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Domijo, LLC, D/B/A Treesmiths Utility Arborists and Spring Brook v. Randy and Tamara Mclain and John and Jeanette Shelly and Dorothy

April 18, 2012

DOMIJO, LLC, D/B/A TREESMITHS UTILITY ARBORISTS AND SPRING BROOK TOWNSHIP ZONING HEARING BOARD
v.
RANDY AND TAMARA MCLAIN AND JOHN AND JEANETTE SHELLY AND DOROTHY MCLAIN AND JOHN AND DOLORES BUTLER, APPELLANTS



The opinion of the court was delivered by: Robert Simpson, Judge

Argued: March 12, 2012

BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE SIMPSON

In this zoning appeal, Objectors*fn1 ask whether the Court of Common Pleas of Lackawanna County (trial court) erred in reversing the decision of the Spring Brook Township Zoning Hearing Board (ZHB) to deny DoMiJo, LLC (Applicant) a certificate of nonconforming use. Objectors contend the trial court erred in determining that Applicant was eligible for a certificate of nonconforming use and in determining a legal nonconforming use existed on its property. Additionally, Objectors assert the trial court erred in declining to quash Applicant‟s notice of appeal as insufficiently specific. Upon review, we affirm.

I. Background

Applicant purchased a property located at 1138 State Route 502 in Spring Brook Township, Lackawanna County (subject property) from Marlyn Benjamin (Benjamin) in 2007. Prior to the sale of the subject property, Benjamin used the property for commercial purposes despite the fact it lies within an R-1 Low Density Residential zoning district. In contemplation of the sale, Benjamin applied for and received a certificate of nonconforming use for the subject property (Benjamin Certificate).

Applicant continues to operate the subject property in a manner similar to Benjamin‟s prior use in nonconformance with the Spring Brook Township Zoning Ordinance (Ordinance). Applicant did not re-register the nonconforming use within 60 days of purchasing the subject property.

In 2009, Applicant requested a certificate of nonconforming use from the Spring Brook Township Zoning Officer (ZO). The ZO denied Applicant‟s request, and Applicant did not appeal. Thereafter, in 2010, Applicant again applied to the ZO for a certificate of nonconforming use. The ZO again denied the request, relying on the re-registration requirement contained in Section 7.600 of the Ordinance.*fn2 Specifically, the ZO determined Applicant was not entitled to a certificate of nonconforming use because its request was beyond the 60-day timeframe for a property buyer to re-register an existing nonconforming use. Applicant appealed to the ZHB, and a hearing ensued.

Before the ZHB, Applicant argued it had a right to continue the nonconforming use on the subject property and to be issued a corresponding certificate, regardless of whether it complied with the Ordinance‟s re-registration requirement. As evidence of the existence and legality of the purported nonconforming use, Applicant introduced the Benjamin Certificate, the testimony of the ZO who issued the Benjamin Certificate, and testimony of one of its owners.

Objectors attended the ZHB hearing. Objectors argued the ZHB should deny Applicant a certificate because it failed to re-register the nonconforming use within 60 days of purchasing the subject property. Furthermore, Objectors claimed the Benjamin Certificate was improperly issued; therefore, it could not justify the issuance of a subsequent certificate of nonconforming use to Applicant.

The ZHB upheld the ZO‟s decision. The ZHB agreed Applicant‟s failure to timely re-register the nonconforming use precluded Applicant from receiving a certificate after the 60-day re-registration deadline.

Applicant appealed to the trial court, and it filed a motion to stay the ZHB‟s order pending appeal.*fn3 In response, Objectors intervened. They also filed a motion to quash Applicant‟s notice of appeal and a motion to strike Applicant‟s motion to stay.

As a preliminary matter, the trial court first addressed Objectors‟ motion to quash. Based on this Court‟s holding in Great Valley School District v. Zoning Hearing Board of East Whiteland Township, 863 A.2d 74 (Pa. Cmwlth. 2004), the trial court determined Applicant‟s notice of appeal complied with the specificity requirements contained in Section 1003-A(a) of the Municipalities Planning Code (MPC).*fn4 Thus, it denied Objectors‟ motion to quash.

Next, without taking additional evidence, the trial court considered whether Applicant was entitled to a certificate of nonconforming use despite failing to timely re-register the nonconforming use. At the outset, the trial court acknowledged that maintaining a legal nonconforming use is a property interest that runs with the land so long as the use is not abandoned. Thereafter, the trial court determined Applicant‟s noncompliance with the Ordinance‟s re-registration requirement did not constitute abandonment of the nonconforming use. Therefore, failure to re-register did not preclude continuation of the use. Furthermore, the trial court determined ...


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