IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA In Re: Land Use Appeal of : Edward J. Terrenzio and Wendy : Terrenzio from the Decision, : Dated August 16, 2007, of : The Whitpain Township Zoning : Hearing Board : : Edward J. Terrenzio and : Wendy Terrenzio, : Appellants : : v. : No C.D : Submitted: March 27, 2009 Whitpain Township Zoning : Hearing Board : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: August 20, 2009 Edward and Wendy Terrenzio appeal an order of the Court of Common Pleas of Montgomery County (trial court), which affirmed a decision of the Whitpain Township Zoning Hearing Board (Board). The Board denied the Terrenzios appeal of two zoning enforcement notices charging them with using their residence for commercial purposes in ways that violated the Whitpain

2 Township Zoning Ordinance of 1950 (Zoning Ordinance). 1 Discerning no error in the Board s determinations, we affirm. The Terrenzios have resided at the subject property (Property) located at 501 Kurt Drive, in Whitpain Township since 1995, and it is located in an R-1 zoning district. There are no registered non-conforming uses for the Property. On May 18, 2006, the Township s Code Enforcement Officer, Michael McAndrew, conducted a drive-by inspection of the Property. He observed that siding was missing from the house, gutters had been removed, sidewalk was missing from a cordoned-off area, and the backyard was devoid of vegetation. Reproduced Record at 170a (R.R. ). McAndrew also observed a white box truck and a flat bed trailer parked on the Property. He determined that the gross vehicle weight of the box truck was 25,000 pounds and that the trailer weighed 11,000 pounds. McAndrew met with the Terrenzios and directed them to remove the truck and trailer because storing such vehicles on the Property is disallowed in the R-1 district. On June 23, 2006, McAndrew returned to the Property and saw that the box truck and trailer were still present, along with a Kubota-brand tractor. McAndrew met with the Terrenzios again regarding what he perceived as business activities being conducted on the Property, as well as the continued storage of the truck, trailer, and tractor. When the issues were still not resolved on August 8, 2006, McAndrew issued two zoning enforcement notices. The first notice charged the 1 On August 5, 2008, the Township s Board of Supervisors repealed Chapter 160 as it existed at the time and replaced it with a new Chapter 160. As the former Chapter 160 applies to this case, we cite to that chapter. 2

3 Terrenzios with violating Section of the Zoning Ordinance, which regulates home-based businesses. 2 The second enforcement notice charged the Terrenzios with violating Section of the Zoning Ordinance, which limits the use of properties in the R-1 district. 3 The Section violation was based 2 Section provides, in pertinent part: A business or commercial activity administered or conducted as an accessory use which is clearly secondary to the use as a residential dwelling and which involves no customer, client or patient traffic, whether vehicular or pedestrian, pickup, delivery or removal functions to or from the premises, in excess of those normally associated with residential use. The business or commercial activity must satisfy the following requirements: A. The business activity shall be compatible with the residential use of the property and surrounding residential uses.... C. There shall be no display or sale of retail goods and no stockpiling or inventory of a substantial nature. D. There shall be no outside appearance of a business use, including, but not limited to, parking, signs or lights. E. The business activity may not use any equipment or process which creates noise, vibration, glare, fumes, odors or electrical interference which is detectable in the neighborhood. 3 Section provides: A building may be erected, altered or used and a lot or premises may be used or occupied for any one of the following purposes and no other: A. Single-family detached dwelling. B. Farms and farm buildings; municipal recreation use. C. Municipal buildings of other than commercial character devoted to community service. D. (Reserved) E. The following accessory uses: (1) Private greenhouse. (2) A home occupation, in accordance with the standards set forth in (Footnote continued on the next page...) 3

4 upon [f]ailure to obtain a variance prior to using a single family dwelling property as a contractor s yard, storing a truck, trailer, backhoe, construction supplies, road barriers, tires, etc. R.R. 1018a. On October 31, 2006, McAndrew issued a third and final enforcement notice charging the Terrenzios with violating Section A of the Ordinance, 4 which forbids the storage of commercial vehicles weighing in excess of 9,000 pounds on property in the R-1 district. The Terrenzios appealed all three zoning enforcement notices to the Board, which conducted several hearings. At the hearing, Edward Terrenzio testified. He described his years of experience in the construction industry, which includes two home-based construction and design businesses known as Terrenzio Design Build and, later, Active Infinity. Neither is in business any longer. Terrenzio explained he has had no construction contracts since 2000 and has done no design work since He testified that he is currently unemployed and spends his time working on the Property, reading, and volunteering as a tutor. (continued...) (3) No-impact home-based businesses in accordance with the standards set forth in Section A provides: It shall be unlawful for the owner or operator of any truck or commercial vehicle having a gross weight of 9,000 pounds or more to park such vehicle at any time on any residential street or property within a residential zone in the Township of Whitpain, except when making deliveries or improvements to the property on such street. Only one commercial vehicle with a lesser gross weight than 9,000 pounds may be parked or stored in residential zones at any time. 4

