The opinion of the court was delivered by: Judge Simpson
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JIM FLAHERTY, Senior Judge
In this appeal, Joseph Pietropaolo, Sr., Rosa F. Pietropaolo and Joseph Pietropaolo, Jr., Landscaping Contractor, Inc. (collectively, Applicants), ask whether the Zoning Hearing Board of Lower Merion Township (ZHB) erred in denying their appeal from an enforcement notice that required Applicants to cease using their residentially-zoned property for a landscape contractor business. Applicants argue the ZHB erred in denying their appeal where the use of a garage on the property and the operation of the landscaping business are a continuation of a lawful nonconforming use. Alternatively, they assert the ZHB erred in denying their variance by estoppel request where the Township acquiesced to their use and where the ZHB granted such relief to a similarly situated landowner. Discerning no error in the ZHB's decision, we affirm.
Joseph Pietropaolo, Sr. and his wife Rosa own the property located at 355 East County Line Road in Ardmore, Lower Merion Township (subject property). The subject property is zoned R-6A Residential and is improved with a single family dwelling, a detached four-bay garage and a paved driveway. The Pietropaolo's son, Joseph Pietropaolo, Jr., lives in a dwelling on the subject property with his wife. Pietropaolo, Jr. also uses the garage and paved driveway in connection with a landscaping business. It is that use, the extent of which is described more fully below, which is at issue here.
This matter originated by virtue of a letter dated September 14, 2007, from the Township Zoning Officer to Applicants, which indicated the use of the subject property for a landscaping business was not permitted in the R-6A district. The zoning officer sent the letter in response to a complaint by Applicants' neighbor, Anna Sachs (Objector).*fn1
In October 2007, Applicants appealed the zoning officer's determination to the ZHB, claiming the activities relating to the landscaping business were entitled to continue as a nonconforming use. Alternatively, Applicants asserted they were entitled to a variance by estoppel because they openly conducted the landscaping business on the subject property for 38 years without Township interference. A hearing on Applicants' appeal ensued before the ZHB.
After hearing, the ZHB denied Applicants' appeal and their request for a variance by estoppel. In its opinion, the ZHB made the following findings.
Joseph Pietropaolo, Jr. testified he currently operates a residential landscape contracting business from the subject property for homes in the Eastern Main Line area. The landscaping operation lasts from mid-March to mid-December. During the winter, Pietropaolo, Jr. operates a smaller-scale snow-plowing operation.
The work day for Pietropaolo Jr.'s business begins and ends at the subject property, where the vehicles and equipment are stored and where the employees meet and prepare the equipment for the day's work.
The equipment used for the business includes Pietropaolo Jr.'s pickup truck, his father's truck, a dump truck, a trailer, hand-operated leaf blowers, push blowers, three walk-behind mowers, a rider mower, a leaf loader and a variety of hand tools and supplies. Including the Pietropaolos, the business is comprised of four full-time employees. During the spring and fall seasons, up to three additional employees may be added.
A typical workday on the subject property begins when Pietropaolo Sr. arrives in his truck at 6:30 a.m. to prepare the equipment for the day's work. He opens the garage, retrieves the gas cans and leaves the subject property to fill them at a local gas station. The other employees arrive around 7:00 a.m. They connect the trailer to the pickup truck and load the riding mowers, push mowers and other equipment and tools required for the day's work. They depart the subject property at approximately 7:30 a.m. The employees return to the subject property at approximately 3:30 p.m., unload the trailer and store the equipment, including the dump truck, inside the garage bays. Pietropaolo, Jr. testified the loading of the mowers does not necessarily occur everyday. Depending on the weather, the mowers may remain "pre-loaded" on the trailer for several consecutive days. Reproduced Record (R.R.) at 79a. On bad weather days, the mowers may have to be unloaded and loaded from the trailer as they cannot remain outside.
The Pietropaolos perform maintenance and minor equipment servicing inside the garage. This includes lubricating and changing the oil in the machines, and sharpening and grinding the blades for the mowers, usually on the weekends.*fn2
Pietropaolo, Sr. testified Applicants' operation has been conducted in the same basic manner and intensity since 1969, when he first purchased the subject property.
Arcolino Bianco testified on behalf of Applicants with regard to the use of the subject property prior to its purchase by Pietropaolo, Sr. Bianco was born in 1923 and lived in the neighborhood of the subject property until 1950 (with the exception of a three-year stint in the armed services). After 1950, Bianco moved to Havertown, but his family continued to live in a house in the immediate neighborhood of the subject property. Bianco has been a frequent visitor to that neighborhood since 1950. He testified the garage has been on the subject property since at least 1930, when it was the only structure on the site. The owners of the subject property at that time, the Finocchios, rented out the garage to two truckers and an individual with a car. One of the Finocchios also stored his car there. After Thomas Finocchio built a house on the subject property in 1948, the garage continued to be used for the storage of two trucks and two automobiles. The automobiles were owned by the Finocchios. According to Bianco, it was not until the Pietropaolos purchased the subject property that a landscaping business began to operate from the property.
Objector testified in opposition to Applicant's appeal. Since August 2001, Objector resided at the property adjacent to the subject property. Objector testified that when she first moved in, she spoke to Pietropaolo, Jr. about the landscaping business conducted on the subject property. According to Objector, Pietropaolo, Jr. stated the business had been there a long time and was grandfathered in by the Township. Objector did not question Pietropaolo, Jr.'s statement until recent disputes between the neighbors prompted her to ask the zoning officer to investigate.
Objector presented 22 photographs and testified regarding the impact of the landscaping business on the enjoyment of her property. She stated the pickup trucks come in and out of the subject property several times each day early in the morning. The dump truck is often parked outside the garage, and the business has spilled over to the garage on the property at 357 East County Line Road, which is also owned by Pietropaolo, Sr. The mowers must be started to move them onto the trailer, a very noisy operation according to Objector. Objector also testified the five employees (sometimes more) commonly engage in loud conversations and shouting in the morning. On the weekends, Pietropaolo, Sr. sharpens the mower blades on a grinding stone for several hours, also a loud operation.
As to the issues presented in Applicants' appeal, the ZHB rejected Applicants' primary contention that the landscaping business constitutes the continuation of a lawful nonconforming use.
Specifically, based on the evidence presented, the ZHB determined the landscaping business constituted a "non-permitted change in use." ZHB Op. at 5, R.R. at 298a. The ZHB stated when the garage on the subject property began to be used for the storage of two trucks and two cars sometime before 1930, the subject property was zoned for business use, which permitted a "private or minor garage." Id. The ZHB noted "minor garage" was then defined as "a building, not a Private Garage, one story in height, used for the storage of automobiles and not used for making repairs thereto." Id. The ZHB stated in 1939, the subject property was rezoned to its current R-6A classification; as a result, the use of the subject property for a minor garage became nonconforming at that time.
The ZHB further stated, like most zoning ordinances, the Lower Merion Township Zoning Ordinance (zoning ordinance) protects only the use that existed on the date the use became nonconforming. Here, the ZHB determined, the protected, lawful nonconforming use in 1939 was the storage of two trucks and two automobiles (one of which was owned by the former owners of the subject property). The ZHB noted Bianco's testimony that the garage was used only for that purpose until 1950. In that year, having built a house on the site two years earlier, the owner of the subject property took over a second garage bay for his own personal use -- a permitted use under the zoning ordinance. Thus, the ZHB determined, from 1950 until Pietropaolo Sr. purchased the subject property in 1969, the only lawful nonconforming use was the storage of two trucks in the garage. The ZHB stated there was no evidence that any other type of business activity was conducted on the subject property by the truck owners, such as loading equipment, gathering employees, storing tools or servicing equipment.
The ZHB determined the landscaping business does not constitute the continuation of a prior nonconforming use, but is a prohibited change in use. Specifically, the ZHB found Applicant's use is qualitatively different from the prior use of two garage bays for vehicle storage. The ZHB set forth several distinguishing facts, described more fully below, in support of this determination. Moreover, the ZHB stated, Objector's photographic evidence proved the landscaping business expanded to the adjacent property at 357 East County Line Road. The ZHB stated, although this property is also owned by Pietropaolo, Sr., Applicants did not obtain a required special exception to expand onto that property. As such, the ZHB determined this expanded use was clearly prohibited.
As to Applicants' alternative variance by estoppel claim, the ZHB determined Applicants did not prove all the elements required to obtain such relief by clear, precise and unequivocal evidence. In short, the ZHB determined Applicants did not prove that: the Township actively acquiesced to their business use of the subject property; that Applicants innocently relied on the validity of the use; that Applicants made substantial expenditures in reliance on their belief that the business use would be permitted by the Township; or, the denial of the variance would cause unnecessary hardship. Applicants' appealed the ZHB's order to the Court of Common Pleas of Montgomery County (trial court).
Without taking additional evidence, the trial court affirmed. As to whether Applicants' business constitutes the continuation of a nonconforming use, the trial court stated the ZHB properly determined the current landscaping business constituted a change in use from the nonconforming "minor garage" use. The trial court stated the evidence established Applicants are using the subject property as the center of an active business operation rather than passively storing vehicles as the prior owners did. The trial court stated, prior to Applicants' purchase of the subject property, trucks were stored in the garage, but that was the full extent of any commercial use. Currently, however, Applicants are using the garage as a storage area for contracting equipment, as a staging area for employees to gather daily to load and unload vehicles and equipment, and as a workspace to service and maintain landscaping equipment. The trial court agreed with the ZHB that these ...