IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank M. Sajer and :

Constance Coyne Sajer, :

:

Appellants :

:

v. : No. 265 C.D. 2018

: ARGUED: December 13, 2018

Zoning Hearing Board of Hampden :

Township :

:

v. :

:

Township of Hampden :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: February 21, 2019

Frank M. Sajer and Constance Coyne Sajer (Neighbors) appeal from 

the order of the Court of Common Pleas of Cumberland County affirming the order 

of the Hampden Township Zoning Hearing Board (Board). In this unusual case, 

there was no action by the Hampden Township Zoning Enforcement Officer (Zoning 

Officer) from which Neighbors appealed—rather, their appeal concerns the inaction 

of the Zoning Officer with regard to a neighboring landowner’s construction and 

excavation work without a zoning permit and the attendant permitting procedures 

required by the Hampden Township Zoning Ordinance (Ordinance).

1 The Board 

 

1 The Ordinance provides in relevant part as follows: 
2

has not participated in the appeal to the trial court or this Court; Hampden Township 

has intervened. 

Neighbors own a property sharing a rear property line with Robert 

Beaudry (Landowner), who has not been a party to, or participated in, Neighbors’ 

appeal.2 Landowner’s property is in a residential zoning district under the 

Ordinance. In June 2016, Landowner applied for and received from the Township’s 

engineering department a permit allowing him to build a four-foot high concrete 

block retaining wall, with the addition of fill to raise the grade next to Neighbors’ 

property. (Reproduced Record “R.R.” at 3a-20a.) The permit also approved the 

installation of a six-foot high vinyl fence on top of the retaining wall and a storm 

 

The Board shall hear and decide appeals where it is alleged by the 

appellant that the Zoning Officer has failed to follow prescribed 

procedures or has misinterpreted or misapplied any provision of a 

valid ordinance or map or any valid rule or regulation governing 

the action of the Zoning Officer. Nothing contained herein shall be 

construed to deny to the appellant the right to proceed directly to 

court where appropriate. 

Hampden Township Zoning Ordinance (Ordinance), § 2201.B (relating to appeals) (emphasis 

added). “Appellant” is not defined by the Ordinance. See also Sections 909.1 and 913.3 of the 

Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 

53 P.S. §§ 10909.1(a)(3) (relating to the jurisdiction of the zoning hearing board to hear appeals 

from the “failure to act on the application therefor [i.e., for a permit]”) and 10913.3 (relating to 

parties appellant before the zoning hearing board, including “any person aggrieved”). Section 

909.1 and 913.3 of the MPC were added by the Act of December 21, 1988, P.L. 1329. 

2 Neighbors state that Landowner was given notice of the proceeding before the Board. 

Landowner was not present at the hearing and did not participate in the appeals below or before 

this Court. However, Landowner’s professional engineer attended the Board’s hearing in this 

matter, refusing to testify when asked. 
3

water drain system. (Id.) No separate zoning permit for the excavation and retaining 

wall and fence was issued by the Zoning Officer.3

After commencement of Landowner’s project, Neighbors filed an 

application/appeal to the Board claiming both the project and the permitting process 

violated the Ordinance. The Board held a hearing on Neighbors’ appeal in October 

of 2016. Before the Board, Darrell McMillan, Director of Community Development 

and Assistant Zoning Officer, testified for the Township. McMillan testified that the 

custom in the Township is for a landowner who wishes to build a retaining wall to 

apply to the Township engineering department for a single permit. McMillan 

testified that the single or combination permit functions as both a building permit 

and a zoning permit, without application to the Zoning Officer. McMillan further 

testified that the application for the combination permit contains everything required 

on a zoning permit application form, and thus the zoning permit was contained 

within the permit obtained by Landowner. A detailed engineer’s drawing was 

 

3 The permit is numbered 7061 and is prominently captioned “CERTIFICATE OF 

OCCUPANCY” in large type at the bottom of the page. The document states as follows: 

FINAL INSPECTIONS: It is the applicant’s responsibility to notify 

the Township for a final building inspection when permitted work 

is completed. All final lot grading shall meet the requirements of 

Section 507 of the Hampden Township Land Development 

Ordinance.

