside dining area of 409 square feet with the total amount of square feet combined requiring 67 parking spaces in accordance with the zoning ordinance for use category, restaurant, one parking space for 80 square feet. Ms. Dice questioned Section 106 of the zoning ordinance and Mr. Cuifo answered it is compliance. He read no structure shall be located, erected, constructed, reconstructed, moved, altered, converted or enlarged nor shall any structure or land be altered or used except in full compliance with all the provisions of this ordinance and after the lawful issuance of all permits and certificates required by this ordinance. Ms. Dice inquired whether he felt 67 parking spaces were required according to that section and Mr. Cuifo answered affirmatively. Ms. Dice questioned whether he made a determination about garbage disposal facilities and Mr. Cuifo answered affirmatively. Mr. Montgomery objected because these were not subject to the enforcement notice. Ms. Dice inquired whether the letter identified a timeframe to cure the defects and Mr. Cuifo answered the applicant was given 30 days to comply with the zoning ordinance. Ms. Dice questioned whether a penalty was also identified in the letter and Mr. Cuifo answered affirmatively. He added it was in the last paragraph and he read, failure to submit a new site plan application with the requested information within 30 days of the notice shall result in a revocation of the zoning occupancy permit pursuant to Section of the Monroeville Zoning Ordinance No. 1443, as amended. Pursuant to Section 504 of the zoning ordinance, enforcement penalties and citations shall be filed with the district justice and fines in the amount of $500 per day shall be levied. Mr. Montgomery cross-examined Mr. Cuifo and asked him whether he was familiar with the municipality s planning code and Mr. Cuifo answered affirmatively. Mr. Montgomery inquired whether he has written these types of enforcement letters before and Mr. Cuifo answered affirmatively. Mr. Montgomery questioned whether he understood the importance of specifically stating the amount of the citation fine that could be levied against anyone who failed to comply and Mr. Cuifo answered affirmatively. Mr. Montgomery inquired whether that was in his letters because he knew it is required by law and Mr. Cuifo answered affirmatively. Ms. Dice called forward Mr. Carl Mihoces to question him about the fire lane. Mr. Montgomery stipulated the fire lane would take away two parking spaces and he continued his objection that was not included in the enforcement letter.

15 Regular Meeting 15 October 7, 2009 Mr. Montgomery made a motion at this point that the municipality did not met their burden of showing that the enforcement notice was proper. He stated there was a facial defect that the specific fine was not included in the enforcement letter that is the subject of this hearing. He indicated it was reflected in the code enforcement officer s letters but not in the enforcement letter that is of issue at this time. He pointed out the other issue of the 67 parking space requirement is wrong and at some point it was decided that it was a nonconforming use and in the complaint it is stated the requirement is 50 through the calculations involving the patio which is not included in the definition section of the ordinance. He stated one of their stated grounds is no longer valid. He indicated another stated ground is the negotiation with the Turnpike and the encroached area. He stated the zoning officer admitted that he heard the Turnpike lawyer two days before he wrote the letter say that area was no longer being used by the Moy s for the restaurant. He asserted they have not met their burden of showing that the letter is appropriate or should be enforceable and he requested the board agree that the enforcement was improper. Mr. Wratcher explained that as a matter of procedure the board does not rule until they have heard all the evidence on both sides but his comments are noted as part of his overall argument. Mr. Steve Moy from 117 Oak Point Drive came forward to give direct testimony. He stated he is the property owner and president of Moy 4. Mr. Montgomery inquired whether he has a management role in the company and how often he is there. Mr. Moy answered affirmatively and stated he is there four or five days a week, sometimes seven. Mr. Montgomery questioned the number of employees and Mr. Moy indicated there are 15 to 20. Mr. Montgomery inquired when the patio area was built and Mr. Moy answered Mr. Montgomery asked when patrons stopped dining out on the patio and Mr. Moy answered they stopped