Public Notices, January 8, 2019

Volume 57, No. 23

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

FICTITIOUS NAME

 

TABLE OF CONTENTS

William P. Hartman, v. Zoning Hearing Board of North Cornwall Township, Lebanon County, Pennsylvania, v. North Cornwall Township, v. Thomas I. Siegel and Linda Siegel, Patrick Freer and Deborah Freer, Karen Bacman and Heidi Bingeman and Barry Bingeman

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

ESTATE OF ERNEST W. BOEHLER a/k/a ERNEST WALTON BOEHLER late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Ruth E. Geist, Executrix

 

George E. Christianson, Esquire

411 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF LORRAINE M. BORDER, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Jaimie Gerlach, Executor

 

Bradley A. Zuke, Esquire

Herr & Low, P.C.

234 North Duke Street

Lancaster, PA 17602

 

ESTATE OF MARION G. WILHELM late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Robert J. Wilhelm, Co-Executor

Wendy W. Hanford, Co-Executrix

Kevin M. Richards, Esquire

PO Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF WALTER M.F. NEUGEBAUER late of the Borough of Myerstown, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Robert M. Tilley, Sr., Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF MATTHEW J. FIRESTINE, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Victoria E. Firestine, Executrix

136 Gravel Hill Road

Newmanstown, PA 17073

 

Deborah L. Packer

P.O. Box 61680

Harrisburg, PA 17106

 

ESTATE OF LINDA G. WALTMAN, late of South Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Rodney K. Crawford, Executor

327 Locust Street

Columbia, PA 17512

 

John F. Markel, Esquire

Nikolaus & Hohenadel, LLP

327 Locust Street

Columbia, PA 17512

 

ESTATE OF WAYNE H. HOSTETTER, late of North Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Joann E. Oellig, Executrix

 

John M. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

SECOND PUBLICATION

 

ESTATE OF WILLIAM ALBERT JOHNSON a/k/a WILLIAM A. JOHNSON, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Melissa A. Johnson, Executrix

427 Jonestown Road

Jonestown, PA 17038

 

John D. Enck, Esquire

Spitler, Kilgore & Enck, PC

522 South 8^th Street

Lebanon, PA 17042

 

ESTATE OF VIRGINIA K. MINNICH, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Jefferson D. Minnich, Co-Executor

Sarah Minnich, Co-Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Suite D

Lebanon, PA 17042

 

ESTATE OF JOHN F. KLEINFELTER, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

John J. Kleinfelter, Executor

 

George E. Christianson, Esquire

411 Chestnut Street

Lebanon, PA   17042

 

THIRD PUBLICATION

 

ESTATE OF GARRY R. LONG, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Personal Representatives.

 

Michelle R. Speece, Personal Representative

Ryan C. Long, Personal Representative

Megan C. Huff, Esquire

Nestico Druby, P.C.

1135 East Chocolate Avenue

Suite 300

Hershey, PA 17033

 

ESTATE OF ELAINE B. HANNA, late of Cornwall, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Jerry F. Hanna

PO Box 1093

Pocono Pines, PA 18350

 

ESTATE OF DOROTHY J. HEISEY, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Walter K. Heisey, Executor

c/o Kling and Deibler, LLP

Patrick A. Deibler, Esquire

131 W. Main Street

New Holland, PA

 

ESTATE OF GREGORY P. KEIPER, a/k/a GREGORY PAUL KEIPER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Administrator, c.t.a.

 

Kevin M. Richards, Administrator, c.t.a.

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042

 

ESTATE OF BRUCE B KILMOYER a/k/a BRUCE BERNARD KILMOYER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Susanne K. Kilmoyer, Executrix

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042

 

ESTATE OF JEAN E. BOYD, a/k/a JEAN EBY BOYD, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Dennis C. Boyd, Executor

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042

 

ESTATE OF ROBERT H. HETRICK, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Steven M. Hetrick, Co-Executor

110 Obie Road

Newmanstown, PA 17073

 

Susette M. Church, Co-Executrix

818 Marcon Drive

Lebanon, PA 17046

 

Charles M. Engle, Co-Executor

315 E. Queen Street

Jonestown, PA 17038

 

Paul W. Kilgore, Esquire

Spitler, Kilgore, & Enck, P.C.

522 S. 8^th Street

Lebanon, PA 17042

 

 

FICTITIOUS NAME

 

An application for registration of the fictitious name P@Monik Auto Detailing, 200 Canal St., Rear, Lebanon, PA 17046 has been filed in the Department of State at Harrisburg, PA, File Date 10/23/2019 pursuant to the Fictitious Names Act, Act 1982-295. The name and address of the person who is a party to the registration is Monica B Roman, 200 Canal St., Rear, Lebanon PA 17046.

