            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Frank M. Sajer and                              :
Constance Coyne Sajer,                          :
                                                :
                              Appellants        :
                                                :
                       v.                       :    No. 265 C.D. 2018
                                                :    ARGUED: December 13, 2018
Zoning Hearing Board of Hampden                 :
Township                                        :
                                                :
                       v.                       :
                                                :
Township of Hampden                             :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                      FILED: February 21, 2019

               Frank M. Sajer and Constance Coyne Sajer (Neighbors) appeal from
the order of the Court of Common Pleas of Cumberland County affirming the order
of the Hampden Township Zoning Hearing Board (Board). In this unusual case,
there was no action by the Hampden Township Zoning Enforcement Officer (Zoning
Officer) from which Neighbors appealed—rather, their appeal concerns the inaction
of the Zoning Officer with regard to a neighboring landowner’s construction and
excavation work without a zoning permit and the attendant permitting procedures
required by the Hampden Township Zoning Ordinance (Ordinance).1 The Board

   1
       The Ordinance provides in relevant part as follows:
has not participated in the appeal to the trial court or this Court; Hampden Township
has intervened.
               Neighbors own a property sharing a rear property line with Robert
Beaudry (Landowner), who has not been a party to, or participated in, Neighbors’
appeal.2     Landowner’s property is in a residential zoning district under the
Ordinance. In June 2016, Landowner applied for and received from the Township’s
engineering department a permit allowing him to build a four-foot high concrete
block retaining wall, with the addition of fill to raise the grade next to Neighbors’
property. (Reproduced Record “R.R.” at 3a-20a.) The permit also approved the
installation of a six-foot high vinyl fence on top of the retaining wall and a storm




               The Board shall hear and decide appeals where it is alleged by the
               appellant that the Zoning Officer has failed to follow prescribed
               procedures or has misinterpreted or misapplied any provision of a
               valid ordinance or map or any valid rule or regulation governing
               the action of the Zoning Officer. Nothing contained herein shall be
               construed to deny to the appellant the right to proceed directly to
               court where appropriate.

Hampden Township Zoning Ordinance (Ordinance), § 2201.B (relating to appeals) (emphasis
added). “Appellant” is not defined by the Ordinance. See also Sections 909.1 and 913.3 of the
Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended,
53 P.S. §§ 10909.1(a)(3) (relating to the jurisdiction of the zoning hearing board to hear appeals
from the “failure to act on the application therefor [i.e., for a permit]”) and 10913.3 (relating to
parties appellant before the zoning hearing board, including “any person aggrieved”). Section
909.1 and 913.3 of the MPC were added by the Act of December 21, 1988, P.L. 1329.

    2
      Neighbors state that Landowner was given notice of the proceeding before the Board.
Landowner was not present at the hearing and did not participate in the appeals below or before
this Court. However, Landowner’s professional engineer attended the Board’s hearing in this
matter, refusing to testify when asked.



                                                 2
water drain system. (Id.) No separate zoning permit for the excavation and retaining
wall and fence was issued by the Zoning Officer.3
               After commencement of Landowner’s project, Neighbors filed an
application/appeal to the Board claiming both the project and the permitting process
violated the Ordinance. The Board held a hearing on Neighbors’ appeal in October
of 2016. Before the Board, Darrell McMillan, Director of Community Development
and Assistant Zoning Officer, testified for the Township. McMillan testified that the
custom in the Township is for a landowner who wishes to build a retaining wall to
apply to the Township engineering department for a single permit. McMillan
testified that the single or combination permit functions as both a building permit
and a zoning permit, without application to the Zoning Officer. McMillan further
testified that the application for the combination permit contains everything required
on a zoning permit application form, and thus the zoning permit was contained
within the permit obtained by Landowner. A detailed engineer’s drawing was


    The permit is numbered 7061 and is prominently captioned “CERTIFICATE OF
        3

OCCUPANCY” in large type at the bottom of the page. The document states as follows:

              FINAL INSPECTIONS: It is the applicant’s responsibility to notify
              the Township for a final building inspection when permitted work
              is completed. All final lot grading shall meet the requirements of
              Section 507 of the Hampden Township Land Development
              Ordinance.

(R.R. at 3a). In a box marked “REVIEW,” the permit also states as follows:

              This permit has been issued after reviews under the requirements of
              the UCC and the IRC 2009. Per section 403.66 of the UCC a
              building, structure or facility may not be used or occupied without a
              Certificate of Occupancy Issued by a Building Code Official. Per
              Section 403.45 of the UCC a Construction Code Official shall make
              the required inspections to comply with the UCC.

(Id.)


                                               3
submitted with Landowner’s permit application. The Township requires an applicant
to pay a zoning permit fee, and Landowner did so. The permit is not signed by the
Zoning Officer. McMillan did not inspect the property before or during construction,
but did so a few weeks prior to the Board’s hearing. McMillan reviewed the
application, but it appears that his review also took place after the construction of
the wall. With regard to the height of the retaining wall and fence, McMillan
testified that under the Ordinance there is no limitation on the height of retaining
walls holding back earth and that the fence erected by Landowner, while taller than
the one specified in the permit, was compliant with the Ordinance.
              The retaining wall, fence, and storm drain were built and additional fill
beyond that specified in the building application was used.                  The changes in
Landowner’s property altered the flow of storm water, creating erosion problems for
Neighbors. After construction and before the hearing, McMillan found that the
storm drain, which was part of the permit application, violated the Ordinance by
directing a discharge of water onto adjoining property. As a result, Landowner was
directed to block the storm drain, and he did so.
              The Board delivered a Decision in December 2016 denying Neighbors’
appeal. Neighbors filed a land use appeal to the trial court, which accepted briefs
and held argument but did not take additional evidence. The trial court affirmed the
decision of the Board and Neighbors appealed to this Court. On appeal,4 Neighbors


    4
      Where the trial court does not take additional evidence, our scope of review is limited to
determining whether the zoning hearing board abused its discretion or committed an error of law.
Tink-Wig Mountain Lake Forest Prop. Owners Ass'n v. Lackawaxen Twp. Zoning Hearing Bd.,
986 A.2d 935, 939 n.2 (Pa. Cmwlth. 2009). This Court may conclude that the governing body
abused its discretion only if its findings of fact are not supported by substantial evidence. Id.
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. Id.




                                               4
assert that the single-permit procedure violated the Ordinance, by the fact that the
Zoning Officer did not inspect the property before construction or issue a zoning
permit; that the construction was non-compliant with the Ordinance in various
respects such that a variance was required; and that the Board exhibited bias in its
procedures.
              To begin, despite the conclusions of the Board and the arguments of the
Township, it would appear quite clear that the current zoning permitting process for
erecting retaining walls in Hampden Township is not compliant with the Ordinance
and the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968,
P.L. 805, as amended, 53 P.S. §§ 10101 - 11202. As the trial court noted, Section
1708(7) of the Ordinance provides that “[a] Zoning Permit shall be acquired for all
fences and walls in accordance with requirements of Section 2204.” Section 2204 of
the Ordinance provides in relevant part as follows:
              1. Requirement of Permits. A zoning permit shall be
                 required prior to the erection, addition or alteration of
                 any . . . structure . . . .

              2. Application for Permits. All applications for permits
                 shall be accompanied by a plan . . . . One copy of the
                 plans shall be returned to the owner when the plans
                 [sic] are approved by the Zoning Officer or other
                 appropriate person or body . . . .

              3. Issuance of Permits. No permit shall be issued until the
                 Zoning Officer has certified that the proposed use of
                 land, building, addition, or alteration complies with all
                 the provisions of this Chapter, as well as with all the
                 provisions of any existing or hereafter enacted
                 Building Permit Ordinance or other ordinance or
                 provision thereof pertaining to building permits . . . .
                 The applicant and owner shall comply with all terms
                 and conditions of any zoning permit issues [sic] and
                 failure to do so shall constitute a violation of this
                 Section.

Ordinance, § 2204 (relating to permits) (emphasis added).

                                           5
             Further, Section 614 of the MPC provides in relevant part as follows:
             The zoning officer shall administer the zoning ordinance
             in accordance with its literal terms, and shall not have the
             power to permit any construction or any use or change of
             use which does not conform to the zoning ordinance.

53 P.S. § 10614 (relating to appointment and powers of zoning officer) (emphasis
added). Section 2203 of the Ordinance provides in relevant part as follows:
             It shall be the duty of the Zoning Officer, and he is hereby
             given the necessary power and authority to enforce the
             provisions of this Chapter. The Zoning Officer shall
             examine all applications for permits, issue permits for
             construction and uses which are in accordance with the
             requirements of this Chapter [and] record and file all
             applications for permits with accompanying plans and
             documents . . . .

