IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Zimliki and Lana Zimliki :

:

v. : No. 428 C .D. 20 1 5

: Submitt ed: September 17, 2015 New Brittany II Homeowners’ : Association, :

Appellant :

BEFORE: HONORABLE DAN PELLEGRINI, President Ju dge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI FILED: October 15, 2015

The New Brittany II Homeowners’ Association (Association) 1 appeals

from an order of the Court of Common Pleas of York County (trial court) granting

Dr. David and Lana Zimliki’s (Homeowners) request for declaratory judgment and

finding them in compliance with the Association’s Declaration of Restrictions,

Covenants and Conditions (Declaration). For the reasons that follow, we affirm.

1 We presume that the Association is a non

- profit corporation organized pursuant to the Uniform Planned Community Act. Act of December 19, 1996, P.L.1336, 68 Pa. C.S. §§5101

- 5414.2 The Declaration sets forth the process homeowners are required to

follow when they wish to commence construction or improvements on their

property. The Association administers the Declaration, whi ch is applicable to the

homes in the subdivision. Under the Declaration, only garages that are attached to

a dwelling and only such accessory structures that are not used for storage and that

are deemed acceptable by the Design Review Committee (Committee ) are

permitted. 2 Homeowners own a home in the New Brittany II subdivision and are

bound by the Declaration.

In June 2011, Homeowners applied to Manchester Township for a

building permit to erect a “detached garage” on their property. (Reproduced

Recor d (R.R.) at 138a.) Manchester Township issued Homeowners the building

permit to construct a detached “[a]ccessory structure (garage)

. ” ( R.R. at 140a.)

2 The relevant provision in the Declaration states:

2. Review and Approval Required. Before the commencement of construction of any structures or other improvements on any Lot or any portion of the land included in the Property, all plans and specifications pertaining to buildi ng and site design and the construction of any such improvements, including subsequent additions and alterations or site improvements, shall be subject to review and prior written approval by the Committee. All decisions

of the Committee shall be final an d not subject to review by any court, unless clear and convincing evidence shows that the Committee willfully and arbitrarily violated this Declaration in rendering any such decision. Construction shall be performed only in accordance with the plans and s pecifications actually approved by the Committee.

(R.R. at 150a.)3

D r. Zimliki then wrote to the Assoc iation 3 informing it of their plan to build a

“garage” and providin g it with specifications and sketches of the proposed

structure. 4 (R.R. at 141a.) The structure was to be 24 feet by 24 feet , with two

large overhead doors and located at the end of Homeowners’ driveway facing the

street. Moreover, the material s used to construct the structure w er e to exactly

match the brand, color, size and shape of materials used in building Homeowners’

house as well as the house’s design.

The relevant provisions in the Declaration that apply are contained in

a subsection to Article II (“Architectural Requiremen ts and Controls ” ), Section A

(“Design, Review and Approval”), and provide the following:

2. Accessory Buildings; Playground Equipment. No detached storage sheds or utility buildings may be

3 The body of the letter provides:

As you may have noted the shed previously on my property has been sold and removed from the property. I have contacted a highly recommended local contr actor Wood Originals Inc. (woodoriginalsinc.com) from Bethel, PA to build a garage in lieu of the previous shed. Every material used to construct the garage will be of the exact brand, color, size and shape of the materials

used in the construction of our house. As well the design of the garage mimics the design of the current house. I have attached some sketches of the garage as well as some examples of Wood Originals [sic] structures of similar characteristics. All township

criteria have been met and approved....

(R.R. at 141a.)

4 The Association notes in its brief that, “The letter/application references the structure as a ‘garage’ four times.” (Brief of Appellant at 5) (citations omitted).4 constructed or placed on any Lot. O ne accessory building per Lot for purposes other than storage may be permitted in the discretion of the Committee only (a) if the design of such building and materials utilized in the construction of such building match exactly the design and materials uti lized in the dwelling house located on such Lot, and (b) if such building is located within the setback lines applicable to the dwelling house located on such Lot. Playground equipment may be approved by the Committee upon submission of plans fully detail ing the proposed equipment.

* * *

8. Garages. Each L ot on which a house is constructed shall also have constructed on such Lot an attached

garage for the storage of at least two motor vehicles, but not more than four (4).

(R.R. at 153a ) (empha sis added).

Following a meeting, the Association denied Homeowners’

application, disallowin g the building of the structure presumably because the

Declaration only allowed garages that were attached to a house. In July 2011, D r.
Zimliki appeared at an As sociation meeting to discuss plans for building the

structure, which had not yet been approved by the Committee. The Association

neither approved Homeowners’ proposed structure nor reconsidered the previous

denial.

Notwithstanding that under the by

- laws that before anything can be

constructed it must receive approval of the Committee, i n September 2011,

Homeowners built t he structure as proposed in their application without the5

Association’s approval. In April 2012, the Association’s counsel sent

Homeow ners a letter asking them to comply with the Declaration. Homeowners

then sought declaratory judgment. 5

Before the trial judge, 6 Dr. Zimliki testified that the structure’s use

was not as a garage , the use he originally received approval for from Manches ter

Township and the proposed use he sought the Committee to approve, but was used

as a woodworking workshop where he enjoys restoring clocks, building furniture

and undertaking other woodworking projects. He also testified that the structure’s

large, ove rheard, garage

- style doors are not used for the purpose of allowing motor

vehicles to go in and out of the structure, but rather to allow for the easy entry and

exit of large woodworking equipment and materials.

Dr. Zimliki further testified that he made sure that the materials used

and design for the structure were an exact match to those of his house.

Homeowners’ witnesses all testified that the structure was used for recreation and

entertainment as both Homeowners’ family, as well as friends and neigh bors use

the structure to watch television, play video games and host parties. Homeowners’

5 On appeal

, no one challenges the jurisdiction of the tria l court to hear the d eclaratory

a ction before the Committee had rendered a decision. We note that if the Committee had been allowed to exercise its powers under the Declaration, the standard would go to whether it exercised its discretion in good faith. 68 Pa. C.S. §5113. (“ Every contract or duty governed by this subpart imposes an obligation of good faith in its performance or enforcement. ”)

6 Homeowners both testified

, a s did Joshua and Christina Warfel, Homeowners’ next door neighbors; Paul Delmonte, Homeowners’ other next door neighbor; Jeffrey Henry, a Board Member of the Association; and Thomas Pendergast, an individual who does not own property in

the subdivision but has a real estate interest in the subdivision.6

witnesses also testified that the structure was never used for storage, maintenance

or repair of motor vehicles. Meanwhile, the Association’s witnesses admitted th at

they had never been inside of the structure and had no personal knowledge of the

structure’s actual use.

Not remanding to allow the Committee to consider the matter, t he trial

court found that Homeowners are in compliance with the Declaration as the

s tructure is no t a garage or a storage area, but rather is used as a workshop, an

entertainment area and a recreational building

. 7 In making its decision, the trial

court found that although the structure has two overhead garage style doors and sits

at the end of a portion of the driveway, the structure does not look like a garage

and

, moreover, the exterior of the structure is not determinative of what it actually

is

. 8 The court also noted that there is no evidence that vehicles have ever been

stored, rep aired or maintained in the structure. Lastly, the court found that

although there is some storage in the structure, the storage is incidental to the use

and purpose of the structure as a w orkshop and entertainment area and it is not

indicative of the natu re of the structure. The Association appealed

. 9

7 The trial court noted that ther e is a stereo, a refrigerator and two ceiling fans in the structure and that portions of the structure are carpeted.

8 In further establishing its point, the trial court discussed examples of restaurants (namely Quaker Steak and Lube and Motor Supply Comp any) that have the appearance of vehicle repair shops on the outsides despite being restaurants.

9 “Our standard of review in a declaratory judgment action is limited to determining

whether the trial court ’ s findings are supported by substantial evidence, whether an error of law
was committed or whether the trial court abused its discretion.” Yost v. McKnight , 865 A.2d 979, 982 n. 6 (Pa. Cmwlth. 2005).7 On appeal, the Association only argues that trial court erred in

concluding that the structure in question is in compliance with the Declaration

. It

contends that the structure violates the Declaration’s type and use restrictions, as

the Declaration prohibits the building of detached garages and the building of

storage str

uctures

, and that Homeowners’ structure violates both restrictions as the

structure appears to be a detached garage and is used for stor age. T he Association

argues that the restriction under Section 2 of the Declaration is both a type and a

use restriction. Specifically, it contends that there is type restriction given that the

Committee must approve the aesthetic qualities of the struct ure and a use

restriction because the stru cture cannot be used for storage

.

We agree with the Association that Section 2 prohibits using a

supplemental structure for storage purposes. This prohibition is clear as the

Declaration explicitly disallows “st orage sheds” and allows accessory buildings

only if used “for purposes other than storage.” However, the Declaration does not

set forth any further limitations on the characteristics of the permissible accessory

structure, other than the design and materi als used for its construction must match

the design and materials used in the dwelling house on the property, that the

structure must be located within certain property lines, and that it must be

approved by the Committee.

The Association next argues tha t the restriction under Section 8 of the

Declaration is a type restriction. That is, the restriction prohibits detached garages.

The Association argues that the structure’s outward appearance, its two overhead

garage doors that are identical to the doors on Homeowners’ attached three car8

garage and its location at the end of the driveway, establish that it is a detached

garage. However, while if it w as used as a detached garage

, the Association ’s

argument would have some merit . T he evidence accepted by the trial court is that

the structure is not being used as a garage. If it is so used in the future, the

Association can bring an action to foreclose such a use.

Homeowners’ structure conforms to the specifications set forth in

Sections 2 and 8 of the D eclaration. The Declaration fails to define “accessory

building” or “garage” in any way except that the former may not be used for

purposes of storage and the latter may not be used to store less than two or more

than four cars. The only restrictions on the outward appearance of the accessory

structure is that it must “exactly match” the design and materials of the dwelling

house. Homeowners’ structure is used primarily for woodworking and recreational

purposes, and any storage in the structure is a bypr oduct of the woodworking and

recreational activities ; thus, it conforms to the use restrictions set forth

. The

exterior of the structure exactly matches the exterior of Homeowners’ house in

both the design and materials used. Although the structure may r esemble a garage

on the outside given its two large overhead doors , it is not u sed for the storage of

any car as prohibited by the Declaration. Thus, it conforms to the Declaration’s

type restrictions.9 A ccordingly , we affirm the trial court’s order.

___________________________________ DAN PELLEGRINI, President Judge

Judge Cohn Jubelirer concurs in the result only.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Zimliki and Lana Zimliki :

:

v. : No. 428 C.D. 2015

: New Brittany II Homeowners’ : Association, :

Appellant :

O R D E R

AND NOW, this 15 th day of October , 2015, the order of the Court of

Common Pleas of York County dated January 13, 2015 , at No. 2012

- SU

- 00 4002

-
44, is affirmed.

_______________________ ____________ DAN PELLEGRINI, President Judge