 

William P. Hartman, v. Zoning Hearing Board of North Cornwall Township, Lebanon County, Pennsylvania, v. North Cornwall Township, v. Thomas I. Siegel and Linda Siegel, Patrick Freer and Deborah Freer, Karen Bachman and Heidi Bingeman and Barry Bingeman

 

Civil Action-Property Law-Zoning-Violation-Ordinance-Operation of Winery-Supplementation of Record-Agritainment-Pennsylvania Liquor Code-Agricultural Communities and Rural Environmental Act-Vested Right-Nonconforming Use

 

William P. Hartman (“Appellant”) was granted approval of a land development plan to construct a structure for the display and retail sale of wine on his property in an agriculturally zoned area with building permits issued thereafter for a tasting room, interior renovations and the addition of a deck and roof to the existing tasting room. After Appellant completed construction and opened Royal Oaks Winery, Notices of Violation were issued against him for unauthorized use of the property including the occurrence of indoor and outdoor recorded and live music, the presence of food and nonfood truck vendors, holding special events and private dinner events, selling products other than wine made from grapes grown upon the property and failing to request approval for off street parking. Appellant appealed the Notices of Violation and the subsequent decision of the Zoning Hearing Board denying his appeal after four (4) hearings, as well as a Motion to Supplement the record with a letter from the Office of the Attorney General with regard to the North Cornwall Township’s enforcement action indicating that to the extent that the Township is attempting to regulate agritainment activities based upon minimum acreage requirements and mandate that one-hundred percent (100%) of the items sold be produced on site, those requirements violate the Agricultural Communities and Rural Environmental (“ACRE”) Act with agritainment still being required to comply with land use regulations and restrictions.

 

1. A decision whether a land use appeal should be supplemented with additional evidence is a matter vested in the discretion of the trial court.

 

2. The court is under compulsion to permit additional evidence in a zoning case only when the party seeking to supplement the record demonstrates that the record is incomplete because that party was denied the opportunity to be heard fully, relevant testimony was offered and excluded or additional evidence was not available at the time of the hearing.

 

3. In light of the fact that Appellant in the course of four (4) hearings was provided ample opportunity to disprove the allegations of the Notices of Violation and the letter from the Office of the Attorney General indicated that agritainment activities must follow land use requirements, Appellant failed to establish facts requiring supplementation of the record with the letter.

 

4. When the court takes no additional evidence in a zoning case, the scope of review is whether the zoning hearing board committed an abuse of discretion or an error of law.

 

5. An abuse of discretion is present when the zoning hearing board’s findings are not supported by substantial evidence.

 

6. Subsequent evidence exists when the zoning hearing board issues an opinion that sets forth the essential findings of fact and sufficiently shows that the board’s action was reasoned rather than arbitrary.

 

7. Where the decision of the Zoning Hearing Board set forth that Appellant failed to produce evidence that the activities set forth in the Notices of Violation had not taken place at the winery and Appellant readily admitted the occurrence of the activities, Appellant failed to establish that the zoning officer had misinterpreted or improperly applied the zoning ordinance and the Township established that the activities identified in the Notices of Violation were not permitted uses for the property in an agriculturally zoned area, the Zoning Hearing Board committed no abuse or discretion of error of law in denying Appellant’s appeal.

 

8. Since the Ordinances at issue are liquor-neutral containing no prohibition or regulation with regard to the sale of liquor, the Pennsylvania Liquor Code that affords municipalities the right to regulate zoning and to enforce the Ordinances dealing with health and welfare issues.

 

9. The ACRE Act prohibits a municipality from enforcing an unauthorized local ordinance, which is defined as an ordinance that prohibits or limits a normal agricultural activity.

 

10. Live music, paint and terrarium parties, lobster fests, private dinners, food truck events and other activities alleged in the Notices of Violation do not constitute normal agricultural activity under the ACRE Act.

 

11. A vested right is an equitable remedy under which a municipality may be estopped from enforcing a land use regulation.

 

12. A vested right may attach when a municipality has taken some affirmative action, such as the issuance of a permit.

 

13. In order for equitable estoppel to apply to a governmental agency, a party must establish that the governmental agency intentionally or negligently misrepresented some material fact with knowledge or reason to know that the other party justifiably would rely upon the misrepresentation and induced the other party to act to its detriment due to the justifiable reliance upon the misrepresentation.

 

14. In light of the fact that Appellant failed to identify any misrepresentation by the Township or Zoning Hearing Board with regard to any right or permission to conduct the activities set forth in the Notices of Violation, the Township is not estopped from enforcing the Ordinances.

 

15. The right to maintain a pre-existing nonconformity extends only to uses that were legal when they came into existence, and the enactment of a new ordinance cannot have the effect of protecting a pre-existing liability.

 

16. Appellant’s act of conducting non-permitted activities on the property for a period of time did not create a lawful pre-existing nonconforming use.

 

L.C.C.C.P. No. 2018-00675, Opinion by John C. Tylwalk, President Judge, January 22, 2019.

 

 

 

 

 

                        IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

                                                            PENNSYLVANIA

 

                                                            CIIVIL DIVISION

 

WILLIAM P. HARTMANN,                                  :           NO. 22018-00675

                        Appellant                               :

                                                                        :

1. :

                                                                        :

ZONING HEARING BOARD OF              :

NORTH CORNWALL TOWNSHIP                     :

LEBANON COUNTY, PENNSYLVANIA,           :

                        Appellee                                 :

                                                                        :

1. :

                                                                        :

NORTH CORNWALL TOWNSHIP,        :

                        Intervenor                              :

                                                                        :

1. :

                                                                        :

THOMAS I. SIEGEL AND LINDA                       :

SIEGEL, PATRICK FREER AND            :

DEBORAH FREER, KAREN BACHMAN          :

AND HEIDI BINGEMAN AND                 :

BARRY BINGEMAN,                                 :

                        Intervenors                            :

 

APPEARANCES:

 

JASON M. HESS, ESQUIRE                      FOR WILLIAM P. HARTMANN

MORGAN, HALLGREN, CROSSWELL

   & KANE, PC

 

DONNA LONG BRIGHTBILL, ESQUIRE                      FOR ZONING HEARING BOARD

LONG BRIGHTBILL                                                         OF NORTH CORNWALL TOWNSHIP

 

AMY LEONARD, ESQUIRE                                 FOR NORTH CORNWALL TOWNSHIP

HENRY & BEAVER PC

 

KEITH KILGORE, ESQUIRE                               FOR THOMAS I. SIEGEL AND LINDA

SPITLER, KILGORE & ENCK LLC                      SIEGAL, PATRICK FREER AND

                                                                                 DEBORAH FREER, KAREN

                                                                                 BACHMAN AND HEIDI BINGEMAN

                                                                                AND BARRY BINGEMAN

 

OPINION, TYLWALK, P.J., JANUARY 22, 2019.         

 

            Appellant William P. Hartmann (“Appellant”) filed this land use appeal from the decision of the Zoning Hearing Board of North Cornwall Township (“ZHB”) which denied his appeal of the issuance of two enforcement notices alleging zoning violations pursuant to the North Cornwall Township Zoning Ordinance (“Zoning Ordinance”). The matter was listed for the July 2018 Term of Civil Argument Court and we were presented with the record of the ZHB.   We conducted oral argument on the appeal on July 6, 2018 but took no further evidence. On July 27, 2018, Appellant filed a Motion to Supplement Record in Land Use Appeal in which he asked to add to the record a letter dated July 18, 2018 issued by Senior Deputy Attorney General Robert Willig. Willig’s letter was issued in response to Appellant’s request for a review of this matter under the Agricultural Communities and Rural Environmental Act (“ACRE”) and the Right to Farm Act (“RTFA”). That Motion was listed for the October 2018 Civil Argument Term and submitted on Briefs. Both matters are now before us for disposition.

            The record reveals the following facts pertinent to our resolution of this appeal. Appellant is the owner of Royal Oaks Vineyard & Winery (“the Winery”) which is located at 399 Royal Road in North Lebanon Township on a 2.6139 acre parcel of land which is zoned Agricultural (A).   At the time, the Zoning Ordinance adopted in 2011 was in effect. A new Zoning Ordinance was adopted in 2017. Under Section 200.G of the Township’s 2011 Zoning Ordinance, the minimum required lot area for agricultural and horticultural use was ten acres.^[1] In 2014 Appellant submitted an application for approval of a Land Development Plan (“Plan”) to construct a structure for the display and retail sale of wine on the property. (Exhibit “T-3”) The Plan stated that “[t]he purpose of this plan is to construct a winery on an existing tract of land.” (Exhibit “T-3” at p. 2)  

The “Plan Notes” section provides:

The proposed winery use (display and sale of wine produced from on-site grapes) is an accessory use incidental to the existing agricultural/horticultural principal use. … the existing lot of record for agricultural and horticultural uses is non-conforming. The existing lot of record consists of 2.6139 acres in (sic) non conforming as it does not meet the minimum 10 acres required by the current ordinance for the agricultural and horticultural uses.

 

(Exhibit “T-3” at p. 2)    

 

Under “Zoning Requirements,” the plan provides:

            Section 315.W (schedule of parking required parking spaces) of the Zoning ordinance #266 does not have a category for the proposed use, which is the display and selling of wine produced on-site from grapes grown on-site. A use that is categorized which is similar in nature is that of a roadside stand, which requires a minimum of 2 parking spaces. Therefore, the required parking for this use = 2 spaces.

Provided parking = 5 spaces

Note: should the parking needs for the proposed use routinely exceed the provided number of spaces, the owner will be responsible for providing additional on-site parking and/or provide suitable offsite parking in conformance with Section 315.T of the Zoning Ordinance.

(Exhibit “T-3” at p. 2)^[2]  

Prior to the submission of the final Plan for consideration, various communications had been exchanged between Appellant, his engineers, Township officials, and Township engineers. The Plan was approved at a meeting of the North Cornwall Township Planning Commission on August 27, 2014 and by the North Cornwall Township Supervisors on October 7, 2014. After approval was granted, a building permit was issued for a tasting room on December 22, 2015. (Exhibit “T-14”) A second building permit was issued for interior renovations to and the addition of a deck and roof to the existent tasting room on July 27, 2016. (Exhibit “T-16”) Appellant commenced operation of the Winery in early 2017 and held a grand opening event in June 2017.

After the Winery opened, the Township began to receive questions from neighbors regarding the approved use of the property and complaints about various events and activities which were taking place at the facility. After investigation, a Notice of Zoning Violation was issued to Appellant on August 18, 2017 citing the following as unpermitted and unauthorized uses of the property under Sections 200.B.1 and 200.B.10 of the Zoning Ordinance and Ordinance #266 (as amended)^[3] which were applicable at the time of the issuance of the permit:

            Indoor and Outdoor Recorded and Live Music, including Open Mic Night

            Catered Meals/Food Truck Vendors

            Other Non-Food Truck Vendors

            Special Events, including but not limited to Terrarium parties, Home

               Brewfest, Paint and Wine Night

            Private Dinner Events

            Retail Sale of items other than wine made from grapes grown on the

               Property

            Importing grapes/juice for wine and other beverage production^[4]

 

(Exhibit “T-2”)

 

            The August 2017 Notice of Violation charged Appellant with violation of Section 902 of the Zoning Ordinance for failure to obtain a permit for the change of use or expansion of the previously approved use as well as Section 315.T of the Zoning Ordinance regarding the need to request approval for off-street parking:

… You have neither applied for, nor been issued, such a Certificate for any use other than displaying and retail selling of wine produced on-site from grapes grown on-site.

 

            As a result of your use of the property for the unauthorized and unpermitted uses enumerated above, you are further inviolation of Section 315 of the Zoning Ordinance related to Off-Street Parking. These uses require additional on-site parking, or off-site parking in conformance with Section 315T. of the 2011 Zoning ordinance (Section 310.R of the current Zoning Ordinance #295). The Zoning ordinance details the requirements necessary for off-street parking and the application process to request approval for such parking.

 

(Exhibit “T-2” – Notice of Violation at p.2)

 

The Notice of Violation required Appellant to cease and desist using the property for such activities within three days, with full compliance within thirty days. On September 6, 2017, a second Notice of Violation was issued to Appellant due to the construction of a separate cement block structure on the property without a building permit and for a violation of the Township’s Nuisance Ordinance #297 due to excessive noise levels during on-site musical events. (Exhibit “T-12”) The second Notice of Violation also referenced the sections of the Zoning Ordinance as set forth in the first Notice of Violation.

            On September 14, 2017 Appellant filed a Petition to Appear Before the Zoning Hearing Board (“ZHB”) indicating his desire to appeal. A hearing on the appeal was initially scheduled for October 18, 2017, but the parties agreed to continue it to November 15, 2017. Hearings were held on November 15, 2017, January 10, 2018, January 17, 2018, and February 8, 2018. The Township and a group of neighboring residents also participated in the proceedings. After the conclusion of the hearing on February 8, 2018, the ZHB voted to deny the appeal. The ZHB’s written Decision was issued on March 19, 2018.   Appellant then filed this land use appeal to this Court. We conducted oral argument on July 6, 2018 and the parties filed Briefs in support of their respective positions on the appeal.

            On July 27, 2018, Appellant filed his Motion seeking to supplement the record. In his Motion, Appellant explained that after he received the enforcement Notices and filed his appeal to the ZHB, he filed a complaint with the Office of the Attorney General seeking review of the Township’s enforcement action with regard to the provisions of the Agricultural Communities and Rural Environmental Act (“ACRE”) and the Right to Farm Act (“RTFA”).^[5] In response to his complaint, Willig issued a letter dated July 18, 2018 in which he stated “to the extent the Township is attempting to regulate the Royal Oaks Vineyards agritainment activities based on a minimum acreage requirement and a mandate that 100 % of the items sold at the business be produced on-site such requirements violate ACRE.” (Exhibit “A” to Motion to Supplement Record) Willig’s letter further explained:

Agritainment is a common practice used by farmers, especially in winery operations, to remain viable in today’s challenging business environment.

Agritainment brings with it issues not present in conventional farms not open to the public. Winery operators must realize that there are many additional points to consider when planning an agritainment venture. Any land use regulations or restrictions currently in place must be followed. … These “additional points” may include: the amount of surface to be paved for parking; noise levels after a certain time; amusement taxes; food preparation and storage; appropriate seating and tables; appropriate shelters; sanitation and a system to deal with trash and food waste; and adequate restroom facilities. In this context, these issues are not currently considered part of a “normal agricultural operation” and therefore fall outside the scope of ACRE.

 

(Exhibit “A” to Motion to Supplement Record)

            The Township filed a Response to the Motion to Supplement Record on August 21, 2018. In its Response, the Township explained that after receiving Willig’s July 18, 2018 letter, both parties submitted additional information to Willig. Willig responded with another letter to counsel dated July 31, 2018 in which he indicated that he was denying Appellant’s complaint and closing the case. (Response to Motion to Supplement Record, Exhibit “A”) On July 31, 2018, Willig also wrote to Appellant explaining that “[t]he 10 acre/100 % issues are not at play either in the ordinances or in your case” and again advising him that “Townships can lawfully regulate agritainment activities.” (Response to Motion to Supplement Record, Exhibit “B’)   On August 6, 2018, Willig sent an email to counsel advising that his decision to deny the case would stand. (Exhibits “C,” “D” and “E” to Township’s Brief)

            Motion to Supplement Record

            A decision whether a land use appeal should be supplemented with additional evidence is a matter within the discretion of the trial court. McGrath Construction, Inc. v. Upper Saucon Township Board of Supervisors, 952 A.2d 718 (Pa. Commw. 2008), appeal denied 967 A.2d 961 (Pa. 2009); 53 P.S. §11005-A. A trial court is under compulsion to permit additional evidence in a zoning case only when the party seeking to supplement the evidence demonstrates that the record is incomplete because that party was denied an opportunity to be fully heard, or because relevant testimony was offered and excluded, In re Schieber, 927 A.2d 737 (Pa. Commw. 2007), appeal denied 939 A.2d 891 (Pa. 2007), or when the additional evidence was not available at the time of the hearing. Morris v. South Coventry Township Board of Supervisors, 898 A.2d 1213 (Pa. Commw. 2006). If the trial court takes additional evidence, the court will make its own findings of fact based on the record below as supplemented by the additional evidence. 53 P.S. §11005-A.

Appellant argues that Willig’s July 18, 2018 letter is relevant to this land use appeal as an indication that the zoning ordinances at issue are in violation of ACRE and the RTFA. He also argues that Willig’s reference to agritainment as a common practice among wineries is relevant to support his assertion that the ZHB erred in excluding Appellant’s evidence that the activities sought to be prohibited here are customary and incidental accessory uses to the Winery. We disagree with Appellant’s assessment of the significance of Willig’s letters to this matter.

            As pointed out by the Township, whether an activity is a “common practice” among wineries in other locales is irrelevant to this land use appeal. The Plan approved by the Township notes that the winery is an accessory use to the property’s principal agricultural use. Appellant argues that the activities at issue in the Notices of Violation are “accessory” uses to a winery. The ZHB recognizes that it could have considered such evidence had Appellant applied for a variance or a special exception. However, Appellant did not do so and the only issue in this appeal is the propriety of the enforcement Notices and the denial of Appellant’s appeal of those Notices.

Moreover, none of the evidence proffered by Appellant regarding common activities of wineries concerned wineries located in North Cornwall Township which were subject to the Township’s Zoning Ordinances. Thus, the activities conducted by those other wineries is irrelevant to the question of Appellant’s compliance with the specific zoning ordinances cited in the Notices of Violation in this matter. Moreover, Willig’s letter specifically goes on to state that these activities are not “normal agricultural operations” and that wineries must still obey zoning ordinances regarding such activities. For this reason, we find that any statement in Willig’s communications regarding customary practices is irrelevant. The ZHB committed no error and was warranted in excluding such evidence.

Appellant further argues that because Willig’s correspondence indicates that the ten acre and one hundred percent on-site production requirements are in contravention to the provisions of ACRE, the supplemental materials should be admitted to show that the Zoning Ordinances at issue place impermissible restrictions on the use of his property. In his letter of July 18, 2018, Willig merely states that “the Township cannot require a ten acre minimum lot size or that 100% of the products sold at the winery be produced on site.” (Exhibit “A” to Township’s Brief in Opposition to Motion to Supplement Record) The Plan noted that the property was a non-conforming use due to its size and the specific Zoning Ordinances cited in the Notice of Violations contain no such requirement. For that reason, Willig specifically acknowledges that these matters are not at issue in his correspondence.   His letter fully explains that townships are entitled to regulate agritainment activities and that the activities at issue here fall outside the scope of these statutes. (See Exhibit “A” to Township’s Brief in Opposition to Motion to Supplement Record)

The exhibits and the testimony offered at the hearings simply reflect that Appellant did not adhere to the use stated on his Plan for which he requested and was granted approval – the display and sale of wine produced at the Winery from grapes grown on the property.^[6] THE ZHB devoted four hearings to this matter. The Township produced ample evidence of the alleged violations and Appellant was given equally ample opportunity to disprove the allegations. Appellant represented himself at these hearings and was granted extreme leeway in conducting cross-examination of the witnesses produced by the other parties and was given full opportunity to introduce all relevant testimony and evidence on his own behalf. We find that the record is fully developed, that no relevant evidence was excluded, and that Willig’s letter is irrelevant to our resolution of this matter. Therefore, we will deny this Motion and will decide this appeal on the basis of the record provided.

            Enforcement Notices

When a trial court takes no additional evidence in a zoning case, the scope of review is whether the zoning hearing board committed an abuse of discretion or an error of law. Ruprecht v. Zoning Harind Board of Hampton Township, 680 A.2d 1214 (Pa. Commw. 1996), appeal denied 699 A.2d 737 (Pa. 1997). An abuse of discretion is present when the zoning board’s findings are not supported by substantial evidence. Bernie Enter v. Hilltown Township Zoning Hearing Board, 657 A.2d 1364 (Pa. Commw. 1995), allocator denied 666 A.2d 1058 (Pa. 1995). Substantial evidence exists when a board issues an opinion which sets forth the essential findings of fact and sufficiently shows that the board’s action was reasoned rather than arbitrary. Lando v. Springettsbury Township Zoning Hearing Board of Adjustment, 286 A.2d 924 (Pa. Commw. 1972). If a board’s decision is legally sound and supported by substantial evidence, it must be upheld. D’Amato v. Zoning Board of Adjustment of City of Philadelphia, 585 A.2d 580 (Pa. Commw. 1991); 53 P.S. §11005-A.

            At the conclusion of the hearing on February 8, 2018, the ZHB summed up the situation which led to this enforcement action: Appellant simply outgrew his own business model for which he was given approval such that the primary use of his property had become primarily commercial with the agricultural activities becoming incidental without first obtaining approval or permits for such an expansion in use. After careful consideration of all of the testimony, exhibits, and argument, we find that the ZHB had substantial credible evidence upon which to arrive at its decision and that it committed no abuse of discretion or error of law.