Ordinance, § 2203 (emphasis added). While the Township argues that requiring
separate building and zoning permits is unnecessary and wasteful, it appears to be a
clear requirement of the Ordinance.
             The issue concerning the lack of a pre-construction inspection is less
clear. It should be noted that Section 2208 of the Ordinance, cited by Neighbors,
does not necessarily require an inspection prior to issuance of a permit or afterwards.
Section 2208 provides in relevant part as follows:

             1. It shall be the duty of the Zoning Officer or his duly
                appointed representative to make such inspections of
                the property for which a zoning permit has been issued
                as necessary to assume [ sic] compliance with such
                permit and this Chapter.

             2. At the beginning of construction, a record shall be
                made indicating the time and date of the inspection and
                the findings in regard to conformance of the
                construction with plans submitted with the application
                for the permit.



                                          6
             3. If the actual use or construction does not conform with
                the Zoning Permit, a written notice of violation shall be
                issued by the Zoning Officer, or his duly appointed
                representative, and construction shall be discontinued.
                Upon proper correction of the violation and receipt of
                written notice from the Zoning Officer, or his duly
                appointed representative, construction may proceed.

             4. At the completion of construction, a record shall be
                made indicating the time and date of the inspection, the
                findings of the Zoning Officer or his duly appointed
                representative in regard to the issuance of a certificate
                of use.

Ordinance, § 2208 (relating to inspection and enforcement) (emphasis added).
Subsection 1 requires inspections only “as necessary to assume [sic] compliance”
with a permit; subsection 2, while requiring that at the beginning of construction a
record be made of the time and date of the inspection, does not expressly require that
an inspection be done; subsection 3 is contingent upon the actual use or construction
not conforming to the permit during construction; and subsection 4, like subsection
2, requires a record of an inspection to be made (in subsection 4, at the end of
construction), but does not require an inspection to be done. That said, if the
authority to inspect and enforce is permissive, it certainly presupposes the issuance
of a zoning permit – which is mandatory. The Township’s preferred procedure of
relieving the Zoning Officer of the duty to review and issue a zoning permit for
retaining walls certainly would appear to diminish the likelihood that he would
become involved in the process by exercising his discretion regarding the need to
inspect the property. Moreover, McMillan did not testify that he failed to inspect the
property prior to construction because he found it unnecessary; he was not asked that
question. McMillan simply testified that he had not inspected the project until after
it was completed.
             Nevertheless, the excavation is complete and the retaining wall and
fence have been erected. Even though we cannot condone the Township’s use of a

                                          7
procedure which violates its own ordinance, in light of the accepted testimony that
all the requirements of a zoning permit were included in the dual purpose building
permit, to send the case back for re-permitting alone, at this point, would be
pointless. Moreover, to do more, i.e., to require the demolition of an existing
structure because of a defective permitting process, particularly when Landowner
has complied with all the Township has required of him, would be manifestly unjust.
             With respect to the claim that variances were required, we note that
most of Neighbors’ arguments relate to requirements that are subject to
interpretation, such as from what angle to measure the height of a wall or what height
a retaining wall needs to be in order to “hold back an earthen berm,” and are clearly
based upon Neighbors’ characterization of the evidence—which interpretations and
characterizations were not accepted by the Board. McMillan testified that the
structure was currently compliant with the Ordinance, and the Board and trial court
agreed. Given the necessary deference which must be given to the Board as the entity
responsible for the interpretation and application of the Ordinance, see Walck v.
Lower Towamensing Township Zoning Hearing Board, 942 A.2d 200, 209 (Pa.
Cmwlth. 2008), we cannot say that these findings were erroneous, with one
exception.
             The only manner in which the construction of the retaining wall and
fence clearly appear to be in violation of the Ordinance is in relation to impervious
surface cover. As a result of the project, the impervious surface cover on
Landowner’s property was increased from 38.4% to 39.1%, while the Ordinance
limits such cover to 30%. Evidently the 38.4% level occurred when a swimming
pool was built on Landowner’s property in 1986. It is not clear whether the
Ordinance language or only its interpretation was changed after the pool
construction, but the testimony reflects that when the pool was put in, “swimming
pool water surfaces were not considered coverage . . . .” (Notes of Testimony “N.T.”


