Margaret A. Tanner, v. East Hanover Township Zoning Hearing Board

JUDGE’S OPINION

Margaret A. Tanner, v. East Hanover Township Zoning Hearing Board

 

Civil Action-Property Law-Zoning-Violation-Subsequent Ordinance-Charitable Animal Rescue-Estoppel-Ex Post Facto Law-Continuing Nonconforming Use-Sufficiently Similar Use

 

Margaret A. Tanner (“Appellant”) has maintained pasture and outbuildings for the non-profit/volunteer rescue of horses at her residential property since 2002 without objection.  On June 29, 2020, East Hanover Township issued citations for violations of the East Hanover Township Zoning Ordinance including erection of an animal shelter too close to the property line and in violation of setback requirements, failure to obtain a zoning permit prior to the structure’s erection and maintenance of more than three (3) horses on the property as permitted by her lot size.  Following an appeal in which the East Hanover Township Zoning Hearing Board upheld the citations, Appellant filed an appeal with the Court of Common Pleas.

 

1. Even where a facial violation of a zoning ordinance has occurred, Pennsylvania law establishes equitable doctrines a property owner may raise in defense.

 

2. A municipality is estopped from requiring compliance with an ordinance where the municipality has taken some affirmative action such as issuance of a permit, there has been municipal inaction amounting to active acquiescence in an illegal use or the municipality intentionally or negligently misrepresented its position with reason to know that the landowner would rely upon the misrepresentation.

 

3. A long period of municipal failure to enforce the law when the municipality knew or should have known of the violation in conjunction with some form of acquiescence in the illegal use is sufficient.

 

4. Article 1, Section 17 of the Pennsylvania Constitution provides that no ex post facto law, law impairing the obligation of contracts or law making irrevocable any grant of special privileges or immunities shall be passed.

 

5. A government body may not pass a new ordinance and punish a property owner for a nonconforming use that began before the ordinance passed.

 

6. The doctrine of continuing nonconforming use allows a property owner to continue a lawful use that does not conform to a zoning ordinance enacted after the use began.

 

7. The continuing use need not be identical to the original use.

 

8. If a continuing use is sufficiently similar to the use that existed at the time of the enactment of the zoning ordinance, the continuing use will not be characterized as a new or different use.

 

9. Despite the facial violations of the current Ordinance, the doctrine of nonconforming use precludes the findings of violation because the buildings were placed before the enactment of the Ordinance Sections enumerating requirements regarding the placement of animal shelters and limiting the number of horses on a landowner’s property such that the barn and horse rescue operation constitute a lawful pre-existing use.

 

L.C.C.C.P. No. 2020-01432, Opinion by Bradford H. Charles, Judge, August 26, 2021.

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION – LAW

 

MARGARET A. TANNER,                        :

Appellant                                                       :           No. 2020-01432

:

1. :

:

EAST HANOVER TOWNSHIP                 :

ZONING HEARING BOARD                                :

Appellee                                                         :

 

ORDER OF COURT

AND NOW, this 26^th day of August, 2021, upon review of the entire file, briefs submitted by both parties, and in accordance with the attached opinion, the ruling of the East Hanover Zoning Hearing Board is REVERSED and the citations against APPELLANT are hereby dismissed. APPELLEE is notified that it has thirty (30) days from today’s date in which to file an Appeal of this decision. A copy of this order is to be served upon the APPELLANT, the APPELLANT’s attorney, the APPELLEE, and the APPELLEE’s attorney.

                                                                                    BY THE COURT:

 

__________________________J.

BRADFORD H. CHARLES

BHC/ts

 

cc:           Robert A. Hopstetter, Esquire

Keith L. Kilgore, Esquire

Colleen Gallo, Esquire

Court Administration

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION – LAW

 

MARGARET A. TANNER,                        :

Appellant                                                       :           No. 2020-01432

:

1. :

:

EAST HANOVER TOWNSHIP                 :

ZONING HEARING BOARD,                               :

Appellee                                                         :

 

 

APPEARANCES:

 

Robert A. Hopstetter, Esq.                                        FOR APPELLANT

 

Colleen Gallo, Esq.                                                   FOR TOWNSHIP

REILLY WOLFSON          

                                                                                                                                   

Keith L. Kilgore, Esq.                                                FOR APPELLEE

SPITLER, KILGORE & ENCK, PC                        

 

 

                                                                

OPINION BY CHARLES, J. AUGUST 26, 2021

Appellant Margaret Tanner (hereafter TANNER) has operated a horse sanctuary for sick and dying horses for 18 years out of her barn located in East Hanover Township (hereafter TOWNSHIP).  Notwithstanding this long-term operation, TOWNSHIP recently charged TANNER with multiple violations of its 169-page Zoning Ordinance.  For reasons we will articulate in more detail below, we refuse to uphold the TOWNSHIP’s quest to punish TANNER for continuing her horse sanctuary operation.  With this being said, we warn TANNER that because our decision today will be based upon the doctrine of continuing non-conforming use, the scope of her ongoing horse rescue operation must mirror[1] what was in existence as of 2004 when the applicable zoning ordinance was passed.

 

1. FACTS AND PROCEDURAL BACKGROUND

TANNER owns rural residential property located at 73 Harrison School Road, Grantville, East Hanover Township, Lebanon County. TANNER has maintained pasture and out-buildings for the non-profit/volunteer rescue of horses on this property since 2002. TANNER presently has 14 horses on the property and has had, at most, 18 horses on the property in the past.[2]  No objection to said use nor any official Notice of Violation was ever presented to TANNER for the first 18 years of TANNER’s use.

On June 29, 2020, East Hanover Township issued a Zoning Enforcement Notice citing TANNER for violations of three separate sections of the East Hanover Township Zoning Ordinance alleging:

• 24.12D – that TANNER had erected an animal shelter “less than 50 feet from the adjoining property line and may be closer than the 100 feet required setback from an adjoining residential structure”;
• 25.03 – that TANNER failed “to obtain a zoning permit prior to the erection of a structure”; and
• 24.12A – that TANNER has “more than the permitted number of horses on the property,” specifically that TANNER “may have as many as 12 horses on the property” when the lot size would limit same to 3.

TANNER filed an appeal from the citation with the ZHB requesting the following relief:

• Variance from Section(s) of the Zoning Ordinance;
• Special Exception pursuant to Section(s) of the Zoning Ordinance;
• Appeal from Preliminary Determination of Zoning Officer.

On September 21, 2020, a hearing on the Appeal from Preliminary Determination of Zoning Officer was conducted. Requests for Variance and Special Exception were deferred until final determination on the Appeal.  Upon conclusion of the Appeal Hearing, the ZHB unanimously found in favor of upholding the Zoning Enforcement Notice. The ZHB issued written Findings of Fact and Decision on November 3, 2020.

On December 3, 2020, TANNER filed an Appeal of Findings of Fact and Decision to this court.  Following oral argument on May 7, 2021, we took the matter under advisement, affording the parties until July of 2021 to reach an agreement.  Upon notice from the parties that no agreement was reached, we issue this Opinion.

 

1. LEGAL ANALYSIS

The ZHB claims TANNER violated three (3) zoning ordinances: §25.03, §24.12D, and §24.12A. §25.03 is a procedural section which lays out the general requirements of a permit, but does not establish a substantive requirement to obtain a Building and Zoning Permit before construction or change of use.[3] On the other hand, §25.02 establishes the general requirement to obtain a Building and Zoning Permit.[4] §25.02 also establishes the requirement to follow the restrictions of a Building and Zoning Permit. In essence, §25.02 imposes substantive requirements, and §25.03 addresses procedural issues.

• 24.12 specifically deals with the accessory and keeping of horses. It provides standards for the non-commercial keeping of horses. §24.12D provides:

“[n]o building, corral, or stable shall be closer than one hundred (100) feet to the nearest dwelling other than that of the owner, nor within fifty (50) feet of any property line. Any pasture fence shall be located a minimum distance of ten (10) feet from the property line.” §24.12A provides “[t]he minimum lot area required for the keeping of one (1) horse shall be three (3) acres. This minimum lot area shall be increased by one and one-half (1-1/2) additional acres for each additional horse kept.”

 

Neither §24.12D or §24.12A—nor any equivalent ordinances—are known to have existed prior to the 2004 amendment to the East Hanover Township Zoning Ordinance.

Even where there are facial violations of zoning ordinances, Pennsylvania law establishes three (3) main equitable doctrines that can be raised in defense of the property owner. The Superior Court has described these doctrines:

 

 

 

 

Our courts have generally labeled the theory under which a municipality is estopped: (1) a “vested right” where the municipality has taken some affirmative action such as the issuance of a permit; (2) a “variance by estoppel”[5] where there has been municipal inaction amounting to active acquiescence[6] in an illegal use; or (3) “equitable estoppel” where the municipality intentionally or negligently misrepresented its position with reason to know that the landowner would rely upon the misrepresentation. Estoppel under these theories is an unusual remedy granted only in extraordinary circumstances and the landowner bears the burden of proving his entitlement to relief. Except for the characterization of the municipal act that induces reliance, all three theories share common elements of good faith action on the part of the landowner: 1) that he relies to his detriment, such as making substantial expenditures, 2) based upon an innocent belief that the use is permitted, and 3) that enforcement of the ordinance would result in hardship, ordinarily that the value of the expenditures would be lost.

 

In re Kreider, 808 A.2d 340, 343 (Pa. Commw. Ct. 2002) (citations omitted).

Because of the nature of our decision, and because the Variance and Special Exception comments of this dispute were deferred by the ZHB, we will not today address these equitable defenses.

 

A landowner can raise in his/her defense the doctrine of continuing non-conforming use. The doctrine of continuing non-conforming use[7] allows a property owner to continue a lawful use that does not conform to a zoning ordinance enacted after the use began. Foreman v. Union Twp. Zoning Hearing Bd., 787 A.2d 1099, 1102 (Pa. Commw. Ct. 2001). Additionally, the continuing use does not need to be identical to the original use. Limley v. Zoning Hearing Bd. of Port Vue Borough, 625 A.2d 54 (Pa. 1993) (holding a proposed public restaurant was sufficiently similar to the previous nonconforming use of the property as a nonprofit private club). If the continuing use is “sufficiently similar to the use that existed at the time of the enactment of the zoning ordinance, the [continuing] use may not be characterized as a new or different use.”[8] Foreman, 787 A.2d at 1103. Thus, an originally legal use cannot be cited for a violation of a zoning ordinance unless the right established by the continuing non-conforming use is a “nuisance, is abandoned, or is extinguished by eminent domain.” Id. at 1102.

The doctrine of continuing non-conforming use flows from one of the most basic principles of the American legal system. The Constitution of the Commonwealth of Pennsylvania provides “[n]o ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed.” Pa. Const. Art. 1, § 17. This Commonwealth’s Supreme Court has reinforced the notion that the doctrine of continuing non-conforming use is an extension of the rule against ex post facto laws by stating that the “refusal of the continuance of a nonconforming use would be of doubtful constitutionality.” Hanna v. Bd. of Adjustment of Borough of Forest Hills, 183 A.2d 539, 543 (Pa. 1962). Thus, it is a well-established machination of our judicial system to disallow a governmental body to pass a new ordinance then punish a property owner for a non-conforming use that began before the ordinance was passed. See id.[9]

From the above, we glean that the following legal principles govern our case:

• 25.03 only applies to procedural violations regarding the obtaining of a Building and Zoning Permit.
• As it relates to the alleged violations of §25.12A and §25.12D, the doctrine of continuing non-conforming use allows originally lawful uses to continue even if they presently violate a zoning ordinance.
• A pre-existing non-conforming use may expand somewhat over time, but not to the point where the use is considered different or new.

 

III.       DISCUSSION

Two sections of the ordinance sections cited by APPELLEE were facially violated by TANNER. TANNER’s property is 5.04 acres.[10] Under §24.12A, TANNER can only have three (3) horses, but TANNER is keeping twelve (12) horses on her property. Under 24.12D, TANNER’s barn cannot be within fifty (50) feet of her property line. Testimony has shown that TANNER’s barn was located at or near the property line, so the barn was definitely not more than fifty (50) feet from the property line.

Despite the two (2) facial violations, TANNER finds relief in the doctrine of continuing non-conforming use. The doctrine of continuing non-conforming use precludes a §24.12D violation because, at the time of building in 2003, the barn was lawfully placed. (Tr. of Proceedings 22:12.) At the time of building, there were no required setbacks for accessory structures, so the barn’s placement was lawful, or at least not in violation of the then-applicable zoning ordinances.[11] Further, the doctrine of continuing non-conforming use also precludes a §24.12A violation because there was no known restriction on the number of horses able to be kept per acre in 2002.[12] These Ordinance provisions that are relied upon by APPELLEE only came into effect in 2004. See East Hanover Township Zoning Ordinance § 24.12D (Adopted April 8, 2004); Tr. of Proceedings 21:1-22:3.

There is much that this Court does not know about the history of TANNER’s horse rescue operation.  For example, we do not know whether or to what extent the Zoning Ordinance that pre-dated § 24.12 limited the number of horses that could be kept on TANNER’s property. (See, N.T. 22).  Similarly, we do not know how many horses TANNER maintained on her property when § 24.12D was enacted in 2004.  (N.T. 18).  We also have no factual record to help us discern whether any fluctuation of horse numbers constituted a “natural expansion” of the use.  What we do know is that TANNER was cited for violating § 24.12 “of the current ordinance”.  (N.T. 28).  We also know that TANNER started rescuing horses in 2002 shortly after she purchased the property, so her use of her property as a horse rescue operation pre-dated the ordinance section she is cited with violating.

Based on the record that is now before this Court, we conclude that TANNER’s barn and horse rescue operation has been effectively “grandfathered” as a lawful pre-existing continuing use.  As TANNER’s attorney argued at the time of the hearing before the Zoning Board: “The violation was issued on the wrong Zoning Ordinance, and based on the testimony there’s nothing that my client is violating based on the prior ordinance.” (N.T. 26).

Before we conclude our discussion, we need to articulate a word of warning to TANNER.  Her lawful “grandfathered” horse rescue operation is predicated upon the size and extent of her use as compared with what existed prior to the 2004 enactment of § 24.12D.  Under Pennsylvania law, TANNER is legally permitted to continue the “grandfathered” permissible use with due consideration to any “natural expansion of the use.”  She is not permitted to significantly expand the non-conforming use.  We do not know at this point how many horses TANNER maintained on her property in 2004.  If TANNER has or will in the future expand her rescue operation to include a number of horses significantly in excess of the number being served in 2004, she may no longer be protected by the doctrine of continuing non-conforming use.  In essence, we admonish TANNER that she should maintain her permissible horse rescue operation to a scope that is similar to what existed in 2004.

 

1. CONCLUSION

When TANNER began her horse sanctuary operation, the Zoning Ordinance upon which TOWNSHIP now relies did not exist.  For nearly eighteen (18) years after she began the horse sanctuary, TANNER continued to operate it without complaint from the TOWNSHIP.  TOWNSHIP’s current desire to effectively punish TANNER for violating a subsequently-adopted zoning ordinance strikes us viscerally as unfair.  While we certainly recognize that governmental entities have a legal right to impose restrictions upon landownership use via zoning ordinances, we also believe firmly that each American landowner possesses a legal right to free use and enjoyment of his/her property UNLESS the government can establish that such use violates a clearly defined zoning ordinance that was created to protect others in the community from land uses that are deemed harmful to the community.  Here, TOWNSHIP has not satisfied this Court that TANNER should be punished for operating a horse sanctuary business that pre-dated the Zoning Ordinance it now seeks to enforce.  Accordingly, we will reverse the Order of the ZHB and dismiss the TOWNSHIP’s citations against TANNER.

 

[1] This “mirror” is subject to the law regarding the doctrine of natural expansion.

[2] As we advised all counsel at oral argument, the perfect compromise resolution to the parties’ dispute would have been for everyone to agree that TANNER could maintain some number of horses less than fourteen that the parties could agree upon.  Sadly, no such compromise was reached.

[3] §25.03 provides in applicable part “[a]pplications for a Building and Zoning Permit shall be filed by the property owner, his authorized agent or an individual with a proprietary interest in the property, said individual to hereafter be known as the applicant. Applications shall be submitted to the Zoning Administrator.”

 

[4] §25.02 provides in part: “No building, structure, sign or land shall be erected, constructed, reconstructed, altered, converted, removed, maintained, moved, added to, used or the use therein changed unless and until a Building and Zoning Permit is obtained from the Zoning Administrator. The permit requirements shall apply to all permanent, temporary, seasonal, part-time or movable buildings, structures, signs or uses, unless exempted elsewhere in this Ordinance. No Building and Zoning Permit shall be issued by the Zoning Administrator except in conformity with the provisions of this Ordinance, unless he receives a written order from the Zoning Hearing Board in the form of an Administrative Review, Special Exception or Variance as provided by this Ordinance.”

[5] Variance by estoppel has also been termed the doctrine of laches. The same group of elements, especially the active acquiescence element, has been historically applied to both doctrines. See Appeal of Heidorn, 195 A.2d 349, 351 n.2 (Pa. 1963)

 

[6] “A long period of municipal failure to enforce the law, when the municipality knew or should have known of the violation, in conjunction with some form of active acquiescence in the illegal use [is sufficient]. However, a mere showing that a municipality has failed to enforce the law for a long period of time is insufficient in itself to support the grant of a variance.” Mucy v. Fallowfield Twp. Zoning Hearing Bd. of Washington Cty., 609 A.2d 591, 592 (Pa. Commw. Ct. 1992). See, e.g., Knake v. Zoning Hearing Bd. of Dormont, 459 A.2d 1331 (Pa. Commw. Ct. 1983).

 

[7] Despite any initial thought that the erection of a structure does not constitute a use, both the Commonwealth Court and the Pennsylvania Supreme Court have held the erection of a building is included within the definition of use. See Hanna v. Bd. of Adjustment of Borough of Forest Hills, 183 A.2d 539, 543 (Pa. 1962); Money v. Zoning Hearing Bd. of Haverford Twp., 755 A.2d 732, 738 (Pa. Commw. Ct. 2000) (“the razing of a building that is a nonconforming use does not eliminate the landowner’s right to continue that use by erection of another building also nonconforming as to use.”).

[8] This concept has been referred to as the doctrine of natural expansion. This doctrine allows a “nonconforming use [to] be expanded in scope, as the business increases in magnitude, over the ground occupied by the owner for the business at the time of the enactment of the zoning ordinance. The mere increase in intensity of the use does not justify a finding of a new or different use.” Foreman, 787 A.2d at 1102 (citations omitted).

[9] It has also been suggested that the general six year statute of limitations bars enforcement of the zoning ordinance. See 42 Pa. C.S.A. § 5527(b). The Commonwealth Court, however, has rejected this assertion because “time does not run against the king.” Twp. of Salem v. Miller Penn Dev., LLC, 142 A.3d 912, 917 (Pa. Commw. Ct. 2016). The doctrine of nullum tempus occurrit regi provides “statutes of limitations do not apply to actions brought by the state and its agencies, unless the statute of limitation expressly provides that it limits the government’s right.” Id. Here, the zoning ordinance does not expressly provide that it is limiting the government’s right to sue based on time. Further, it has been previously held the general statute of limitation does not run against the government. Id.

 

[10] Of the three (3) claimed violations, TANNER only facially violated two (2) sections. TANNER did not violate § 25.03 because she followed the procedural requirements of obtaining a Zoning and Building Permit by actually obtaining a permit in 2003. We will not pass judgment on whether TANNER violated the substantive requirements of the permit because the TOWNSHIP has not cited her with a violation of §25.02 or any other ordinance that may have existed at the time the permit was issued.

 

[11] It is important to note here that the township is not able to use this ordinance as a vehicle to protect the adjoining property owner from encroachment. The right and ability to protect oneself from encroachment lies solely with the property owner being encroached upon. For example, if two adjoining property owners agree to build a basketball court straddling the property line, the township has no standing to sue one of the property owners for trespass. The only people with the right to complain are the owners of the properties. A long history of allowing border encroachments to be solved by adverse possession shows it is not the township’s role to get involved in continuing trespasses if there is no complaint from the adjoining landowner. See, e.g., Plauchak v. Boling, 439 Pa. Super. 156, 653 A.2d 671 (1995).

 

[12] The TOWNSHIP spent considerable time at the hearing pointing to the existence of a zoning permit that was afforded to TANNER that permitted her to maintain four (4) horses on her property.  The TOWNSHIP suggests that this zoning permit is evidence that a prior ordinance permitted only four (4) horses.  Unfortunately, we do not have a copy of the prior ordinance, nor do we have any evidence as to what that prior ordinance required.  We will not find TANNER in violation of an almost-hypothetical ordinance.