Opinion
No. 728 C.D. 2013
11-08-2013
Montgomery Court Realty Co., L.P. v. Cheltenham Township Zoning Hearing Board and Cheltenham Township Appeal of: Cheltenham Township
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This is an appeal by Cheltenham Township (Township) of the March 27, 2013 order of the Montgomery County Court of Common Pleas (Trial Court) that reversed the March 12, 2012 decision of the Cheltenham Township Zoning Hearing Board (ZHB), which had upheld a Notice of Violation issued to Montgomery Court Realty Co., L.P. (Montgomery Court). The Trial Court concluded that the ZHB abused its discretion and committed an error of law when it determined that the current use of 7803 Montgomery Avenue, Elkins Park, Pennsylvania (Property) was in violation of the Cheltenham Township Zoning Ordinance (Ordinance). For the following reasons, we affirm the Trial Court's reversal of the ZHB.
The Property is located in an R-5 Residential District and has been granted a nonconforming commercial use. (ZHB Opinion Findings of Fact (F.F.) ¶3, Reproduced Record (R.R.) at 154a; Ordinance §§ 295-2, 295-43.) The Property was conveyed to Montgomery Court on July 28, 2004. (F.F. ¶15, R.R. at 157a.) Prior to this conveyance, in accordance with Chapter 217 of the Cheltenham Township Code, the previous owner applied for a Zoning and Use Certificate (Certificate), stating that the current use of the Property was commercial warehouse/auto repair/auto storage. (F.F. ¶13, R.R. at 157a; Application for Certification, R.R. at 25a.) On July 13, 2004, the Certificate was signed by the Cheltenham Township Zoning Officer, and the described use was categorized as legal, nonconforming in accordance with the 1954, 1955, and 1970 zoning appeals. (F.F. ¶14, R.R. at 157a; Certificate, R.R. at 25a.)
Each of the zoning appeals referenced in the Certificate related to the Property's nonconforming use. On February 23, 1954, the Cheltenham Township Zoning Board of Adjustment decided in Appeal No. 629 that the use of the Property as a "public garage" was a lawful change or resumption of a prior nonconforming use. (Appeal No. 629, R.R. at 26a; F.F. ¶9, R.R. at 157a.) On January 28, 1955, the Cheltenham Township Zoning Board of Adjustment denied an application to permit the use of the first floor of the Property for assembly and transport of conveyors, because such use was not a change of nonconforming use into a use of the same class. (Appeal No. 670, ZHB Brief, Exhibit A; ZHB Op., F.F. ¶10, R.R. at 157a.) On March 26, 1970, the ZHB decided in Appeal No. 1563 that the use of the Property for the wholesaling of passenger automobiles was the same class of use as the prior nonconforming use. (Appeal No. 1563, R.R. at 27a; ZHB Op., F.F. ¶11, R.R. at 157a.) In reaching its decision in Appeal No. 1563, the ZHB stated that the Property had been used as a machine shop. (Appeal No. 1563, R.R. at 27a; ZHB Op., F.F. ¶12, R.R. at 157a.)
On August 31, 2010, Patient Care Ambulance, Inc. (Patient Care) began leasing the Property from Montgomery Court to store its ambulances and for minor repairs and restocking of necessary inventory required for ambulance operations. (F.F. ¶¶18, 19, 33, R.R. at 157a, 159a.) Patient Care stores four ambulances at the Property, three of which are used during the day to provide non-emergency, routine transport for patients. (F.F. ¶¶20, 21, 24 R.R. at 158a.) Patient Care employs three drivers and three Emergency Medical Technicians (EMTs) to staff the ambulances, and these employees store their private vehicles at the Property while they are out with the ambulances. (F.F. ¶¶20, 21, 24, R.R. at 158a.) Patient Care's hours of operation are approximately 4:30 a.m. until 4:30 p.m. Monday through Saturday. (F.F. ¶23, R.R. at 158a.) The ambulances use cell phones rather than radios for communication, do not return to the Property during the day, do not use sirens and flashing lights, and do not respond to emergencies. (F.F. ¶¶23, 24, 29, R.R. at 158a.)
