J. J. Soppick, et al. v. ZHB of the Boro of West Conshohocken, et al. (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joseph J. Soppick and Janet A. Soppick, : Appellants : : v. : : Zoning Hearing Board of the Borough : of West Conshohocken and The : Borough of West Conshohocken : BEFORE: No. 531 C.D. 2007 Submitted: November 30, 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: February 19, 2008 Joseph J. Soppick and Janet A. Soppick appeal from the February 21, 2007 order of the Court of Common Pleas of Montgomery County that affirmed the decision of the Borough of West Conshohocken Zoning Hearing Board (Board) denying the Soppicks' appeal from a cease and desist order issued by the Borough on April 23, 1999. The issues raised are whether the cease and desist order should be invalidated because it was issued without the requisite components and in retaliation for the Soppicks' public allegations against the Mayor for his unethical and/or illegal conduct; whether the hearings, decision and Board opinion complied with due process; and whether the decision was made without sufficient evidence. The Soppicks own property in the R-1 Residential zoning district, containing 1686 square feet of a nonconforming residence and carport. In 1993 the Soppicks obtained a building permit for a 437-square-foot addition to the existing structures. Section 113-126.B of the Borough Zoning Ordinance permits an increase of an existing nonconforming structure up to twenty-five percent. On June 6, 1996, the Soppicks filed a building permit application to construct a 3-car, 28-foot-by-38-foot (1064 square feet), attached garage on the property. The Borough denied the application on the basis that the 1993 addition already exceeded the twenty-five-percent expansion limit (421.5 square feet). On June 26, 1996, the Soppicks filed another building permit application proposing to construct a one-story, detached, 25-foot-by-38-foot (950 square feet) garage with a 6-foot breezeway connecting the proposed garage and the residence. Considering the proposed detached garage to be a separate building, not an expansion of the nonconforming structures, the Borough approved the application on June 27, 1996. The Soppicks were required to complete the construction within one year from the date of the permit issuance, but they obtained a six-month extension in June 1997. In April 1999 the Borough building/zoning officer inspected the Soppicks' property and learned that they were constructing a 2-story, 1173 squarefoot, attached garage, which deviated from the specifications set forth in the June 27, 1996 building permit. On April 23, 1999, the officer issued a cease and desist order, stating that the Soppicks violated Sections 111.2 and 111.3 of the Building Officials and Code Administrators International Inc.'s National Building Code/1996 (BOCA Code)1 and Sections 37-5.C and 37-7.C of the Borough 1 Section 111.2 of the BOCA Code provides that "[t]he permit shall be a license to proceed with the work and shall not be construed as authority to violate, cancel or set aside any of the provisions of the code, except as specifically stipulated by modification or legally granted variation as described in the application." Section 111.3 provides that "[a]ll work shall conform to the approved application and the approved construction documents for which the permit has been issued and any approved amendments to the approved application or the approved construction documents." (Emphasis in original.) 2 Building Construction Code (Borough Construction Code).2 A copy of each section was attached. They were ordered to cease construction immediately or be subjected to fines for each day of violation and were advised of their rights to appeal the order to the Board, which has exclusive jurisdiction over appeals from any cease and desist order. Section 909.1(a)(3) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, added by Section 87 of the Act of December 21, 1988, P.L. 1329, 53 P.S. §10909.1(a)(3). The Soppicks, however, appealed the cease and desist order to the Borough Council, relying on Section 37-9.B of the Borough Construction Code (appeals from issuance or denial of permits). After a hearing the Borough Council denied the appeal in June 1999. On appeal, the trial court remanded the matter to the Board for a new hearing. After granting the Soppicks numerous continuances, the Board held the first hearing in November 2002. Subsequent hearings were again continued at the Soppicks' requests. In February 2003 the Soppicks filed an action under 42 U.S.C. §1983 against the Board and its members in the federal district court, alleging a violation of their due process rights. At the Soppicks' request, the Board stayed its proceeding pending the federal action. In February 2004 the Soppicks filed a mandamus action in the trial court seeking a deemed 2 Section 37-5.C of the Borough Construction Code provides that "[a]ny person, partnership, firm or corporation which, without prior written approval ¦ during construction or thereafter, deviates from or changes the plans, drawings and specifications submitted for any building or structure shall be in violation of this section and shall be liable for the penalties imposed in § 37-24." Section 37-7.C provides: "Construction must commence within six months of the date that the building permit is issued and must be completed within one year from the date that the building permit is issued unless written approval for an extension of time ¦ is obtained from the Building Inspector. ¦ [I]f such extension is not granted ¦, the permit shall become null and void." 3 decision for the Board's failure to render a decision within the time limit set forth in Section 908(9) of the MPC, 53 P.S. §10908(9). After the Soppicks' federal action was dismissed as time-barred in March 2004, the Board conducted a final hearing on April 26, 2004 and voted unanimously to deny the appeal at a public hearing on June 9, 2004. The Board issued a written decision on June 11, 2004 and findings of fact and conclusions of law on June 18, 2004. On appeal the trial court stayed the proceeding pending the Soppicks' appeal from the trial court's dismissal of the mandamus action, which was later affirmed by this Court in a memorandum opinion and order filed in Soppick v. West Conshohocken Zoning Hearing Board (Pa. Cmwlth., No. 2075 C.D. 2005, filed June 27, 2006), appeal denied, 590 Pa. 671, 912 A.2d 840 (2006). Thereafter, the trial court affirmed the Board but vacated its order pending the appeal from this Court's decision in the mandamus action. After the Supreme Court denied the appeal, the trial court affirmed the Board on February 21, 2007. The trial court determined that the Borough issued the cease and desist order properly, noting that the order informed the Soppicks of the specific sections of the Codes that they violated and that the Borough advised them of the proper manner of constructing the garage in compliance with the June 27, 1996 permit by attaching those sections. The trial court rejected claims that the Board was biased and violated the Soppicks' due process rights and that the cease and desist order was issued to retaliate against them because of their allegations against the Mayor. It applied the law of the case doctrine to the federal court's dismissal of the Soppicks' due process violation claim and to this Court's decision affirming the dismissal of the mandamus action, and it concluded that the due process claim was time-barred and waived due to failure to raise it in the appeals from decisions of 4 the Borough Council and the Board.3 Any procedural errors were caused by the Soppicks, and the Board's decision is supported by the evidence of record.4 The Soppicks argue that the right to possess and to protect property is guaranteed by Article 1, Section 1 of the Pennsylvania Constitution and that the Board denied their constitutional right by imposing fines and "by denying further permits by which [they] could remediate and be in compliance with all applicable codes." Soppicks' Brief, p. 8. They assert that "[t]he very onset of the revocation of the issued permit and its lack of specified remedy was and remains rooted in political intrigue rather than zoning issues," that "hearings were tainted by the same intrigue as evidenced by the failure of the board to specify remedies ¦ and general non-compliance with [their] request for a full and fair hearing" and that they were able to present only the circumstances surrounding "their zoning nightmare." Id. They cite East Hempfield Township v. Brubaker, 828 A.2d 1184 (Pa. Cmwlth. 2003), setting forth factors to be considered in determining whether a 3 The trial court cited Safe Harbor Water Power Corp. v. Williams, 825 A.2d 733, 741 (Pa. Cmwlth. 2003), aff'd sub nom. Safe Harbor Water Power Corp. v. Fajt, 583 Pa. 234, 876 A.2d 954 (2005), which stated that "[t]he law of the case doctrine embodies the concept that a court involved in later phases of a litigated matter should not reopen questions finally decided by another judge of that same court or by a higher court in an earlier phase." The Court further stated that "upon transfer of a matter between trial judges of coordinate jurisdiction, the transferee trial court may not alter the resolution of a legal question previously decided by the transferor trial court." Safe Harbor, 825 A.2d at 741 (quoting Commonwealth v. Starr, 541 Pa. 564, 574, 664 A.2d 1326, 1331 (1995)). The trial court also cited Commonwealth v. Kelliher, 472 A.2d 1091, 1095 (Pa. Super. 1984), holding that a previously filed memorandum opinion controls "as to the facts of that case and is the law of that case until overruled ¦." The Court need not discuss the applicability of the doctrine in resolving the issues raised on appeal. 4 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 vested right to a land use exists by virtue of an erroneously or unlawfully issued building permit. The Board argues that the cease and desist order was properly issued and that it did not commit an abuse of discretion or an error of law. Due process requirements are satisfied by affording "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). In the cease and desist order, the Borough specifically advised the Soppicks that they were in violation of Sections 111.2 and 111.3 of the BOCA Code and Sections 37-5.C and 37-7.C of the Borough Construction Code, and a copy of those sections was attached to the order. They also were informed of the right to appeal the order to the Board and to have a public hearing. The Court concludes that information in the cease and desist order was sufficient to satisfy the due process requirements. A municipality's governing body has power to enact laws to regulate land use pursuant to the municipality's police power. Greth Dev. Group, Inc. v. Zoning Hearing Board of Lower Heidelberg Township, 918 A.2d 181 (Pa. Cmwlth.), appeal denied, ___ Pa. ___, 929 A.2d 1163 (2007). Section 113-131 of the Zoning Ordinance provides that "[i]n case any building or structure is erected, constructed ¦ or maintained ¦ in violation of this chapter or of any regulation made pursuant thereto, in addition to other remedies provided by law, any appropriate action or proceedings ¦ may be instituted or taken to prevent such unlawful erection, construction ¦ [or] maintenance ¦ [or] to prevent the occupancy of said building [or] structure ¦." The June 27, 1996 building permit authorized the Soppicks to construct a detached, 25-foot-by-38-foot (950 square feet) garage. They do not dispute the Board's finding that they deviated from the permit's specifications by 6 constructing a two-story, 1178-square-foot, attached garage. Board's Findings of Fact No. 13; Reproduced Record (R.R.) at 21a. Their action violated Sections 111.2 and 111.3 of the BOCA Code and Section 37-5.C of the Borough Construction Code requiring compliance with the building permit. It is also undisputed that the Soppicks failed to complete the construction within the required time limit despite the six-month extension, in violation of Section 37-7.C of the Borough Construction Code. The Borough therefore was justified in issuing the cease and desist order pursuant to Section 113-131 of the Zoning Ordinance.5 Further, the Soppicks failed to present any evidence to support their claim that the cease and desist order was based on political intrigue or bias and was in retaliation for their allegations against the Mayor. At the start of the Board's November 14, 2002 hearing, the Soppicks' counsel attempted to inquire into one of the Board member's appointment to the Board. The Board's chairperson sustained the Borough's objection and said to counsel: "If you do have evidence of prejudice, or bias, or anything else in that vain [sic], please present it." Certified Record, November 14, 2002 Hearing, N.T., p. 12. Counsel responded: "I have no evidence of that." Id. In the appeal from the Board's decision, the Soppicks alleged only that "[t]he Cease and Desist order was issued on April 23, 1999 after [they] had made a public allegation as to the Borough Mayor's unethical conduct." See 5 A landowner has a vested right to a land use acquired by virtue of an erroneously or unlawfully issued building permit upon satisfying the following five factors: the landowner's due diligence in attempting to comply with the law; good faith throughout the proceedings; expenditure of substantial unrecoverable funds; expiration of the appeal period; and insufficient evidence of adverse effect on the public health, safety or welfare. Brubaker. The Soppicks, however, never asserted that the June 27, 1996 building permit was erroneously or unlawfully issued and that their violations resulted from reliance on that permit. The doctrine of a vested right, therefore, is inapplicable to this matter, and the Court accordingly rejects the Soppicks' reliance on the vested right doctrine. 7 Certified Record, Soppicks' Appeal Notice, ¶6(b). The Soppicks state that the issuance of the order "coincid[ed] with their allegations of unethical conduct by the Mayor." Soppicks' Brief, p. 8. Such coincidence alone, however, does not support the allegations that the order was politically motivated or was in retaliation for the Soppicks' accusations or that they were subject to bias in this proceeding. In addition, the record does not demonstrate "an absence of procedural compliance" by the Board. Soppicks' Brief, p.8. The record instead amply shows that the delay in this proceeding was caused by the Soppicks' own actions of filing the appeal from the cease and desist order initially to the Borough Council, not to the Board; filing two subsequent actions in the federal district court and the trial court; and requesting numerous continuances and stay of the proceedings. They were provided a fair and full opportunity to present evidence at the three hearings before the Board, and, finding no error of law or abuse of discretion by the Board, the Court hereby affirms the trial court's order. DORIS A. SMITH-RIBNER, Judge 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joseph J. Soppick and Janet A. Soppick, : Appellants : : v. : : Zoning Hearing Board of the Borough : of West Conshohocken and The : Borough of West Conshohocken : No. 531 C.D. 2007 ORDER AND NOW, this 19th day of February, 2008, the Court affirms the order of the Court of Common Pleas of Montgomery County. DORIS A. SMITH-RIBNER, Judge

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