               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sarah Vasky,                             :
                   Appellant             :
                                         :   No. 560 C.D. 2018
            v.                           :
                                         :   Submitted: December 11, 2018
Zoning Hearing Board of Newton           :
Township                                 :
                                         :


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                       FILED: January 8, 2019


            Sarah Vasky (Objector) appeals from the March 14, 2018 order of the
Court of Common Pleas of Lackawanna County (trial court) affirming the decision of
the Zoning Hearing Board of Newton Township (Board). The issue in this case is
whether a subdivision of property would result in a private driveway servicing more
“building lots” than what is permitted under the Ordinance. In pertinent part, section
306.10 of the Ordinance states that a private road “shall not serve more than three (3)
building lots as authorized by the Board of Supervisors.” The Zoning Ordinance of
Newton Township (Ordinance), §306.10.
            Robert and Ann Cosner (Applicants) own 25.6 acres of property located
at 1682 Forest Acres Drive in Newtown Township (Property). In March 1989,
Applicants entered into a 99-year lease agreement with Commonwealth Telephone
Company, now known as Frontier Communications (Frontier), granting Frontier the
right to use 7,560 square feet of land on the Property to store utility infrastructure,
along with an easement. On this portion of the Property, Frontier erected an open-air
structure, referred to as a utility shelter or pavilion, which contains communication
equipment. Objector owns property adjacent to and at the rear of the Property.
Applicants, Frontier, and Objector all use a private driveway that runs through the
Property to access arterial roadways. (Trial court op. at 1; Board’s decision at 1-2;
Reproduced Record (R.R.) at 95a-101a, 104a-07a.)
              Applicants propose to subdivide their Property into two parcels and sell
3.19 acres to Walter and Bonnie Janus (Purchasers), who intend to build a residential
dwelling on their portion of the Property.              Under the terms of the anticipated
subdivision, the part of the Property owned by Purchasers would also be serviced by
the private driveway running through the Property. (Trial court op. at 1; Board’s
decision at 2.)
              In June 2017, Applicants submitted a petition to the Board seeking the
grant of two variances, including a request that the Board interpret the Ordinance and
determine whether the proposed subdivision would necessitate a variance pursuant to
section 306.10.1 After conducting two hearings, the Board noted that it was not clear
whether Applicants would use the driveway after the subdivision, but apparently
assumed this to be the case. (Board’s decision at 22, Findings of Fact (F.F.) No. 15.)
Even so, the Board stated, without reference to provisions in the Ordinance, or further
elaboration, that “[t]he small square footage in the easement [to Frontier] does not


       1
        The other request for a variance involved distance requirements with respect to Purchasers’
proposed residential dwelling and the placement of accessory structures. The Board granted
Applicants a variance for the purpose and this aspect of the Board’s decision has not been appealed.



                                                 2
comply with any ‘building lot’ in the Township that otherwise would allow
development within the parameters of the Ordinance.” (Board’s decision at 4.) As a
matter of fact, the Board found: “The utility easement owned by [Frontier] is not a
building lot as contemplated by the Ordinance, but rather is nothing more than an
easement to an equipment pavilion for the utility company.” (F.F. No. 16.) The
Board concluded, “[T]he use of the private drive by the utility company, [Frontier], is
not servicing a ‘building lot’ . . . and therefore is not to be counted as one of the users
of the driveway.” (Board’s Conclusion of Law (COL) Nos. 9-10.) Accordingly, the
Board determined that the proposed subdivision would not require a variance from
section 306.10 of the Ordinance because only three “building lots” would be serviced
by the private driveway, i.e., the lots for Applicants, Objector, and Purchasers.
              Objector appealed to the trial court, which observed that the Ordinance
does not provide a definition for the phrase “building lot,” but contains denotations
for the terms “building” and “lot.” (Trial court op. at 2.) Objector argued that the
Ordinance was clear and without ambiguity and argued syllogistically: Frontier’s
utility shelter met the definition of a “building” under the Ordinance; the shelter
satisfied the criteria of and is located on a “lot” under the Ordinance; therefore, the
utility shelter was a “building lot” for purposes of the Ordinance. In rejecting this
reasoning, the trial court perceived the sole issue before it as whether the Ordinance
“unambiguously prohibits the proposed activity [and] would allow the Township to
constrain [Applicants’] use of their property.” (Trial court op. at 5.) The trial court
concluded that, under the facts and circumstances of this case, the Ordinance did not.
The trial court viewed Objector’s argument as requesting the court to “try to define
the term ‘building lot’ by ‘shoehorning’ it into the definitions of other defined terms.”
(Trial court op. at 5.)



