             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Lieberth and Hilda Lieberth,     :
                  Appellants             :
                                         :
              v.                         :   No. 330 C.D. 2016
                                         :
Borough of Oakmont Zoning                :   Argued: November 14, 2016
Hearing Board                            :
                                         :
              v.                         :
                                         :
Borough of Oakmont                       :



BEFORE:       HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                   FILED: December 15, 2016


              Michael Lieberth and Hilda Lieberth (Appellants) appeal from the
January 29, 2016 order of the Court of Common Pleas of Allegheny County (trial
court) affirming the decision of the Zoning Hearing Board (Board) of the Borough of
Oakmont (Borough) issued June 17, 2015, which denied Appellants’ request for
approval of a special exception, variance, or otherwise to use the Property as an auto
sales lot.
                                  Facts and Procedural History
                Appellants own three contiguous lots in the Borough located at 10, 12,
and 14 West Woodland Avenue (collectively, “the Property”) in the R-3 Residential
zoning district.1 Prior to the adoption of the Borough’s current zoning ordinance
(Ordinance) on October 13, 2014, the Property had been zoned commercial. (Board’s
Findings of Fact Nos. 1, 13-15, 20, 34.)
                On November 14, 2014, Appellants filed an application with the Board
for permission to use the Property as an auto sales/used car lot. The application
requested authorization of “a [u]se by Special Exception,” and noted that Appellants
were appealing sections 205-502 and 205-415 of the Ordinance, which noted the
requirements for an “Automobile Sales and Service” use by Special Exception and as
a Conditional Use, respectively.             The Ordinance defines “Automobile Sales and
Service” as:
                A business establishment used for the display or sale of
                automobiles, noncommercial trucks, motorcycles, motor
                homes, recreational vehicles and/or boats under 26,000
                pounds gross vehicle weight (GVW), but not including any
                heavy equipment or any other vehicle or equipment which
                is not classified as a “motor vehicle” under the
                Pennsylvania Motor Vehicle Code. Such use may also
                include the servicing or repair of vehicles of the brand of
                vehicles sold at the establishment.

Ordinance, §205-201 (Definitions). However, an “Automobile sales and service” use
was not authorized by the Ordinance in an R-3 Residential district; it is not permitted
by right, by special exception, or as a conditional use. Ordinance, Chart C, Principal
Land Use Table, 205 Attachment 3:1. Therefore, Appellants could not obtain an auto

      1
          The individual lots are referred to as lots 10, 12, and 14, respectively.



                                                    2
sales use unless they could establish a nonconforming Use. (Board’s Findings of Fact
Nos. 1-2, 33-34, 44; Reproduced Record (R.R.) at 242a-43a.)
            The Board held its initial hearing on Appellants’ request on January 28,
2015, where Appellants submitted testimony and evidence in support of their
contention that the nonconforming use of auto sales existed on the Property. In the
event Appellants established a nonconforming use, but that of a commercial parking
lot, Appellants requested permission to utilize the process set forth in section 205-
1205(E) of the Ordinance for a change of nonconforming use to an “Automobile
Sales and Service” use. Section 205-1205(E) of the Ordinance provides:

            Change of nonconforming use. A nonconforming use all
            or partially conducted in a nonconforming structure or
            structures may be changed to another nonconforming use
            only upon determination by the Zoning Hearing Board,
            after public hearing that the proposed new use will be
            more conforming to its neighborhood and surroundings
            than the use it is to replace. In determining such
            relative conformity, the Board shall review the written
            report of the Zoning Officer, which shall include the
            recommendations of the Planning Commission. This
            report shall take into consideration specific characteristics
            of this new nonconforming site and how said new site
            functions in relation to its surroundings. Factors to be
            considered must include, but are not limited to: proposed
            parking expansions or reductions, change in vehicle and/or
            pedestrian entryways, potential traffic patterns and/or
            congestion generated, hours of operation and anticipated
            levels of walk-in traffic, proposed or potential arising
            nuisance characteristics such as emission of noise (if
            produced), dust (if produced), odors (if produced) and
            smoke (if produced/emitted), the extent to which vibrations
            and fire hazards may be created based upon the land use
            activity, and any other proposed and/or continued
            nonconformance with the Zoning Ordinance. The Zoning
            Officer will denote a comparison between the above
            factors as generated by the existing and the proposed
            land use. The Zoning Officer may request the assistance of


                                         3
             other applicable Borough agencies, or any assignee(s), in
             developing this report.

