Volume 58, No. 30

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

NOTICE OF TRUSTEE

NOTICE OF PRIVATE SALE

 

TABLE OF CONTENTS

Amy Ann Elder v. West Cornwall Township Zoning Hearing Board v. West Cornwall Township

 

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 MARGARET M. HERR, late of Palmyra Borough, Lebanon County, Pennsylvania, Deceased. Letters Testamentary have been granted to the undersigned Executrix.

Linda P. Chidester, Executrix

 

Gerald J. Brinser, Esquire

1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF BARBARA A. HEISEY, late of North Lebanon Township, Lebanon County, Pennsylvania, Deceased. Letters Testamentary have been granted to the undersigned Executrix.

Linda A. Blouch, Executrix

 

Keith D. Wagner, Esquire

1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF DORETTA LUCILLE ZEIDERS A/K/A LUCILLE ZEIDERS A/K/A D. LUCILLE ZEIDERS, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

William W. Zeiders, Executor

333 East Main Street

Palmyra, PA 17078

 

Edward J. Coyle, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF LUCILLE T. ANDERSON, late of Millcreek Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Judith Waldron, Executor

 

Young and Young

44 S. Main Street

P.O. Box 126

Manheim, PA 17545

 

ESTATE OF EDWARD W. LAUB, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Robin Stryker, Executrix

 

John C. Stevens, Esquire

Gardner and Stevens, P.C.

109 West Main Street

Ephrata, PA 17522

 

ESTATE OF GERTRUDE M. TRAUTMAN, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Gary L. Trautman, Executor

 

Eric Schelin Rothermel, Esquire

May, May and Zimmerman, LLP

49 North Duke Street

Lancaster, PA 17602

 

ESTATE OF CARLA M. WEAVER A/K/A CARLA M. PETERSON, died January 7, 2021, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Eric Allen Peterson, Executor

 

Jordan D. Cunningham, Esquire

Cunningham, Chernicoff & Warshawsky, P.C.

2320 North Second Street

Harrisburg, PA 17110

 

ESTATE OF ANNA M. DUSMAN A/K/A ANNA MARY DUSMAN, date of death December 3, 2020, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

The Bryn Mawr Trust Company, Executor

1 E. Chocolate Ave., Suite 200

Hershey, PA 17033

 

Kendra A. Mohr, Esq.

Pannebaker & Mohr, P.C.

4000 Vine St., Suite 101

Middletown, PA 17057

 

ESTATE OF DOROTHY K. BICKSLER, late of Palmyra Borough, Lebanon County, Pennsylvania, Deceased. Letters Testamentary have been granted to the undersigned Executrix.

Brynn McCurdy, Executrix

 

Keith D. Wagner, Esquire

1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF MAYS G. KURTZ, JR., late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

Steve Kurtz, Executor

PO Box 591

Clear Spring, MD 21722

 

Susan K. Pierce, Executrix

2284 Cornwall Road,

Lebanon, Pa 17042

 

Paul W. Kilgore, Esquire

Spitler, Kilgore & Enck, PC

522 South 8^th Street

Lebanon, PA 17042

Attorney

 

ESTATE OF THOMAS A. LONG, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

Thomas J. Long, Executor

1812 Center Street

Lebanon, PA 17042

 

Michael D. Long, Executor

173 N. Fisher Street

Jonestown, PA 17038

 

Paul W. Kilgore, Esquire

Spitler, Kilgore & Enck, PC

522 South 8^th Street

Lebanon, PA 17042

Attorney

 

ESTATE OF GLENN E. WOLGEMUTH, late of the Township of Heidelberg, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Bonita J. Wolgemuth, Executor

505 Wedgewood Drive

Lebanon, PA 17042

 

John D. Enck, Esquire

Spitler, Kilgore & Enck, PC

522 South 8^th Street

Lebanon, PA 17042

Attorney

 

SECOND PUBLICATION

 

ESTATE OF RAMON G. MUSHENO A/K/A RAMON GANTZ MUSHENO, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Susan Carol, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF ELVA L. LIVSEY, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

John R. Boudman, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF HETTY WENGERT, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Kenneth W. Wengert, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF CHRISTINE M. HOPPLE, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

William C. Hopple, Executor

304 W. Queen Street

Annville, PA 17003

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA, 17067

 

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

 

Deborah Davies, Co-Executor

 

Laura Abbondi, Co-Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

717-279-8313

 

ESTATE OF BRENDA E. FLORY, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Steven T. Flory, Executor