Patient Care's business address is 1135 West Cheltenham Avenue, Elkins Park, Pennsylvania 19027. (F.F. ¶20, R.R. at 158a.) Patient Care's four non-driver/EMT employees work at the West Cheltenham Avenue address, which is Patient Care's officially registered address, and contains the office and records of the business. (ZHB Op., F.F. ¶26, 33, R.R. at 158a, 159a.)
On June 17, 2011, the Township's Director of Engineering, Zoning, and Inspections determined that the Property was being used for the operation of a private ambulance service and issued Montgomery Court a Notice of Violation. (F.F. ¶5, R.R. at 156a.) The Notice of Violation stated that: (1) the Property was in an R-5 Residence District; (2) the R-5 District does not permit commercial uses; and (3) the current use was not the "wholesaling of passenger cars allowed pursuant to a 1970 [ZHB] decision." (F.F. ¶6, R.R. at 156a; Notice of Violation, R.R. at 88a.) Montgomery Court appealed the Notice of Violation to the ZHB.
The ZHB held a series of hearings between September 12, 2011 and March 12, 2012 to address Montgomery Court's appeal of the Notice of Violation. Before the ZHB, the Township's Director of Engineering, Zoning, and Inspections testified that he observed a bathroom on the Property and storage of miscellaneous parts, inventory, and motor vehicles. (F.F. ¶34, R.R. at 159a.) Phillip C. Pulley, a principal of Montgomery Court, testified that the Property had previously been used as a police impound yard and for automotive related uses, including storing parts and forklifts. (F.F. ¶35, R.R. at 159a.) Pulley also testified that the property had most recently been used for the storage, maintenance, and repair of construction equipment, including backhoes, bobcats, and Zambonis from an ice rink. (F.F. ¶36, R.R. at 159a.) Lastly, Pulley testified that using the Property to run a private ambulance service would be in breach of the lease and that the Property does not contain any of the amenities necessary for a business office. (F.F. ¶37, R.R. at 159a.)
On July 3, 2012, the ZHB issued a decision upholding the Notice of Violation that contained findings of fact, conclusions of law, and a discussion of its reasoning. The ZHB concluded its findings of fact by stating the "parking of ambulances on [the Property] is an essential part of Patient Care's business," and "Patient Care is conducting a business when it stores and dispatches ambulances from [the Property]." (F.F. ¶¶38 & 39, R.R. at 159a.)
In its conclusions of law, the ZHB determined that Patient Care was operating a private ambulance service from the Property, that the use of the Property as a private ambulance service was a new and different use from prior nonconforming uses of the Property, and that the operation of a private ambulance service was not a valid nonconforming use of the Property. (ZHB Op. Conclusions of Law (C.L.) ¶¶5-9, R.R. at 169a, 170a.) The ZHB also determined that the February 23, 1954 zoning appeal No. 629 allowed for the use of the Property as a "public garage", but that this use had been superseded by the March 26, 1970 zoning appeal No. 1563, which had allowed for the wholesaling of automobiles, and that the use of a "public garage" had been abandoned. (C.L. ¶¶6-8, R.R. at 169a.) Montgomery Court appealed the ZHB's decisions to the Trial Court.
The Trial Court did not take any additional evidence. The Trial Court concluded that the Board had erred in two key respects. First, the Trial Court reasoned that the Board relied upon inapposite precedent to conclude that Patient Care's use of the Property to store its ambulances transferred the use of a private ambulance service to the Property. (Trial Court Op. at 4-5.) Second, the Trial Court reasoned that the Board had erred in concluding that the use of the Property for storage and automobile repair had been abandoned. (Trial Court Op. at 4.) As a result, the Trial Court held that the Board erred in upholding the Notice of Violation. (Trial Court Op. at 6.) The Township appealed.
When a trial court does not take additional evidence, the trial court's scope of review is limited to determining whether the Board committed an abuse of discretion or an error of law. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 554, 462 A.2d 637, 649 (1983). An abuse of discretion occurs when findings of fact are not supported by substantial evidence; substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The zoning hearing board is charged with determining the credibility of witnesses and the weight afforded the evidence, and the trial court may not substitute its own interpretation of the evidence for that of the zoning hearing board. Tennyson v. Zoning Hearing Board of West Bradford Township, 952 A.2d 739, 743 n.5 (Pa. Cmwlth. 2008). Our scope of review is limited to determining whether the Board has committed an error of law or an abuse of discretion and our standard of review is plenary. Valley View Civic Association, 501 Pa. at 554, 462 A.2d at 649; Lamar Advertising GP Co. v. Zoning Hearing Board of Adjustment of the City of Pittsburgh, 997 A.2d 423, 438 (Pa. Cmwlth. 2010).
