IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James G. Sweeney, Eileen Sweeney, :

Kurt Woerner and Maureen Woerner :

 :

v. : No. 113 C.D. 2019

 : Argued: June 8, 2020

Riegelsville Borough Zoning Hearing :

Board :

 :

Appeal of: Borough of Riegelsville :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: November 13, 2020

The Borough of Riegelsville (Borough) appeals from an Order of the Court of 

Common Pleas of Bucks County (common pleas) dated December 31, 2018, which 

reversed the Riegelsville Borough Zoning Hearing Board’s (Board)1 Decision 

affirming the Borough’s Zoning Officer’s determination that James G. Sweeney, 

Eileen Sweeney, Kurt Woerner, and Maureen Woerner (collectively, Applicants) are 

not permitted to construct a detached garage and accompanying driveway in their 

proposed location. Applicants own and reside at 303 Poplar Road, Riegelsville, 

Pennsylvania (the Property). As reflected on the right side of the plan below (Lot 

2), the Property is rectangular in shape and has limited street frontage. Poplar Road, 

1 The Board is not participating in this appeal. 
2

a public street that is perpendicular to the Property, dead ends in the southwest corner 

of the Property. A private alley, which is also perpendicular to the Property, runs to 

the southeastern corner of the Property. Situated in the middle of the Property is an 

L-shaped house. Applicants proposed to construct a detached garage and 

accompanying driveway in the southeast corner of the Property, which would 

connect to the private alley. 

(Reproduced Record (R.R.) at 16a.) 
3

At issue in this case is, first, whether the proposed location of the detached 

garage is within the Property’s front yard and, if so, whether Applicants are 

permitted to connect the proposed driveway to the private alley. The Board 

determined that the proposed garage would be impermissibly located in the front 

yard of the Property, in violation of the Borough’s zoning ordinance (the Ordinance), 

and, therefore, was not permitted. The Board further determined that the proposed 

driveway was not permitted because it would not connect to a public street, as 

required by the Ordinance. Common pleas reversed, concluding that the location of 

the proposed garage was not within the Property’s front yard and that the proposed 

driveway did not violate the Ordinance because driveways are not required to 

connect to a public street under the Ordinance. On appeal, the Borough generally 

argues that the Board neither abused its discretion nor committed an error of law in 

concluding that the proposed garage and accompanying driveway are not permitted 

in the proposed location and, therefore, common pleas’ December 31, 2018 Order 

should be reversed. Upon review, we reverse. 

I. Factual Background and Procedural History

A. Zoning Application

In July 2017, Applicants, through an agent, submitted a zoning application 

(Application) to construct an accessory garage and accompanying driveway in the 

southeast corner of the Property. (R.R. at 29a.) The following rendering, which is 

not drawn to scale, was submitted by Applicants with the Application to demonstrate 

the location of the proposed garage and accompanying driveway. 
4

(Id. at 37a.) 

By letter dated September 13, 2017, the Zoning Officer denied the 

Application, concluding that the proposed garage would impermissibly be located 

in the front yard of the Property in violation of the Ordinance. The Zoning Officer 

also concluded that the proposed driveway running from the garage to the private 

alley is not permitted because it did not connect to a public roadway as required by 

the Ordinance. Thereafter, Applicants filed an appeal from the Zoning Officer’s 

determination to the Board. 
5

B. Board Hearing

On October 24, 2017, the Board considered Applicants’ appeal at a public 

hearing. At the hearing, Mr. Sweeney testified, in relevant part, as follows. He, 

along with his wife Eileen Sweeney, his daughter Maureen Woerner, and his son-inlaw Kurt Woerner, own and reside at the Property. (Hearing Transcript (Hr’g Tr.) 

at 14, 20.) Mr. Sweeney described the Property as a one-acre parcel with street 

frontage on Poplar Road, a “stub street” that is perpendicular to the Property. (Id. at 

21, 48.) Mr. Sweeney indicated that Poplar Road was originally planned to end in a 

cul-de-sac in front of the Property but, after he filed a petition to vacate the cul-desac, the Borough Council vacated that plan in 2013. (Id. at 44-45.) He stated that 

the Property’s configuration is the result of a recorded subdivision (Subdivision 

Plan), which was approved by the Borough Council in 2014. (Id. at 48.) Mr. 

Sweeney testified that the Subdivision Plan was not appealed after the Borough 

Council’s approval, stating “to [his] knowledge, there was never any proceedings 

brought to challenge the validity of” the Subdivision Plan. (Id. at 47.) The 

Subdivision Plan was admitted into evidence and bears the signatures of, among 

others, Mr. Sweeney and his wife Eileen Sweeney. (R.R. at 106a-07a.) 

Using the Subdivision Plan as a demonstrative, Mr. Sweeney explained that 

there is a dashed line on the Subdivision Plan that “extends [approximately 138 feet] 

from the westerly boundary line to the southern boundary line [of the Property] in a 

diagonal fashion,” and that this dashed line denotes the Property’sfront yard setback. 

(Hr’g Tr. at 48.) Mr. Sweeney testified that when the Subdivision Plan was being 

considered, there was a concern by the Borough Planning Commission as to what 

area of the Property constituted the front yard. (Id. at 45-46.) He stated that the 

Planning Commission ultimately determined the location of the Property’s front yard 
6

setback on the Subdivision Plan, using the dashed line, and that the Borough Council 

accepted and approved the Planning Commission’s determination as “a compromise 

. . . in this circumstance” in light of the unique configuration of the Property. (Id. at 

45-48.) 

As to the Property’s improvements, Mr. Sweeney testified that situated in the 

center of the Property is a two-story “L-shaped house,” which he had built in 2016, 

and a driveway extending from the residence’s attached garage to Poplar Road. (Id. 

at 21.) Mr. Sweeney further testified that in 2017 he applied, through an agent, to 

build a residential accessory structure in the form of a detached garage along the 

eastern boundary line of the Property. (Id. at 49-54.) He stated that the proposed 

garage would be 28 by 28 feet and abutting the garage would be a parking pad with 

a driveway connecting to the private alley. (Id. at 50.) Mr. Sweeney explained that 

a title commitment he ordered when he purchased the Property reflected that an 

easement appurtenant, granted in 1947, ran with the Property and allowed the owner 

of the Property to use the alley for ingress and egress. (Id. at 32-37.) After 

examining the relevant land records, Mr. Sweeney concluded that the easement 

appurtenant has not been extinguished and that Applicants are the successors to those 

ingress and egress rights. (Id.) 