                                            3
                                           Discussion
               Before this Court,2 Objector contends that the Board and trial court erred
in determining that the portion of the Property used by Frontier is not a “building lot”
and that the utility shelter should have been included as one.
               Entitled “Rear Lot Parcels,” section 306.10 states in its entirety:

               All lots shall front on a public road in order to prevent
               parcels of land from becoming land-locked. In cases where
               parcels of land are located behind existing approved
               building lots along public roads, a right-of-way may be
               established to allow access to the aforementioned rear
               parcels of land, and which shall be approved by the Board
               of Supervisors, on an individual basis. The right-of-way
               shall not be less than fifty (50) feet in width. It shall
               originate along a public state or township road and shall be
               designated as a private road, with public access at all
               times. It shall be maintained and kept accessible by the
               property owners serviced by said roadway. Said private
               road shall not serve more than three (3) building lots as
               authorized by the Board of Supervisors in accord with
               this Section 306.10. Each lot shall front on the right-of-way
               of the designated private road and shall conform with the
               Building Codes, Zoning and Subdivision Ordinance.
Ordinance, §306.10; R.R. at 162a (emphasis added).
               In section 202 of the Ordinance, the “Definitions” section, a “building”
is described as:



       2
         Where, as here, the trial court takes no additional evidence, our scope of review is limited
to determining whether the Board committed an abuse of discretion or an error of law. Hamilton
Hills Group, LLC v. Hamilton Township Zoning Hearing Board, 4 A.3d 788, 792 n.6 (Pa. Cmwlth.
2010).



                                                 4
             Any structure having a roof supported by columns or
             walls, used or intended to be used for the shelter [or]
             enclosure of any persons, animals, or property. When
             such a structure is divided into separate parts by one or
             more unpierced walls extending from the ground up, each
             part is deemed a separate building, with the exception of
             meeting minimum side yard requirements.
Ordinance, §202; R.R. at 159a (emphasis added).
             Further, section 202 of the Ordinance provides that a “lot” is:

             Land occupied or to be occupied by a building and its
             accessory buildings, or by a dwelling group and its
             accessory buildings, together with such open spaces as are
             required under the provisions of this Ordinance, having not
             less than the minimum area and width required by this
             Ordinance, and having its principal frontage on a street or
             on such other means of access as may be determined in
             accordance with the provisions of law to be adequate as a
             condition of the issuance of a zoning permit for a building
             on such land.
Ordinance, §202; R.R. at 160a (emphasis added).
             Quoting the definition of “building” in the Ordinance, Objector asserts
that the utility shelter is a structure that “has a roof and is supported by columns” and
is “intended to be used for the shelter [or] enclosure of any . . . property.” (Objector’s
brief at 12.) Quoting the definition of “lot” in the Ordinance, Objector asserts that the
part of the Property where the utility shelter is situated constitutes “[l]and
occupied . . . by a building.” (Objector’s brief at 13.)
             In addition, Objector argues that Frontier has a lease agreement with
Applicants for full use, enjoyment, and possession of real property and that an
easement is only an incidental part of the agreement. From these premises, Objector
deduces that a variance is needed for Purchasers’ acquisition of some of the Property
because there would be a total of four building lots utilizing the private driveway.



                                            5
            In interpreting a zoning ordinance, we initially look at the plain language
of the text, Kohl v. New Sewickley Township Zoning Hearing Board, 108 A.3d 961,
968 (Pa. Cmwlth. 2015), and are “guided to construe words and phrases in a sensible
manner, utilize the rules of grammar and apply their common and approved usage,
and give undefined terms their plain, ordinary meaning.”             Adams Outdoor
Advertisement, LP v. Zoning Hearing Board of Smithfield Township, 909 A.2d 469,
483 (Pa. Cmwlth. 2006). In conducting this analysis, the Court is mindful “that the
setting in which language is used informs our understanding of the particular
language employed,” Kohl, 108 A.3d at 969, and “that the meaning of words may be
indicated or controlled by those words with which they are associated,”
Commonwealth ex rel. Fisher v. Philip Morris, Inc., 4 A.3d 749, 756 n.9 (Pa.
Cmwlth. 2010).
            As a general matter, the courts afford the interpretation proffered by a
zoning hearing board and/or a zoning officer some degree of deference. See Kohl,
108 A.3d at 968-69. However, if that interpretation is inconsistent with the plain
language of the ordinance, or where the meaning of the ordinance is unambiguous,
the “interpretation carries little or no weight.”       Malt Beverage Distributors
Association v. Pennsylvania Liquor Control Board, 918 A.2d 171, 176 (Pa. Cmwlth.
2007) (en banc). This is because “a zoning board is not a legislative body, and it
lacks authority to modify or amend the terms of a zoning ordinance.”             Greth
Development Group, Inc. v. Lower Heidelberg Township Zoning Hearing Board, 918
A.2d 181, 187 (Pa. Cmwlth. 2006); see Shvekh v. Zoning Hearing Board of Stroud
Township, 154 A.3d 408, 414 (Pa. Cmwlth. 2017).
            As mentioned above, the phrase “building lot” is not explicitly defined
in the Ordinance. Where a term in a zoning ordinance is undefined, the term must be



                                          6
given its usual and ordinary meaning, which may be gleaned by consulting dictionary
definitions and employing common sense. Kohl, 108 A.3d at 969; Kratzer v. Board
of Supervisors of Fermanagh Township, 611 A.2d 809, 813 (Pa. Cmwlth. 1992).
According to Webster’s dictionary, a “building lot” is defined as “a surveyed and
bounded plot of land that is set aside for a building.”      WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 292 (1986).          Importantly, this dictionary definition
comports with, and provides a cohesive element to, the descriptive designations that
the Ordinance provides for a “building” and a “lot.”        Viewing these terms and
definitions together and in a sensible manner, we conclude that a “building lot” is
unambiguously denoted as having three subcomponents:          (1) a piece or parcel of
“land” (2) “occupied or to be occupied” by a “structure having a roof supported by
columns,” and (3) “used or intended to be used for the shelter [or] enclosure” of
things such as “property.” Ordinance, §202.
            Here, the Board apparently determined that the “[t]he small square
footage” on which the utility shelter is situated takes it outside the purview of a
“building lot.” (Board’s decision at 4.) However, neither the tribunals below nor the
parties cite any provision of the Ordinance that could support the proposition that
dimensional criteria are relevant to deciding whether a portion of land constitutes a
“building lot.” Upon our review, we can find none. Instead, besides the definitions
for “building” and “lot,” the Ordinance contains definitions for the terms “lot area,”
“lot corner,” “lot coverage,” “lot line,” “lot of record,” and “lot width,” and none of
these terms contains a reference or statement that quantifies the nouns in numerical
expression. (R.R. at 160a.) Consequently, so long as a parcel of property has a
structure specified in the Ordinance that is used or intended to be used for a
designated purpose, that parcel will be deemed to be a “building lot” under the



                                          7
Ordinance. The Board, however, did not issue any findings of fact as to whether
Frontier’s utility shelter is a “structure having a roof supported by columns” and is
“used or intended to be used for the shelter [or] enclosure” of things such as
“property.”   Ordinance, §202.     “Where the record is not adequate for appellate
review, the case should be remanded to the Board to develop the record and make the
necessary findings.” Riverfront Development Group, LLC v. City of Harrisburg
Zoning Hearing Board, 109 A.3d 358, 370 (Pa. Cmwlth. 2015).
              Nonetheless, the Township argues in its brief that the Board reached the
correct result, contending that Frontier’s utility shelter is not located on and does not
meet the definition of a “lot” in the Ordinance. The Township submits that there is
only one lot because Applicants’ residence is the “principal building” or “structure”
on the Property, while the shelter is an “accessory building,” “accessory structure,” or
an “accessory use.” (Township’s brief at 8-9.) While a “lot” is signified in the
Ordinance to include a “building and its accessory buildings,” Ordinance, §202, and
the Ordinance generally permits accessory uses, the Board did not address this issue
or make any findings related to the issue. Thus, a remand for factual findings is
necessary on this basis as well. See Riverfront Development Group, 109 A.3d at 370.
              Moreover, the Board did not make any findings or address the related
issue of whether Applicants’ property agreement with Frontier was one which
resulted in Applicants effectuating a “subdivision” of the Property per the Ordinance,
which is highly relevant in determining whether the utility shelter is located on its
own distinct “lot.”    The Ordinance defines “subdivision” as, “The division or
redivision of a lot, tract, or parcel of land by any means into two or more lots, tracts,
parcels or other divisions of land including changes in existing lot lines for the
purpose, whether immediate or future, of lease, transfer of ownership or building or



                                           8
lot development.”       (R.R. at 161a.)   Relatedly, section 306.9 of the Ordinance
describes “subdivision of lot” as follows: “When a new lot or lots are formed from
part of a parcel of land, the separation shall be effected in such a manner as not to
impair any of the provisions of this Ordinance. The old and new lot shall meet all the
lot requirements as specified in the Ordinance.” Ordinance, §306.9; R.R. at 162a.
Consequently, this is an issue that the Board may need to resolve on remand,
depending upon its determination concerning whether the utility shelter falls within
the above definition.
             For these reasons, we vacate the March 14, 2018 order of the trial court
and remand to the trial court with direction to remand to the Board for further
proceedings, including a new hearing if necessary, consistent with this opinion.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                           9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sarah Vasky,                             :
                  Appellant              :
                                         :    No. 560 C.D. 2018
            v.                           :
                                         :
Zoning Hearing Board of Newton           :
Township                                 :
                                         :


                                     ORDER


            AND NOW, this 8th day of January, 2019, the March 14, 2018 order
of the Court of Common Pleas of Lackawanna County (trial court) is hereby
vacated. The case is remanded to the trial court with direction to remand the
matter to the Zoning Hearing Board of Newton Township (Board). On remand, the
Board may conduct another hearing, if necessary, and shall dispose of the petition
filed by Robert and Ann Cosner in a manner consistent with this opinion.
            Jurisdiction relinquished.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
