IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steven J., Inc., : Appellant : : v. : : Salisbury Township Zoning : Hearing Board and : No. 2160 C.D. 2012 Salisbury Township : Argued: June 17, 2013 BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COVEY FILED: July 11, 2013 Steven J., Inc. (Steven J) appeals from the Lehigh County Common Pleas Court s (trial court) August 6, 2012 order affirming Salisbury Township s (Township) Zoning Hearing Board s (ZHB) decision rejecting Steven J s variance by estoppel claim. The sole issue for this Court s review is whether Steven J was entitled to a variance by estoppel. We affirm. Steven J purchased a vacant lot at 1493 East Emmaus Avenue (the Property) in an R-4 zoning district in the Township and sought a zoning permit to operate a group home at the Property. Under the Township s Ordinance, a group home was a permitted use in an R-4 district. On November 27, 2001, Township Zoning Officer Carl Best (Best) issued Steven J a zoning permit to operate a group home. Steven J constructed a building 34 feet by 100 feet, consisting of a basement and two floors of living space (6,800 square feet) that housed 8 bedrooms, a dining area and common areas for the residents. Following construction, on October 10,
2002, the Township s building code official issued Steven J a permit for the Property to be used as an Assisted Living Facilities Type 5B Group R-4, subject to the following conditions: 1. No more than eight (8) resident occupants are permitted to occupy the building. 2..... 3. All persons occupying the building must be transient in nature having the ability to exit the building in an emergency without assistance. Certified Record (C.R.) Item 7, Ex. A-28. After construction, Steven J applied to the ZHB for a special exception to use the Property as a personal care facility, and to permit more residents to live at the Property. Steven J also applied for a variance from the Township s building setback requirements. A hearing was held on January 7, 2003. By February 4, 2003 order, the ZHB granted the variance and the special exception for a personal care home subject to the following conditions: 1. The number of residents shall be limited to two (2) for each of the eight (8) bedrooms for a total number of sixteen (16), and no more. 2. [Steven J] shall install a sprinkler system observing the specifications set forth in the [Ordinance] including the [Township s] Building Code, Ordinance No. 1188-03 Chapter 5 and NFPA as adopted by the [Township] Section 13. If there is any dispute as to applicable standards, the matter shall be again referred to the ZHB[.] 3..... 4. [Steven J] shall accept a simultaneous revocation of the prior zoning permit to use the premises as a group home. C.R. Item 7, Ex. A-15 at 13. The facility was operated by Eastern Comfort Assisted Living II, Inc. (Eastern Comfort). In June 2003 and June 2004, the Department of 2
Public Welfare (DPW) issued Steven J certificates of compliance to provide personal home care services for up to 16 residents. Steven J maintains that during subsequent conversations between Steven J. Miga (Miga) 1 and Best, Best authorized the facility to operate without a sprinkler system and with 24 residents. On August 18, 2011, a civil enforcement notice was issued to Steven J for failing to install the sprinkler system and for having 24 residents at the Property in violation of the ZHB s February 4, 2003 conditions. Eastern Comfort appealed to the ZHB, seeking a variance from the ZHB s February 4, 2003 sprinkler conditions and resident cap on the basis that it was entitled to a variance on the theory of vested rights and/or variance by estoppel. 2 Hearings were held on November 1, and December 6, 2011. By January 3, 2012 order, the ZHB denied Steven J s variance from the ZHB s February 4, 2003 conditions. The ZHB concluded that the prior ZHB exercised due diligence when granting the special exception in 2003, and because this ZHB panel is still concerned with public safety, it was not willing to amend the 2003 conditions. Steven J appealed to the trial court. The Township joined the ZHB in defense of Steven J s action. The trial court heard argument on May 25, 2012. On August 6, 2012, the trial court denied Steven J s appeal on the basis that there was substantial evidence to support the ZHB s findings and, therefore, it did not err or abuse its discretion. Steven J appealed to this Court. 3 defense. 3 The Township again joined the ZHB s 1 Miga is president of both Steven J and Eastern Comfort. 2 The appeal also sought interpretation of the ZHB s February 4, 2003 decision; however, Steven J did not address that issue at the ZHB hearing. 3 When, as here, the trial court accepts no additional evidence in a zoning appeal, our review is limited to considering whether the zoning hearing board erred as a matter of law or abused its discretion. S. of S. St. Neighborhood Ass n v. Phila. Zoning Bd. of Adjustment, 54 A.3d 115, 119 n.1 (Pa. Cmwlth. 2012). An abuse of discretion occurs when the findings of the [ZBA] are not supported by substantial evidence. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Catholic Soc. Servs. Hous.
