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Middletown Township v. County of Delaware Uniform

April 20, 2012

MIDDLETOWN TOWNSHIP, APPELLANT
v.
COUNTY OF DELAWARE UNIFORM
CONSTRUCTION CODE BOARD OF APPEAL



The opinion of the court was delivered by: President Judge Pellegrini

Argued: February 15, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY PRESIDENT JUDGE PELLEGRINI

Middletown Township (Township) appeals from an order of the Court of Common Pleas of Delaware County (trial court) granting Sara Caldwell's (Caldwell's) petition to quash the Township's appeal because the Township did not properly designate the Delaware County Uniform Construction Code Board of Appeals (Board) to hear appeals from determinations that the Township's officials made in administering and enforcing Section 501(b)(3)-(4) of the Uniform

Construction Code Act (Act).*fn1 Finding no error, we affirm.

The controlling issue in this appeal is whether the Township properly designated the Board to hear appeals from the decision of its officials denying applications for permits under the Act. By passing Ordinance 653 on May 24, 2004, the Township amended Chapter 89 of its Code of Ordinances, entitled "Construction Codes," adopting "[t]he Uniform Construction Code contained in 34 Pa. Code, Chapters 401-405, as amended from time to time, including certain appendixes to the Uniform Construction Code and regulations to Act 45 of 1999 promulgated by the Pennsylvania Department of Labor and Industry is hereby adopted and incorporated herein by reference as the Building Code of the Township of Middletown." (Township of Middletown Code of Ordinances, §89-1.) Of the various options available for administration and enforcement of the Act, the Township elected to administer and enforce the provisions of the Act itself. Id., §89-2. One of the requirements of the Uniform Construction Code (Code) is establishment of a board - consisting of architects, engineers, contractors or persons otherwise knowledgeable in building construction - to hear appeals from decisions of the local code enforcement officer. To assist municipalities with administration of the Code, Delaware County created the Board, a county-wide board of appeals. On November 8, 2004, the

Township enacted Resolution 2004-97, which established the Board as the Township's board for appeals from Township code officials' determinations under the Act. Township Resolution 2004-97 authorized the execution of an intermunicipal agreement with the County to give the Board authority to act on an appeal from a determination of the Township's code officials.

The factual context in which this issue was raised began when Caldwell purchased property in the Township, which was zoned as an SU-1 Special Use district. The property had been built as a single-family home, and in 2001, an occupancy permit was issued for interior renovations for a pest control business. (Reproduced Record [R.R.] at 19a.) Caldwell planned to use it for her retail business, Blue Santa Beads, which she operated primarily through internet and phone sales, and for workshops on the property. On May 20, 2004, she applied with the Township Zoning Hearing Board (ZHB) for a variance to operate a business on the property, including retail sales, because retail sales were not a permitted use in an SU-1 district. The ZHB denied the application and no appeal was taken. On July 28, 2004, Caldwell filed a conditional use application which proposed to use the property as an office, sales space and instructional workshop. The Township Planning Commission (Commission) approved the application on August 10, 2004, but the Township Council denied the formal application on September 13, 2004. Caldwell and the Township then entered into a stipulation agreement on January 14, 2005, which provided that Caldwell could use the property as proposed, but she could not hold more than two classes per day, no more than 10 attendees would be present for each class, no evening classes would occur on Saturday or Sunday, and no retail sales would occur on the premises except for supplies to be used for classes. She was also required to add additional parking spaces, including one handicapped-accessible space, storm water management improvements, and additional landscaping. Caldwell also agreed to submit a site plan to the Township that demonstrated land development improvements to the property to accommodate the business and instructional use of the property. Caldwell did not comply with the agreement.

Caldwell also applied for and received building permits to make renovations to the property for her business, including converting the attached garage into a space for storage and a classroom area and adding steps with a landing and handrail. The Township Code Enforcement Officer inspected the renovations and determined that the stairs failed to comply with the International Building Code (IBC), the bathroom failed to include handicap-grab bars, and no handicapped accessible parking space was provided. Caldwell continued to use the property for her business for several years until the Township cited her for improper use. The citations were withdrawn when Caldwell vacated the property in September 2008.

Caldwell then submitted a request for a new certificate of occupancy for the property, which the Township denied. She requested that the Township reissue the certificate of occupancy that existed prior to her purchase of the property. The Township denied the permits because "all permits issued have been revoked or closed and no certificate of occupancy has been issued for this property. The [Codes] all require a permit for the change of occupancy and a new Certificate of Occupancy." (R.R. at 20a.) Caldwell appealed to the Board, which sustained her appeal, finding that because "the occupancy of the building has not changed, the [Code] does not required a new certificate of occupancy."*fn2 (R.R. at 68a.)

The Township appealed the Board's decision to the trial court. Caldwell then moved to quash the appeal, arguing that the Board did not have jurisdiction to hear Township appeals because the Township improperly delegated its appellate review function to the Board. She contended that the designation was improper because Section 501 of the Act did not provide for a municipality to "contract away [its] Board of Appeal rights," (R.R. at 214a), and even if it could designate the Board through an Intergovernmental Cooperation Act (ICA) agreement, that designation was ineffective because it was done by resolution, not by ordinance as the ICA required.*fn3

Agreeing with Caldwell, the trial court determined that Section 501 of the Act only allowed the Township to designate a Board to hear appeals as part of an agreement for the joint administration and enforcement of the Act. Because the Township decided to enforce the Code, the trial court held that under Section 501(c)(1) of the Act, the Township was required to establish its own appeals board, not designate the Board to hear its appeals. The trial court also agreed with Caldwell that the Township improperly authorized the agreement to hear appeals because the ICA required that it be done by ordinance, not by resolution, as was done here. See 53 Pa. C.S. §§2305, 2315. Because it was not properly designated, the trial court found that the Board was without jurisdiction to hear appeals and granted Caldwell's petition to quash the Township's appeal.*fn4 The Township then filed this appeal.*fn5

On appeal, the Township contends that the trial court erred in determining that it could not designate the Board under Section 501 of the Act, even though the Board was not created as part of a joint administration and enforcement of the Act. Regarding creation of boards of appeals, Section 501(c)(1) of the Act, 35 P.S. §7210.501 (c)(1), provides:

A municipality which has adopted an ordinance for the administration and enforcement of this act or municipalities which are parties to an agreement for the joint administration and enforcement of this act shall establish a board of appeals as provided by Chapter 1 of the 1999 BOCA National Building Code, Fourteenth Edition, to hear appeals from decisions of the code administrator. Members of the municipality's governing body may not serve as members of the board of appeals.

We agree with the trial court that this provision only authorizes municipalities to join with a board of appeals that it did not create when it enters into an agreement for the joint administration and enforcement of the Act. Moreover, the Act defines a board of appeals as a "body created by a municipality or more than one municipality to hear appeals from decisions of the code administrator." Section 103 of the Act, 35 P.S. ยง7210.103. Because it was enforcing the provisions of the Act, the Township was required to establish its own board of appeals under Section 501(c)(1). The Township did not create the Board, but entered into an agreement with the county to delegate that authority ...


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