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF JOAN M. VARANO, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Gary A. Varano, Executor

5523 Hazel Street

Harrisburg, PA 17112

 

Joseph M. Farrell, Esquire

201/203 South Railroad Street

P.O. Box 113

Palmyra, PA 17078

 

ESTATE OF GLEN E. SWEINHART, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Jason G. Sweinhart, Executor

96 Lewis Road

Annville, PA 17003

 

Joseph M. Farrell, Esquire

201/203 South Railroad Street

P.O. Box 113

Palmyra, PA 17078

 

ESTATE OF EARL A. WOLFE, A/K/A EARL A. WOLFE, SR., late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Ronald G. Wolfe, Executor

1380 North State Route 934

Annville, PA 17003

 

Patrick M. Reb, Esquire

547 South 10^th Street

Lebanon, PA 17042

 

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

Patrick M. Reb, Esquire, Executor

547 South 10^th Street

Lebanon, PA 17042

 

Patrick M. Reb, Esquire

547 South 10^th Street

Lebanon, PA 17042

 

ESTATE OF GLENN R. KERCHER, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

Jeffrey Kercher, Executor

859 Water Edge Court

Lebanon, PA 17046

 

Gregory Kercher, Executor

P.O. Box 272

Pine Grove, PA 17963

 

Karen Kercher, Executor

1821 Carlton Court

Lebanon, PA 17042

 

Patrick M. Reb, Esquire

547 South 10^th Street

Lebanon, PA 17042

 

ESTATE OF RICHELLE J. KUSHMANICK, late of Union Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Antoinette Kushmanick Houser, Executor

2380 Quarry Rd.

Lebanon, PA 17046

 

Patrick M. Reb, Esquire

547 South 10^th Street

Lebanon, PA 17042

 

THIRD PUBLICATION

 

ESTATE OF JUSTINE J. KREIFELS, late of Annville Township, Lebanon County, Pennsylvania, deceased, who died January 9, 2021. Letters Testamentary have been granted to the undersigned Co-Executors.

 

John J. Kreifels and Brigitte R. Jones, Co-Executors

 

John D. Killian, Esquire

Killian & Gephart, LLP

218 Pine Street

Harrisburg, PA 17101

 

ESTATE OF STANLEY P. RZEPLINSKI, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Gregory A. Rzeplinski, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF AMY I. NYE, late of Swatara Township, Lebanon County, Pennsylvania, Deceased. Letters Testamentary have been granted to the undersigned Executrix.

Pollyanna M. Nye, Executrix

 

Keith D. Wagner, Esquire

1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF MARGERY A. DADAMIO, late of 1 Boyd Street, Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Rita Jackson, Executrix

122 Norway Lane

Lebanon, PA 17042

 

Robert R. Kreitz, Esquire

Kreitz | Gallen-Schutt

1210 Broadcasting Road, Suite 103

Wyomissing, PA 19610

 

ESTATE OF PATRICIA J. STIMA, late of Cleona Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Valerie S. Chenail, Executrix

111 Stonebrook Drive

Palmyra, PA 17078

 

Edward J. Coyle, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF GARY R. DAUGHERTY, late of North Lebanon Township, Lebanon County, Pennsylvania, 17046, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Gail M. Rohland, Executrix

 

Horace M. Ehrgood, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF ANN T. KURY, late of the City of Lebanon, Lebanon County, Pennsylvania, 17046, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Thomas A. Kury, Executor

 

Horace M. Ehrgood, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF DORIS J. STALNECKER, late of West Cornwall Township, Lebanon County, Pennsylvania, 17545, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Stephanie A. Bell, Executrix

 

Horace M. Ehrgood, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF DORIS J. NELSON, late of North Cornwall Township, Lebanon County, Pennsylvania, 17042, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Horace M. Ehrgood, Executor

 

Horace M. Ehrgood, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF JOAN S. BRIODY A/K/A JOAN BRIODY, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Rebecca Briody, Executrix

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF MAEANNA J. MILLER, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Patricia J. Shirey, Executor

11 Edris Road

Womelsdorf, PA 19567

 

Robert G. Miller, Jr., Executor

71 Mill Road

Myerstown, PA 17067

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA, 17067

 

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

 

Bruce M. Werner, Executor

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

NOTICE OF TRUSTEE

 

LOUISE P. RANDAZZO, Deceased. Late of the City of Lebanon, Lebanon County, Pennsylvania.

 

NOTICE is hereby given pursuant to Section 7755(c) of the Pennsylvania Uniform Trust Act that The LOUISE P. RANDAZZO Trust is in existence, that Louise P. Randazzo is deceased, and that Deborah A. Mogel is the Trustee. ALL persons indebted to the Trust or to the above named Decedent are requested to make payment, and those having claims or demands against the same will make them known without delay to:

 

Mrs. Deborah A. Mogel

928 Snapdragon Ct.

Lebanon, PA 17046 or

 

Scott C. Painter, Esquire

Attorney for the Trustee,

Deborah A. Mogel

906 Penn Ave., P.O. Box 6269

Wyomissing, PA 19610

 

NOTICE OF PRIVATE SALE

 

NOTICE is hereby given that on February 9, 2021, the Board of Directors of the Lebanon School District, filed a Petition for the sale of the following tracts of real estate:

 

Northwest Elementary School containing 2.65 acres located on the northwest corner of the intersection of North Ninth Street and Maple Street in Lebanon City; and the second parcel of land containing .95 acres, adjacent to the elementary school building, the identified tax parcel I.D. numbers are 07-2336938-372822 and 07-2336473-372837, respectively.

 

The Court has fixed the 2^nd day of March, 2021, at 3:30 o’clock P.M. at Lebanon County Court of Common Pleas, located at 400 South Eighth Street, Lebanon, Pennsylvania 17042, as the time and place for the hearing on said petition when and where all persons interested may appear and show cause, if any they have, why the prayer of the petitioner should not be granted.

 

Michael S. Bechtold, Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042-0049

Phone: (717) 274-1421

E-mail: Bechtold@buzgondavis.com

Solicitor for Lebanon School District

 

JUDGES OPINION

 

Amy Ann Elder v. West Cornwall Township Zoning Hearing Board v. West Cornwall Township

 

Civil Action-Property Law-Zoning-Remediation of Historic Property-Estoppel-Vested Right Doctrine-Due Diligence-Good Faith-Public Health, Safety and Welfare-Esthetic Consistency

 

Amy Ann Elder (“Appellant”) owns a historic property that had been on the verge of collapse.  A plan for remediation was developed that required that the foundation of the property be raised by forty-eight (48) inches from its previous height.  The Lebanon County Planning Department issued permits approving of the remediation and building plan, including the height and grading of the property proposed.  Appellant’s property was remediated as contemplated by the approvals at a cost of over $70,000.00.  Following complaints from neighboring landowners after the remediation due to the height of the property and the issuance of notice of violation of the West Cornwall Township (“West Cornwall Township”) Zoning Code on the basis that the height of the property exceeded the height limits allowed by the West Cornwall Township Zoning Code, the West Cornwall Township Zoning Hearing Board (“Zoning Hearing Board”) affirmed a directive that Appellant lower the height of the structure of her property.

 

1. Pennsylvania courts have applied principles of fundamental fairness to land use regulation.

 

2. Estoppel based defenses that are applicable to enforcement of zoning rules include estoppel based upon a vested right that was created by affirmative action on the part of a municipality, estoppel based upon a municipality’s acquiescence and inaction in the face of a known and obvious zoning infraction and estoppel based upon intentional or negligent misrepresentation by a municipality.

 

3. The vested right doctrine permits a landowner to use his or her property without obtaining a variance when the landowner, in good faith reliance upon a permit that was issued in error, incurs significant nonrecoverable costs.

 

4. The five (5) factors that a court must consider in determining the applicability of the vested right doctrine are: (1) the landowner’s due diligence in attempting to comply with the law; (2) the landowner’s good faith throughout the proceedings; (3) the expenditure of substantial unrecoverable funds; (4) the expiration of the time period following the issuance of the permit for appeal; and (5) the insufficiency of evidence to prove that public health, safety or welfare adversely was affected by the permit.

 

5. Where the record establishes that Appellant completely was forthcoming with respect to the remediation by first approaching her neighborhood association before applying for the permits, provided documentation to the association that stated that the height of the property would be raised by forty-eight (48) inches, provided most, if not all, of the information to the Planning Commission and did not commence construction until the appropriate approvals were issued, Appellant showed due diligence in attempting to comply with the law.

 

6. In light of the record that is devoid of any evidence of deceit or withholding of information by Appellant, the record establishes that Appellant acted in good faith throughout the proceedings.

 

7. Since the record establishes that Appellant spent more than $70,000.00 to effectuate the remediation consistent with the approvals issued and the cost to rectify the remediation undertaken would cost $25,000.00, the record establishes that Appellant expended substantial, unrecoverable costs.

 

8. The record establishes that no appeal was taken in the time required following the issuance of the approvals.

 

9. Esthetic consistency within a neighborhood does not fall within the category of posing a danger to the public health, safety or welfare.

 

10. Where the remediation of the property by Appellant prevented a historic structure from collapsing, the work actually enhanced public safety.

 

11. Application of the vested right doctrine necessitates reversal of the decision of the Zoning Hearing Board directing Appellant to lower the height of the structure of her property.

 

L.C.C.C.P. No. 2019-02123, Opinion by Bradford H. Charles, Judge, June 18, 2020.

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL ACTION – LAW

 

AMY ANN ELDER                                                                                            :  No. 2019-02123                              

                            Appellant                                                                              :

                                                                                                                              :

1. :

                                                                                                                              :

WEST CORNWALL TOWNSHIP                                                                  :

ZONING HEARING BOARD                                                                          :

                            Respondent                                                                         :

1. :

WEST CORNWALL TOWNSHIP                                                                  :

                            Intervenor                                                                            :

 

O R D E R

 

AND NOW, this 18th day of June, 2020, in accordance with the attached Opinion, the Order of this Court is as follows:

1. The decision of the West Cornwall Township Zoning Hearing Board is reversed based upon the doctrine of Estoppel predicated upon a vested right.
2. Commencing thirty (30) days for today, Appellant shall be entitled to complete the foundation remediation project that was begun in December of 2018. The final height of the Rockledge Cottage shall be no higher than forty-eight (48) inches above the level of the structure when the remediation project began.
3. Due to the nature of our decision, it is not necessary for this Court to render any opinion about whether Appellant’s project is or is not in violation of applicable zoning regulations.
4. Respondent is advised that it has thirty (30) days to appeal this decision to the Pennsylvania Commonwealth Court.

 

 

 

BY THE COURT:

 

 

______________________,J.

BRADFORD H. CHARLES

 

 

BHC/pmd

 

cc:       Court Administration

George E. Christianson, Esquire

Keith L. Kilgore, Esquire

Anthony J. Fitzgibbons, Esquire

Steve Gibble, Esquire// 126 E Main St., Lititz PA  17543-2010

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL ACTION – LAW

 

AMY ANN ELDER                                                                                            :  No. 2019-02123                              

                            Appellant                                                                              :

                                                                                                                              :

1. :

                                                                                                                              :

WEST CORNWALL TOWNSHIP                                                                  :

ZONING HEARING BOARD                                                                          :

                            Respondent                                                                         :

1. :

WEST CORNWALL TOWNSHIP                                                                  :

                            Intervenor                                                                            :

                       

APPEARANCES:

 

George E. Christianson, Esquire                                                For Appellant

 

Keith L. Kilgore, Esquire                                                                For Appellee

 

Anthony J. Fitzgibbons, Esquire                                                For Intervenor

 

Steve Gibble, Esquire                                                                    For Jerry Collins

 

 

OPINION BY CHARLES, J., June 18, 2020

 

There is a dynamic in marketing known as “buyer’s remorse.”  The emotion that fuels “buyer’s remorse” is not, however, confined to marketing.  There are occasions when a  governmental entity renders a decision that is initially perceived as appropriate but is later determined to be unpopular.  When that occurs, the governmental entity will sometimes seek to change its decision.  However, like the buyer who regrets the purchase of a product, it is not always feasible or fair to reverse course, especially when citizens have relied upon the initial governmental decision.

This is a zoning case.  Local authorities rendered a decision to permit a landowner to repair and alter a building.  Once the repairs were completed, a plethora of neighbors objected to the final appearance of the landowner’s project.  This triggered remorse on the part of the township for the decision permitting the owner to proceed with her plans.  As a result, the township worked hard to find a rationale that would require the landowner to undo the work she spent $70,000.00 to undertake.  In the opinion of this Court, the Township’s decision to reverse course, while politically expedient, was simply unfair and cannot be affirmed.  The reasons for our conclusion will be set forth in the following Opinion.

 

 

1. FACTS

The town of Mount Gretna in southern Lebanon County developed in the late 1800s as a resort community.  A neighborhood in Mount Gretna has become known as “the Campmeeting”.  It is comprised of houses and cottages built on a gently graded hill overlooking the Mount Gretna Lake.  With very few exceptions, the cottages and structures of the Campmeeting are located very close to one another.

