           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David Zimliki and Lana Zimliki            :
                                          :
              v.                          : No. 428 C.D. 2015
                                          : Submitted: September 17, 2015
New Brittany II Homeowners’               :
Association,                              :
                  Appellant               :


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE P. KEVIN BROBSON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI                                FILED: October 15, 2015


              The New Brittany II Homeowners’ Association (Association)1 appeals
from an order of the Court of Common Pleas of York County (trial court) granting
Dr. David and Lana Zimliki’s (Homeowners) request for declaratory judgment and
finding them in compliance with the Association’s Declaration of Restrictions,
Covenants and Conditions (Declaration). For the reasons that follow, we affirm.




       1
        We presume that the Association is a non-profit corporation organized pursuant to the
Uniform Planned Community Act. Act of December 19, 1996, P.L.1336, 68 Pa. C.S. §§5101-
5414.
                  The Declaration sets forth the process homeowners are required to
follow when they wish to commence construction or improvements on their
property. The Association administers the Declaration, which is applicable to the
homes in the subdivision. Under the Declaration, only garages that are attached to
a dwelling and only such accessory structures that are not used for storage and that
are deemed acceptable by the Design Review Committee (Committee) are
permitted.2 Homeowners own a home in the New Brittany II subdivision and are
bound by the Declaration.


                  In June 2011, Homeowners applied to Manchester Township for a
building permit to erect a “detached garage” on their property.                     (Reproduced
Record (R.R.) at 138a.) Manchester Township issued Homeowners the building
permit to construct a detached “[a]ccessory structure (garage).” (R.R. at 140a.)


       2
           The relevant provision in the Declaration states:

                  2. Review and Approval Required. Before the commencement of
                  construction of any structures or other improvements on any Lot or
                  any portion of the land included in the Property, all plans and
                  specifications pertaining to building and site design and the
                  construction of any such improvements, including subsequent
                  additions and alterations or site improvements, shall be subject to
                  review and prior written approval by the Committee. All decisions
                  of the Committee shall be final and not subject to review by any
                  court, unless clear and convincing evidence shows that the
                  Committee willfully and arbitrarily violated this Declaration in
                  rendering any such decision. Construction shall be performed only
                  in accordance with the plans and specifications actually approved
                  by the Committee.

(R.R. at 150a.)




                                                  2
Dr. Zimliki then wrote to the Association3 informing it of their plan to build a
“garage” and providing it with specifications and sketches of the proposed
structure.4 (R.R. at 141a.) The structure was to be 24 feet by 24 feet, with two
large overhead doors and located at the end of Homeowners’ driveway facing the
street. Moreover, the materials used to construct the structure were to exactly
match the brand, color, size and shape of materials used in building Homeowners’
house as well as the house’s design.


                  The relevant provisions in the Declaration that apply are contained in
a subsection to Article II (“Architectural Requirements and Controls”), Section A
(“Design, Review and Approval”), and provide the following:

                  2. Accessory Buildings; Playground Equipment. No
                  detached storage sheds or utility buildings may be
       3
           The body of the letter provides:

                  As you may have noted the shed previously on my property has
                  been sold and removed from the property. I have contacted a
                  highly recommended local contractor Wood Originals Inc.
                  (woodoriginalsinc.com) from Bethel, PA to build a garage in lieu
                  of the previous shed. Every material used to construct the garage
                  will be of the exact brand, color, size and shape of the materials
                  used in the construction of our house. As well the design of the
                  garage mimics the design of the current house. I have attached
                  some sketches of the garage as well as some examples of Wood
                  Originals [sic] structures of similar characteristics. All township
                  criteria have been met and approved….

(R.R. at 141a.)

       4
         The Association notes in its brief that, “The letter/application references the structure as
a ‘garage’ four times.” (Brief of Appellant at 5) (citations omitted).




                                                  3
            constructed or placed on any Lot. One accessory
            building per Lot for purposes other than storage may be
            permitted in the discretion of the Committee only (a) if
            the design of such building and materials utilized in the
            construction of such building match exactly the design
            and materials utilized in the dwelling house located on
            such Lot, and (b) if such building is located within the
            setback lines applicable to the dwelling house located on
            such Lot. Playground equipment may be approved by
            the Committee upon submission of plans fully detailing
            the proposed equipment.

                                   *    *   *

            8. Garages. Each Lot on which a house is constructed
            shall also have constructed on such Lot an attached
            garage for the storage of at least two motor vehicles, but
            not more than four (4).


(R.R. at 153a) (emphasis added).


            Following a meeting, the Association denied Homeowners’
application, disallowing the building of the structure presumably because the
Declaration only allowed garages that were attached to a house. In July 2011, Dr.
Zimliki appeared at an Association meeting to discuss plans for building the
structure, which had not yet been approved by the Committee. The Association
neither approved Homeowners’ proposed structure nor reconsidered the previous
denial.


            Notwithstanding that under the by-laws that before anything can be
constructed it must receive approval of the Committee, in September 2011,
Homeowners built the structure as proposed in their application without the



                                        4
Association’s approval.           In April 2012, the Association’s counsel sent
Homeowners a letter asking them to comply with the Declaration. Homeowners
then sought declaratory judgment.5


              Before the trial judge,6 Dr. Zimliki testified that the structure’s use
was not as a garage, the use he originally received approval for from Manchester
Township and the proposed use he sought the Committee to approve, but was used
as a woodworking workshop where he enjoys restoring clocks, building furniture
and undertaking other woodworking projects. He also testified that the structure’s
large, overheard, garage-style doors are not used for the purpose of allowing motor
vehicles to go in and out of the structure, but rather to allow for the easy entry and
exit of large woodworking equipment and materials.


