IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Zimliki and Lana Zimliki :

:

v. : No. 428 C.D. 2015

: Submitted: September 17, 2015

New Brittany II Homeowners’ :

Association, :

Appellant :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

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)1appeals 

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, which 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 

Record (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 building 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 and 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 specifications actually approved 

by the Committee.

(R.R. at 150a.)
3

Dr. Zimliki then wrote to the Association3informing it of their plan to build a 

“garage” and providing 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 materials used to construct the structure were 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 Requirements 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 contractor 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. One 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 utilized 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 detailing 

the proposed equipment.

* * *

8. Garages. Each Lot 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) (emphasis added).

Following a meeting, the Association denied Homeowners’ 

application, disallowing the building of the structure presumably because the 

Declaration only allowed garages that were attached to a house. In July 2011, Dr. 

Zimliki appeared at an Association 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, in September 2011, 

Homeowners built the structure as proposed in their application without the 
5

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

Homeowners 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 Manchester 

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, overheard, 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 neighbors use 

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

 

5 On appeal, no one challenges the jurisdiction of the trial court to hear the declaratory 

action 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, as 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 that 

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, the trial 

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

structure is not 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, repaired 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 workshop and entertainment area and it is not 

indicative of the nature of the structure. The Association appealed.

9

 

7

The trial court noted that there 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 Company) 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 structures, and that Homeowners’ structure violates both restrictions as the 

structure appears to be a detached garage and is used for storage. The 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 structure and a use

restriction because the structure 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 “storage 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 materials 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 that 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 car 
8

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

garage. However, while if it was used as a detached garage, the Association’s

argument would have some merit. The 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 Declaration. 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 byproduct 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 resemble a garage 

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

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

type restrictions.
9

Accordingly, 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 15th day of October, 2015, the order of the Court of 

Common Pleas of York County dated January 13, 2015, at No. 2012-SU-004002-

44, is affirmed.

___________________________________

DAN PELLEGRINI, President Judge