Steven J argues that Best gave it explicit approval, and the Township acquiesced in the use of the Property for 8 years with 24 residents and without a sprinkler system. We disagree. A variance by estoppel is one of three labels assigned in Pennsylvania land use/zoning law to the equitable remedy precluding municipal enforcement of a land use regulation. Our courts have generally labeled the theory under which a municipality is estopped: (1) a vested right where the municipality has taken some affirmative action such as the issuance of a permit; [(2)] a variance by estoppel where there has been municipal inaction amounting to active acquiescence in an illegal use; or, [(3)] equitable estoppel where the municipality intentionally or negligently misrepresented its position with reason to know that the landowner would rely upon that misrepresentation. Estoppel under these theories is an unusual remedy granted only in extraordinary circumstances and the landowner bears the burden of proving his entitlement to relief. Vaughn v. Zoning Hearing Bd. of the Twp. of Shaler, 947 A.2d 218, 224-25 (Pa. Cmwlth. 2008) (quoting Appeal of Kreider, 808 A.2d 340, 343 (Pa. Cmwlth. 2002) (citations and footnote omitted)). Municipal action that may underpin estoppel often embodies more than one category.... Kreider, 808 A.2d at 343 n.5. There are five factors relevant to whether a ZHB should grant a variance by estoppel. Such variances are appropriate when a use does not conform to the zoning ordinance and the property owner establishes all of the following: (1) a long period of municipal failure to enforce the law, when the municipality knew or should have known of the violation, in conjunction with some form of active acquiescence in the illegal use; (2) the landowner acted in good faith and relied innocently upon the validity of the use throughout the proceeding; (3) the landowner has made substantial expenditures in reliance upon his belief that his use was permitted; and (4) denial of the variance would impose an unnecessary hardship on the applicant. Corp. v. Zoning Hearing Bd. of Edwardsville Borough, 18 A.3d 404, 407 n.2 (Pa. Cmwlth. 2011) (citation and quotation marks omitted). 4
Pietropaolo v. Zoning Hearing Bd. of Lower Merion Twp., 979 A.2d 969, 980 (Pa. Cmwlth. 2009) (emphasis added) (quoting Borough of Dormont v. Zoning Hearing Bd. of the Borough of Dormont, 850 A.2d 826, 828 (Pa. Cmwlth. 2004)). 4 For [a]pplicants to prevail under a variance by estoppel theory, they must prove the essential factors by clear, precise and unequivocal evidence. Pietropaolo, 979 A.2d at 980. In Appeal of Crawford, 531 A.2d 865 (Pa. Cmwlth. 1987), this Court held that it may also consider whether there is sufficient evidence to show that the use is a threat to the public health, safety or morals. Id. at 868 (emphasis added). Finally, [variance by estoppel does] not attach where [t]he applicant deviates from that which has been approved by government officials. Randolph Vine Assoc. v. Zoning Bd. of Adjustment of Phila., 573 A.2d 255, 259 (Pa. Cmwlth. 1990) 5 (quoting Petrosky v. Zoning Bd. of the Twp. of Upper Chichester, 485 Pa. 501, 508, 402 A.2d 1385, 1389 (1979)). There is no proof in this record that the Township actively acquiesced in Steven J s illegal use. This Court has held: A violation of a condition attached to a special exception is the equivalent of a violation of the zoning ordinance for which the municipality may seek the imposition of fines or equitable remedies under Section 617 of the [Pennsylvania Municipalities Planning Code (MPC) 6 ], 53 P.S. 10617. 4 Except for the characterization of the municipal act that induces reliance, all three [estoppel] theories share common elements of good faith action on the part of the landowner: 1) that he relies to his detriment, such as making substantial expenditures, 2) based upon an innocent belief that the use is permitted, and 3) that enforcement of the ordinance would result in hardship, ordinarily that the values of the expenditures would be lost. Vaughn, 947 A.2d at 225 (quoting Kreider, 808 A.2d at 343). 5 Randolph is a vested rights case. However, because both vested rights and variance by estoppel share the good faith reliance element, this Court may extend Randolph s reasoning to this variance by estoppel case. 6 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. 10101-11202. 5