              Dr. Zimliki further testified that he made sure that the materials used
and design for the structure were an exact match to those of his house.
Homeowners’ witnesses all testified that the structure was used for recreation and
entertainment as both Homeowners’ family, as well as friends and neighbors use
the structure to watch television, play video games and host parties. Homeowners’

       5
         On appeal, no one challenges the jurisdiction of the trial court to hear the declaratory
action before the Committee had rendered a decision. We note that if the Committee had been
allowed to exercise its powers under the Declaration, the standard would go to whether it
exercised its discretion in good faith. 68 Pa. C.S. §5113. (“Every contract or duty governed by
this subpart imposes an obligation of good faith in its performance or enforcement.”)

       6
         Homeowners both testified, as did Joshua and Christina Warfel, Homeowners’ next
door neighbors; Paul Delmonte, Homeowners’ other next door neighbor; Jeffrey Henry, a Board
Member of the Association; and Thomas Pendergast, an individual who does not own property in
the subdivision but has a real estate interest in the subdivision.




                                               5
witnesses also testified that the structure was never used for storage, maintenance
or repair of motor vehicles. Meanwhile, the Association’s witnesses admitted that
they had never been inside of the structure and had no personal knowledge of the
structure’s actual use.


               Not remanding to allow the Committee to consider the matter, the trial
court found that Homeowners are in compliance with the Declaration as the
structure is not a garage or a storage area, but rather is used as a workshop, an
entertainment area and a recreational building.7 In making its decision, the trial
court found that although the structure has two overhead garage style doors and sits
at the end of a portion of the driveway, the structure does not look like a garage
and, moreover, the exterior of the structure is not determinative of what it actually
is.8 The court also noted that there is no evidence that vehicles have ever been
stored, repaired or maintained in the structure.              Lastly, the court found that
although there is some storage in the structure, the storage is incidental to the use
and purpose of the structure as a workshop and entertainment area and it is not
indicative of the nature of the structure. The Association appealed.9


       7
          The trial court noted that there is a stereo, a refrigerator and two ceiling fans in the
structure and that portions of the structure are carpeted.

       8
          In further establishing its point, the trial court discussed examples of restaurants
(namely Quaker Steak and Lube and Motor Supply Company) that have the appearance of
vehicle repair shops on the outsides despite being restaurants.

       9
         “Our standard of review in a declaratory judgment action is limited to determining
whether the trial court’s findings are supported by substantial evidence, whether an error of law
was committed or whether the trial court abused its discretion.” Yost v. McKnight, 865 A.2d
979, 982 n. 6 (Pa. Cmwlth. 2005).



                                                6
             On appeal, the Association only argues that trial court erred in
concluding that the structure in question is in compliance with the Declaration. It
contends that the structure violates the Declaration’s type and use restrictions, as
the Declaration prohibits the building of detached garages and the building of
storage structures, and that Homeowners’ structure violates both restrictions as the
structure appears to be a detached garage and is used for storage. The Association
argues that the restriction under Section 2 of the Declaration is both a type and a
use restriction. Specifically, it contends that there is type restriction given that the
Committee must approve the aesthetic qualities of the structure and a use
restriction because the structure cannot be used for storage.


             We agree with the Association that Section 2 prohibits using a
supplemental structure for storage purposes.        This prohibition is clear as the
Declaration explicitly disallows “storage sheds” and allows accessory buildings
only if used “for purposes other than storage.” However, the Declaration does not
set forth any further limitations on the characteristics of the permissible accessory
structure, other than the design and materials used for its construction must match
the design and materials used in the dwelling house on the property, that the
structure must be located within certain property lines, and that it must be
approved by the Committee.


             The Association next argues that the restriction under Section 8 of the
Declaration is a type restriction. That is, the restriction prohibits detached garages.
The Association argues that the structure’s outward appearance, its two overhead
garage doors that are identical to the doors on Homeowners’ attached three car



                                           7
garage and its location at the end of the driveway, establish that it is a detached
garage. However, while if it was used as a detached garage, the Association’s
argument would have some merit. The evidence accepted by the trial court is that
the structure is not being used as a garage. If it is so used in the future, the
Association can bring an action to foreclose such a use.


             Homeowners’ structure conforms to the specifications set forth in
Sections 2 and 8 of the Declaration. The Declaration fails to define “accessory
building” or “garage” in any way except that the former may not be used for
purposes of storage and the latter may not be used to store less than two or more
than four cars. The only restrictions on the outward appearance of the accessory
structure is that it must “exactly match” the design and materials of the dwelling
house. Homeowners’ structure is used primarily for woodworking and recreational
purposes, and any storage in the structure is a byproduct of the woodworking and
recreational activities; thus, it conforms to the use restrictions set forth. The
exterior of the structure exactly matches the exterior of Homeowners’ house in
both the design and materials used. Although the structure may resemble a garage
on the outside given its two large overhead doors, it is not used for the storage of
any car as prohibited by the Declaration. Thus, it conforms to the Declaration’s
type restrictions.




                                         8
            Accordingly, we affirm the trial court’s order.



                                      ___________________________________
                                      DAN PELLEGRINI, President Judge



Judge Cohn Jubelirer concurs in the result only.




                                         9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David Zimliki and Lana Zimliki       :
                                     :
             v.                      : No. 428 C.D. 2015
                                     :
New Brittany II Homeowners’          :
Association,                         :
                  Appellant          :




                                  ORDER


             AND NOW, this 15th day of October, 2015, the order of the Court of
Common Pleas of York County dated January 13, 2015, at No. 2012-SU-004002-
44, is affirmed.



                                     ___________________________________
                                     DAN PELLEGRINI, President Judge