using any part of the patio for service when they received the letter from the municipality. Mr. Montgomery questioned whether the code enforcement officer could have seen people out on the patio and Mr. Moy answered affirmatively because people use it for a smoking area. Mr. Montgomery questioned whether patrons were being served in the patio area when the enforcement letter was written on August 7 and Mr. Moy answered negatively. Mr. Montgomery referred to Tab 3 of the exhibit book and Mr. Moy identified it as an overhead shot of Northern Pike, the businesses and the Turnpike. Mr. Montgomery requested that he identify his property by lot and block. Mr. Moy indicated it was 977-N Mr. Montgomery inquired about a property two properties to the left identified as No. 856-S-122 and Mr. Moy answered it is a pizza shop called Pittzarella owned by Steve Ziller. Mr. Montgomery referred to Exhibit 6 and Mr. Moy explained they requested the property owner of 4329 Northern Pike Road lease them 14 of his parking space for use as off-site parking for employees on busy nights. He indicated he has a signed lease that has been notarized for the use of that parking lot. Mr. Montgomery questioned whether this plan has been submitted to council and Mr. Moy answered negatively but that is his intention. Mr. Montgomery inquired whether there is a sidewalk between the properties

16 Regular Meeting 16 October 7, 2009 and Mr. Moy answered affirmatively. Mr. Montgomery questioned whether it is the kind of parking his employees could use if it is approved by council. Mr. Moy answered affirmatively. Ms. Dice objected to the testimony because the information has not been presented and is not part of the enforcement letter. Mr. Wratcher indicated that it would be noted but Mr. Moy did testify that it has not been previously presented. He added it would be given the appropriate weight. Ms. Dice cross-examined Mr. Moy. She inquired whether he ever reviewed the Monroeville s Zoning Ordinance and Mr. Moy answered negatively. Ms. Dice referred to Section of the ordinance and Mr. Moy read, zoning certificate must be obtained by the owners of any nonconforming use as evidenced that the use lawfully existed prior to the adoption of the provision which made the use nonconforming. Ms. Dice inquired whether he ever applied for a certificate of nonconformity and Mr. Moy answered he would have if he was informed that is what he should apply for. Ms. Dice questioned whether he did apply for one and Mr. Moy answered negatively. He stated he would have if he was advised to do so or that it was an option. He stated if he would have known that is what he should have applied for, he would have applied for it. Ms. Dice inquired whether he had counsel for other issues with Moy 4 Incorporated in the past and Mr. Moy answered affirmatively. Ms. Dice questioned whether he was ever told to get a certificate of nonconformity by any of the prior counsel. Mr. Moy answered negatively but explained they never had the issue with the number of parking space. He added it was never brought to his attention that it could have been something he could have requested. He stated that at the last zoning hearing board meeting he had explained that he was uncertain why he was present requesting a variance for the same number of parking spaces that he had previously. He indicated if he had been told or offered the nonconforming use as an option, he would have applied for it. Ms. Dice clarified that he stated that he has not used the patio area since he received a letter from the municipality and Mr. Moy answered affirmatively. He indicated it has not been used for serving customers other than when customers went out for their cigarettes. Ms. Dice questioned whether customers have taken drinks out on the patio with their cigarettes and Mr. Moy was uncertain but stated they try to police it. Ms. Dice inquired whether it has to remain open for fire issue reasons and Mr. Moy answered the side door cannot be locked. He stated they have signs indicating the patio is closed and it is a fire exit only but the door cannot be locked. Mr. Montgomery brought Mrs. Kelly Moy forward to give testimony. Mrs. Moy indicated that she lives at 6155 Bakers School Road in Trafford and she is vice president of Moy 4 Incorporated. Mr. Montgomery inquired whether she has any involvement with the Cody s Sports Bar that is operated by Moy 4 and Mrs. Moy answered affirmatively. Mr. Montgomery questioned whether she has any involvement in running the restaurant and Mrs. Moy explained she did but for the past year she has been separated from her husband and is not as involved.