5 With respect to the Township s charge that he was conducting prohibited commercial activities on the Property, Terrenzio acknowledged that he maintains a website for Terrenzio Design Build; however, he claimed it was only because he wanted to keep the address associated with the website. Terrenzio Design Build is still listed in the phone book. Terrenzio also stated that he intended to do snow plowing in the neighborhood in order to make money. Terrenzio testified that he began making improvements to the Property in April or May of Those planned improvements are: constructing a mother-in-law suite; refinishing the basement; installing air conditioning in the attic; constructing a fence; landscaping; and building a two-story addition and, possibly, a three-car garage. At the time of the hearing, Terrenzio had already removed the siding from the house, as well as the garage, trees, and driveway, which he had resurfaced. Terrenzio removed and replaced the sidewalk. One side of the house, where the garage used to be, is wrapped in a plastic tarp. A majority of the work, so far, has been demolition and digging; Terrenzio has yet to begin any actual construction since beginning the work in Terrenzio stated that he has no definitive schedule for completing his long list of improvements to the Property. Terrenzio testified that he bought the Kubota tractor when he decided to renovate the Property. He described the tractor as a big machine you would see on a construction site, but without the same horsepower as bigger equipment. R.R. 544a. He explained that the Kubota tractor is capable of light construction work, digging, trenching, and can support attachments such as a front loader or backhoe. He purchased the tractor and the flatbed trailer as a package because the trailer is necessary to transport the tractor. Terrenzio testified that, in addition to 5

6 the Kubota tractor, he stores a large white box truck, which weighs 25,000 pounds, at the Property. 5 The truck was originally purchased for commercial purposes, but Terrenzio claims it was converted to personal use in The truck has not left the property since 2002 and is used as a mobile workshop. The Property also contains stockpiles of material, such as rock and wood, which Terrenzio claims are for home renovations. Terrenzio testified that he stopped renovations on the Property because of harassment from his neighbor, Neil Murray. The harassment consisted of Murray s videotaping and photographing the Property, calling the police, and complaining to state and federal agencies about the Terrenzios activities. According to Terrenzio, the workers he hired to work on the Property refused to return after being harassed by Murray and his wife. Neil Murray testified at the hearing. He stated that from March through June of 2006, Terrenzio operated his tractor on an almost daily basis from 10:00 a.m. until 4:00 or 5:00 p.m. and on one occasion until 8:00 p.m. Murray claimed that on some occasions Terrenzio drove the tractor around the Property with no apparent purpose since the attachments on the tractor barely touched the ground. Murray expressed concern over the high level of noise, vibrations, dirt, dust, and fumes created by the tractor, which he believed posed a risk to his son and interfered with the use of his own property. On March 19, 2006, Murray confronted Terrenzio regarding his use of the tractor and asked how long it would continue. Terrenzio responded, I plan on doing this for the next ten years, and I can do whatever I want. R.R. 334a. 5 The box truck is the size of a typical delivery truck. 6

7 Murray admitted to calling the police on two occasions. Murray first called the police when Terrenzio began videotaping the Murray family in their backyard, presumably to reciprocate Murray s videotaping. Murray s second call to the police was to report that Terrenzio was operating the tractor until 8:00 p.m. Terrenzio was cited for disturbing the peace on that occasion. Murray testified that he called the federal Occupational Safety and Health Administration because of the way Terrenzio was demolishing his garage. Finally, Murray stated that the tractor stirred up white dust, which, due to the age of the homes, Murray believed could contain asbestos. R.R. 919a. The Board also heard testimony from other residents of the neighborhood. Lorna Murray testified that whenever Terrenzio operates the tractor, she is forced to usher her asthmatic son inside and close all the windows to keep out the dust, exhaust, and noise. She further testified that she is unable to entertain houseguests in her backyard because of the tractor. Mike Jaskowiak, who lives approximately 400 feet away from the Terrenzios, testified that his second floor windows vibrate whenever the tractor is in operation. Susan Sauter testified that, when giving driving directions to her home, she diverts her houseguests away from the Property in order to avoid embarrassment. John Mraz testified that, although he would like to sell his home, he fears its value has been greatly decreased due to the condition of the Terrenzios property. Mr. Mraz also testified to the commercial nature of the Kubota tractor. He stated that in November 2005, he spoke with Terrenzio about hiring a contractor for home renovations, and Terrenzio informed him that he does design work and has a backhoe for digging foundations. Jerry Scalley also testified to the probable decline in the value of his 7