(R.R. at 3a). In a box marked “REVIEW,” the permit also states as follows: 

This permit has been issued after reviews under the requirements of 

the UCC and the IRC 2009. Per section 403.66 of the UCC a 

building, structure or facility may not be used or occupied without a 

Certificate of Occupancy Issued by a Building Code Official. Per 

Section 403.45 of the UCC a Construction Code Official shall make 

the required inspections to comply with the UCC. 

(Id.) 
4

submitted with Landowner’s permit application. The Township requires an applicant 

to pay a zoning permit fee, and Landowner did so. The permit is not signed by the 

Zoning Officer. McMillan did not inspect the property before or during construction, 

but did so a few weeks prior to the Board’s hearing. McMillan reviewed the 

application, but it appears that his review also took place after the construction of 

the wall. With regard to the height of the retaining wall and fence, McMillan

testified that under the Ordinance there is no limitation on the height of retaining 

walls holding back earth and that the fence erected by Landowner, while taller than 

the one specified in the permit, was compliant with the Ordinance. 

The retaining wall, fence, and storm drain were built and additional fill 

beyond that specified in the building application was used. The changes in 

Landowner’s property altered the flow of storm water, creating erosion problems for 

Neighbors. After construction and before the hearing, McMillan found that the 

storm drain, which was part of the permit application, violated the Ordinance by 

directing a discharge of water onto adjoining property. As a result, Landowner was 

directed to block the storm drain, and he did so. 

The Board delivered a Decision in December 2016 denying Neighbors’

appeal. Neighbors filed a land use appeal to the trial court, which accepted briefs 

and held argument but did not take additional evidence. The trial court affirmed the 

decision of the Board and Neighbors appealed to this Court. On appeal,4 Neighbors 

 

4 Where the trial court does not take additional evidence, our scope of review is limited to 

determining whether the zoning hearing board abused its discretion or committed an error of law. 

Tink-Wig Mountain Lake Forest Prop. Owners Ass'n v. Lackawaxen Twp. Zoning Hearing Bd., 

986 A.2d 935, 939 n.2 (Pa. Cmwlth. 2009). This Court may conclude that the governing body 

abused its discretion only if its findings of fact are not supported by substantial evidence. Id. 

Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion. Id.
5

assert that the single-permit procedure violated the Ordinance, by the fact that the

Zoning Officer did not inspect the property before construction or issue a zoning

permit; that the construction was non-compliant with the Ordinance in various 

respects such that a variance was required; and that the Board exhibited bias in its 

procedures. 

To begin, despite the conclusions of the Board and the arguments of the 

Township, it would appear quite clear that the current zoning permitting process for 

erecting retaining walls in Hampden Township is not compliant with the Ordinance 

and the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, 

P.L. 805, as amended, 53 P.S. §§ 10101 - 11202. As the trial court noted, Section 

1708(7) of the Ordinance provides that “[a] Zoning Permit shall be acquired for all 

fences and walls in accordance with requirements of Section 2204.” Section 2204 of 

the Ordinance provides in relevant part as follows: 

1. Requirement of Permits. A zoning permit shall be 

required prior to the erection, addition or alteration of 

any . . . structure . . . .

2. Application for Permits. All applications for permits 

shall be accompanied by a plan . . . . One copy of the 

plans shall be returned to the owner when the plans

[sic] are approved by the Zoning Officer or other 

appropriate person or body . . . .

3. Issuance of Permits. No permit shall be issued until the 

Zoning Officer has certified that the proposed use of 

land, building, addition, or alteration complies with all 

the provisions of this Chapter, as well as with all the 

provisions of any existing or hereafter enacted 

Building Permit Ordinance or other ordinance or 

provision thereof pertaining to building permits . . . . 

The applicant and owner shall comply with all terms 

and conditions of any zoning permit issues [sic] and 

failure to do so shall constitute a violation of this 

Section. 

Ordinance, § 2204 (relating to permits) (emphasis added). 
6

Further, Section 614 of the MPC provides in relevant part as follows: 

The zoning officer shall administer the zoning ordinance 

in accordance with its literal terms, and shall not have the 

power to permit any construction or any use or change of 

use which does not conform to the zoning ordinance.

53 P.S. § 10614 (relating to appointment and powers of zoning officer) (emphasis 

added). Section 2203 of the Ordinance provides in relevant part as follows: 

It shall be the duty of the Zoning Officer, and he is hereby 

given the necessary power and authority to enforce the 

provisions of this Chapter. The Zoning Officer shall 

examine all applications for permits, issue permits for 

construction and uses which are in accordance with the 

requirements of this Chapter [and] record and file all 

applications for permits with accompanying plans and 

documents . . . .

Ordinance, § 2203 (emphasis added). While the Township argues that requiring 

separate building and zoning permits is unnecessary and wasteful, it appears to be a 

clear requirement of the Ordinance.

The issue concerning the lack of a pre-construction inspection is less 

clear. It should be noted that Section 2208 of the Ordinance, cited by Neighbors, 

does not necessarily require an inspection prior to issuance of a permit or afterwards. 

Section 2208 provides in relevant part as follows: 

1. It shall be the duty of the Zoning Officer or his duly 

appointed representative to make such inspections of 

the property for which a zoning permit has been issued 

as necessary to assume [sic] compliance with such 

permit and this Chapter. 

2. At the beginning of construction, a record shall be 

made indicating the time and date of the inspection and 

the findings in regard to conformance of the 

construction with plans submitted with the application 

for the permit. 
7

3. If the actual use or construction does not conform with

the Zoning Permit, a written notice of violation shall be 

issued by the Zoning Officer, or his duly appointed 

representative, and construction shall be discontinued. 

Upon proper correction of the violation and receipt of 

written notice from the Zoning Officer, or his duly 

appointed representative, construction may proceed. 

4. At the completion of construction, a record shall be 

made indicating the time and date of the inspection, the 

findings of the Zoning Officer or his duly appointed 

representative in regard to the issuance of a certificate 

of use. 

Ordinance, § 2208 (relating to inspection and enforcement) (emphasis added). 

Subsection 1 requires inspections only “as necessary to assume [sic] compliance” 

with a permit; subsection 2, while requiring that at the beginning of construction a 

record be made of the time and date of the inspection, does not expressly require that 

an inspection be done; subsection 3 is contingent upon the actual use or construction 

not conforming to the permit during construction; and subsection 4, like subsection 

2, requires a record of an inspection to be made (in subsection 4, at the end of 

construction), but does not require an inspection to be done. That said, if the 

authority to inspect and enforce is permissive, it certainly presupposes the issuance 

of a zoning permit – which is mandatory. The Township’s preferred procedure of 

relieving the Zoning Officer of the duty to review and issue a zoning permit for 

retaining walls certainly would appear to diminish the likelihood that he would 

become involved in the process by exercising his discretion regarding the need to

inspect the property. Moreover, McMillan did not testify that he failed to inspect the 

property prior to construction because he found it unnecessary; he was not asked that 

question. McMillan simply testified that he had not inspected the project until after 

it was completed.

Nevertheless, the excavation is complete and the retaining wall and 

fence have been erected. Even though we cannot condone the Township’s use of a 
8

procedure which violates its own ordinance, in light of the accepted testimony that 

all the requirements of a zoning permit were included in the dual purpose building 

permit, to send the case back for re-permitting alone, at this point, would be 

pointless. Moreover, to do more, i.e., to require the demolition of an existing

structure because of a defective permitting process, particularly when Landowner 

has complied with all the Township has required of him, would be manifestly unjust. 

With respect to the claim that variances were required, we note that 

most of Neighbors’ arguments relate to requirements that are subject to 

interpretation, such as from what angle to measure the height of a wall or what height 

a retaining wall needs to be in order to “hold back an earthen berm,” and are clearly 

based upon Neighbors’ characterization of the evidence—which interpretations and 

characterizations were not accepted by the Board. McMillan testified that the 

structure was currently compliant with the Ordinance, and the Board and trial court 

agreed. Given the necessary deference which must be given to the Board as the entity 

responsible for the interpretation and application of the Ordinance, see Walck v. 

Lower Towamensing Township Zoning Hearing Board, 942 A.2d 200, 209 (Pa. 

Cmwlth. 2008), we cannot say that these findings were erroneous, with one 

exception. 

The only manner in which the construction of the retaining wall and 

fence clearly appear to be in violation of the Ordinance is in relation to impervious 

surface cover. As a result of the project, the impervious surface cover on 

Landowner’s property was increased from 38.4% to 39.1%, while the Ordinance 

limits such cover to 30%. Evidently the 38.4% level occurred when a swimming 

pool was built on Landowner’s property in 1986. It is not clear whether the 

Ordinance language or only its interpretation was changed after the pool 

construction, but the testimony reflects that when the pool was put in, “swimming 

pool water surfaces were not considered coverage . . . .” (Notes of Testimony “N.T.” 
9

at 103; R.R. at 150a). In any case, the pool construction was approved as compliant 

when it occurred, and the current increase from the preexisting nonconformity was 

only seven tenths of 1%. We find this .7% increase to the existing cover to be de 

minimis, if not subject to the general doctrine of variance by estoppel, specifically 

the aspect of the doctrine known as vested rights. The retaining wall and fence were 

built with the approval of the Township in accordance with its procedures and found 

to be compliant by the zoning authorities and the Board.

5 Accordingly, we must 

reject Neighbors’ arguments concerning a need for a variance.

Finally, Neighbors complain that the Board exhibited bias against them 

because it imposed certain limitations on the presentation of evidence. It is not clear 

what evidence Neighbors believe to have been precluded, let alone that its exclusion

would have been so significant as to have denied them a fair hearing. With few 

formal requirements under Section 908 of the MPC, zoning boards have broad 

 

5 The de minimis doctrine is a narrow exception to the burden a party seeking a variance must 

normally bear. Pequea Twp. v. Zoning Hearing Bd. of Pequea Twp., 180 A.3d 500, 504 (Pa. 

Cmwlth. 2018). It may be applied where (1) only a minor deviation from the zoning ordinance is 

sought and (2) rigid compliance with the ordinance is not necessary for the preservation of the 

public interests sought to be protected by the ordinance. Id. The determination of whether or not 

the de minimis doctrine applies requires careful consideration of both of these factors. Id.

Variance by estoppel refers to a group of equitable doctrines in Pennsylvania land use/zoning 

law which preclude municipal enforcement of a land use regulation. Variance by estoppel may be 

applied where the municipality has taken an affirmative action such as issuing a permit (“vested 

right”); has actively acquiesced in an illegal use through its inaction (“variance by estoppel”); or 

has intentionally or negligently misrepresented its position with reason to know that the landowner 

would rely upon that misrepresentation (“equitable estoppel”). In re Kreider, 808 A.2d 340, 343 

(Pa. Cmwlth. 2002). The doctrines share common elements of good faith action on the part of the 

landowner: reliance to his detriment, such as making substantial expenditures; an innocent belief 

that the use is permitted; and hardship which would result from enforcement of the ordinance, such 

as the loss of the value of expenditures. Id. Municipal action underpinning the application of these 

doctrines may embody more than one category, id. at n.5 (citing cases), and the theories share 

common elements and are often used interchangeably, see Vaughn v. Zoning Hearing Board of 

Township of Shaler, 947 A.2d 218, 225 n.12 (Pa. Cmwlth. 2008)
10

discretion to control the conduct of their proceedings and the presentation of 

evidence. See generally 53 P.S. § 10908 (relating to hearings). Consistent with their 

rights under Section 908(5) of the MPC, 53 P.S. § 10908(5), Neighbors were allowed 

to testify, introduce documents, and present witnesses, and were represented by 

counsel, who cross examined the Township’s witness. We have reviewed the 

transcript of the hearing and see nothing to support Neighbors’ claim of bias and 

prejudice.6

For all the foregoing reasons we affirm. 

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge

 

6 Neighbors list other complaints about the conduct of the hearing, including moving their 

case from first to the last of three on the September 2016 agenda, resulting in a continuance and 

allegedly disrupting their case presentation; the holding of non-public executive sessions; and 

“permitting” a Board member who had previously represented Landowner in a legal matter to 

participate. There is no evidence in the record or allegation that the Board’s decisions on the 

arrangement of its agenda resulted from bias or prejudice. There are no allegations of violations 

of the Sunshine Act, 65 Pa.C.S. §§ 701-716, in the conduct of executive sessions. The Board 

member in question voluntarily disclosed her prior representation, stated it did not relate to 

property issues, denied an existing attorney-client relationship or conflict, and confirmed her 

impartiality. Of key importance, Neighbors did not object to the member’s participation. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank M. Sajer and :

Constance Coyne Sajer, :

:

Appellants :

:

v. : No. 265 C.D. 2018

:

Zoning Hearing Board of Hampden :

Township :

:

v. :

:

Township of Hampden :

O R D E R

AND NOW, this 21

st day of February, 2019, the Order of the Court of 

Common Pleas of Cumberland County is AFFIRMED. 

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge