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 2 1 , 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,

t here was no action by t he 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 Ham pden Township Zoning Ordinance (Ordinance)

. 1 The Board

1 The Ordinance provides in relevant part as follows:2

has not participated in the appeal t o 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 app lied for and received from the T ownship’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 p ermit 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

va lid 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 , includin g “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 de partment for a single permit. McMillan

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

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

testified that t he 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 complete d. 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 req uirements 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 Of ficial shall make the required inspections to comply with the UCC.

( Id. )4

submitted with Landowner’s permit application. T he Township requir es an applicant

to pay a zoning permit fee , and Landowner did so. The p ermit 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 ret aining

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

the one specified in the p ermit, was compliant with the Ordinance.

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

beyond that specifie d 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

stor m drain, which was part of the p e rmit application, violate d the Ordinance by

directing a discharge of water onto adjoining property

. As a result, Lando wner was

directed to block the storm drain , and he did so

.

T he Board delivered a Decision in December 2016 denying Neighbors ’

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

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

d ecision of the Board and Neighbors appealed to this C ourt. 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 e rror 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 suppor ted 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 v ariance 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 provide s 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 o r 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 Ch apter , 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 an y 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 o f 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 t o enforce the provisions of this Chapter . The Z oning 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

- cons t ruction inspection is less

clear. I t 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 constr uction, 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 Of ficer, 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 r egard 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 th at 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 construct ion; and subsection 4, like subsection

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

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

authority to inspect and enforce is permissive, it cert ainly 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 zo ning permit for

retaining walls certainly would appear to diminish the likelihoo d that he would

become involved in the proc ess 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 complete d.

Nevertheless, the excavation is complete and the retaining wall and

fence have been erected

. Even though we cannot condone the Township ’s use of a8

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

p ermit, to send the case back for re

- permitting alone, at this point, would b e
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 d eference which must be given to the Board as the entity

responsible for the interpretation and application of the O rdinance

, see Walck v.

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

Cmwlth. 2008) , w e 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 t o impervious

surface cover. A s 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 pre existing nonconformity was

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

minim i s , if not subj ect to the general doctrine of variance by estoppel, specific ally

the aspect of the doctrine known as vested rights

. T he 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
rej ect Neighbors’ argument s 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 ha ve 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 b oards 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 ordina nce 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 cons ideration of both of these factors. Id.

Variance by estoppel refers to a group of equitable doctrines in P ennsylvania 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 doctr ines 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 ordinanc e, such as the loss of the value of expenditures. Id. Municipal action underpinning the application of these doctrines may embody more than one category, i d

. 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 witne sses , and were represented by

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

transcript o f 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 J udge

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

a llegedly 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 particip ate. 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 execut ive 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, Neighb ors 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 2 1 st day of February

, 201 9

, the Order of the Court of

Common Pleas of Cumberland County is AFFIRMED

.

_____________________________________ BONNIE BRIGANCE LEADBETTER, Senior J udge