                                          8
at 103; R.R. at 150a). In any case, the pool construction was approved as compliant
when it occurred, and the current increase from the preexisting nonconformity was
only seven tenths of 1%. We find this .7% increase to the existing cover to be de
minimis, if not subject to the general doctrine of variance by estoppel, specifically
the aspect of the doctrine known as vested rights. The retaining wall and fence were
built with the approval of the Township in accordance with its procedures and found
to be compliant by the zoning authorities and the Board.5 Accordingly, we must
reject Neighbors’ arguments concerning a need for a variance.
               Finally, Neighbors complain that the Board exhibited bias against them
because it imposed certain limitations on the presentation of evidence. It is not clear
what evidence Neighbors believe to have been precluded, let alone that its exclusion
would have been so significant as to have denied them a fair hearing. With few
formal requirements under Section 908 of the MPC, zoning boards have broad


    5
      The de minimis doctrine is a narrow exception to the burden a party seeking a variance must
normally bear. Pequea Twp. v. Zoning Hearing Bd. of Pequea Twp., 180 A.3d 500, 504 (Pa.
Cmwlth. 2018). It may be applied where (1) only a minor deviation from the zoning ordinance is
sought and (2) rigid compliance with the ordinance is not necessary for the preservation of the
public interests sought to be protected by the ordinance. Id. The determination of whether or not
the de minimis doctrine applies requires careful consideration of both of these factors. Id.

     Variance by estoppel refers to a group of equitable doctrines in Pennsylvania land use/zoning
law which preclude municipal enforcement of a land use regulation. Variance by estoppel may be
applied where the municipality has taken an affirmative action such as issuing a permit (“vested
right”); has actively acquiesced in an illegal use through its inaction (“variance by estoppel”); or
has intentionally or negligently misrepresented its position with reason to know that the landowner
would rely upon that misrepresentation (“equitable estoppel”). In re Kreider, 808 A.2d 340, 343
(Pa. Cmwlth. 2002). The doctrines share common elements of good faith action on the part of the
landowner: reliance to his detriment, such as making substantial expenditures; an innocent belief
that the use is permitted; and hardship which would result from enforcement of the ordinance, such
as the loss of the value of expenditures. Id. Municipal action underpinning the application of these
doctrines may embody more than one category, id. at n.5 (citing cases), and the theories share
common elements and are often used interchangeably, see Vaughn v. Zoning Hearing Board of
Township of Shaler, 947 A.2d 218, 225 n.12 (Pa. Cmwlth. 2008)


                                                 9
discretion to control the conduct of their proceedings and the presentation of
evidence. See generally 53 P.S. § 10908 (relating to hearings). Consistent with their
rights under Section 908(5) of the MPC, 53 P.S. § 10908(5), Neighbors were allowed
to testify, introduce documents, and present witnesses, and were represented by
counsel, who cross examined the Township’s witness.                  We have reviewed the
transcript of the hearing and see nothing to support Neighbors’ claim of bias and
prejudice.6
              For all the foregoing reasons we affirm.



                                            _____________________________________
                                            BONNIE BRIGANCE LEADBETTER,
                                            Senior Judge




    6
       Neighbors list other complaints about the conduct of the hearing, including moving their
case from first to the last of three on the September 2016 agenda, resulting in a continuance and
allegedly disrupting their case presentation; the holding of non-public executive sessions; and
“permitting” a Board member who had previously represented Landowner in a legal matter to
participate. There is no evidence in the record or allegation that the Board’s decisions on the
arrangement of its agenda resulted from bias or prejudice. There are no allegations of violations
of the Sunshine Act, 65 Pa.C.S. §§ 701-716, in the conduct of executive sessions. The Board
member in question voluntarily disclosed her prior representation, stated it did not relate to
property issues, denied an existing attorney-client relationship or conflict, and confirmed her
impartiality. Of key importance, Neighbors did not object to the member’s participation.

                                               10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Frank M. Sajer and                      :
Constance Coyne Sajer,                  :
                                        :
                         Appellants     :
                                        :
                 v.                     :   No. 265 C.D. 2018
                                        :
Zoning Hearing Board of Hampden         :
Township                                :
                                        :
                 v.                     :
                                        :
Township of Hampden                     :



                                  ORDER


           AND NOW, this 21st day of February, 2019, the Order of the Court of
Common Pleas of Cumberland County is AFFIRMED.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Senior Judge
