Opinion
No. 248 C.D. 2013
10-17-2013
Commonwealth of Pennsylvania v. Jeffrey Dunn and Anna Dunn, Appellants
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Jeffrey and Anna Dunn, husband and wife, appeal from an order of the Court of Common Pleas of Luzerne County finding them guilty of operating a swimming pool construction business on their property located in the R-1 Single-Family Residential zoning district in violation of Section 501.1 of the Pittston Township Zoning Ordinance (Ordinance), as amended. The Dunns claim that after the filing of this appeal, they have discovered new evidence indicating that their property is located in the I-1 Industrial zoning district where a business operation is permitted, not in the R-1 zoning district. They ask this Court to reverse their convictions, taking judicial notice that their property is located within the I-1 zoning district. In the alternative, they seek a remand to the trial court for a further proceeding. We conclude that their convictions are supported by the evidence presented at the trial court's de novo hearing. We deny the Dunns' request for judicial notice and a remand and affirm the trial court's order.
The Dunns purchased a residential property located at 1018 Suscon Road in Pittston Township (Township), Luzerne County in 2008 and have since resided there. Subsequently, the Dunns constructed a 40'-by-60' pole barn on the property after obtaining a permit from the Township. In September 2010, the owner of an adjacent property at 1010 Suscon Road sent a letter to the zoning officer, complaining that the Dunns were operating a swimming pool construction business, JD Custom Pools, Inc., out of the pole barn on their property, that dump trucks, trailers, vans and equipment used for their business were stored overnight "behind and to the right of the barn," and that their employees parked cars there during the day. Township's Exhibit 2.
After an inspection of the Dunns' property, the zoning officer sent Jeff Dunn a notice of violation on October 12, 2010, stating that they used the pole barn as a storage yard for their business in violation of Section 501.1 of the Ordinance, which permits as of right only "Single-family Detached Dwellings," "Public Utility Facilities (excluding storage yards)" and "Accessory Uses" in the R-1 zoning district. The zoning officer ordered the Dunns to cease all commercial activities, including loading, unloading and parking commercial vehicles, on the property and to remove all commercial items from the property within 10 days. In a second violation notice issued on April 1, 2011, the zoning officer informed the Dunns that the Township would take legal action if they failed to cease business-related activities on the property within 10 days.
Section 202 of the Ordinance defines an "accessory use" as "[a] use incidental to, and on the same lot as, a principal use."
On April 21, 2011, the Township issued a citation against the Dunns for operating a business in the R-1 zoning district in violation of Section 501.1 of the Ordinance. On May 23, the Township issued two more citations against them for accumulating and storing building materials, pool parts, oil barrels and debris on the property and for installing a permanent fence exceeding the height limitation with non-approved materials. On November 16, a magisterial district judge found them guilty of the offenses charged in the citations and imposed penalties. They appealed the convictions to the trial court, which held a de novo hearing.
At the beginning of the direct examination by the Township's counsel, Anna Dunn admitted that the residential property was within the R-1 Residential zoning district. May 2, 2012 Hearing, Notes of Testimony (N.T.) at 7; Reproduced Record (R.R.) at 33a. In response to the trial judge's question, Jeff Dunn also acknowledged that in the permit application seeking approval of the pole barn construction, he indicated that the residential property was located in the R-1 zoning district. Id. at 3-4; R.R. at 32a. The zoning officer testified that at the time of his first inspection in 2010, he noticed a "skidster," a backhoe, trucks marked with JD Custom Pools, flatbed trailers and a ladder on the Dunns' residential property, and that they failed to comply with the subsequent violation notices. Id. at 28; R.R. at 38a. At the time of an inspection three weeks before the hearing, he saw "a skidster" and a dumpster on the residential property and a van and a truck on a recently acquired adjacent property, which is one of five properties owned by the Dunns in the area and is located in the industrial zoning district. Id. at 32; R.R. at 39a. Anna Dunn testified that although seven or eight commercial vehicles and tools used by JD Custom Pools were previously stored on the residential property overnight, those vehicles were currently parked on a commercial property that "bumps right against [the Dunns' residential] property" and that those vehicles had access to the commercial property through an "easement road" over the residential property. Id. at 9 and 13; R.R. at 33a and 34a.
In an opinion and order issued on December 11, 2012, the trial court found the Dunns guilty of violating Section 501.1 of the Ordinance by operating the swimming pool construction business in the R-1 zoning district. The court ordered the Dunns to pay the Township a penalty of $1000 plus costs, including $1500 attorney's fees incurred by the Township. The Dunns appealed the trial court's decision to the Superior Court which transferred the appeal to this Court.
The trial court did not make any findings as to the charge that the Dunns improperly installed the permanent fence on the property.
In a summary proceeding involving a violation of a municipal ordinance, the Commonwealth has the never-shifting burden of proving all elements of the offense beyond a reasonable doubt. Commonwealth v. Nicely, 988 A.2d 799, 803 n.3 (Pa. Cmwlth. 2010). This Court's review of the trial court's order is limited to determining whether, viewing all the evidence admitted at the de novo hearing, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trial court could have found that each element of the offense charged was supported by the evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Austin, 846 A.2d 798, 800 n.2 (Pa. Cmwlth. 2004).