Ordinance, §205-1205(E) (emphasis added).
             For Appellants to be granted a change in nonconforming use, the Board
needed to determine that the proposed use of auto sales would be more conforming to
its neighborhood and surroundings than the nonconforming use of a commercial
parking lot, if established. Id. In making its conformity determination, the Ordinance
required the Board to review a written report prepared by the Zoning Officer, which
had to include the Planning Commission’s recommendation with respect thereto. Id.
The Board permitted Appellants to utilize this procedure and continued the hearing
until May 13, 2015, at which time the Board accepted into evidence the Zoning
Officer’s report.   At the hearing, the Borough and several residents opposed
Appellants’ request. (Board’s Findings of Fact Nos. 3-10, 42-43.)
             Following the submission of written closing arguments, the Board issued
a decision on June 17, 2015, which denied Applicants’ request “for approval for a
special exception, variance or otherwise to use the Property as an auto sales lot.”
(Board’s decision at 10, Board’s Findings of Fact Nos. 4, 11-12.) The Board made
the following factual findings as to the historical use of the Property by Appellants:

         25. On October 1, 1987, [Appellants] were granted a certificate
             of occupancy for a “single dwelling structure” on lot 12.

         26. On December 29, 1989, [Appellants] were granted a
             certificate of occupancy for a “residential structure” on lot
             10.

         27. On April 22, 1997, [Appellants] were granted a certificate
             of occupancy “for possible office space” on lot 14. This use
             was never established.




                                           4
        28. On November 11, 2000, [Appellants] applied for a “Permit
            for Alteration or Repair of Building, Interior Alterations,
            New Fronts, Roofs, Fences, Bay Windows, Cornices, Etc.”
            on lot 14 (the “Demolition Permit”). This permit provided
            “site to be used for parking.” This permit only referred to
            Lot #362-F-00052 which is 14 West Woodland Avenue,
            one of the three (3) lots making up the Property.

        29. There are a few things to note about the “demolition
            permit.” First, it is a demolition permit; not for a certificate
            of occupancy. Second, it is only for one of the three lots in
            question. Even if it was true that the Demolition Permit
            confers some type of nonconforming parking lot use status
            for Lot 14 (which the Board does not think to be the case),
            that use cannot be expanded onto another lot or recognized
            as such. Therefore, at best, [Appellants] established a use
            as a parking lot on Lot 14 only.

        30. At no time did the Borough issue a permit for auto sales on
            the Property.

        31. In fact, such a use was specifically denied in 2014.

        32. On July 29, 2014, [Appellants] applied for a certificate of
            occupancy for an auto sales lot.

        33. On July 31, 2014 the Borough denied the application
            because the use was not permitted in the newly proposed R-
            3 Zoning District. The denial was signed by the then
            zoning officer, Ed Crates, and stamped by the Borough on
            August 1, 2014. [Appellants] did not appeal this decision.

(Board’s Findings of Fact Nos. 25-33) (citations to original record omitted). The
Board then described Appellants’ proposal and Mr. Lieberth’s testimony:

        34. [Appellants’] proposal seeks to combine the use of three (3)
            lots comprising approximately a 22,606 square foot area as
            a used car lot.



                                           5
        35. Mr. Lieberth testified he wanted to continue the use of these
            lots in connection with how he previously used them as an
            annex to 303 Hulton Road, [now] known as the
            “Speedway.”

        36. Mr. Lieberth testified that he was planning on displaying
            around an average of 20 cars on the Property and would
            have around half a dozen or less customers per day.

