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Victory Gardens, Inc. v. Warrington Township Zoning Hearing Board

Commonwealth Court of Pennsylvania

January 6, 2020

Victory Gardens, Inc., Appellant
v.
Warrington Township Zoning Hearing Board and Warrington Township

          Argued: November 14, 2019

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

          OPINION

          CHRISTINE FIZZANO CANNON, JUDGE

         Victory Gardens, Inc. (VG) appeals from the November 30, 2018 order of the Court of Common Pleas of Bucks County (trial court) affirming a May 12, 2017 decision by the Warrington Township Zoning Hearing Board (Board) that denied VG's appeal of an enforcement notice and determination made by Warrington Township's (Township) zoning officer that VG's mulching operation violated the Warrington Township Zoning Ordinance. Upon review, we reverse.

         VG has conducted mulching operations in the Township since 1993. See Decision of the Warrington Township Zoning Hearing Board, May 12, 2017 (Board Decision), Background Section (Background) ¶ 5. In 1999, Michael Butler, VG's owner and president, consulted with the Township's then-zoning officer, who erroneously advised that mulching operations were permitted within the Township at two locations, one of which was the Winding Brook Farm (the Farm), which is located within the Township's Residential Agricultural Zoning District (RA District).[1] See Board Decision, Background ¶¶ 3 & 6-7; see also Board Decision, Findings of Fact (F.F.) ¶¶ 22 & 24. Thereafter, and in reliance on the Township's zoning officer's representations of legality, VG entered into a lease to occupy an eight-acre portion of the Farm and began conducting a mulching operation thereon. See Board Decision, Background ¶¶ 5 & 8; see also Board Decision, F.F. ¶¶ 25-26. The Township was fully aware of VG's mulching operation at the Farm, periodically inspecting VG's operation and even patronizing VG's services on multiple occasions since 1999, and buying and receiving donations of mulch for parks, playgrounds, clubs, and Township events. See Board Decision, F.F. ¶¶ 31-32 & 34.

         Additionally, between 1999 and 2013, VG and the Township conferred with one another and consistently worked together to resolve issues relating to VG's mulching operation, including attending to and resolving concerns and complaints pertaining to traffic from and the hours of operation of VG's mulching operation. See Board Decision, F.F. ¶ 28, 32-33, 37-46 & 59-62. Over the years, the Township and VG entered into a number of agreements stemming from discussions and meetings regarding these concerns. Id. ¶¶ 35, 37-46 & 59-62. At no time did the Township ever inform VG that its mulching operation was illegal and instead told VG that the use was "right by Ordinance," allowed at the Farm, and allowed by right in the Township's RA District. Id. ¶¶ 29-30. Further, Township officials stated at public meetings in 2002 that VG's mulching operation was a permitted use. Id. ¶¶ 64-66.

         On March 9, 2015, the Township's zoning officer issued a notice of violation informing VG that its mulching operation was an industrial use not permitted in the Township's RA District.[2] See Board Decision, Background ¶ 16. VG appealed and the Board conducted 15 hearings between May 20, 2015 and January 30, 2017, with four (4) Board Members participating.

         On May 12, 2017, the Board issued a written decision on VG's appeal. See generally Board Decision. Two Board Members voted to grant the appeal and two Board Members voted to deny the appeal. Id. Thus, by operation of law, VG's appeal was deemed denied.[3] VG appealed and the trial court affirmed the Board Decision on November 30, 2018, without conducting further hearings. VG timely appealed to this Court.[4]

         Initially, we note that the Township has a zoning ordinance that, in Section 402, outlines the uses permitted and prohibited in areas zoned as RA Districts within the Township. See Twp. of Warrington, Pa., Code of Ordinances Ch. 27, pt. 4, art. A, § 402 (1995) (Zoning Ordinance); Reproduced Record (R.R.) at 2a-4a. We further acknowledge that no dispute exists in this matter that mulching activities are not an enumerated permitted use in the RA District under Section 402 of the Zoning Ordinance.

         VG raises five points of alleged trial court error on appeal. See VG's Brief at 4-5. VG claims that the trial court erred in not granting its appeal: (1) by not conducting a de novo review of the record and issuing its own findings of fact (see VG's Brief at 4 & 23-25); (2) because VG is entitled to equitable relief under the related theories of equitable estoppel, variance by estoppel, and vested rights (see VG's Brief at 4 & 25-40); (3) because VG's mulching operation is a permitted by-right use under Section 402 of the Zoning Ordinance (see VG's Brief at 4 & 41-46); (4) because VG's mulching operation is permitted as a nonconforming use (see VG's Brief at 5 & 46-47); and (5) because VG's mulching operation meets the requirements for a variance (see VG's Brief at 5 & 47-50).

         Trial Court Review of the Record

         VG initially argues that the trial court erred by not conducting a de novo review of the record and issuing its own findings of fact. See VG's Brief at 23-25. VG argues that, because the Board's written decision includes two separate findings of facts and conclusions of law: one from the faction of the Board that voted to grant the appeal (the Affirm Faction) and one from the faction of the Board that voted to deny the appeal (the Deny Faction), neither constitutes findings "of" or "by" the Board, and thus, the trial court was obligated to review the record and propagate its own findings of fact based thereon. See VG's Brief at 23-25; see also generally Board Decision at 3-11 & 14-33. However, the Deny Faction's Findings of Fact adopted the Affirm Faction's Findings of Fact 21-56 and 58-70, which concern the pertinent facts relating to the applicability of the doctrine of equitable estoppel, which, for the reasons discussed below, is dispositive in this matter. See Board Decision, F.F. ¶¶ 21-56, 58-70 & 87. Therefore, because the factions essentially agree to the facts relevant to the dispositive issue of equitable estoppel, we find a remand to the trial court to conduct a de novo review and issue separate findings of fact restating those facts to be unnecessary.

         Equitable Estoppel

         Next, VG contends that the trial court erred by affirming the Board Decision because VG established a right to operate its mulching business in an RA District under any of the theories of variance by estoppel, vested rights, or equitable estoppel. See VG's Brief at 25-40. Because we conclude that VG established the necessary elements to prevail ...


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