8 property and stated that his family refers to the Terrenzios property as the Dump. R.R Following the hearings, the Board held that the Terrenzios did not violate Section of the Zoning Ordinance, which regulates home-based businesses, because the Township had failed to prove that the Terrenzios were actually operating a business on the Property. 6 The Board held that the Terrenzios did violate Section of the Zoning Ordinance by using the Property to store construction supplies, such as construction materials and large trucks. Finally, the Board held that the Terrenzios violated Section A by storing the Kubota tractor and flatbed trailer, which the Board treated as a single unit that exceeded the 9,000 pound weight limit. The Terrenzios appealed to the trial court, which affirmed the Board s decision. The Terrenzios now appeal to this Court. 7 On appeal, the Terrenzios raise two issues. First, the Terrenzios argue that the Board abused its discretion in applying Section A to the Kubota tractor and trailer. 8 Second, the Terrenzios contend that the Board abused its 6 The Board s ruling was based, in part, on McAndrew s admission that he had no evidence of any business activity being done on the Property within the year prior to his testimony. The Township did not appeal the Board s ruling. 7 Where the trial court takes no additional evidence, this Court s standard of review is limited to determining whether the Board committed an error of law or an abuse of discretion. Crown Communications v. Zoning Hearing Board of the Borough of Glenfield, 550 Pa. 266, 272, 705 A.2d 427, 430 (1997). An abuse of discretion exists when the findings of the Board are not supported by substantial evidence; that is, evidence which a reasonable mind would find adequate to support such a conclusion. Id. 8 In their brief to this Court, the Terrenzios do not raise any issue concerning the box truck. We note that the Board did not abuse its discretion in finding that storage of the box truck was a violation of Section A, which, as noted previously, prohibits storage of commercial vehicles weighing more than 9,000 pounds on residential property. The truck clearly is a commercial vehicle. Terrenzio confirmed in his testimony that the truck has a gross weight of 25,000 pounds. 8

9 discretion in finding that the Terrenzios storage activities constituted an unlawful commercial use of the Property under Section With respect to the violation of Section A, the Terrenzios make several arguments. They are not persuasive. First, the Terrenzios argue that it was error for the Board to combine the weights of the Kubota tractor and the flatbed trailer, which together weigh 9,800 pounds, to determine that there was a violation of the 9,000 pound weight restriction. The Terrenzios contend they are two distinct vehicles, with the trailer having a gross weight of 2,800 pounds, and the tractor weighing 7,000 pounds. The Terrenzios argument is belied by Terrenzio s own testimony, in which he acknowledged that he purchased the tractor and trailer together as a package and that the trailer is necessary to transport the tractor. 9 The Board s combination of their weight was an appropriate application of the Ordinance to the facts. Next, the Terrenzios contend that a tractor/trailer is not commercial in nature, as found by the Board. However, Terrenzio admitted that the tractor looks like a big machine you would see on a construction site. R.R. 544a. Further, when the Terrenzios neighbor, John Mraz, expressed interest in having a foundation dug on his property, Terrenzio informed him that he does 9 Because the tractor/trailer combination was properly treated as one unit, we need not consider the weight of the trailer, standing alone, for purposes of the Zoning Ordinance. McAndrew s investigation found that the trailer had a gross vehicle weight of 11,000 pounds. The Bureau of Motor Vehicles lists its gross weight at 11,830 pounds. Mr. Terrenzio testified that the trailer weighed 2,800 pounds, without reference to whether this was the gross vehicle weight as required by the Ordinance. The Board ultimately relied on Mr. Terrenzio s measure of weight for the trailer. Next, Mr. Terrenzio testified that the tractor weighs 7,000 pounds. The Board then combined the 2,800 pound trailer with the 7,000 pound Kubota tractor and determined that the 9,800 pound tractor/trailer combination was in violation of Section A. Therefore, any of the above measures of weight would result in a weight over 9,000 pounds. 9

10 design work and has a backhoe. The Board also heard testimony that Terrenzio intended to charge neighbors for plowing snow with the tractor. Although Terrenzio did use the tractor for projects on the Property, the vehicle is still commercial in nature and was offered for use in commercial transactions. The record well supports the Board s finding that the tractor/trailer was a commercial vehicle. Finally, the Terrenzios argue that the Board erred by failing to apply the exception in Section A, which allows a property owner to store otherwise prohibited commercial vehicles in conjunction with making improvements to his property. 10 The Board held there had to be a temporal limit to this exception. When a zoning hearing board interprets its own ordinance, its interpretation is entitled to deference. Beers v. Zoning Hearing Board of Towamensing Township, 933 A.2d 1067, 1071 (Pa. Cmwlth. 2007). The legislative intent of the governing body determines the proper construction of an ordinance. Tobin v. Radnor Township Board of Commissioners, 597 A.2d 1258, 1264 (Pa. Cmwlth. 1991) (explaining that when this Court is addressing the intent of a governing body in enacting an ordinance, we will presume that body did not intend a result that is absurd or unreasonable ). We agree with the Board that the exception in Section A implies a temporal limit. McAndrew explained that a property owner must obtain 10 Section A provides: It shall be unlawful for the owner or operator of any truck or commercial vehicle having a gross weight of 9,000 pounds or more to park such vehicle at any time on any residential street or property within a residential zone in the Township of Whitpain, except when making deliveries or improvements to the property on such street. Only one commercial vehicle with a lesser gross weight than 9,000 pounds may be parked or stored in residential zones at any time. (emphasis added). 10

11 a permit for most home improvements, and they must complete the work within six months. The time limit comports with the Township s objective of keeping the R-1 district strictly residential in use and appearance. The Terrenzios improvements have so far consisted of demolition with little to no actual improvement to the land or their home. The box truck has not left the property since The tractor and trailer have been stored on the property since they were purchased in November The only improvements since that time have been reseeding the yard, repaving the driveway and sidewalk, and putting up part of a fence. 11 To allow the storage of vehicles during the indefinite period of construction proposed by the Terrenzios would nullify the limitation in the Zoning Ordinance on the storage of commercial vehicles weighing more than 9,000 pounds. The Terrenzios claim for the exception in Section A is unavailing. In their second issue on appeal, the Terrenzios argue that the Board erred in finding that they violated the home-based business regulations in Section of the Zoning Ordinance. The Terrenzios attempt to classify the Section issue as nothing more than an alleged private nuisance. Appellant s Brief at 18. This argument is also unavailing. Here, the Board found that the Terrenzios were using the Property, which McAndrew described as a contractor s yard, for storage of various building materials, tools, equipment, commercial vehicles, and repetitive operation of a tractor. The Board found that [t]he parking of a truck or large commercial vehicle, whether or not it is actually used at the residence for a business purpose, is 11 The Township prohibited Terrenzio from completing the fence due to possible rain water drainage complications. 11

12 in itself incompatible with residential zoning. Board decision, August 16, 2007, at 16. Further, [i]f mere storage or parking of such equipment is a violation, so, certainly, is actual operation of equipment such as the backhoe on a daily basis. Id. The Section zoning issue is not a misplaced private nuisance claim. In this case, an entire community of neighbors is affected by the illegal storage of materials. When the community is involved, it is proper for the Township to be involved. Appellee s Brief at 18. More importantly, the storage activities were specifically addressed by the Zoning Ordinance and restricted. That the neighbors may also have a common law nuisance claim against the Terrenzios does not mean the Township cannot enforce its ordinance. For all the foregoing reasons, we affirm the trial court s affirmance of the Board s order. MARY HANNAH LEAVITT, Judge 12

13 IN THE COMMONWEALTH COURT OF PENNSYLVANIA In Re: Land Use Appeal of : Edward J. Terrenzio and Wendy : Terrenzio from the Decision, : Dated August 16, 2007, of : The Whitpain Township Zoning : Hearing Board : : Edward J. Terrenzio and : Wendy Terrenzio, : Appellants : : v. : No C.D : Whitpain Township Zoning : Hearing Board : ORDER AND NOW, this 20 th day of August, 2009, the order of the Court of Common Pleas of Montgomery County dated August 21, 2008, in the above captioned matter is hereby AFFIRMED. MARY HANNAH LEAVITT, Judge