Before this Court, the Township argues that the Trial Court exceeded its scope of review by substituting its own interpretation of the evidence for that of the Board and that the Trial Court erred by failing to require Montgomery Court to demonstrate the establishment, extent, and perfection of its nonconforming use of the Property. The Board's determination consists of three parts: (i) findings of fact, (ii) a discussion in which it applied Pennsylvania law to the facts found, and (iii) conclusions of law based on its discussion. The Trial Court concluded that the Board erred in its discussion of the applicable law. In its argument to this Court, the Township argues that the Board's discussion should have been afforded the same deference from the Trial Court as the Board's findings of fact.
As the Notice of Violation correctly stated, the Property is in an R-5 residential zone. The use regulations under the Ordinance allow for single-family detached dwellings, row house or townhouses with certain restrictions, and old age homes when authorized by special exception. Ordinance § 295-43. Commercial uses are prohibited under the current use regulations. However, the Property is not merely located in an R-5 Residence District, but located in an R-5 Residence District with a lawful nonconforming commercial use. This is a distinction with a difference.
The Ordinance defines a "nonconforming use" as: "A use, whether of land or of a structure, which does not comply with the applicable use provisions in a zoning ordinance or amendment heretofore or hereafter enacted, where such use was lawfully in existence prior to the enactment of such ordinance or amendment or prior to the application of such ordinance or amendment to its location by reason of annexation." Ordinance § 295-2; see also Ordinance § 295-227 Nonconforming uses.
In reaching its conclusion that Patient Care transferred a portion of its business to the Property by parking its ambulances inside the Property, the Board relied upon Taddeo v. Commonwealth, 412 A.2d 212 (Pa. Cmwlth. 1980) and Fayette County v. Blout, 387 A.2d 167 (Pa. Cmwlth. 1978). We agree with the Trial Court that this line of cases is inapplicable to the facts found by the Board, because of the nonconforming commercial use attached to the Property.
Taddeo concerned a resident found guilty of violating a township ordinance because he had regularly parked vehicles necessary for the operation of his asphalt business at his residence, which was located in an area zoned rural-residential. 412 A.2d at 213. In addition to the vehicles, the resident had also used his home as his business address and on occasion published his home telephone number in advertisements for his business. Id. This Court affirmed the violation, concluding that "[b]y 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.
Similarly, in Blout, this Court affirmed a chancellor's order enjoining the appellants from using a garage in an area zoned agricultural-rural for the operation of their commercial business. 387 A.2d at 168. The garage in Blout was built pursuant to a certificate permitting residential garages, but was used by the appellants to store vehicles for their contracting and paving business. Id. In affirming the chancellor, we stated: "the activity complained of here constitutes more than the mere storage of vehicles since the record shows employees of [the business] other than family members who lived on the property reported to the garage each morning where they parked their personal vehicles and left the garage in [company] trucks returning at the end of the work day." 387 A.2d 169.
While the Board found that Patient Care's ambulances were necessary for its business, like the paving and asphalt vehicles in Taddeo, and that Patient Care's employees arrived at the Property each day, leaving their personal vehicles and taking the ambulances, as did the employees in Blout, the Board overlooked that the determinative factor in those cases is absent here. The properties in Taddeo and Blout were residential. The properties in Taddeo and Blout did not have a nonconforming use attached. In contrast, the Property here is not bound by the residential use regulations in the Ordinance; it may be located in the R-5 Residence District, but it has a prior commercial nonconforming use, and therefore it is not a residential property. This key factor makes the cases relied upon by the Board inapposite rather than controlling as the Board concluded.
Taddeo and Blout led the Board to conclude that an ambulance service business was being operated from the Property, based on the principle that the transfer of an essential element of a commercial business to a residential property transforms the use of that property into a commercial use. We agree with the Trial Court that this principle is inapplicable here. The Board should have focused on the actual activity Patient Care conducted at the Property and determined whether this activity was outside the bounds of the nonconforming use. Whether or not this activity is permissible depends upon the nature of the nonconforming use.
A lawful nonconforming use vests in the property owner a property right that cannot be abrogated or destroyed unless it is a nuisance, it is abandoned, or it is extinguished by eminent domain. Keystone Outdoor Advertising v. Department of Transportation, 687 A.2d 47, 51 (Pa. Cmwlth. 1996). The party proposing the existence of the nonconforming use must establish its existence and legality before the enactment of the ordinance at issue; this burden includes the requirement that the party prove the creation, extent, and nature of the alleged nonconforming use with objective evidence. Pietropaolo v. Zoning Hearing Board of Lower Merion Township, 979 A.2d 969, 976 (Pa. Cmwlth. 2009). Once a nonconforming use has been established, the doctrine of natural expansion permits a property owner to develop or expand the use as a matter of right and the use cannot be subject to an overly technical assessment in order to stunt its natural growth and development. Pappas v. Zoning Hearing Board of Adjustment of the City of Philadelphia, 527 Pa. 149, 154, 589 A.2d 675, 677 (1991). The party proposing that a nonconforming use has been abandoned bears the burden of proving both the intent to abandon the use and actual abandonment. Latrobe Speedway, Inc. v. Zoning Hearing Board of Unity Township, 686 A.2d 888, 890 (Pa. Cmwlth. 1996).
In order to establish the creation, nature, and extent of the nonconforming use, Montgomery Court relied upon past zoning opinions concerning the nonconforming use, testimony from the previous owner, and the Certificate stating that the current use of the Property was commercial warehouse/auto repair/auto storage. The ZHB and its predecessor issued three determinations regarding the property. The first of these determinations, Appeal No. 629, identified the use of the Property as a lawful nonconforming "public garage." The Board concluded that this satisfied Montgomery Court's burden to demonstrate the existence and legality of the nonconforming use. However, the Board concluded that the "public garage" use had subsequently been abandoned. In reaching this conclusion, the Board impermissibly shifted the burden to Montgomery Court, requiring it to disprove abandonment, and abused its discretion.
In order to define "public garage", the Board relied upon the current definition found in the Ordinance: "a building not a private or minor garage or carport, one or more stories in height used for the storage and/or repair of motor vehicles." Ordinance § 295-2. The Board then examined Appeal No. 670, the 1955 zoning appeal, which described the use as the storing and preparing of new automobiles that were then delivered to distributors in the area. The Board did not conclude that the "public garage" use had been abandoned at this point. However, the Board concluded that Appeal No. 1563 evidenced that the use was abandoned.
In reaching this conclusion, the Board did not focus on the description of the use, which, except for the change from new to used vehicles, was almost identical to the use described in Appeal No. 670. Instead, the Board focused on the absence of the words "public garage" and the fact that Appeal No. 1563 stated that the Property had been used as a "machine shop." The Board did not define "machine shop", but concluded that a "machine shop" was a wholly different use than a "public garage"; presumably, because it assumed without evidence that the machines were no longer automobiles. The Board also concluded that the permission for storage and repair of automobiles alongside the wholesale sale of automobiles was irrelevant to its analysis, as was its finding that the use permitted in Appeal No. 1563 was permitted as being "a use in the same category of use" as prior uses of the Property. (Compare F.F. ¶11 with ZHB Op. at 13, R.R. at 157a, 165a.) The Board's conclusion that the "public garage" use had been abandoned as of the 1970 Appeal No. 1563 is not supported by substantial evidence. There is nothing in the record to support the conclusion that the Property has ever ceased being used for the storage and repair of automobiles. Of course, there is also a gap in the record concerning the use of the Property from Appeal No. 1563 in 1970 until the use described in the testimony of Mr. Pulley, the previous owner. However, it was the Township's burden to demonstrate that the nonconforming use of the Property had been abandoned during this time and the Board's findings clearly contain no evidence of intent to abandon or actual abandonment. Smith v. Board of Zoning Appeals of City of Scranton, 459 A.2d 1350, 1352 (Pa. Cmwlth. 1983) (the party asserting abandonment must demonstrate actual abandonment).