            In its Decision, the ZHB succinctly stated the issue before it: “Did the Appellant engage in the unpermitted and unauthorized uses at the Winery which the Township sets forth in the two Notices of Zoning Violations served on Appellant?” (Decision of ZHB, October 18, 2017 at p. 4) In its discussion, the ZHB noted the use approved in the final Plan: “the display and selling of wine produced on-site from grapes grown on-site. A use that is categorized which is similar in nature is that of a roadside stand.” (Decision, at p. 2) The ZHB further noted that pursuant to the Plan, Appellant had received approval for the proposed construction of an accessory building for the purpose of the display and retail sale of the wine produced on-site from grapes grown on-site as the Township had determined this to be a permitted accessory use customarily incidental to agriculture/horticultural uses involving the cultivation of grapes.

The ZHB then noted two ways in which Appellant could succeed in his appeal. First, he could produce evidence proving that the activities set forth in the Notice of Violation had not actually taken place at the Winery. The ZHB noted that Appellant had not attempted to take this route as he and the witnesses he produced at the hearings readily admitted to having indoor and outdoor music, catered meals, food trucks, special events, a lobster fest, private dinner events, the retail sales of items other than wine made from grapes grown on the property, and the importing of grapes and juices for wine and other beverage production at the Winery. Appellant also failed to deny the construction of an outdoor structure without the proper zoning and stormwater review or building permit.

The ZHB then noted a second means by which Appellant could succeed in his appeal – to establish that the zoning officer had misinterpreted or improperly applied the Zoning Ordinance.   The ZHB then noted that although both Notices of Violation set forth the specific sections of the Zoning ordinance alleged to have been violated by Appellant, Appellant did not put forth any evidence as to how the Zoning Ordinances at issue had been misinterpreted or misapplied, but instead focused his efforts on attempting to show what activities were permitted at wineries located in other municipalities.

During the hearings, the Township produced the testimony of Frank Chlebnikow, consulting zoning officer for the Township. Chlebnikow testified that he was not involved at the time of the approval of the final Plan, but that he had become involved three months prior to the hearing when he had reviewed this matter at the Township’s request. Chlebnikow explained that he had also participated as a consultant for the Notice of Violation which was formulated by Zoning Officer Thomas Long. After discussing the situation with Long, reviewing correspondence exchanged with Appellant at the time of the original application, correspondence from Appellant’s engineer, Appellant’s Facebook page, and discussions with surrounding property owners, he had concluded that Appellant was in violation of his Plan as it had been interpreted in 2014. Chlebnikow explained that the use set forth in the Plan – the display and retail sales of wine produced on-site from on-site grapes – was determined to be a permitted accessory use and that as long as it was limited to that use, it was permitted in the Agricultural Zone. He explained that having entertainment, selling beer, and having food trucks, and the other activities indicated on the Notice of Violation are not permitted in the Agricultural Zone and that these activities were never contemplated to be permitted uses for the property.

Long testified that he is the Township manager and that in January 2017, he was appointed Zoning Officer for the Township. Long explained that he had been involved in this matter throughout the entire application process beginning in June 2014. He confirmed that the Plan represents the final agreement of the Township officials and Appellant as to the use permitted for the Winery.

Long testified that in 2017, the Township began to receive complaints from the Winery’s neighbors about the activities being conducted on the property a few weeks after the Winery’s grand opening. In consideration of the neighbor’s observations and complaints, Long conducted an investigation and determined that the Winery was actually operating as a commercial entertainment establishment instead of what had been approved in the Plan. Long agreed that the activities complained of had not been approved as part of the Plan and, for that reason, he decided to issue the initial Notice of Violation in consultation with Chlebnikow. Long verified that the Notice of Violation required Appellant to cease and desist from the activities set forth on the Notice within three days, with full compliance required in thirty days, but that as of the time of the hearings, Appellant had failed to comply with those directives.

Several neighbors who lived in the immediate vicinity of the Winery, testified that on numerous occasions, music from the Winery could be heard at their homes. In addition, they described how Winery patrons would park on the shoulder of Royal Road when the Winery’s parking lot was full during special events and that people would be walking to and from the Winery along Royal Road. One witness produced photographs of incidents of off-site parking during one of the Winery’s events. One neighbor described how the cars parked on Royal Road detrimentally affected his local farming operation and another neighbor described how food trucks entering the Winery for special events would block traffic on Royal Road while backing into the driveway.

The information regarding the special events – paint and terrarium nights, live music, a lobster fest, private parties, food truck nights, and other special events – was confirmed by Appellant himself as well as his own witnesses. Appellant and his witnesses (various employees and his own son) described the special events which had been held at the Winery and acknowledged that they had promoted those activities on the Winery’s Facebook page. Appellant and his witnesses also testified that juice was imported from other locations to enhance the wine made from juice produced on the property. Appellant admitted to the parking issues, but argued that he had sought to alleviate any problems with parking by securing permission for his patrons to use the parking lot of a nearby church during some of the special events at the Winery.

Appellant argues that the ZHB inappropriately placed the burden on him to disprove the existence of the violations. However, our review of the transcript reveals that the ZHB produced substantial evidence at the hearings to prove the allegations of the Notices of Violation and to support its Decision. Appellant simply failed to provide proof to refute the allegations.  

Appellant attempted to justify this conduct by offering evidence of what other wineries in different locations were permitted to do on their properties. However, as none of these other establishments were located in North Cornwall Township or subject to the same Zoning Ordinances, the ZHB properly refused such evidence due to the lack of relevance to this enforcement proceeding.

Appellant challenges the Zoning Ordinances on the basis that they are in contravention to ACRE, the RTFL, and the Pennsylvania Liquor Code. First, he argues that a ten-acre lot minimum requirement and a 100 percent produced on-site requirement are in conflict with ACRE and the RTFL. However, this argument fails as the Zoning Ordinances at issue do not contain such requirements.

Appellant also argues that the Zoning Ordinances are in contravention to Section 5-505.2(a)(6.a) of the Liquor Code which permits holders of limited winery licenses to sell food, wine, mead, and alcoholic ciders by the glass on the licensed premises, including those produced at other local establishments, as long as those sales do not constitute more than fifty percent of the winery’s sales. He argues that because he is the holder of a limited winery license, he is immune to any zoning regulation regarding the sale of these items. However, Section 493.1 of the Liquor Code, 47 P.S. § 4–493.1, provides that “[n]othing in this act shall be construed to preempt the right of any municipality to regulate zoning and enforce any local ordinance and codes dealing with health and welfare issues.” Only zoning ordinances which are not liquor-neutral are prohibited. Aboud v. City of Pittsburgh Dept. of Planning, 17 A.3d 455 (Pa. Commw. 2011).

The Zoning Ordinances at issue here are liquor-neutral in that as they contain no prohibition or regulation on the sale of liquor. The ZHB is merely enforcing the requirement that requires a property owner to obtain permission to change and enlarge the use of his property from the use which was initially requested and approved. This requirement is geared toward the safety and enjoyment of Winery patrons, traffic on Royal Road, and the surrounding landowners to ensure that a new use of the property would not interfere with these interests. These requirements are not imposed on the basis of Appellant’s sale of alcoholic beverages on the premises as they would be applicable to any roadside stand conducting these activities. The fact that the sale of alcoholic beverages is part of Appellant’s operation does not override the Township’s authority to require Appellant to first obtain approval for the change in use.

            Appellant further argues that these Zoning Ordinances are in violation of ACRE and the RTFA.^[7] ACRE prohibits a municipality from enforcing an “unauthorized local ordinance” which is defined as “[a]n ordinance enacted or enforced by a local government unit which prohibits or limits a normal agricultural operation. 3 Pa.C.S.A. §§312, 313. “Normal agricultural operation” is defined under ACRE via Section 2 of the RTFA. 3 Pa.C.S.A. §312:

“Normal agricultural operation.” The activities, practices, equipment and procedures that farmers adopt, use or engage in the production and preparation for market of poultry, livestock and their products and in the production, harvesting and preparation for market or use of agricultural, agronomic, horticultural, silvicultural and aquacultural crops and commodities and is:

• Not less than ten contiguous acres in area; or

(2)Less than ten contiguous acres in area but has an anticipated yearly gross income of at least $10,000.

3 P.S. §952.   The definition of a “normal agricultural operation” necessarily requires some connection between the use at issue and employment of the property in question for production of an agricultural, agronomic, horticultural, silvicultural, or aquacultural crop of commodity. Tinicum Township v. Nowicki, 99 A.3d 586 (Pa. Commw. 2014).

We also dismiss this argument. The threshold question in any ACRE case is whether the Ordinance prohibits or limits a “normal agricultural operation.” Commonwealth v. East Brunswick Twp., 956 A.2d 1100, 1115 (Pa.Cmwlth.2008). Live music, paint and terrarium parties, lobster fests, private dinners and food truck events and the other conduct alleged in the Notices of Violation are not activities which are utilized by farmers for the preparation of products for market. There is no connection between such uses of this property for the production of grapes or crop of any kind. Hence, we cannot say that the Zoning provisions at issue here constitute any “unauthorized local ordinance” under ACRE as these activities do not constitute “normal agricultural operations” and are not within the scope of the provisions of ACRE.

            Appellant also raises a challenge to the propriety of the two Notices of Violation and to the written Decision issued by the ZHB. He argues that all three fail to specify which provision of the Zoning Ordinance Appellant had violated by playing live music on the property. However, the ZHB’s Decision clearly indicates findings that Appellant was in violation of Sections 200, 315, 900 and 901 of the Zoning Ordinance. The Notice of Violation issued on August 18, 2017 specifically referenced Sections 200.B.1., 200.B.10, 901.A, 901.B, and 902 of the 2011 Zoning Ordinance which was still in place at that time. The second Notice of Violation, issued on September 6, 2017, specifically refers Appellant to the sections of the Zoning Ordinance listed in the August 2017 Notice of Violation.^[8]        

Appellant also argues that the ZHB is equitably estopped from prohibiting the activities complained of on the Notices of Violation, claiming that he obtained a vested right to use the property in that manner by virtue of the Township having issued the permits for the construction of the tasting room and deck.   A vested right is an equitable remedy under which a municipality may be estopped from enforcing a land use regulation. Vaughn v. Zoning Hearing Board of Township of Shaler, 947 A.2d 218, 224-225 (Pa. Commw. 2008). Such a right may attach when a municipality has taken some affirmative action, such as the issuance of a permit. Id. at 225.   In order to apply equitable estoppel to a governmental agency, the party sought to be estopped (1) must have intentionally or negligently misrepresented some material fact, (2) knowing or having reason to know that the other party would justifiably rely on the misrepresentation and (3) inducing the other party to act to his detriment because of his justifiable reliance on the misrepresentation. Cicchiello v. Bloomsburg Zoning Hearing Board, 617 A.2d 835 (Pa. Commw. 1992).  

Appellant identifies no misrepresentation made by the ZHB with regard to any right or permission to conduct these activities on his property upon which he was entitled to rely. The permits issued by the Township in no way alluded to permission to conduct any such activities. Moreover, Appellant was issued a Notice of Violation shortly after he opened the Winery and began to conduct these activities and there was no indication of delay or acquiescence in these activities.

The Plan states that the lot is nonconforming as to agricultural and horticultural uses because it failed to meet the ten-acre minimum lot size requirement. Appellant also claims that his use of the property for retail sales of wine on a nonconforming lot created a pre-existing nonconforming use when the new Zoning Ordinance was adopted in 2017. However, only the lot size and not the agricultural and horticultural uses were nonconforming.

The right to maintain a pre-existing nonconformity extends only to uses that were legal when they came into existence and the enactment of a new ordinance cannot have the effect of protecting a pre-existing illegality. Crossing Vineyards and Winery, Inc. et al v. Zoning Hearing Board of Upper Makefield Township, 2012 WL 8702757 (Pa. Commw. 2012), p. 6, citing Scalise v. Zoning Hearing Board of Borough of West Mifflin, 756 A.2d 163, 166 (Pa. Commw. 2000). Appellant’s use of the property for the activities set forth in the Notices of Violation were illegal in that they were not allowed as accessory uses in the agricultural zone. His act of conducting a use that was not permitted on property for a period of time did not create a lawful nonconforming use.

            In sum, Appellant’s arguments are inapplicable to this enforcement action. Appellant was found to be in violation for his failure to apply for a zoning permit for the change in and expansion of the use for which he had previously sought and obtained approval. Appellant designated the proposed use as being limited to the display and sale of wine made from grapes on the property by his own submission. He changed and expanded the approved use on his own to a commercial entertainment use by engaging in the activities listed in the initial Notice of Violation without obtaining the necessary approval.   This was a clear violation of Section 901.A. and 901.B of the Zoning Ordinance. In addition, the evidence further established a violation of Section 315.T of the 2011 Zoning Ordinance in that the use of the property from a roadside stand required additional parking and Appellant had never requested approval for such parking. These requirements were clearly set forth in both in the Zoning Ordinances and Appellant was promptly informed of the violations by the immediate issuance of the Notices of Violation.

For these reasons, we will deny the appeal.

 

 

           

 

[1] That requirement was later removed by the adoption of the new Zoning Ordinance in 2017.

[2] Under the applicable Zoning Ordinance sections, there is no provision for wineries; however, roadside stands are permitted as an accessory use incidental to the agricultural/horticultural uses permitted in the agricultural district. (Exhibit “A-9” – Zoning Ordinance, Sections 200.B.1, 200.B.10, 475.A; Exhibit “T-3” – Plan Notes, p. 3 at Para. 13)

[3] Zoning Ordinance of 2011.

[4] These activities are referred to as “agritainment.”

[5] Section 314 of ACRE vests the Attorney General with the power to enforce ACRE and bring a legal action against a municipality for any enforcement which prohibits or limits a “normal agricultural operation” as defined in RTFA. 3 Pa.C.S.A. §§312, 314. Enforcement is subject to the discretion of the Attorney General. 3 Pa.C.S.A. §314(b).

[6] ACRE does permit municipal regulation to require that at least 50 % of the agricultural items offered for direct commercial sale be produced on the subject property. 3 P.S. §953(b).

[7] The Township argues that Appellant cannot challenge the Zoning Ordinances on this basis in this forum. According to the language of the MPC, the ZHB is authorized to entertain administrative appeals by landowners to substantive challenges to land-use regulations. 53 P.S. § 10916.1 (stating that only a landowner or a person aggrieved may challenge the validity of a land-use ordinance on substantive grounds); Com., Office of Attorney General v. Locust Township, 968 A.2d 1263 (Pa. 2009). The General Assembly enacted Chapter three of ACRE, 3 Pa.C.S. § 311–318, to ensure that local regulation of normal agricultural operations are consistent with Commonwealth policies and statutes. Id. Pursuant to Section 315 of ACRE, any person aggrieved by the enforcement of an unauthorized local ordinance may bring an action against the local government unit in Commonwealth Court to invalidate the unauthorized local ordinance or enjoin the enforcement of the unauthorized local ordinance. 3 Pa.C.S.A. §315.

 

[8] The Township indicates that its purpose in presenting the second Notice of Violation as evidence was to show Appellant’s continued pattern of conduct after being served with the initial Notice of Violation and his failure to discontinue the activities within the time proscribed buy the initial Notice.