With respect to the location of the proposed garage, Mr. Sweeney stated on 

more than one occasion during his testimony that the proposed garage would not be 

located in the Property’s front yard setback. (Id. at 50, 52-53.) He testified that the 

Zoning Officer denied the Application, stating that the proposed garage would be 

impermissibly located within the Property’s front yard and that the proposed 

driveway would not connect to a public street. (Id. at 55-56.) Mr. Sweeney 

contested the conclusions reached by the Zoning Officer again asserting that the 
7

proposed garage would not be located in the Property’s front yard setback and 

asserting that the Ordinance does not require a driveway to connect to a public street. 

(Id.) At the conclusion of Mr. Sweeney’s direct examination, his attorney moved 

for the admission of 15 exhibits, including the Subdivision Plan, which were 

admitted without objection. (Id. at 61.) 

The Board’s Solicitor then had the following exchange with Mr. Sweeney:

[Board Solicitor]: . . . The actual subdivision, the final one, it has what 

was marked in yellow as the front yard setback line. The question that 

I guess the Board has looked at is if that’s a setback, if that’s the front 

setback line, how are you defining where the front yard is? Obviously 

it’s inside that triangle to some extent because that’s more of a front 

yard, but where is the rest of the front yard, where would that be in 

your opinion?

[Mr. Sweeney]: In my opinion, behind the setback line.

[Board Solicitor]: You mean between the setback line and the street?

[Mr. Sweeney]: And the building. 

[Board Solicitor]: So it’s behind the setback. How far does it extend[]? 

That’s the question. 

[Mr. Sweeney]: . . . 78.2 feet. . . .

. . . .

[Mr. Sweeney]: . . . The 78 feet is the distance between the house and 

the front yard setback line. 

[Board Solicitor]: Would that be the front yard?

[Mr. Sweeney]: That’s the front yard . . . .

(Id. at 64-65 (emphasis added).) The Board’s Solicitor then asked Mr. Sweeney if 

the Property’s front yard is the total area between the front yard setback line and the 
8

house, to which Mr. Sweeney responded, “I have no idea. It’s anything that’s behind 

the front yard setback line.” (Id. at 66.) Later during the hearing, the Board’s 

Solicitor asked Mr. Sweeney, “[s]o obviously the front yard setback encompasses 

some of the front yard. Would you know where the rest of the front yard might be?” 

(Id. at 91.) Mr. Sweeney responded that the front yard “could be anywhere, 

wherever the house is . . . .” (Id.) 

Following Mr. Sweeney’s testimony, the Zoning Officer testified, in relevant 

part, as follows. The Zoning Officer agreed with Mr. Sweeney as to the location of 

the front yard setback but noted that the issue here is not with the location of the 

front yard setback but how far the Property’s front yard extends beyond the front 

yard setback. (Id. at 62.) He stated that, pursuant to “zoning 101,” “a front yard is 

the front line or street line to the front of the principal structure.” (Id.) With respect 

to the Property specifically, the Zoning Officer testified that his interpretation is that 

the Property’s front yard “is everything from the front street line to the front of the 

structure,” meaning the area between the front yard setback line and the house. (Id. 

at 63-64.) The Zoning Officer stated that the proposed garage would be located in 

the area that he considers to be the front yard of the Property. (Id. at 63.) 

After the Zoning Officer’s testimony, several nearby residents spoke in 

opposition to the Application. Additionally, Maureen Woerner spoke briefly in 

support of the Application. 

C. Board’s Decision

The Board issued its Decision on November 29, 2017, denying Applicants’ 

appeal from the determination of the Zoning Officer. The Board, in relevant part, 

made the following findings of fact:
9

3. The Property was created by . . . [a] [s]ubdivision recorded on or 

about March 31, 2014 . . . . 

. . . .

9. On or about July 14, 2017, Applicants submitted . . . [the] 

Application by which they sought to construct a 784[-]square[-]foot 

detached garage and a new driveway to connect to the new garage. 

10. A garage is an accessory building as defined at Section 200 of the 

[] Ordinance. 

. . . .

14. As described above, Applicant[s] propose[] to construct a 784[-

]square[-]foot detached garage, the garage would be situated near the 

southeast corner of [the] Property . . . .

15. Section 1007 of the [] Ordinance prohibits the location of a garage, 

an accessory building, in the front yard of the Property. 

16. Section 200 of the Ordinance defines “front yard” as “[a] yard 

between a structure and a street line extending the entire length of the 

street line . . . [.]” 

17. Poplar Road ends at the front of [] Applicants’ Property, on the 

southwest side, but . . . does not extend the length of the Property’s 

southern property line. 

18. Utilizing this definition, the Property’s front yard would only be as 

wide as Poplar Road. 

19. This definition of “front yard”, however, as applied to this Property 

may be determined by the [e]xhibits submitted at the hearing.[]

20. Specifically[,] . . . [t]he . . . Subdivision [Plan], signed by 

Applicants, and the Borough [] before recording[,] depicts a triangular 

area at the southwest corner of [] Applicants’ Property. 

21. The diagonal of this triangle is labeled “front yard setback (line 

used to establish lot width of 113.78 ft.)”. This diagonal will be referred 

to as “Diagonal Front Yard Setback Line”. 
10

22. The Diagonal Front Yard Setback Line is also depicted by a dashed 

line on . . . [the] Final As-built Plans for [the Property] . . . .

23. [The Final As-Built Plans for the Property] also depicts the location 

of Applicants’ residence. 

24. Also shown on [the Final As-Built Plans for the Property] is a line 

running perpendicular to the Diagonal Front Yard Setback Line with a 

distance noted as 78.2 feet. This line will be referred to as the “78.2 

feet Line”. 

25. The 78.2 feet Line runs from the Diagonal Front Yard Setback Line 

to a front corner of the residence . . . .

. . . .

27. With respect to the Property, it is the Board’s interpretation that the 

front yard is that portion of the Property bounded on one side by the 

Diagonal Front Yard Setback Line. The other side of the front yard is 

bounded by a line running perpendicular to the 78.2 feet Line (passing 

through the point where the 78.2 feet Line meets the front corner of the 

residence), parallel to the Diagonal Front Yard Setback Line and 

extending to the western and eastern boundaries of the Property. 

28. The proposed garage therefore would impermissibly be situated in 

the front yard. 

29. In front of the proposed garage would be area designated “apron”. 

30. The apron would be connected to a driveway which would exit the 

Property onto an alley . . . .

31. This alley is described as a “public alley” in deeds submitted into 

evidence by Applicant[s] . . . .

. . . .

33. The alley has been in existence for more than 21 years and the 

Borough has not accepted it for dedication as a public street. 

34. The [] Ordinance (Section 200) defines a driveway as “[g]enerally 

a private way for the use of vehicles and pedestrians access between a 

public street and an interior area within a lot or property.” . . . .
11

35. The proposed driveway would run from the interior of Applicants’ 

Property through the alley and then to a public street, Ash Lane. 

36. The proposed driveway does not meet the criteria for a driveway 

as set forth in the [] Ordinance. 

(Board Decision, Findings of Fact (FOF) ¶¶ 3, 9-10, 14-25, 27-31, 33-36 (emphasis 

and footnote omitted).) Based upon the foregoing findings, the Board concluded 

that “the proposed garage would be situated in the Property’s front yard – a location 

not permitted by the [] Ordinance.” (Board Decision at 7.) Additionally, the Board 

concluded that “the proposed driveway leaves the Property onto an alley, rather than 

a public street. This too is not permitted by the [] Ordinance.” (Id.) Accordingly, 

the Board denied “Applicants’ Appeal from the decision of the Zoning Offic[er].” 

(Id. at 9.) 

D. Appeal to Common Pleas

Applicants appealed the Board’s Decision to common pleas. The Borough 

intervened and participated in the proceedings before common pleas. At a 

conference held on February 28, 2018, the parties agreed that the record was 

complete and common pleas entered an order memorializing the parties’ agreement. 

(Common pleas Opinion (Op.) at 3 n.2.) After review of the briefs filed by 

Applicants and the Borough, and without taking additional evidence, common pleas 

reversed the Decision of the Board by Order and Opinion dated December 31, 2018. 

With respect to the proposed garage, common pleas concluded that the Board 

committed an error of law in concluding that the proposed garage’s location is within 

the Property’s front yard. Common pleas reasoned:
12

[T]he Board ignored credible testimony and evidence the “triangular 

area” described in F[OF] . . . 20[] was set by the [] Borough Planning 

Commission and [] Borough Council [] to address concerns raised at 

the time regarding the location of the front yard. This triangular area 

was a compromise that recognized the uniqueness of the [P]roperty and 

increased the front yard setback from the westerly boundary line to the 

southern boundary line in a diagonal fashion measuring . . . 138 [feet]. 

. . . The Board’s attempt to define the front yard in any other way is an 

error of law that cannot be sustained. 

(Id. at 5.) Additionally, common pleas concluded that the Subdivision Plan “clearly 

shows the front yard as a triangular shaped area in the southwest corner of the 

[P]roperty. This triangular area is labeled front yard setback line.” (Id.) 

With respect to the proposed driveway, common pleas concluded that the 

Board committed an error of law in finding the driveway was not permissible 

because it did not connect to a public street. Common pleas reasoned:

[T]he Board, while emphasizing “public street” and “interior area 

within a lot or property,” completely ignores the most important word 

in the definition – generally. Riegelsville Borough Council, by using 

the word generally, intentionally allowed driveways to connect to 

things other than “public streets” and “interior areas within a lot or 

property.” Borough Council chose not to use restrictive words such as 

“must,” “shall,” or “only” in its definition, thereby acknowledging 

landowner[]s[’] entitlement to the least restrictive use of their property. 

(Id at 7.) Thus, common pleas concluded that the proposed driveway does not 

violate the Ordinance simply because it connects to a private alley rather than a 

public street. Further, common pleas concluded that “[t]o the extent the Board’s 

decision denies [Applicants] the same appurtenant rights of access to the alley as 

other owners of appurtenant rights to the alley, it is an abuse of discretion.” (Id. at 

8.) 
13

In its Opinion, common pleas noted that the Borough argued before it that 

“this case concerns land development rather than zoning issues.” (Id.) Common 

pleas concluded that the Borough’s claims regarding land use were not raised before 

the Board and, therefore, were waived. (Id.) Accordingly, common pleas reversed 

the Board’s Decision and Ordered the Borough “to issue appropriate zoning permits 

to App[licants] to allow the proposed garage and driveway as requested in the 

Application.” (Dec. 31, 2018 Order.) 

On January 3, 2019, the Borough filed a Motion to Reconsider, which 

common pleas denied by order dated January 15, 2019. The Borough then filed the 

instant appeal on January 29, 2019. The next day the Borough issued a “Conditional 

Zoning Permit” to Applicants. The permit authorized Applicants to construct the 

proposed garage, subject to the following conditions of approval:

1) All litigation and appeals by the []Borough[] regarding this 

[A]pplication and all related construction have been finalized. 

2) No construction is permitted on the 20ft wide water easement . . . .

3) Provide [l]and development application and grading plans for 

approval by the Borough Engineer. 

4) Driveway and road opening permits are required prior to 

construction . . . .

5) Please note that a Pa[.] One Call, “811” is required prior to any 

digging or excavation. 

(R.R. at 451a-52a.) 

Thereafter, Applicants filed a “Motion to Preserve the Status Quo Pending 

Resolution of Riegelsville Borough Commonwealth Court Appeal” (Motion to 

Preserve Status Quo), which in effect was a motion to enforce common pleas’
14

December 31, 2018 Order and Opinion. Therein, Applicants argued that the 

conditions set forth in the Conditional Zoning Permit violated common pleas’ 

December 31, 2018 Order and Opinion. Applicants requested that common pleas 

“enter an [o]rder directing the withdrawal of the Conditional Zoning Permit and 

directing” the Borough to pay Applicants $2,500 in sanctions. (R.R. at 371a-72a.) 

After the Borough filed a Concise Statement of Errors Complained of on 

Appeal (Concise Statement) pursuant to Pennsylvania Rule of Appellate Procedure 

1925(b), Pa.R.A.P. 1925(b), common pleas held a hearing on Applicants’ Motion to 

Preserve Status Quo on March 15, 2019. At the hearing, Applicants contested the 

conditions imposed in the Conditional Zoning Permit. In relevant part, Applicants 

argued the condition that they file a land development application is inconsistent 

with common pleas’ December 31, 2018 Order and Opinion and that any arguments 

related to land development were waived because the Borough did not raise this 

issue below. The Borough responded that Applicants “have to meet land 

development” requirements. (Common pleas Hr’g Tr. at 5.) In support of this 

contention, the Zoning Officer testified, in relevant part, as follows. The Zoning 

Officer acknowledged that he did not deny the Application based on the Borough’s 

subdivision and land development ordinance (SALDO) and that he did not need to 

raise issues related to the SALDO at that time. He stated that Applicants first had to 

get the Application approved, which was not possible because the proposed garage 

was located in the front yard of the Property. The Zoning Officer stated that if the 

Application had been approved, he then “would have . . . said [Applicants] need land 

development” approval. (Id. at 20.) The decision to require a land development 

application, the Zoning Officer testified, was made in consultation with the 

Borough’s engineer “[a]nd because [Applicants] are altering an area that is grass, 
15

hills and part of the original storm water approvals.” (Id. at 21-22.) When asked by 

Applicants’ counsel whether he was aware the SALDO “exempts residential 

accessory structures from submitting to the land development process,” the Zoning 

Officer replied that he did not know if that was true. (Id. at 21.) 

After the Zoning Officer’s testimony, common pleas reiterated that the 

Borough did not raise any arguments related to the SALDO before the Board and, 

therefore, the Borough waived any such arguments. (Id. at 48.) As to the conditions 

as a whole, common pleas stated that it was improper for the Borough to 

“unilaterally” add conditions because people “have a right to use their property.” 

(Id. at 53.) The Borough’s Solicitor responded that the Borough would withdraw 

the conditions imposed by the Conditional Zoning Permit but that the Borough 

would “still require land development” approval, among other things. (Id. at 56.) 

After the hearing, common pleas filed an opinion pursuant to Pennsylvania 

Rule of Appellate Procedure 1925(a), Pa.R.A.P. 1925(a), in support of its Order and 

Opinion dated December 31, 2018 (Rule 1925(a) Opinion). However, common 

pleas’ Rule 1925(a) Opinion focused not on Applicant’s zoning appeal, which had 

been addressed in the December 31, 2018 Order and Opinion, but on the Motion to 

Preserve Status Quo, the conditions set forth in the Conditional Permit, and the 

Borough’s arguments at the March 15, 2019 hearing. With respect to the condition 

that Applicants file a land use application, common pleas stated:

[The Borough] obviously does not understand the law regarding waiver 

or the fundamental fairness and due process issues underlying it. [The 

Borough] claims it will require [Applicants] to obtain land development 

approval . . . even if [the] Commonwealth Court affirms our decision 

reversing the . . . Board and directing [the Borough] to issue a zoning 

permit.[] This claim is troublesome. Equally perplexing is the argument 

this case involves land development. The [SALDO] makes clear in its 

definition of land development that it does not apply to the addition of 
16

a residential accessory building.[] This case involves the addition of a 

residential accessory building. 

(Rule 1925(a) Op. at 2-3 (footnotes omitted).) Common pleas concluded its Rule 

1925(a) Opinion by stating that it rested on its December 31, 2018 Order and 

Opinion.2 

II. Discussion

On appeal,3the Borough argues: (1) the Board neither committed an error of 

law nor abused its discretion in determining that the proposed garage would be 

impermissibly located in the front yard of the Property; (2) the Board neither 

2 Pending before the Court is a “Motion to Modify Record on Appeal” (Motion to Modify) 

filed by the Borough. The Borough’s Motion to Modify seeks to strike common pleas’ docket 

entries related to Applicants’ Motion to Preserve Status Quo, which was filed after common pleas 

issued its December 31, 2018 Order and Opinion. On page two of its brief to this Court, the 

Borough states it is withdrawing its Motion to Modify. Accordingly, we note the Motion to Modify 

is withdrawn. 

3 The parties disagree as to which adjudication, the Board’s Decision or common pleas’ 

December 31, 2018 Order and Opinion, this Court is reviewing. This disagreement is based upon 

their differing views of whether common pleas took additional evidence in its consideration of 

Applicants’ appeal from the Board’s Decision. The Borough argues common pleas did not take 

additional evidence and, therefore, we review the Board’s Decision for an error of law or an abuse 

of discretion. Applicants, on the other hand, argue that common pleas took additional evidence at 

the hearing on the Motion to Preserve Status Quo and, therefore, we review common pleas’ 

December 31, 2018 Order and Opinion for an error of law or abuse of discretion. The record 

establishes that the parties agreed before common pleas that the record in this case was complete 

and common pleas entered an order to that effect. (Common pleas Op. at 3 n.2.) Since common 

pleas did not take additional evidence before entering its December 31, 2018 Order and Opinion,

addressing Applicants’ zoning appeal, our standard of review “is limited to determining whether 

the zoning hearing board abused its discretion or committed an error of law.” Zoning Hearing Bd. 

of Sadsbury Twp. v. Bd. of Supervisors of Sadsbury Twp., 804 A.2d 1274, 1278 (Pa. Cmwlth. 

2002). While additional evidence was offered at the hearing on the Motion to Preserve Status Quo, 

which in effect sought to enforce the December 31, 2018 Order, that hearing was unrelated to the 

merits of Applicants’ underlying appeal. Although common pleas issued a 1925(a) Opinion that 

referenced evidence presented at this hearing, that Opinion focused on the Motion to Preserve 

Status Quo and not the issues raised in the Borough’s Concise Statement. 
17

committed an error of law nor abused its discretion in determining that the proposed 

driveway was impermissible as it would not connect to a public street; and (3) 

common pleas erred in concluding that the Borough waived the ability to apply its 

SALDO. 

Before turning to the merits of the parties’ arguments, we recount our role in 

reviewing zoning appeals. In our consideration of this appeal

this Court may not substitute its interpretation of the evidence for that 

of the Board, the fact-finder in this case. The Board is the sole judge 

of the credibility of witnesses and the weight to be afforded their 

testimony. Thus, it is the Board’s function to weigh the evidence before 

it. If the record contains substantial evidence, this Court is bound by 

the Board’s findings that result from the resolution of credibility and 

conflicting testimony. 

Oxford Corp. v. Zoning Hearing Bd. of Borough of Oxford, 34 A.3d 286, 295 n.9 

(Pa. Cmwlth. 2011) (citations omitted). While a zoning board is entitled to deference 

when interpreting its zoning ordinance, Hafner v. Zoning Hearing Board of Allen 

Township, 974 A.2d 1204, 1210 (Pa. Cmwlth. 2009), it is an abuse of discretion for 

a zoning board to alter the terms of its ordinance in order to “further restrict the use 

of property,” Riverfront Development Group, LLC v. City of Harrisburg Zoning 

Hearing Board, 109 A.3d 358, 366 (Pa. Cmwlth. 2015) (quoting Church of the

Survivor v. Zoning Hearing Board of Tredyffrin Township, 568 A.2d 1136, 1338 

(Pa. Cmwlth. 1989)). Stated differently, zoning ordinances are to be interpreted “in 

favor of the landowner and against any implied extension of restrictions on the use 

of one’s property.” Adams Outdoor Advert., LP v. Zoning Hearing Bd. of Smithfield 

Twp., 909 A.2d 469, 484 (Pa. Cmwlth. 2006). A zoning board abuses its discretion 

if its “findings are not supported by substantial evidence, that is, such relevant 

evidence that a reasonable mind might accept as adequate to support a conclusion.” 
18

Zoning Hearing Bd. of Sadsbury Twp. v. Bd. of Supervisors of Sadsbury Twp., 804 

A.2d 1274, 1278 (Pa. Cmwlth. 2002). 

Further, we have repeatedly reaffirmed that

a zoning board is not a legislative body, and it lacks authority to modify 

or amend the terms of a zoning ordinance. “[Z]oning boards . . . must 

not impose their concept of what the zoning ordinance should be, but 

rather their function is only to enforce the zoning ordinance in 

accordance with the applicable law.” Thus, [a zoning board] is required 

to apply the terms of [its z]oning [o]rdinance as written rather than 

deviating from the terms based on an expressed policy. 

Balady Farms, LLC v. Paradise Twp. Zoning Hearing Bd., 148 A.3d 496, 505 (Pa. 

Cmwlth. 2016) (quoting Greth Dev. Grp., Inc. v. Zoning Hearing Bd. of Lower 

Heidelberg Twp., 918 A.2d 181, 187 (Pa. Cmwlth. 2007)) (first alteration in original) 

(emphasis omitted). With these well-established principles in mind, we turn to the 

parties’ arguments. 

A. Whether the Board committed an error of law or abused its discretion 

in determining that the proposed garage would be impermissibly 

located in the front yard of the Property. 

(1)Parties’ Arguments

The Borough argues that the Board “neither abused its discretion nor 

committed any error of law in determining that the Application proposed to 

impermissibly locate the [proposed] garage in the front yard of the Property.” 

(Borough’s Brief (Br.) at 9, 12.) The Borough posits that “in tracking the relevant 

provisions of the [] Ordinance,” the Board “rationally interpreted the front yard as [] 

being” the area between the Diagonal Front Yard Setback Line and Applicants’ 

residence. (Id. at 14-15.) 
19

Additionally, the Borough asserts that common pleas “went out of its way to 

disturb” the Board’s findings. (Id. at 15.) The Borough contends common pleas’

“error in this regard is three-fold.”4 (Id.) First, noting that common pleas relied on 

Mr. Sweeney’s testimony to conclude that the front yard of the Property is the 

triangular area created by the Diagonal Front Yard Setback Line, the Borough asserts 

that common pleas “had no right or authority to review and assess the credibility of 

[Mr.] Sweeney’s [] testimony” because credibility determinations are solely within 

the purview of the Board. (Id. at 16.) Second, the Borough argues that even if 

common pleas had a right to make credibility determinations, Mr. Sweeney’s 

testimony was inconsistent with common pleas’ finding that the front yard was the 

triangular area created by the Diagonal Front Yard Setback Line. Citing Mr. 

Sweeney’s testimony that the front yard is “anything that’s behind the front yard 

setback line,” the Borough contends Mr. Sweeney’s testimony does not support 

common pleas’ conclusion that the triangular area in front of the Diagonal Front 

Yard Setback Line comprises the entirety of the Property’s front yard. (Id. at 17)

(quoting Board Hr’g Tr. at 66 (emphasis omitted).) Third, the Borough argues 

common pleas “improperly substituted its opinion for the [Board] by reading into 

evidence that which was not there.” (Id.) The Borough takes the position that 

common pleas’ conclusion that the Subdivision Plan “clearly shows the front yard 

as a triangular shaped area in the southwest corner of the [P]roperty” is not supported 

by the record because the “Subdivision Plan does not contain the words ‘front yard’ 

to describe any area upon it, let alone just the ‘triangular area’ in the southwest 

corner of the Property.” (Id. (citing common pleas Op. at 5).) For these three 

4 Although the Borough argues common pleas made multiple errors of law, “[w]here[, as 

here,] the trial court took no additional evidence, we are limited to determining whether the . . .

[B]oard abused its discretion or committed an error of law.” Hafner, 974 A.2d at 1209 n.1. 
20

reasons, the Borough asserts common pleas “erred in finding that the [Board] either 

abused its discretion or erred as a matter of law in determining that the Application 

impermissibly proposed to locate the garage in the front yard of the Property.” (Id. 

at 18.) 

Applicants respond that the Board abused its discretion by not applying the 

Ordinance’s definition of front yard as written. According to Applicants, “[t]he 

Board’s Decision shows that it did not apply” the Ordinance’s definition of front 

yard, which is contrary to the requirement that zoning boards apply the applicable 

zoning ordinance as written. (Applicants’ Br. at 22.) Applicants contend “the Board

created a brand-new definition of the term [front yard] as if out of thin air” and, 

therefore, common pleas correctly concluded “that the Board’s re-writing of the 

Ordinance was an abuse of discretion.” (Id. at 22-23.) According to Applicants, 

“based on substantial evidence in the record the . . . Subdivision [Plan] set the front 

yard setback line and lot wi[d]th for the [] Property in 2014” and the Borough’s 

claim that the “front yard should extend to the lot’s boundaries instead of extending 

to its ‘[l]ot [w]idth’ as set by [the Borough] itself when it approved the . . . 

Subdivision [Plan],” collaterally attacks that plan. (Id. at 23-24.) As such, 

Applicants argue that “[t]he equitable doctrine of judicial estoppel should bar [the 

Borough] from asserting these arguments.” (Id. at 24.) 

(2)Analysis

The crux of this case is what area constitutes the front yard of the Property 

and whether the proposed garage will be impermissibly located in the Property’s 

front yard. As noted above, pursuant to Section 1007(a) of the Ordinance, “[n]o

accessory buildings o[r] structures shall be located in front yards except school bus 

shelters.” (R.R. at 328a.) Section 200 of the Ordinance defines “Yard” as
21

[a]n open space unobstructed from the ground up except for permitted 

projections and plantings, on the same lot with a structure, extending 

along a lot line or street line and inward to the structure. The size of a 

required yard shall be measured as the shortest distance between the 

structure and a lot line or street line. 

(R.R. at 319a.) That section of the Ordinance also defines the term “Yard.Front,” in 

relevant part, as “[a] yard between a structure and a street line and extending the 

entire length of the street line.” (Id.) Section 200 of the Ordinance defines “Street 

line” as “[t]he dividing line between the street and the lot. The street line shall be 

the same as the legal right-of-way provided that where a future right-of-way width 

for a road or street has been established, and then that width shall determine the 

location of the street line.” (R.R. at 320a.) The Ordinance requires a minimum front 

yard depth of 40 feet. (Ordinance Section 502(b), R.R. at 322a.) 

Pursuant to Section 200 of the Ordinance, the Board would ordinarily look to 

a street line to determine the beginning point of a front yard. However, the 

circumstances of this case are different. Here, the Borough established the 

Property’s front yard setback when it approved the Subdivision Plan in 2014, which 

included the Diagonal Front Yard Setback Line. The Diagonal Front Yard Setback 

Line is drawn differently than how a front yard setback would be drawn under the 

Ordinance because the Diagonal Front Yard Setback Line is wider than the street 

line created by Poplar Road. Therefore, in effect, the Ordinance’s definition of 

“Yard.Front” was modified with respect to this Property. Mr. Sweeney recognized 

this in his testimony, stating that the unique configuration of the Property, 

specifically the fact that the Property has little “street frontage” and the fact that 

Poplar Road is perpendicular to the Property, necessitated the need for a 

compromised front yard setback. (Board Hr’g Tr. at 45-48.) The Sweeneys signed 
22

the Subdivision Plan before it was recorded and Mr. Sweeney testified that no party, 

including him or his wife, appealed the Subdivision Plan. 

The Board likewise appears to have recognized the unique configuration of 

the Property, finding that measuring the Property’s front yard from the street line 

would result in the Property’s front yard being only as wide as Poplar Road. (Board 

Decision, FOF ¶ 18.) In recognition of the fact that the Borough established, in 

agreement with the Sweeneys, the Property’s front yard setback in the Subdivision

Plan with the Diagonal Front Yard Setback Line, the Board began its measurement 

of the Property’s front yard from the Diagonal Front Yard Setback Line rather than 

the street line. Contrary to Applicants’ assertion otherwise, the Board did not make 

up a new definition of front yard or collaterally attack what the Borough established 

in the Subdivision Plan when it measured the Property’s front yard from the 

Diagonal Front Yard Setback Line instead of the street line. Rather, the Board, in 

essence, gave effect to the agreed upon Diagonal Front Yard Setback Line as the line 

from which the Property’s front yard could be ascertained once a structure was built 

on the Property. As reflected on the Final As-Built Plans, the Board determined that 

the Property’s front yard extends beyond the Diagonal Front Yard Diagonal Front 

Yard Setback Line to the “front corner of the residence,” a distance of 78.2 feet. (Id. 

¶ 25.) 

Under the Board’s interpretation, 

the front yard is that portion of the Property bounded on one side by the 

Diagonal Front Yard Setback Line. The other side of the front yard is 

bounded by a line running perpendicular to the 78.2 feet Line (passing 

through the point where the 78.2 feet Line meets the front corner of the 

residence), parallel to the Diagonal Front Yard Setback Line and 

extending to the western and eastern boundaries of the Property. 

(Id. ¶ 27.) 
23

Thus, the Board interpreted the Property’s front yard as consisting not only of 

the triangular area created by the Diagonal Front Yard Setback Line, but also the 

area between the Diagonal Front Yard Setback Line and the residence and extending 

to the Property’s boundaries. The Board’s interpretation of the Property’s front yard 

as extending from the Diagonal Front Yard Setback Line to the residence is 

consistent with the Ordinance’s definition of front yard, which is generally defined 

as the area between a street line and a primary structure, and with Mr. Sweeney’s 

testimony before the Board that the Property’s front yard includes 78 feet between 

the Diagonal Front Yard Setback Line and the residence. (Board’s Hr’g Tr. at 64-

65.) Accordingly, we conclude the Board did not err in its interpretation of the 

Property’s front yard or its conclusion that the proposed garage would be 

impermissibly located in the Property’s front yard in violation of the Ordinance. 

Common pleas, on the other hand, concluded that the Property’s front yard 

consisted only of the triangular area in the southwest corner of the Property created 

by the Diagonal Front Yard Setback Line. Common pleas’ interpretation of the 

Property’s front yard is not supported by the record. In its December 31, 2018 

Opinion, common pleas stated it relied upon Mr. Sweeney’s testimony and the 

Subdivision Plan to conclude that the Property’s front yard was limited to the front 

yard setback area. However, at the Board hearing, Mr. Sweeney testified that the 

Planning Commission determined the location of the Property’s front yard setback, 

which was accepted and approved by the Borough Council as “a compromise . . . in 

this circumstance.” (Id. at 45-48.) Mr. Sweeney did not testify that the triangular 

area created by the Diagonal Front Yard Setback Line was the entirety of the 

Property’s front yard, but that the Property’s front yard extended 78 feet beyond the 

Diagonal Front Yard Setback Line to the residence. (Id. at 64-65.) Thus, Mr. 
24

Sweeney’s testimony does not support, and appears to contradict, common pleas’ 

conclusion. The Subdivision Plan likewise does not support common pleas’ 

conclusion because the Subdivision Plan does not label the triangular area created

by the Diagonal Front Yard Setback Line as the entirety of the Property’s front yard. 

A front yard setback, while a part of the front yard, does not comprise the entirety

of a front yard when a structure is built beyond the front yard setback line. Further, 

at the time the Subdivision Plan was approved and recorded, there was no structure 

on the Property. As such, there was no structure from which to measure the front 

yard when the Subdivision Plan was approved. Therefore, absent evidence that the 

triangular area created by the Diagonal Front Yard Setback Line was intended by 

the Borough to constitute the entirety of the Property’s front yard, the Diagonal Front 

Yard Setback Line merely notes the minimum front yard setback of the Property. 

For these reasons, the Board did not err in concluding that the proposed garage 

would be impermissibly located in the Property’s front yard, and, therefore, the 

Board’s denial of Applicants’ appeal from the Zoning Officer’s Decision was not in 

error. 

B. Whether the Board committed an error of law or abused its discretion

in determining that the proposed driveway did not connect to a public 

street and, therefore, is not permitted. 

(1)Parties’ Arguments

The Borough argues that the Board “neither abused its discretion nor 

committed any error of law in determining that the Application did not propose 

connecting the driveway to a ‘public street,[’]” as required by the Ordinance. 

(Borough’s Br. at 18.) It is contested, the Borough submits, that the Application 

proposed connecting the proposed driveway “over an existing water easement that 

pre-dated the [Subdivision] Plan and through [] opposing neighbors’ properties, via 
25

their lawns courtesy of an ‘alley’ which does not now support, and never has 

supported vehicular or pedestrian traffic.” (Id.) The Borough argues that in 

overriding the Board’s determination that the proposed driveway did not connect to 

a public street, common pleas “engaged in a determination of private rights that 

neither it nor the [Board] had the power to resolve in the context of a zoning 

application.” (Id. at 20.) Specifically, citing common pleas’ conclusion that “[t]o 

the extent the Board’s [D]ecision denies [the Applicants] the same appurtenant rights 

of access to the alley as other owners of appurtenant rights to the alley, it is an abuse 

of discretion,” (id. at 20 (quoting R.R. at 480a)), the Borough asserts common pleas 

erred by “wrongly impart[ing] upon the [Board] a function . . . that [was] not 

assigned to it by the legislature” and by “engag[ing] in a truncated, de facto quiet 

title action . . . that far exceeded its limited scope of [] review.” (Borough’s Br. at 

22.) 

Applicants respond that the Board erred in concluding the proposed driveway 

was not permitted under the Ordinance because it did not connect to a public street. 

Applicants argue that the Ordinance’s definition of driveway “recognizes that 

sometimes a lot gains access to a public street through a means that is not a direct 

connection to a public street.” (Applicants’ Br. at 26.) As such, Applicants contend 

that “[b]ecause the Board imposed a restriction where none exists, [] c[ommon pleas] 

[] did not err when it concluded that the Board committed [an] error [of] law when 

it denied [Applicants’] appeal to the Board.” (Id. at 27.) Applicants also take issue 

with the Borough’s description of Applicants’ easement rights, stating that “there is 

no evidence in this record or in the public record that anyone has or is now contesting 

[Applicants’] appurtenant easement rights.” (Id. at 29.) Applicants argue that they 

propose to use the alley at issue “as a means of ingress and egress to Ash Lane” and 
26

that “[n]either the Board . . . nor [the Borough] can take this private appurtenant right 

away from [Applicants] without compensation.” (Id. at 30.) 

(2)Analysis

As stated above, Section 200 of the Ordinance defines “driveway” as 

“[g]enerally a private way for use of vehicles and pedestrians providing access 

between a public street and an interior area within a lot property.” (R.R. at 318a 

(emphasis added).) “Generally” is defined as “usually.” Generally, MerriamWebster Dictionary, https://www.merriam-webster.com/dictionary/generally (last

visited Oct. 22, 2020). Thus, the Ordinance defines a driveway as a private way that 

usually connects to a public street. The Ordinance does not state that a driveway 

shall or must connect to a public street. The Board concluded that “the proposed 

driveway leaves the Property onto an alley, rather than onto a public street,” which 

“is not permitted by the [] Ordinance.” (Board Decision at 7.) Common pleas 

reversed, reasoning that under the Ordinance, a driveway may, but is not required 

to, connect to a public street. (Common pleas Op. at 7.) Based upon the Ordinance’s 

definition as generally connecting to a public street, we agree with common pleas 

that a driveway is not required to connect to a public street. Therefore, the Board 

erred by concluding that the proposed driveway was impermissible under the 

Ordinance because it did not connect to a public street. 

As to Applicants’ alleged appurtenant rights, common pleas concluded that 

“to the extent the Board’s [D]ecision denies [Applicants] the same appurtenant rights 

of access to the alley as other owners of appurtenant rights to the alley, it is an abuse 

of discretion.” (Id. at 8.) However, to the extent that common pleas concluded that 

Applicants’ alleged easement appurtenant rights to cross neighboring property for 
27

ingress and egress via the Proposed Driveway were valid and enforceable, such 

conclusion was issued in error. The Board did not make any specific findings of fact 

or conclusions of law with respect to the validity of the purported easement nor was 

the Board’s denial based on the existence or enforceability of an easement. Even if 

it had been, the issue of the validity of the alleged easement appurtenant was not, 

and could not have been, before the Board. The Board is a creature of statute and 

may only exercise the authority granted to it by its enabling authority, which does 

not include determining the validity of easement rights. See Section 909.1 of the 

Pennsylvania Municipalities Planning Code (MPC),5 53 P.S. § 10909.1 (listing the 

matters over which a zoning board has authority to adjudicate). While easement 

rights may be determined in a quiet title action, see Pennsylvania Rule of Civil 

Procedure 1061(b)(2), Pa.R.C.P. No. 1061(b)(2) (setting forth that a quiet title action 

may be brought “to determine any right, lien, title or interest in [] land”), such rights 

cannot be determined in zoning matters under the MPC. As such, to the extent 

common pleas concluded the purported easement is valid and enforceable, common 

pleas erred by exceeding its scope of review and improperly incorporating a quiet 

title action into a zoning appeal. 

C. Whether common pleas erred in concluding that the Borough waived 

the issue of whether it could apply its SALDO. 

(1)Parties’ Arguments

The Borough contends that before common pleas, it “argued that the 

Application was an impermissible form of land development.” (Borough’s Br. at 

22.) The Borough argues that “[e]ven if [] common pleas correctly determined that 

5 Act of July 31, 1968, PL. 805, as amended, added by Section 87 of the Act of December 

21, 1988, P.L. 1329, 53 P.S. § 10909.1. 
28

[the Application] was pure zoning . . . [common pleas] incorrectly determined that 

the Borough ‘waived’ these arguments because zoning is a matter entirely [] distinct 

from land development.” (Id.) Accordingly, the Borough “requests that this Court 

declare that it retains its right to apply any applicable provisions of its SALDO to 

the extent that [] Applicants’ proposed use of the Property constitutes ‘land 

development.’” (Id. at 23.) 

Applicants respond that the Borough did not sufficiently develop this issue in 

its brief and, therefore, has waived review of this issue on appeal. To the extent that 

the Borough’s brief was sufficiently developed, Applicants argue that the Borough 

waived review of the issue of whether it could apply its SALDO by not raising it 

before the Board. Applicants contend that the first time the Borough objected to the 

Application “because its plans allegedly violated [the Borough’s] SALDO occurred 

when [the Borough] filed its brief” with common pleas. (Applicants’ Br at 32.) 

Relying on Red Lion Borough v. Red Lion Borough Zoning Hearing Board (Pa. 

Cmwlth., No. 55 C.D. 2017, filed October 20, 2017),6 Applicants assert the Borough 

should have raised any arguments related to its SALDO before the Board and, 

therefore common pleas “did not err when [it] found that [the Borough] waived its 

SALDO claims having not preserved them before the Board.” (Applicants’ Br. at 

33.) 

(2)Analysis

Here, common pleas concluded the Borough waived any arguments related to 

its SALDO because it did not raise those issues before the Board. We disagree. As 

6 Pursuant to Rule 126(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 

126(b), and Section 414(a) of the Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a), 

unreported panel decisions of this Court may be cited for their persuasive value. 
29

we explained in Board of Commissioners of Cheltenham Township v. Hansen-Lloyd, 

L.P.:

a zoning application addresses the use of the land, while a subdivision 

plan addresses how the land is to be developed. While the governing 

body of a municipality has broad discretion in adopting standards for 

the approval of subdivision and land development plans, it cannot 

include provisions related to the use of land. Regulation of use is a 

matter appropriate for control through a zoning ordinance. 

166 A.3d 496, 504-05 (Pa. Cmwlth. 2017) (emphasis added) (quotation marks and 

citations omitted). 

Thus, zoning and land development are distinctively separate matters. Red 

Lion Borough does not support Applicants’ assertion that any arguments related to 

a SALDO must be raised before the Board. In Red Lion Borough, we concluded, 

among other things, that issues not raised before a zoning board are waived on 

appeal. Slip op. at 6. However, Red Lion Borough’s holding relates to issues that 

can be raised before a zoning board. Since land development is distinct from zoning, 

issues related to noncompliance with a SALDO need not, and cannot, be raised 

before a zoning board. Land development questions are directed to a municipality’s 

governing body. Section 501 of the MPC, 53 P.S. § 10501. As such, the Borough 

retains the right to apply its SALDO to the extent Applicants propose any land 

development in connection with the Property.7 

7 Applicants assert that even if the Borough preserved its right to invoke its SALDO, the 

Borough’s claims regarding its SALDO are clearly without merit. Specifically, in their brief, 

Applicants argue that the Application does not fall under the SALDO because residential accessory 

buildings are not land development under the SALDO. However, we will not address this issue 

because, as we explained above, land development issues are distinct from zoning issues. The 

case before us is a zoning appeal. If Applicants believe the SALDO is indeed inapplicable to the 

proposed construction, they can raise that issue in a land development case if one so arises. 
30

Accordingly, common pleas erred in concluding the Borough waived any 

arguments it may have related to its SALDO and cannot reassert them. 

III. Conclusion

At issue in this case is whether the proposed location of the detached garage 

is within the Property’s front yard and whether Applicants are permitted to connect 

the proposed driveway to the private alley. Upon review, as to the Board’s 

interpretation of the Property’s front yard as extending from the Diagonal Front Yard 

Setback Line to the front of the residence, we conclude that the Board’s 

interpretation is consistent with Ordinance’s definition of front yard. Because the 

proposed garage would be impermissibly located in the Property’s front yard, the 

Board did not err in denying Applicants’ appeal, and common pleas’ December 31, 

2018 Order reversing that decision is, itself, reversed. 

With respect to the proposed driveway, we agree with common pleas that the 

Board erred in holding that Applicants’ appeal should be denied because the 

proposed driveway violated the Ordinance. However, in doing so, common pleas 

erred by improperly incorporating a quiet title action into this zoning matter to 

determine Applicants’ rights to access the alley. 

Further, common pleas erred by concluding that Applicants waived any 

arguments related to the SALDO. Zoning matters are distinct from land use matters 

and, therefore, Applicants did not have to assert arguments related to the SALDO 

before the Board. 

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James G. Sweeney, Eileen Sweeney, :

Kurt Woerner and Maureen Woerner :

 :

v. : No. 113 C.D. 2019

 : 

Riegelsville Borough Zoning Hearing :

Board :

 :

Appeal of: Borough of Riegelsville :

O R D E R

NOW, November 13, 2020, the Order of the Court of Common Pleas of Bucks 

County dated December 31, 2018, is hereby REVERSED. The Motion to Modify 

Record on Appeal, filed by the Borough of Riegelsville, is hereby marked as 

WITHDRAWN. 

_____________________________________

RENÉE COHN JUBELIRER, Judge