In Appeal of Associated Contractors, 391 Pa. 347, 138 A.2d 99 (1958), our Supreme Court found of no moment a historical gap concerning the use of a property in an otherwise comprehensive record of use, where the present use of the property was not a lower use than the nonconforming use in existence at the time of the adoption of the ordinance. 391 Pa. at 348, 138 A.2d at 100. The Court stated: "It was first and throughout its history mostly used as a real estate office, but at different times it lent itself to a dentist, a doctor, a medical laboratory, a sporting goods business organization, and a steel company firm. From 1939 to 1944, because of housing shortage due to the war, it was occupied as a residence. No one has taken the trouble to record what happened to it between 1915 and 1923, but, except for curiosity and historical completeness, the status of its occupancy during those eight years is of no importance in disposing of the legal problem which now confronts the structure." 391 Pa. at 351, 138 A.2d at 101. --------
The question remaining is whether the current use is an impermissible expansion of the prior nonconforming use of the Property. To qualify as a continuation of a nonconforming use, the current use must be similar but not identical to the prior use. Limley v. Zoning Hearing Board of Port Vue Borough, 533 Pa. 340, 343, 625 A.2d 54, 55 (1993) (use of property as a public restaurant and bar was a permissible expansion of a prior nonconforming use of property as a private club); Pappas v. Zoning Hearing Board of Adjustment of City of Philadelphia, 527 Pa. 149, 589 A.2d 675 (1990) (use of property as a full-service pizza restaurant is a permissible expansion rather than abandonment of prior nonconforming use as a primarily takeout sandwich shop/restaurant); Clanton v. London Grove Township Zoning Hearing Board, 743 A.2d 995, 998 (Pa. Cmwlth. 1999) (processing topsoil prior to transport by drying and bagging constitutes continuation of nonconforming use, rather than new use, where previously topsoil was trucked away loose for bulk sale). Here, we must focus on the actual activity that the Board found is taking place at the Property. The Board found that this activity consisted of storage of Patient Care's ambulances, minor repairs and restocking of inventory, ambulances leaving in the early mornings and returning in the late afternoons, and storage of employee vehicles during the day.
The Township argues that for the use to be substantially similar, the use would have to involve principally the storage of vehicles for eventual sale off-premises and would be restricted to the same hours of operation permitted by Appeal No. 1563, which forbid work on Saturday afternoons. The Township's argument urges this Court to engage in the type of overly technical assessment that our Supreme Court has admonished stunts natural growth and development. Limley, 533 Pa. at 344, 625 A.2d at 56. A mere increase in the intensity of a use cannot justify a finding of a new or different use. Foreman v. Union Township Zoning Hearing Board, 787 A.2d 1099, 1103 (Pa. Cmwlth. 2001); see also Appeal of Associated Contractors, 391 Pa. at 354, 138 A.2d at 102 ("An ordinance which would allow the housing of a baby elephant cannot evict the animal when it has grown up, since it is generally known that a baby elephant eventually becomes a big elephant. The growth of the business here is not an elephantine growth but it is one that can be expected in any community and is usually looked upon with approval, admiration, and even encouragement."). We cannot agree that the storage and minor repair of ambulances at the Property is sufficiently dissimilar from the storage and minor repair of used vehicles at the Property or the storage and minor preparation of new vehicles at the Property, to constitute an impermissible expansion of a prior nonconforming use; a vehicle is a vehicle is a vehicle regardless of the fact that the vehicle in question is an ambulance. See, e.g., Mutimer Co. v. Wagner, 376 Pa. 575, 103 A.2d 417 (1954) (reversing Cheltenham Township Zoning Board of Adjustment determination that concluded proposed use of property as a machinery sales office was too dissimilar to use as a real estate office to constitute a continuation of a permissible nonconforming use).
Accordingly, we conclude that the Trial Court did not abuse its discretion by ignoring substantial evidence in the record and substituting its own interpretation of the evidence for the Board's; rather, the Trial Court properly applied the law to the facts found by the Board, curing the Board's error. The Trial Court is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 8th day of November, 2013, the Order of the Montgomery County Court of Common Pleas in the above-captioned matter is hereby AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge