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Borough of Moosic v. Zoning Hearing Board of the Borough of Moosic

December 1, 2010

BOROUGH OF MOOSIC
v.
ZONING HEARING BOARD OF THE BOROUGH OF MOOSIC
v.
GIUSEPPE BASILE, APPELLANT



The opinion of the court was delivered by: Judge Cohn Jubelirer

Argued: October 12, 2010

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY

Giuseppe Basile (Basile) appeals from the Order of the Court of Common Pleas of Lackawanna County (trial court), which affirmed the decision of the Zoning Hearing Board of the Borough of Moosic (ZHB) denying a building permit to erect a roof over a 20-foot by 40-foot outdoor concrete patio attached to Basile's restaurant.

Basile is the owner of Grande Pizza Restaurant (Building), which is located at 4200 Birney Avenue in the Borough of Moosic (Borough). On February 28, 2008, Basile submitted a permit application and plans to renovate the Building at an estimated cost of $412,080.00 (Renovation Application). (Ex. 1 -- Permit Application, R.R. at 60a.) The Renovation Application provided for alterations, plumbing, and electrical work to the Building, as well as for the demolition of an existing 13.4-foot by 16.5-foot wing and second floor porch. The Renovation Application indicated that, following the demolition, a new concrete 20-foot by 40-foot "Outdoor Dining Deck" (Patio) would be constructed. The plans for the Patio included the walls and half walls currently in place on sections of the Patio, but did not include a roof, columns, or iron railings for the Patio. The mechanical and plumbing section of the Renovation Application provided for 4 water closets, 2 lavatories, 5 sinks, 3 fuel pipings, a new 364-ton water boiler or furnace and 3 HVACs. The electrical section of the Renovation Application indicated that there would be $10,000 of electrical work completed in the renovation of the Building. By April 16, 2008, the Borough had approved the entire Renovation Application, including the construction of the Patio, without requiring Basile to submit a land development plan or to seek land development approvals under the Borough's Subdivision and Land Development Ordinance (SALDO) or the Pennsylvania Municipalities Planning Code (MPC).*fn1 On April 18, 2008, the Borough issued Permit No. 08-10 for the work described in the Renovation Application upon payment of the permit fees in the amount of $6,326.00. (Ex. 3 -- Construction Permit, R.R. at 239a; Ex. 5 -- Permit Tracking Record, R.R. at 230a-31a; and Ex. 2 -- Plans, R.R. at 23a.)

During the renovation, the Borough's Zoning Officer observed a roof being built over the Patio. The Zoning Officer believed that the Renovation Application did not include a roof over the Patio and, on July 18, 2008, he issued a Stop Work Order for the roof. (Ex. 11 - Stop Work Order, R.R. at 35a.)

On September 30, 2008, the Borough filed a Complaint in equity against Basile seeking injunctive relief to prevent Basile from continuing to work on the roof over the Patio until he obtained land development approvals from the Borough Planning Commission (Planning Commission). Basile filed an Answer and New Matter alleging that the roof had been approved on June 16, 2008, and that any work that continued after the Stop Work Order was performed only to maintain the structural integrity of the roofing system. Basile further argued that placing a roof over the Patio, which had been previously approved within the Renovation Application of the entire restaurant building, did not require land development approval by the Planning Commission.

On October 23, 2008, the Borough filed a Petition and Rule to Show Cause why a Preliminary Injunction should not be issued to enjoin Basile from constructing the roof over the Patio because, the Borough alleged, land development approvals were required and had not been obtained for this roof. The trial court held a hearing during which the parties expressed disagreement regarding whether, when, by whom, and in which document the roof permit had already been granted. (Trial Ct. Hr'g Tr., December 18, 2008, R.R. at 84a-117a.) In the interest of practicality and resolution, the trial court suggested that the Borough and Basile enter into a stipulation on the record that Basile would submit a Building Permit Application, nunc pro tunc, to construct the roof over the Patio (Roof Permit). (R.R. at 90a, 110a-16a.) It was agreed in the stipulation that the nunc pro tunc Roof Permit would be considered by the Zoning Officer and, if denied, Basile would appeal the denial to the ZHB. Similarly, if the ZHB upheld the denial, Basile would appeal that decision to the trial court. Id.

In compliance with the stipulation entered into at the conclusion of the trial court hearing, Basile submitted the Roof Permit to the Zoning Officer, who denied it because it "D[id] not meet land development requirements." (Ex. 17- Permit Denial, January 13, 2009, R.R. 127a.) Basile appealed the denial to the ZHB, which held hearings on April 21, 2009, and May 20, 2009. The ZHB's findings of fact and decision did not specifically address the land development issue. Instead, the ZHB denied the nunc pro tunc Roof Permit stating that the Zoning Officer's refusal should remain "undisturbed."*fn2 (ZHB Decision, June 11, 2009, R.R. at 147a, 148a,) Basile filed a timely appeal of the ZHB's denial to the trial court. (Notice of Appeal, July 8, 2009, R.R. at 118a-26a.) The trial court, taking no additional evidence, affirmed the denial of the Roof Permit on the basis that, before the Roof Permit could be issued, Basile was required to obtain land development approvals under the SALDO, and Section 107(a) of the MPC, 53 P.S. § 10107(a).*fn3 Basile now appeals to this Court.*fn4

The question before this Court is whether constructing a roof over a previously approved Patio constitutes "land development" under the SALDO and Section 107(a) of the MPC. Section 107(a) of the MPC defines "Land Development" as any of the following activities:

(1) The improvement of one lot or two or more contiguous lots, tracts or parcels of land for any purpose involving:

(i) a group of two or more residential or nonresidential buildings, whether proposed initially or cumulatively, or a single nonresidential building on a lot or lots regardless of the number of occupants or tenure; or

(ii) the division or allocation of land or space, whether initially or cumulatively, between or among two or more existing or prospective occupants by means of, or for the purpose of streets, common areas, ...


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