Kreider, 808 A.2d at 343 n.6. [M]ere knowledge of a violation of a zoning ordinance does not in and of itself prove that a municipality actively acquiesced in the use of the property. Spargo v. Zoning Hearing Bd. of the Municipality of Bethel Park, 563 A.2d 213, 217 (Pa. Cmwlth. 1989). [I]n cases where this Court granted a variance by estoppel, the municipalities did not passively stand by. Rather, they committed an affirmative act, for example, granting a building permit or reasonably leading a landowner to conclude his use was lawful. Pietropaolo, 979 A.2d at 981. Steven J specifically contends that the Township s knowledge of Steven J s use of the Property was evident from Miga s uncontested testimony that Steven J Br. at 7. prior to commencement of the use without the sprinkler system and by [24] residents he had specific direct conversations with [Best]. During those conversations... not only was [Best] consulted but he gave explicit permission for this use under these circumstances.... Thereafter, the fire department of the township conducted numerous fire drills at the facility with the absence of a sprinkler system and the presence of [24] residents conspicuously obvious. Miga related that because Steven J at some point was having difficulty covering its expenses with the residents social security income, he told Best that Steven J needed a minimum of 24 residents in order to survive, and asked Best what he needed to do. Miga claims Best told him, I don t see it to be a problem to put 24 beds in there.... [Y]ou have no problems, we haven t had no complaints.... [I]f there s something that comes up, I m in charge of this department, I ll handle it. So I say, okay, fine. Reproduced Record (R.R.) at 37; see also R.R. at 42. Miga explained that Best told him that Steven J would have to be appropriately licensed by DPW for 24 residents. According to the record, in June 2005, DPW issued Steven J a certificate of compliance to provide personal home care services for up to 24 6
residents. 7 Miga testified that he thought Steven J was in compliance, and it has housed 24 residents at its facility since 2005. Miga did not call Best to testify. According to the record, at the January 7, 2003 hearing, then-zhb member Edward J. Minger, Jr. (Minger), who had a 30- year health care background, stated that there should be no more than two residents per room: Any more than two people in a bedroom is cruel and unusual punishment.... Four [is] out of the question.... Way too many, regardless of the size of the room. Two per room, period. ZHB Br. App. C at 1. Steven J did not appeal the ZHB s February 4, 2003 decision. Relative to the sprinkler system, Miga recounted that Steven J submitted its plans to the Department of Labor and Industry (Department) in September 2002. By November 4, 2002 letter, the Department notified Steven J that due to the construction type of Steven J s building, no sprinkler system was necessary. See C.R. Item 7 Ex. A-39. The Department approved Steven J s plans on November 7, 2002, conducted a field inspection on November 25, 2002, and then issued an occupancy permit stating, inter alia, that the building has been found to be in compliance with the Fire and Panic Law [Act of April 27, 1927, P.L. 465, as amended]).... Approval is for... C2 Group Habitation. C.R. Item 7, ZHB Ex. A-40. Miga testified that after the ZHB s February 4, 2003 decision, he gave Best the Department s documentation. According to Miga, Best said, that would be fine for the record. R.R at 28. Miga did not offer Best as a witness. In addition, Miga produced copies of reports demonstrating that Eastern Salisbury Township Fire and Ambulance Company conducted inspections of the facility in December 2008, January 2009, and February 2010, and that the Allentown Fire Department conducted a fire drill on May 7 DPW issued annual certificates of compliance to Steven J from June 2005 through December 2010 (effective through December 2011) to provide personal home care services for up to 24 residents. 7
31, 2011. 8 Miga stated that Steven J never hid the fact that there was not a sprinkler system at the facility. At the January 7, 2003 hearing, Minger stated: Not having a sprinkler system in... a wood framed building, that s criminal. ZHB Br. App. C at 1. Minger continued: You re talking about people who are going to move around pretty slow. And you re going to want to pour a lot of water on them so they don t burn up. And stuff happened in places like this. They don t remember what they plugged in. They don t remember what they unplugged, what they walked behind, if they dropped something. You want to be extra safe. So at a minimum, you need a sprinkler system in. ZHB Br. App. C at 1-2. Also at that January 7, 2003 hearing, Best stated: The only thing I m uncomfortable with is the sprinkler system. If the fire code does not require it, are we still requiring it? ZHB Br. App. C at 2. Then, the ZHB members publicly voted in favor of requiring the sprinkler system. See ZHB Br. App. C at 2. Despite hearing the ZHB and Best s statements, Miga did not bring the Department s determination to the ZHB s attention at that time or appeal from the ZHB s sprinkler condition. The ZHB found concerning the instant case: 14. The [ZHB] does not accept Miga s explanation of events. Miga omitted important information in his testimony which the [ZHB] believes relevant..... 8 According to Diane Deemer (Deemer), Eastern Comfort s administrator, Eastern Salisbury Township Fire and Ambulance Company conducted the drills at the facility for nearly 10 years but, in 2011, claimed that it was unable, due to liability issues, to continue conducting them. Therefore, Deemer contacted the Allentown Fire Department to conduct the 2011 drill. On behalf of the Eastern Salisbury Township Fire and Ambulance Company, Dave Thompson testified that the company s insurance carrier urged it to stop its inspections/drills because it is operated with volunteers who are not trained to conduct them. 8
24.... The [ZHB] believes that Steven J. decided to disregard the conditions contained in the Decision of February 4, 2003. The building was up and running. The installation of a sprinkler system represented a retrofit. Steven J. took that path of least resistance to the detriment of the citizens of Salisbury. [9] 25. The testimony of Miga is equivocal. His explanation of what [Best] allegedly said does not contain any representation by Best that he, Best, had authority to alter the Decision of the [ZHB] entered on February 4, 2003. Saying I do not see a problem is equivocal at best. Given the inconsistencies in the testimony of Miga, the [ZHB] does not accept Miga s explanation of events. Even if Miga s testimony is accepted as true, Best had no authority to alter the Conditions imposed by the [ZHB] in its Decision of February 4, 2003. Miga knew as much. 26. The alleged conversations between Best and Miga took place according to Miga shortly after the [ZHB] Decision of February 4, 2003. It is obvious that Miga knew that the jurisdiction for imposition of conditions relating to special exception approval was with the [ZHB], and any alteration, likewise was with the [ZHB]. It is the [ZHB] that imposed the conditions, and only the [ZHB] has the authority to waive or amend such conditions. 27. The [ZHB] believes and therefore finds that Miga knew that Best had no authority to waive the conditions imposed by the [ZHB] in its Decision of February 4, 2003[.].... 29. The representations by Miga are not consistent with the exhibits submitted. 9 Although the ZHB members that rendered the January 3, 2012 decision differed from those who issued the February 2003 decision, they had similar concerns about the sprinkler system based upon testimony provided at the December 2011 hearing. Fire Chief Clint Ballek testified that due to the nature of the care provided at the facility he would recommend use of a sprinkler system, particularly since the facility s alarm system is not monitored and the wood frame building could fail quickly. Objector Patricia Yemm further contended that she has witnessed at least one of the facility s residents who is not mobile and requires the use of a mobility chair, which could make evacuation difficult. 9
R.R. at 8, 10-12. In a land use proceeding, the [ZHB] is the ultimate fact-finder and the exclusive arbiter of credibility and evidentiary weight. Joseph v. N. Whitehall Twp. Bd. of Supervisors, 16 A.3d 1209, 1218 (Pa. Cmwlth. 2011). [A]n appellate court may not substitute its interpretation of the evidence for that of the [ZHB]. Assuming the record demonstrates the existence of substantial evidence, the Court is bound by the [ZHB] s findings which are the result of resolutions of credibility and conflicting testimony rather than a capricious disregard of evidence. The [ZHB], as fact finder[,] has the power to reject even uncontradicted testimony if the [ZHB] finds the testimony to be lacking in credibility. Vanguard Cellular Sys., Inc. v. Zoning Hearing Bd. of Smithfield Twp., 568 A.2d 703, 707 (Pa. Cmwlth. 1989)(citation omitted). The ZHB concluded that Miga s testimony regarding Best s purported authorizations was not credible, and the trial court found no reason to overturn the ZHB s interpretation. Relative to the sprinkler system, the trial court found that although the record indeed demonstrates that the facility was subjected to annual fire drills and was licensed by the fire inspector, and Steven J was not cited by the fire inspector for operating with 24 residents and no sprinkler system, Steven J was nevertheless aware that the ZHB s conditions were not imposed to pass inspection, but rather specifically for the special exception in the interests of public safety. The trial court concluded that the facility could simultaneously pass a fire inspection and still violate the ZHB s conditions. Concerning the number of residents, the trial court likewise found that Steven J was fully aware of the ZHB s position and that compliance with DPW s standards for the number of residents did not nullify the ZHB s 2003 16-resident cap. Finally, the trial court noted that the ZHB s February 4, 2003 decision expressly 10
stated that any disputes should be referred to the ZHB. concluded: Thus, the trial court C.R. Item 15 at 13. [T]here is nothing in the record to support that the Township actively agreed to allow the building to operate without a sprinkler system or with the increased number of residents.... The record supports the [ZHB s] finding that there was no evidence of the active acquiescence and, accordingly, the [ZHB] did not abuse its discretion in making such a determination. The MPC gave the ZHB, not Best, the authority to approve Steven J s special exception. The ZHB was entitled to impose reasonable conditions, which it did, based upon its concern for the residents safety. Section 909.1(a)(6) of the MPC, added by Section 87 of the Act of December 21, 1988, P.L. 1329, 53 P.S. 10909.1(a)(6); Edgmont Twp. v. Springton Lake Montessori Sch., Inc., 622 A.2d 418 (Pa. Cmwlth. 1993). Steven J, through Miga, knew of the Board s conditions and the purposes behind them. Whether or not Miga discussed the matter with Best in 2005, Miga knew as early as the January 7, 2003 hearing that the ZHB would not allow any more than 16 residents at Steven J s facility. Likewise, whether or not Miga discussed the sprinkler system with Best, Miga knew from the January 7, 2003 hearing that the ZHB imposed the sprinkler system regardless of the fire code s requirements, in order to protect the facility s residents. Steven J never disputed the conditions, nor directly notified the ZHB of its desire to change the conditions. Nor did Steven J present any evidence that either Eastern Salisbury Township Fire and Ambulance Company or the Allentown Fire Department were agents of the ZHB or the Township such that the fire department s purported awareness of Steven J s violation of the ZHB s conditions could be imputed to the ZHB or the Township. 11
Because Steven J failed to prove this essential factor by clear, precise and unequivocal evidence, it is not entitled to a variance by estoppel. 10 Thus, the trial court properly affirmed the ZHB s decision rejecting Steven J s variance by estoppel claim. The trial court s order is, therefore, affirmed. ANNE E. COVEY, Judge 10 Since all five factors must be satisfied, the other four factors need not be addressed. 12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steven J., Inc., : Appellant : : v. : : Salisbury Township Zoning : Hearing Board and : No. 2160 C.D. 2012 Salisbury Township : O R D E R AND NOW, this 11 th day of July, 2013, the Lehigh County Common Pleas Court s August 6, 2012 order is affirmed. ANNE E. COVEY, Judge