        37. The cars would not be serviced or repaired.

        38. Mr. Lieberth testified that he used the Property for used car
            trade-ins since 1987.

        39. Mr. Lieberth further testified that occasional sales occurred
            on the Property and were processed through a sales office.

(Board’s Findings of Fact No. 34-39) (citations to original record omitted and
emphasis added).
            The Board concluded that Appellants failed to meet their burden to
establish the continuing nonconforming use of an auto sales lot, reasoning that the
original certificates of occupancy for the Property indicated that it was used for
residential use; when Appellants closed their dealership located at 303 Hulton Road
(which is now operated as a “Speedway”), they transferred their Auto Sales license to
Natrona Heights; Appellants did not have a license to sell cars on the Property and
Mr. Lieberth testified that he was “getting around to getting the license transferred
back to Oakmont;” and, the accessory structures on the Property were uncertified
structures. (Board’s Findings of Fact Nos. 22-24; Board’s Conclusion of Law No.
46).
            Additionally, the Board concluded that Appellants failed to meet their
burden to establish the continuing nonconforming use of a commercial parking lot,
noting that the demolition permit did not establish a nonconforming use as a parking


                                         6
lot; Mr. Lieberth’s counsel acknowledged that the demolition permit “had nothing to
do with the use of the property . . . it was a demolition permit really;” even if the
demolition permit indicated that there was a parking lot use, the permit was only for
lot 14 and the parking lot use could not be deemed to have extended to the other lots;
the Property was previously used for residential purposes; and Appellants failed to
meet the procedural requirements for a request to change any nonconforming
commercial parking lot use to another nonconforming use, i.e., auto sales.2 (Board’s
Conclusions of Law No. 45.)
             The Board also concluded that Appellants failed to meet their burden to
establish a use variance because they presented no evidence to demonstrate the legal
requirements for the same and failed to follow the proper procedure for such request.
Moreover, the Board determined that Appellants had adequate notice of the rezoning
of the Property. (Board’s Conclusions of Law Nos. 47-48; see Board’s Findings of
Fact Nos. 14-21.)
             Appellants appealed the Board’s decision.          The trial court took no
additional evidence and issued an opinion and order dated January 29, 2016,
affirming the Board’s decision and determining that the Board properly found that
Appellants presented no evidence that any legal, nonconforming use existed on the
Property. The trial court acknowledged Mr. Lieberth’s testimony that he wanted to
continue to use the Property as an annex to 303 Hulton Road, which currently houses
a Speedway convenience store, that he used the Property for used car trade-ins since
1987, and that “intermittent” sales occurred on the Property, processed through a


      2
          The Board noted that Appellants did not apply for an application to change a
nonconforming use to another nonconforming use under section 205-1205(E) of the Ordinance;
instead, Appellants applied for a Special Exception that was unavailable for them. (Board’s
Conclusion of Law No. 45(f).)


                                            7
sales office. (Trial court op. at 3.) However, the trial court stated that Appellants did
not present evidence that an occupancy permit existed for any of the three lots and
did not present evidence of “for sale” signs on cars. Importantly, the trial court stated
that Appellants failed to present any documentary evidence relating to auto sales or
commercial parking on the Property.                In addition, the trial court noted that
photographs of the Property showed vehicles parked mostly on grass areas and the
interior of the buildings did not appear to contain items related to car sales or repairs.3
              On appeal to this Court,4 Appellants contend that the trial court erred in
determining that Appellants failed to meet their burden of proving a continuing
nonconforming use because they presented substantial evidence of the same.
Moreover, Appellants argue that the Borough’s knowledge of the long-time use of the
Property as an auto sales lot, and the failure to enforce any violation with respect
thereto, entitles them to a variance by estoppel. Finally, Appellants claim that their
due process rights were violated by being denied the right to continue using their
property as a nonconforming commercial parking lot.
              The Borough responds that the trial court correctly upheld the Board’s
decision because Appellants failed to satisfy their burden of proving the existence of
a nonconforming use on the Property prior to the Borough’s adoption of its


       3
          The trial court also noted that the Borough presented evidence that there was no
nonconforming use, the occupancy permit for a possible office space was never established, and
that the occupancy permit application for automobile sales was denied in 2014.

       4
         When the trial court takes no additional evidence, our scope of review is limited to
determining whether the zoning hearing board committed an error of law or an abuse of discretion.
Riverfront Development Group, LLC v. City of Harrisburg Zoning Hearing Board, 109 A.3d 358,
363 n.8 (Pa. Cmwlth. 2015). An abuse of discretion occurs when a zoning hearing board’s findings
are not supported by substantial evidence, i.e., such evidence as a reasonable mind would find
adequate to support the findings. Collier Stone Company v. Zoning Hearing Board for the
Township of Collier, 710 A.2d 123, 125 (Pa. Cmwlth. 1998).


                                               8
Ordinance in 2014. Moreover, the Borough contends that Appellants’ argument that
an automobile sales use would be “more conforming” than that of a commercial
parking lot is irrelevant because there can be no modification of a nonconforming use
that Appellants failed to establish.       Additionally, the Borough contends that
Appellants failed to establish any procedural error or due process violation with
regard to the Borough’s adoption of the Ordinance.


                                      Discussion
             The Ordinance defines a nonconforming use as “[a] use, whether of land
or of structure, which does not comply with the applicable use provisions in this
chapter or an amendment hereafter enacted, where such use was lawfully in existence
prior to the enactment of this chapter or amendment.” Ordinance, §205-201. The
Ordinance also provides:
             Within the zoning districts established by this chapter, there
             exist uses and lots of land that were lawful before this
             chapter’s adoption but which are now prohibited, regulated
             or restricted under the terms of this chapter. It is the intent
             of this chapter to permit these nonconformities to
             continue until they are removed, but not to encourage
             their survival. Such uses are considered incompatible with
             the permitted uses in the zoning districts involved.

§205-1201(A) (emphasis added). “A lawful nonconforming use is a use that predates
the enactment of a prohibitory zoning restriction . . . and the right to continue a legal
nonconforming use is entitled to the constitutional protection of due process.”
Hunterstown Ruritan Club v. Straban Township Zoning Hearing Board, 143 A.3d
538, 545 (Pa. Cmwlth. 2016). In Hunterstown Ruritan Club, we recognized that “‘[a]
lawful nonconforming use establishes in the property owner a vested right which
cannot be abrogated or destroyed, unless it is a nuisance, it is abandoned, or it is


                                           9
extinguished by eminent domain.’”                     Id. (quoting Pennsylvania Northwest
Distributors, Inc. v. Zoning Hearing Board of Moon Township, 584 A.2d 1372, 1375
(Pa. 1991)).       Although the continuation of nonconforming uses are provided
constitutional protection, “it is the policy of the law to closely restrict such uses.”
Appeal of Atlantic Richfield Company, 465 A.2d 1077, 1080 (Pa. Cmwlth. 1983).


                         1. Continuation of a Nonconforming Use
               First, Appellants argue that the trial court and Board erred in
determining that they failed to establish a nonconforming use on the Property.
               It is well established that the burden of proving the existence and extent
of a nonconforming use is on the property owner.                   Jones v. North Huntingdon
Township Zoning Hearing Board, 467 A.2d 1206, 1207 (Pa. Cmwlth. 1983). “This
burden includes the requirement of conclusive proof by way of objective evidence of
the precise extent, nature, time of creation and continuation of the alleged
nonconforming use.” Id.
               Appellants assert that they submitted substantial evidence proving a
continuing use of the Property as a used car dealership and/or a commercial parking
lot. (Appellants’ brief at 14.) Appellants contend that they should be permitted to
use the Property as an auto sales lot as a continuation of a nonconforming auto sales
use.       Alternatively, Appellants argue that they established a nonconforming
commercial parking lot use and the requested nonconforming auto sales use should be
permitted as a natural expansion of the same.5



       5
        Notably, Appellants do not argue that the trial court or Board erred in determining that
Appellants failed to satisfy their burden of proving a change of nonconforming use, i.e., from that of
a commercial parking lot to an auto sales use, under section 205-1205(E) of the Ordinance.


                                                 10
             Addressing Appellants’ arguments in reverse order, we note that
Appellants failed to raise the issue of natural expansion of a nonconforming use
before the Board or the trial court. It is well established that issues not raised in the
lower court are waived and cannot be raised for the first time on appeal. Agnew v.
Bushkill Township Zoning Hearing Board, 837 A.2d 634, 640 (Pa. Cmwlth. 2003)
(citing Pa.R.A.P. No. 302(a)); see Myers v. State College Zoning Hearing Board, 530
A.2d 526, 527 (Pa. Cmwlth. 1987) (recognizing that a new theory of relief cannot be
introduced on appeal when it was not presented to the zoning hearing board). Hence,
Appellants’ argument pertaining to the natural expansion of a nonconforming use will
not be addressed on appeal because it has been waived.
             However, the question remains whether Appellants established a legal
nonconforming auto sales use of the Property, which would entitle them to a
continuation of such use. Appellants argue that they submitted testimony that they
conducted transactions on the Property in selling vehicles and processing the
necessary paperwork for the transactions.           In addition, Appellants offered
photographs of the Property. The Board, however, considered and rejected such
testimony and evidence. As we stated in Taliaferro v. Darby Township Zoning
Hearing Board, 873 A.2d 807, 811 (Pa. Cmwlth. 2005).

             [T]his Court may not substitute its interpretation of the
             evidence for that of the zoning hearing board. It is the
             function of a zoning hearing board to weigh the evidence
             before it. The board is the sole judge of the credibility of
             witnesses and the weight afforded their testimony.
             Assuming the record contains substantial evidence, we are
             bound by the board's findings that result from resolutions of
             credibility and conflicting testimony rather than a
             capricious disregard of evidence.

             A zoning board is free to reject even uncontradicted
             testimony it finds lacking in credibility . . . .

                                           11
Id. (citations omitted). We note that Appellants testified to only occasional sales at
the Property, and photographs of the Property did not suggest the existence of an auto
sales lot. Moreover, Appellants submitted no documentary evidence that auto sales
were ever conducted on the Property.
             Appellants had the burden to prove the existence of a nonconforming
auto sales use on the Property, which included Appellants’ obligation to submit
conclusive proof, by the way of objective evidence, of the precise extent, nature, time
of creation, and continuation of the alleged use. Jones, 467 A.2d at 1207. We
discern no error in the Board’s determination that Appellants’ evidence failed to
establish the nonconforming use of an auto sales lot on the entire Property.6


                                       2. Estoppel
             Next, Appellants argue that the Borough knew that auto sales were
occurring on the Property for a period of fifteen years and never objected or tendered
a violation notice as to the same. Therefore, Appellants contend that the Borough is
estopped from denying Appellants the necessary permits to continue such use, and
assert entitlement to a variance by estoppel. We disagree.
             As we have previously noted, variance by estoppel is an unusual remedy
under the law and is granted only in the most extraordinary of circumstances.
Skarvelis v. Zoning Hearing Board of Borough of Dormont, 679 A.2d 278, 281 (Pa.
Cmwlth. 1996). The factors to be considered in determining whether to grant a
variance by estoppel are: (1) a long period of municipal failure to enforce the law,
when the municipality knew or should have known of the violation, in conjunction


      6
         Without establishment of the existence of the nonconforming auto sales use prior to
adoption of the Ordinance, we need not determine whether such nonconforming use was lawful.


                                            12
with some form of active acquiescence in the illegal use; (2) whether the landowner
acted in good faith and relied innocently upon the validity of the use throughout the
proceedings; (3) whether the landowner has made substantial expenditures in reliance
upon his belief that the use was permitted; and (4) whether the denial of the variance
would impose an unnecessary hardship on the landowner, such as the cost to
demolish an existing building. Id.
              However, “the mere showing that a municipality has failed to enforce
the law for a long period of time is insufficient in itself to support the grant of a
variance.” Id. As we have previously recognized:

              In those cases where we have granted a variance by
              estoppel, the municipalities have done more than passively
              stand by; they have committed some affirmative act, such as
              granting a building permit, which would reasonably lead a
              property owner to conclude that the proposed use was
              sanctioned under the law.

Id.
              Here, Appellants failed to allege facts or submit evidence to show the
Borough actively acquiesced in any auto sales use. Rather than grant Appellants’
application for a certificate of occupancy for an auto sales use, the Borough denied
the same. There is no evidence that the Borough issued a building permit, or any
other permit, that could show active acquiescence of the Borough in an auto sales use
on the Property.      Additionally, Appellants made no argument and submitted no
evidence that they made substantial expenditures in reliance upon a belief that the
auto sales use was permitted. Moreover, Appellants have failed to offer evidence that
the denial of a variance by estoppel would impose an unnecessary hardship on them.7

       7
         Indeed, the only argument Appellants’ counsel made with respect to unnecessary hardship
was to a requested use variance, as follows:
(Footnote continued on next page…)

                                              13
               Thus, Appellants’ argument that the Borough should be estopped from
denying Appellants the necessary permits to continue an auto sales use is devoid of
merit.8


                                            Conclusion
               Based on our review of the record, the Board did not abuse its discretion
or commit an error of law in determining that Appellants failed to satisfy their burden

(continued…)


               Now, lastly, of course, is the variance, the use variance. I mean, that
               is up to the board. I don’t see how it does any harm to the
               community.

               Does he have a hardship? You know, legally, does he have a
               hardship? That is your judgment to make.

(R.R. at 110a.) Appellants’ counsel stated that it was a hardship “from the standpoint of being
unfair . . . looking at it from that standpoint, I think you could give him a use variance also.” Id.

       8
         Appellants also claim that their due process rights were violated by being denied the right
to continue using their property as a nonconforming commercial parking lot. (Appellants’ brief at
31.) However, such argument is immaterial to our review of whether Appellants established a
continuing nonconforming use of an auto sales lot. Furthermore, it is difficult to discern
Appellants’ argument in this regard. We merely note that, to the extent Appellants argue that
adoption of the Ordinance effected a “taking” of their Property without just compensation and/or
constituted illegal spot zoning, Appellants failed to raise the same before the trial court or the Board
and, therefore, those arguments have been waived. Agnew, 837 A.2d at 640.

        Assuming arguendo that the due process argument is somehow relevant to our review of
whether Appellants established the nonconforming use of an auto sales lot, the Board found that
Appellants had adequate notice of the rezoning of their Property. (Board’s Conclusion of Law No.
48; Board’s Findings of Fact Nos. 14-21.) It is for the Board, and not this Court, to resolve
conflicting testimony and assign weight to the evidence before it. Taliaferro, 873 A.2d at 811. As
there is substantial evidence in the record to support the Board’s findings in this regard, we will not
disturb such findings on appeal. Id. Thus, we discern no due process violation.



                                                  14
of proving the existence of a nonconforming auto sales use on the Property.
Moreover, Appellants failed to establish the elements of variance by estoppel.
Because an “Automobile sales and service” use is not authorized in the Property’s R-
3 Residential zoning classification, we discern no error in the Board’s denial of
Appellants’ request to use the Property as an auto sales lot.
             Accordingly, the order of the trial court is affirmed.




                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                           15
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Lieberth and Hilda Lieberth,     :
                  Appellants             :
                                         :
            v.                           :    No. 330 C.D. 2016
                                         :
Borough of Oakmont Zoning                :
Hearing Board                            :
                                         :
            v.                           :
                                         :
Borough of Oakmont                       :


                                       ORDER


            AND NOW, this 15th day of December, 2016, the order of the Court
of Common Pleas of Allegheny County, dated January 29, 2016, is hereby
affirmed.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