The Dunns do not dispute the testimony presented at the de novo hearing, which established that their residential property was zoned R-1 Residential and that they stored the vehicles, equipment and other items used for their business on the residential property. In Taddeo v. Commonwealth, 412 A.2d 212 (Pa. Cmwlth. 1980), the evidence showed, as in this case, that trucks, rollers, trailers, backhoes and other equipment used for the appellant's asphalt business were regularly parked at the appellant's residential property located in the R-1 rural residential zoning district and in the adjacent vacant lot. In affirming the appellant's conviction of the charge that he violated the zoning ordinance by operating a business in the R-1 zoning district, this Court stated:
The use of the equipment parked at Appellant's home and in the vacant lot adjacent to it is such an integral part of Appellant's business, which is certainly commercial in nature, as to be inseparable from that business. By parking the equipment at his residence, Appellant has transferred that part of his commercial enterprise to a residential site, something the zoning ordinance will not permit him to do.Id. at 213. See also Dech v. Zoning Hearing Bd. of Lynn Twp., 512 A.2d 1352, 1354 (Pa. Cmwlth. 1986) (holding that the use of a pole barn to store three vehicles used for the catering and concession business was part of the business and was not an accessory use permitted in the conservation zoning district). The Dunns' undisputed activities of storing the vehicles and equipment used for their business and using the pole barn for the business in the R-1 zoning district, therefore, support their convictions of violating the Ordinance.
Nor can Appellant's use of the Rural-Residential property be justified as an accessory use. Storage of heavy equipment is neither incidental to, nor customary in, a residential area.
The Dunns argue for the first time in this appeal, however, that their convictions are "legally and factually wrong." The Dunns' Brief at 10. They assert that field surveys of "[their] lands and other contiguous parcels" performed by a surveyor hired in a separate zoning proceeding during the pendency of this appeal revealed that their "real estate" is wholly within the I-1 Industrial zoning district where commercial activities are permitted, not in the R-1 zoning district. Id. They ask the Court to take judicial notice that their "real estate ... is wholly zoned ... I-1 Industrial ..., as is set forth in the official Pittston Township Zoning Map." Id. at 12 (emphasis added). In the alternative, they seek a remand to the trial court for a further proceeding to prevent "a miscarriage of justice." Id. at 13.
The sole basis for appellate review is "the official record of what occurred at trial." Commonwealth v. Young, 456 Pa. 102, 114-15, 317 A.2d 258, 264 (1974). In "all cases," the record on appeal consists of "[t]he original papers and exhibits filed in the lower court, paper copies of legal papers filed with the prothonotary by means of electronic filing, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court." Rule 1921 of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1921. Appellate courts may consider only the facts that appear in the certified record. Kochan v. Dep't of Transp., Bureau of Driver Licensing, 768 A.2d 1186, 1189 (Pa. Cmwlth. 2001). Because the evidence allegedly discovered by the Dunns in another proceeding is not part of the certified record, this Court may not consider such evidence in this appeal.
Nor can this Court ignore the evidence presented at the de novo hearing and take judicial notice requested by the Dunns. A court "may judicially notice a fact that is not subject to reasonable dispute." Rule 201(b) of the Pennsylvania Rules of Evidence, Pa. R.E. 201(b). A fact is not subject to reasonable dispute if it "is generally known within the trial court's territorial jurisdiction" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Pa. R.E. 201(b)(1) and (2). Judicial notice "allows the trial court to accept into evidence indisputable facts to avoid the formality of introducing evidence to prove an incontestable issue." Kinley v. Bierly, 876 A.2d 419, 421 (Pa. Super. 2005) [quoting Commonwealth v. Brown, 839 A.2d 433, 435 (Pa. Super. 2003)].
The Pennsylvania Rules of Evidence "govern proceedings in all courts of the Commonwealth of Pennsylvania's unified judicial system, except otherwise provided by law." Pa. R.E. 101(a). --------
Whether the Dunns' property was located in the R-1 Residential zoning district under the Township's zoning map was one of the elements of violating Section 501.1 of the Ordinance and an adjudicative fact to be determined by the trial court. After readily admitting at the hearing that their property was in the R-1 zoning district, the Dunns cannot now suggest that it was generally known otherwise.
Further, the zoning classification of the Dunns' property under the zoning map cannot be accurately and readily determined by this Court. The zoning map dividing the Township into zoning districts is part of the Ordinance. Section 401 of the Ordinance; Amcare 2 Partners v. Zoning Hearing Bd. of Haverford Twp., 609 A.2d 887, 889 (Pa. Cmwlth. 1992). Section 403.1 of the Ordinance provides that "[i]f uncertainty exists as to the boundary of any zoning district shown upon the Official Zoning Map, the Township Zoning Hearing Board shall determine the location of such boundary according to the guidelines set forth in Section 403.2," such as the centerline of streets, streams and railroads, and the lot or property lines. If the guidelines still fail to establish the boundary of a zoning district, "a survey of the property or area of land in question shall be made by a registered surveyor, with the cost of the survey paid by the party who is questioning or contesting the boundary location." Section 403.2(C). The zoning hearing board's determination of a zoning boundary "must be based upon evidence in the record." Amcare 2 Partners, 609 A.2d at 891. Because the zoning boundary dispute must be resolved by the Township Zoning Hearing Board, this Court cannot take judicial notice, based on the Dunns' allegation in the brief that their property is within the I-1 zoning district.
We also find no basis to remand this matter to the trial court for a new trial. In order to justify a new trial based on after-discovered evidence, such evidence (1) must have been discovered after the trial, (2) could not have been obtained at the trial by reasonable diligence, (3) must not be cumulative or merely impeach credibility, and (4) must be likely to compel a different result. Cudo v. Hallstead Foundry, Inc., 517 Pa. 553, 559, 539 A.2d 792, 794 (1988). Here, the Dunns do not allege, and the record fails to demonstrate, that they could not have obtained the newly discovered evidence at the time of the trial court's de novo hearing with reasonable diligence.
Accordingly, the trial court's order is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 17th day of October 2013, the order of the Court of Common Pleas of Luzerne County in the above-captioned matter is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge