B. J. Krupa, et al. v. Fayette County ZHB (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Brian J. Krupa and Mark A. Krupa, Appellants v. Fayette County Zoning Hearing Board BEFORE: : : : : : : No. 1111 C.D. 2007 Submitted: October 26, 2007 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: January 30, 2008 Brian J. Krupa and Mark A. Krupa appeal from the Fayette County Court of Common Pleas' order that affirmed the decision of the Zoning Hearing Board (Board), which denied the Krupas' appeal from an enforcement notice issued for keeping horses and chickens in an R-2 Residential zoning district in violation of the Zoning Ordinance (Ordinance). They question whether the trial court abused its discretion or committed an error of law in affirming the Board's decision when it violated the Ordinance and was fatally defective under Section 616.1(c)(3) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, added by Section 60 of the Act of December 21, 1988, P.L. 1329, 53 P.S. §10616.1(c)(3); when they were under no duty to file a rezoning application to continue a nonconforming agricultural use; and when the Board denied their due process rights under the federal and state constitutions. The Krupas own a tract of land located in Smithfield Borough, and it is zoned R-2 High Density Residential under the Ordinance that became effective November 1, 2006. Section 1000-202.A of the Ordinance provides that "[n]o building, structure or land shall be constructed or used for any purpose or in any manner other than for one (1) or more of the permitted uses, granted by right ¦ or ¦ by special exception." Section 1000-203, Table 1 then enumerates various uses permitted by right and by special exception in each of the zoning districts. See Reproduced Record (R.R.) at 107 - 110. Uses permitted by right in the R-2 zoning district include an apartment, a bed and breakfast, a duplex, a home occupation, a quadplex, a single-family detached dwelling and a townhouse. Uses permitted by special exception include an assisted living facility, a boarding house, a group residence, an adult or juvenile halfway home, a juvenile detention facility, a mobile home park and a nursing/convalescent facility. An agricultural use is permitted by right only in the A-1 Agricultural Rural and C Conservation zoning districts and in the AH Airport Hazard Overlay Zone. The County's planning and zoning officer issued an enforcement notice to the Krupas on December 21, 2006, stating the following: The violation on subject's [sic] property is: Under Article X, (Administration & Enforcement), Sub-sections 1007, Enforcement Remedies and 1008, Enforcement Notice. Also under Article IX, (Re-zoning Application Required), for having Horses and Chickens in a[n] area Zoned R-2 Residential. These Farm Animals must be in an A-1 Zoned Area ¦. Compliance can be met with the following action taken by the property owner: 1. You must apply for a Re-Zoning, from an R-2 Residential area to a[n] A-1 Agricultural area in order to keep the Farm Animal ¦. It requires you to go in front of the Fayette County Commissioners for approval. 2. Compliance must be commenced within (5) five days of this letter and completed by February 3, 2007.... R.R. at 1 (emphasis in original). 2 The Krupas appealed the enforcement notice to the Board, contending that the use regulations under the Ordinance did not apply to their property because it had been used for agricultural purposes "since before zoning was adopted." R.R. at 63. After the Krupas presented testimony regarding the agricultural use on the property since 1958, the solicitor for the County Office of Planning, Zoning and Community Development (County) stipulated that "there was farming or agricultural purpose used at all times from 1958 to present without a one-year break or lapse in time when there was no agricultural use of the property." N.T., p. 50; R.R. at 57. The County solicitor offered to withhold further enforcement for sixty days to allow the Krupas to apply for recognition of a nonconforming use. They refused the offer, and thereafter the Board granted the County's motion to deny the appeal. In a resolution adopted March 21, 2007, the Board found that the Krupas violated the Ordinance by keeping farm animals in the R-2 zoning district and that they were informed of the options of requesting a nonconforming use or rezoning of the property for an agricultural use. In affirming the Board, the trial court rejected the Krupas' contention that the enforcement notice failed to comply with Section 616.1(c)(3) of the MPC.1 The trial court stated that the notice specifically informed the Krupas that they had horses and chickens in the R-2 district in violation of the Ordinance, and it rejected the Krupas' argument that they were not cited for direct violation of the Ordinance and were not required to apply for rezoning. Discerning a misconception on the Krupas' part, the trial court determined that the basis of the citation was the direct 1 Section 616.1(c)(3) requires an enforcement notice to "state at least the following: ¦ The specific violation with a description of the requirements which have not been met, citing in each instance the applicable provisions of the ordinance." See also Section 1000-1008.C of the Ordinance. 3 zoning violation committed by the Krupas, i.e., harboring of farm animals in a residential zone. The rezoning language in the notice was intended to inform the Krupas how to comply with the Ordinance, but failure to apply for rezoning was not a basis for the citation. Further, the Krupas were required to file a petition for recognition of a nonconforming agricultural use pursuant to Section 1000-600 of the Ordinance, and the trial court rejected the argument that the Board abused its discretion in failing to find continuous use of the property for agricultural purposes since 1958. The trial court noted that that issue was not before the Board. The Krupas argue that the trial court committed an abuse of discretion or an error of law in affirming the Board's decision when it was in violation of the Ordinance and when the enforcement notice is fatally defective under Section 616.1(c)(3) of the MPC. They assert that the notice did not set forth any specific section of the Ordinance that they violated by keeping horses and chickens in the R-2 zoning district; that Article X, Sections 1000-1007 and 1000-1008 cited in the notice merely provide for enforcement remedies and require certain information that should be included in an enforcement notice; and that the trial court erred in affirming the Board's decision, which denied their due process rights. They cite Coretsky v. Board of Commissioners of Butler Township, 520 Pa. 513, 555 A.2d 72 (1989), and Township of Maidencreek v. Stutzman, 642 A.2d 600 (Pa. Cmwlth. 1994), which held that the term "cite" under Section 616.1(c)(3) means a specific numerical reference to zoning ordinance sections that a landowner has violated. Assuming that the enforcement notice was not defective, they claim that they were at most cited for failing to apply to rezone their property from the R2 zoning district to an A-1 zoning district, when they could not have obtained rezoning for their 2.9-acre property under Article IX Section, 1000-900.D.1.a. 4 requiring a minimum of five acres for rezoning, and that they are entitled to a nonconforming agricultural use of the property without having to file a rezoning application. They rely on the stipulation as to the continued agricultural use of the property since 1958, before the 1968 enactment of the Zoning Ordinance. The Board argues that the enforcement notice is not fatally defective as it specifically informed the Krupas that they violated the Ordinance by harboring farm animals in the R-2 zoning district when those animals must be in the A-1 zoning district, and that they misconstrue the notice as citing them for failing to apply for rezoning when the notice merely advised them of how to comply with the Ordinance.2 Section 616.1 of the MPC, setting forth procedures for charging a landowner with violation of a zoning ordinance, provides, inter alia, that an enforcement notice must include "the specific violation, with steps to be taken to come into compliance, and by when that must be accomplished." Moon Township v. Cammel, 687 A.2d 1181, 1184 (Pa. Cmwlth. 1997). Due process mandates "an individual notice and opportunity to be heard." Weaver v. Franklin County, 918 A.2d 194, 203 (Pa. Cmwlth.), appeal denied, ___ Pa. ___, 931 A.2d 660 (2007). The enforcement notice described the Krupas' violation of the Ordinance as "having Horses and Chickens in a[n] area Zoned R-2 Residential" and informed them that "[t]hese Farm animals must be in an A-1 Zoned Area." It advised the Krupas that they could comply with the Ordinance by applying to rezone their property from the R-2 district to an A-1 district, and it set forth the specific dates within which to commence and complete compliance with the 2 Where, as here, the trial court takes no additional evidence, this Court's review is limited to determining whether the Board committed an error of law, abused its discretion or made findings of fact that were not supported by substantial evidence. Hartner v. Zoning Hearing Board of Upper St. Clair Township, 840 A.2d 1068 (Pa. Cmwlth. 2004). 5 Ordinance.3 Hence, the information provided to the Krupas was sufficient, and the mere lack of a citation to a section of the Ordinance that they violated was neither fatally defective under Section 616.1(c)(3) of the MPC nor violative of their due process rights. Article VI of the Ordinance regulates nonconforming uses, structures and lots. Section 1000-604 provides that "any legally existing ¦ non-conforming use may be continued even though such ¦ use does not conform with the provisions of these regulations for the district in which it is located." Section 1000600.A and B of the Ordinance provides: A. Residential uses and accessory uses to residential development. 1. The Chief of Zoning, Zoning Officer or other appointee recognized by the Zoning Office shall review, evaluate and approve application for modification related to the following non-conforming uses. a. Non-conforming residential uses existing prior to the date of the ordinances. b. Accessory uses to a residential lot prior to the date of this ordinance. c. Those uses legally existing, approved and recognized by the Zoning Hearing Board based on applicable County documents dated 1968 or before. 2. The landowner and/or developer shall present legal documentation such as tax records or a recorded plot at the time of application. 3. If approval for said application for modifications is denied by the Zoning Officer or said appointee, the 3 The Krupas' assertion that they were cited for failing to apply for rezoning is simply not supported by the record. The only description in the notice of the Ordinance violation was keeping farm animals in the R-2 district. As the Board found, the Krupas were only "informed of the options of requesting a non-conforming use or the rezoning of the subject property for use for agricultural purposes." Board's Findings of Fact No. 5; R.R. at 41 (emphasis added). 6 landowner and/or developer shall present said application ¦ to the Zoning Hearing Board for review and approval. B. All other uses: 1. The Zoning Hearing Board shall review, evaluate and approve or deny all applications for modification to non-conforming uses not identified by §1000-600.A. Section 1000-601.B also provides that "[t]he non-conforming use must be legally existing, approved and recognized by the Zoning Hearing Board based on applicable County documents dated 1968 or before." (Emphasis added.) It is well settled that "zoning procedures are to be strictly followed." Kline v. Zoning Hearing Board of Upper Saint Clair, 903 A.2d 77, 80 (Pa. Cmwlth. 2006). The stipulation may establish the existence of a nonconforming use on the property.4 Due to the Krupas' refusal to apply for approval and recognition of a nonconforming use in compliance with the procedures in Article VI, the issue of their entitlement to a legal nonconforming agricultural use of their property was not before the Board. As the trial court stated: Counsel for the Appellee conceded that a non conforming use may exist with regard to the subject property and that it could be recognized if a petition requesting recognition were filed by the Appellants. ¦ Appellants, however, have refused and still refuse to file the required petition. Instead, they assert their alleged non conforming use as an affirmative defense against Appellee's enforcement notice. Appellants argue that it is Appellee's duty to recognize the nonconforming use sua sponte. This is a misconstruction of the applicable law. 4 A preexisting nonconforming use is established when evidence demonstrates that the property was devoted to an existing use at the time of enactment or amendment of a zoning ordinance rendering the use nonconforming. Foreman v. Union Township Zoning Hearing Board, 787 A.2d 1099 (Pa. Cmwlth. 2001). 7 Trial Court Opinion, p. 6. Contrary to the Krupas' assertion, the Court agrees with the trial court that the stipulation did not provide a basis for sustaining their appeal from the enforcement notice. The Krupas are not without a remedy. They may file an application for approval and recognition of a nonconforming use pursuant to Article VI of the Ordinance. Because the Board did not err in denying the Krupas' appeal, the Court must affirm the order of the trial court. DORIS A. SMITH-RIBNER, Judge 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Brian J. Krupa and Mark A. Krupa, Appellants v. Fayette County Zoning Hearing Board : : : : : : No. 1111 C.D. 2007 ORDER AND NOW, this 30th day of January, 2008, the Court affirms the order of the Court of Common Pleas of Fayette County. DORIS A. SMITH-RIBNER, Judge
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