S. F. & D. Berardi v. J. L. Warrington-Fatiga, et al. - 1418 & (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steven F. and Diane Berardi, Appellants : : : v. : : Jael L. Warrington-Fatiga and Frank P. : Fatiga, Jr., and Independent Lift Truck, : Inc. : In Re: Appeal of Jael and Frank P. Fatiga, Jr., from the decision of the Warwick Township Zoning Hearing Board dated September 13, 2006 BEFORE: : : : : No. 1418 C.D. 2007 No. 1462 C.D. 2007 Argued: March 11, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: May 22, 2008 Jael L. Warrington-Fatiga and Frank P. Fatiga, Jr. appeal from the order of the Bucks County Common Pleas Court affirming the Warwick Township Zoning Hearing Board's (Board) order affirming denial of the Fatigas' application for a non-residential use and occupancy certificate and their request for a special exception. Steven F. and Diane Berardi appeal from the trial court's order denying post-trial relief in their lawsuit seeking injunctive relief against the Fatigas and Independent Lift Truck, Inc. (Independent), owned by Frank P. Fatiga, Jr.'s parent. The Fatigas purchased a property located at 1420 Turkey Troy Road in Warwick Township (Township) within the R-1 Residential zoning district on June 15, 2005. The property consists of 86,200 square feet and contains a two- story residential dwelling and a forty-foot-by-sixty-foot steel frame building. The former owner resided on the property since 1959 and operated a well-drilling business in the rear of the residence before enactment of the Zoning Ordinance (Ordinance). The Fatigas moved in after their purchase and began operating Independent, which is in the business of purchasing and repairing for sale or lease on site and storing forklifts. Independent has about 100 customers and three employees, and it stores twenty to thirty forklifts on the property at any given time. The Berardis, owners of an adjacent residential property, complained to the Township about the Fatigas' use of the property. On June 29, 2005, the Township's assistant manager and zoning officer, Thomas P. Scott, sent Frank P. Fatiga, Jr. a letter stating that the storage or repair of forklifts or forklift equipment is not permitted in the R-1 zoning district and that those items must be removed from the property by July 7. Scott sent Frank P. Fatiga, Jr. another letter on August 12, stating that he violated Section 195-127 of the Ordinance by storing forklift equipment and vehicles on the property without obtaining a non-residential use and occupancy certificate. He was ordered to remove the equipment and vehicles by August 20 and was advised of his right to appeal within thirty days. In a letter to Scott on August 17, Jael L. Warrington-Fatiga stated that the current use conformed to the former owner's use and that she was appealing the notice. Based upon incorrect information that Frank P. Fatiga, Jr. had no ownership interest in the property, the district justice dismissed the complaint against Frank P. Fatiga, Jr. alleging that he operated a forklift business without a use and occupancy certificate. The Township agreed to permit the Fatigas to file an application for a certificate, and they did so describing use of the property as a "contractor's yard and office." Determining that such use is not permitted in the R- 2 1 zoning district, the zoning officer denied the application. The Fatigas appealed and, alternatively, requested a special exception under Section 195-83 of the Ordinance to change one nonconforming use to another nonconforming use. The Board rejected the Berardis' contention that the Fatigas were precluded from filing an application for use and occupancy certificate due to their failure to appeal the zoning officer's June and August 2005 enforcement notices. Accepting the Berardis' evidence as credible, the Board classified the former owner's use as a "contracting"1 business and Independent's current use as "heavy equipment and farm equipment sales and repair." Neither a contracting business nor a heavy equipment and farm equipment sales and repair use is permitted in the R-1 zoning district. The Board found that the Fatigas' use of the property resulted in unacceptable and objectionable increase in noise, smoke, dust, fumes and vapors and increased density in equipment storage and that their use is more intense and offensive and different from the prior nonconforming use. The Board concluded that the Fatigas failed to meet criteria for a special exception. It denied the Fatigas' appeal from denial of the application for a use and occupancy certificate and also denied their request for a special exception. While the Fatigas' land use appeal was pending before the trial court, the Berardis filed a civil action against the Fatigas and Independent seeking, inter alia, injunctive relief. At a preliminary injunction hearing, the parties entered into an agreement, entered in the record as the trial court's order, limiting Independent's activities on the property pending disposition of the land use appeal. The trial court consolidated the Fatigas' appeal and the Berardis' action to be decided based 1 Section 195-16.H(5) defines "contracting" as "[c]ontractor offices and shops such as building, cement, electrical, heating, masonry, painting, plumbing, carpentry and roofing." 3 on the Board's record. On April 16, 2007, the trial court vacated its previous order denying the Berardis' petition for preliminary injunction and denied their "request for injunctive relief under Section 617 of the Pennsylvania Municipalities Planning Code [MPC]."2 Certified Record, Item No. 40. In an opinion issued July 9, 2007, the trial court denied the Fatigas' land use appeal, and the same day it issued an order denying post-trial relief in the Berardis' action seeking injunctive relief.3 The Fatigas do not challenge the denial of their request for a special exception, but they argue that the trial court erred because the Board's finding that the property was used for heavy equipment and farm equipment sales and repair, 2 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10617. Section 617 of the MPC provides in relevant part: In case any building, structure, landscaping or land is ¦ maintained or used in violation of any ordinance enacted under this act or prior enabling laws, ¦ any aggrieved owner or tenant of real property who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding to prevent, restrain, correct or abate such building, structure, landscaping or land, or to prevent, in or about such premises, any act, conduct, business or use constituting a violation. (Emphasis added.) 3 The Court's review in zoning cases, where, as here, the trial court takes no additional evidence is limited to determining whether the zoning hearing board committed an error of law or abuse of discretion. McGonigle v. Lower Heidelberg Township Zoning Hearing Board, 858 A.2d 663 (Pa. Cmwlth. 2004). The board abuses its discretion if its findings are not supported by substantial evidence. Also, it is the exclusive arbiter of witness' credibility and evidentiary weight and may accept or reject, in whole or in part, the testimony of any witness. Broussard v. Zoning Board of Adjustment of Pittsburgh, 831 A.2d 764 (Pa. Cmwlth. 2003), aff'd, 589 Pa. 71, 907 A.2d 494 (2006). The issue of whether a use falls within a category of permitted use under a zoning ordinance is a question of law subject to the Court's review. Caln Nether Co., L.P. v. Board of Supervisors of Thornbury Township, 840 A.2d 484 (Pa. Cmwlth. 2004). The Court's review in equity matters is limited to determining whether the trial court committed an error of law or abuse of discretion. Borough of Latrobe v. Pohland, 702 A.2d 1089 (Pa. Cmwlth. 1997). 4 not as a continuation of a nonconforming contractor's yard use, was not supported by substantial evidence. They maintain that the Board capriciously disregarded the zoning officer's testimony that they used the property as a contractor's yard with some aspects of wholesale business and warehousing; that the trial court erred in determining that the doctrine of natural expansion did not apply; that their use is less intensive than the former owner's use; and that the trial court contradicted itself by finding their use to be offensive but denying the injunction request. After review, the Court agrees with the trial court's disposition and finds that it properly addressed the Fatigas' arguments, and therefore it shall affirm the trial court's order based upon the opinion of the Honorable Robert J. Mellon in In re: Appeal of Jael and Frank Fatiga, Jr. from the Decision of the Warwick Township Zoning Hearing Board, dated September 13, 2006 (No. 06-04421-27-2, filed July 9, 2007).4 The Berardis argue that the trial court erred in denying their request for injunctive relief under Section 617 of the MPC. The trial court informed this Court that it would not issue a separate opinion supporting denial of the Berardis' request "because the Land Use Appeal is controlling." Trial Court September 7, 2007 Letter. They sought an order for the Fatigas and Independent "to cease and desist the illegal and unauthorized commercial/industrial use of the Property as a 4 The record does not support the Fatigas' argument that the Board capriciously disregarded the zoning officer's testimony. Capricious disregard occurs only when the factfinder deliberately ignores relevant and competent evidence. Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807 (Pa. Cmwlth. 2005). However, "where there is substantial evidence to support an agency's factual findings, and those findings in turn support the conclusions, it should remain a rare instance in which an appellate court would disturb an adjudication based upon capricious disregard." Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 203 - 204 n14, 812 A.2d 478, 487 n14 (2002). The Board accepted the evidence presented by the objectors and found that the Fatigas' use of the property is clearly for equipment rental, repairs and sales and not a contractor's yard. Because the Board's findings are supported by substantial evidence, they may not be disturbed. 5 forklift repair business." Berardis' Complaint, pp. 7 - 8; Supplemental Record at 11b - 12b.5 Under the mootness doctrine, an actual case or controversy must exist at all stages of review and not merely at the time of filing a complaint. See Public Defender's Office of Venango County v. Venango County Court of Common Pleas, 586 Pa. 317, 893 A.2d 1275 (2006). The Berardis obtained the relief they sought when the trial court affirmed denial of the Fatigas' application and determination that their current use is not permitted as a nonconforming use and that they were not entitled to a special exception. Hence, the issue in the Berardis' appeal is moot, and as such the Court accepts the trial court's representation that its ruling in the land use appeal controls the outcome in the injunction action. The Court affirms as well the trial court's order denying the Berardis' motion for post-trial relief. DORIS A. SMITH-RIBNER, Judge 5 The Court rejects the argument of the Berardis and the Township that the Fatigas' failure to appeal the June and August 2005 enforcement notices should have the effect of conclusively establishing a violation of the Ordinance. Section 616.1(c)(6) of the MPC, added by Section 60 of the Act of December 21, 1988, P.L. 1329, 53 P.S. §10616.1(c)(6), provides that "failure to comply with the [enforcement] notice within the time specified, unless extended by appeal to the zoning hearing board, constitutes a violation, with possible sanctions clearly described." In the June 29 notice, the zoning officer failed to cite any applicable provisions of the Ordinance, as required by Section 616.1(c)(3), 53 P.S. §10616.1(c)(3), and to advise the Fatigas of their right to appeal. Moreover, Jael L. Warrington-Fatiga informed the zoning officer that she was "appealing" the August 12 enforcement notice. R.R. at 388a. The Township later allowed the Fatigas to file an application for non-residential use and occupancy certificate, and the Fatigas timely appealed the zoning officer's denial of that application. 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steven F. and Diane Berardi, Appellants : : : v. : : Jael L. Warrington-Fatiga and Frank P. : Fatiga, Jr., and Independent Lift Truck, : Inc. : In Re: Appeal of Jael and Frank P. Fatiga, Jr., from the decision of the Warwick Township Zoning Hearing Board dated September 13, 2006 : : : : No. 1418 C.D. 2007 No. 1462 C.D. 2007 ORDER AND NOW, this 22nd day of May, 2008, the Court affirms the order of the Court of Common Pleas of Bucks County based on the opinion of the Honorable Robert J. Mellon in In re: Appeal of Jael and Frank Fatiga, Jr. from the Decision of the Warwick Township Zoning Hearing Board, dated September 13, 2006 (No. 06-04421-27-2, filed July 9, 2007). The Court also affirms the trial court's order denying the motion for post-trial relief filed by Steven F. and Diane Berardi. DORIS A. SMITH-RIBNER, Judge
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