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Flanders v. Ford City Borough Council Per The Ford City Uniform Construction Code Board of Appeals

December 24, 2009

EDWARD L. FLANDERS, JR., T/D/B/A E.L. FLANDERS - ELF APPLIANCE AND SERVICE, APPELLANT
v.
FORD CITY BOROUGH COUNCIL PER THE FORD CITY UNIFORM CONSTRUCTION CODE BOARD OF APPEALS



The opinion of the court was delivered by: Judge Leavitt

Argued: October 13, 2009

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE KEITH B. QUIGLEY, Senior Judge.

OPINION

Edward L. Flanders, t/d/b/a E.L. Flanders, Elf Appliance and Service, appeals an order of the Court of Common Pleas of Armstrong County (trial court) holding that Flanders was properly denied a building permit. In doing so, the trial court affirmed a decision of the Ford City Borough Uniform Construction Code Board of Appeals (Board) that Flanders needed to obtain blueprints prepared by an architect or engineer before he could be issued the permit in question. Flanders' principal contention is that because the Borough's Construction Code Administrator committed numerous procedural errors, which were not addressed or corrected, either by the Board or by the trial court, he is entitled to the permit. Finding no merit to Flanders' position, we affirm the trial court.

Background

Flanders is the owner and operator of a business in Ford City Borough that sells and services home appliances. On July 28, 2005, Flanders requested the Borough's Construction Code Administrator (Code Administrator) to issue a permit for the construction of a foundation for an addition to the building where Flanders operates his business. The Code Administrator completed the application on behalf of Flanders, and Flanders signed it. Attached to the application was Flanders' hand drawn sketch of the proposed foundation work. After the Code Administrator inspected the site, he issued a building permit for construction of the foundation.

On August 19, 2006, Flanders contacted the Code Administrator to obtain a second permit to finish the building addition. The Code Administrator visited the site on August 21, 2006, and informed Flanders that a hand drawn sketch of the addition would be sufficient to complete his second permit application. Three days later, the Code Administrator reversed himself on this advice. By letter of August 24, 2006, the Code Administrator informed Flanders that blueprints prepared by a certified engineer or architect would be needed before a building permit could be issued; a hand drawn sketch would not suffice. Reproduced Record at 62a (R.R.___). Flanders attempted to provide the Code Administrator with a hand drawn sketch of the project, but the Code Administrator refused to accept the sketch.

Notwithstanding the lack of a permit, Flanders began work on the building addition. According to Flanders, time was of the essence because runoff from the exposed poured foundation was causing the ground floor of the existing building to flood. In addition, the $12,000 Flanders had borrowed for the project was not sufficient to cover the added cost of professionally drafted blueprints. The estimates Flanders sought for these professional services ranged from $5,500 to $14,000.

On September 27, 2006, the Code Administrator issued a stop work order to Flanders. The order directed Flanders to stop construction until he obtained the required blueprints for the project and secured a building permit. When Flanders refused to sign the order and stop construction, the Code Administrator issued a summons to Flanders, charging him with violating (1) the Borough's Uniform Construction Code Ordinance by proceeding without a permit and (2) the August 24, 2006, directive that Flanders submit blueprints for the building he sought to construct with his permit application.

On February 13, 2007, Flanders appeared before a magistrate on the citation and was convicted of violating the Borough's Uniform Construction Code Ordinance, which is a summary offense. The magistrate ordered Flanders to pay a fine of $1,059, or alternatively, $350, if he provided the required blueprints by May 15, 2007. Flanders paid the fine in full and did not appeal the conviction.

On September 26, 2007, the Code Administrator issued a second summons, charging Flanders with failing to comply with the magistrate's February 13, 2007, order that he obtain blueprints and a building permit.*fn1 In response to this second citation, Flanders, by his counsel, sent a letter to the Ford City Borough Council on October 11, 2007. It stated, in relevant part, as follows:

This firm has been retained to represent Mr. Flanders regarding the citation issued by your Code [Administrator] on or about September 26, 2007. This letter constitutes an appeal to the appropriate Board.

R.R. 26a. The Council did not respond. However, during a proceeding before the magistrate on the September 26, 2007, citation, the Borough agreed that it would cooperate with Flanders in having the Board hear the matter. Borough Brief at 2.

On January 28, 2008, the Board convened a hearing on Flanders' October 11, 2007, appeal. Flanders stated that he was appealing "a non-traffic citation issued against [him] on September 26, 2007." R.R. 70a. The Board questioned its jurisdiction over the citation, but it allowed Flanders to proceed. Flanders contended that his right to due process had been violated because the Code Administrator did not advise him of his right to appeal the stop work order issued on September 27, 2006, and the Board did not provide him with the appropriate notice of the hearing he had requested in his letter of October 11, 2007. Nevertheless, Flanders participated in the Board's January 28, 2008, hearing and addressed the merits of his claim that he was entitled to a building permit.

The Board heard testimony from Flanders, Flanders' secretary and the Code Administrator. The Board treated Flanders' hearing as an appeal of a permit application denial and affirmed the denial. It reasoned as follows:

Pursuant to the above-referenced appeal hearing the Board of Appeals is charged with considering the following per Act 45:

403.122(f). Appeals, variances and extensions of time. A board of appeals shall only consider the following factors when deciding an appeal ...


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