In 1892, a building that has become known as “the Rockledge Cottage” (hereafter ROCKLEDGE) was constructed in the Campmeeting. (N.T. 28). It is one of the largest structures in the Campmeeting.  Unfortunately, when the ROCKLEDGE was built, a tree trunk was used as a foundation.  (N.T. 28).

Over the years, the foundation of ROCKLEDGE deteriorated.  Amy Elder and her family purchased ROCKLEDGE in 1982. (N.T. 85).  By 2015, it became apparent to Ms. Elder and her husband, David Keane, that something would have to be done in order to preserve the structure.  For a time, jacks were used as a temporary repair measure, but it quickly became apparent that more drastic means would be needed to preserve the ROCKLEDGE. (N.T. 25-29).

Amy Elder and her husband, David Keane, (hereafter APPELLANTS)[1] sought professional help to preserve the aging Rockledge structure.  They met with contractor Jack Kresge and learned that the structure would have to be raised in order to facilitate excavation and construction of a permanent foundation. (N.T. 29).  After developing a plan, APPELLANTS approached the Mount Gretna Campmeeting Board of Managers in order to explain their plan.  A letter was written by APPELLANTS in the fall of 2018 that included the following language:

“Glen Kresge, from Kresge Excavating, located in Cornwall, Pa (717-507-7180) can dig out under my cottage and put in a foundation.  He will need the house to be raised to a height of eight (8) feet so he can work underneath it.  Once the foundation is poured, it will be lowered again to a height of approximately forty-eight (48) inches above its current height.”

On October 16, 2018, the Campmeeting association approved APPELLANTS’ plan.

APPELLANTS submitted a request for a zoning permit and a request for a building permit to the Lebanon County Planning Department, which has been deputized by West Cornwall Township to address issues pertaining to proposed construction projects.  APPELLANTS claim that they provided the Planning Department with all information they gave to the Campmeeting Association as well as plans and drawings that clearly depicted their intent to effectively raise the Rockledge Cottage by forty-eight (48) inches over its existing height.  (N.T. 31-34).  Most of the documents described by APPELLANTS were in fact contained in the Lebanon County Planning Department file.  Zoning Officer Greg Hetrick testified that he did not recall seeing all of the documents that had been presented by APPELLANTS to the Campmeeting Association. (N.T. 121-122).  Mr. Hetrick was less clear about whether he had seen plans or other documents reflecting that the building would be raised by forty-eight (48) inches.  However, he acknowledged that other members of his office would also have been involved with APPELLANTS’ permit applications.  (N.T. 123; 125; 127; 132-133).

At the hearing before the Zoning Hearing Board, township solicitor Keith Kilgore stated for the record that documents admitted as Exhibits 29-35 were contained in the Lebanon Planning Department file.  Among those documents were the following:

• A document entitled “Total house height measurements” (Exhibit 33);
• An email dated December 26, 2018 in which APPELLANTS reiterated that their original proposal stipulated a four (4) foot rise above street level. (Exhibit 34);
• A plan depicting a side foundation view of the project that shows the rear of the building being located eight (8) foot above grade level (Exhibit 35, page 5);
• A copy of the letter sent by APPELLANTS to the Campmeeting Association in which they clearly state their plan that the Rockledge Cottage ultimately be raised by forty-eight (48) inches. (Exhibit 29);
• Construction drawing attached to the Campmeeting letter that again reveal APPELLANTS’ plan to raise the cottage by roughly forty-eight (48) inches.

On October 11, 2018, the Lebanon County Planning Department approved the zoning permit requested by APPELLANTS. (Exhibit 6A)  On November 16, 2018, a building permit was also approved by the Lebanon County Planning Department.  (See, Exhibit 14).

Pursuant to the permits that were issued by the Lebanon County Planning Department, construction commenced in December of 2018. (N.T. 40).  At some point in January of 2019, the Campmeeting Association stopped construction to verify that the height was raised by no more than forty-eight (48) inches. (N.T. 41).  After the Campmeeting verified that the foundation was only forty-eight (48) inches over existing grade level, the Campmeeting gave approval for the structure to be lowered onto its new foundation.  (N.T. 41-42).  However, additional work was needed in order to complete the project.

As best as we can discern from the record, residents in the neighborhood noticed and became dismayed about the height of the Rockledge structure.  On May 31, 2019, the Campmeeting Association sent a letter to APPELLANTS stating: “The look of your cottage is now completely out of sync with the neighboring cottages.”  The letter complained that “Looking at the cottage today, it appears there is a garage under the house”.  The Campmeeting Association complained that the original documentation that was submitted to the Association did not reveal the existence of a garage underneath ROCKLEDGE.  (See, Exhibit 31).  Shortly thereafter, a Notice of Violation was issued to APPELLANTS by the Lebanon County Planning Department on June 17, 2019.  This letter declared APPELLANTS to be in violation of the West Cornwall Township Zoning Ordinance.  The letter directed APPELLANTS to “lower the structure so that the structure meets the requirements of two and one-half (2 ½) stories; or…seek a special exception from the Zoning Hearing Board.”  The letter threatened fines of $500.00 per day for the violation.

APPELLANTS filed a Notice of Appeal on July 23, 2019.  The appeal challenged the Zoning Officer’s determination of a violation and alternatively requested a special exception.  APPELLANTS’ appeal stated: “A building permit was issued and it is believed that the construction was done in accordance with the permit.”

A hearing was commenced before the West Cornwall Township Zoning Hearing Board on August 21, 2019.  In addition to APPELLANTS, numerous members of the community testified.  Each of these community members complained that the final height of the Rockledge Cottage was greater than anticipated.  (N.T. 94; 99; 100; 103; 104; 105).  However, almost to a person, the neighbors applauded the APPELLANTS’ desire to preserve what was described as “one of the oldest cottages in the community.” (N.T. 93; 101; 104; 105).  The sense of the community was perhaps best summarized by Harold Myers, who stated:

“I don’t like it, but if what they did was consistent with what was approved, I don’t believe there’s basis for making them go back and make changes…” (N.T. 100)

 

The initial Zoning Permit Application estimated the cost of the Rockledge repairs to be $15,000.00.  David Keane testified that he and Ms. Elder actually expended $80,000.00. (N.T 73)[2].  The amount of money that would be required to comply with the Zoning Officer’s directive to lower the building was unknown at the time of the Zoning Hearing.

On November 5, 2019, the West Cornwall Township Zoning Hearing Board rendered a decision that affirmed the Zoning Officer’s directive that APPELLANTS lower their structure.  The decision also denied APPELLANTS’ request for a special exception.  The written decision of the Zoning Hearing Board focused upon the height of the building and whether it exceeded the height limit set forth in the Township’s Zoning Code.  The decision of the Zoning Board was not unanimous; it was a two-to-one decision.

The Zoning Board’s written decision did not address the concept of variance by Estoppel or Estoppel based upon a “vested right”.  Moreover, the Zoning Board did not articulate any specific findings of fact relating to what APPELLANTS did or did not furnish to the Lebanon County Planning Department prior to issuance of the Zoning Permit and Building Permit that approved APPELLANTS’ building project.  Because of this, and because the record in this case was not sufficient to enable this Court to address the factors pertaining to variance based upon a “vested right” that were set forth in the case of Petrosky v. Zoning Hearing Board of Upper Chichester Township, 402  A.2d 1385 (Pa. 1979), this Court directed that another hearing take place in order to provide the parties with an opportunity to present testimony and evidence relative to the vested right variance factors articulated in Petrosky.  Regarding those factors, a hearing was conducted on June 2, 2020[3].

David Keane (hereafter KEANE) testified on behalf of APPELLANTS.  The Township called Greg Hetrick (hereafter HETRICK) as a witness.  KEANE testified that the foundation to ROCKLEDGE had fallen into disrepair and was on the verge of collapse by 2018.  HETRICK corroborated that testimony and confirmed that there was an “urgent” need for work to be conducted on the foundation.  Because APPELLANTS did not want ROCKLEDGE to collapse, they hired professionals to develop a remediation plan that was viable and cost-effective.

A plan for remediation was developed that would require the foundation of ROCKLEDGE to be raised by forty-eight (48) inches over its previous location.  A written description of the plan, together with visual depictions, were developed.  KEANE provided the entire packet of information to the Campmeeting Association.  He also complied with the request of the Campmeeting Association president that he fly from his home in Florida in order to make a presentation and answer questions from the Campmeeting Association regarding the plans for ROCKLEDGE.  This presentation occurred on October 11, 2018.  The plan submitted by KEANE was approved by the Campmeeting Association.

In Lebanon County, almost all zoning and building permit decisions are rendered by individuals employed by the Lebanon County Planning Department which maintains an office inside the Lebanon County Municipal Building.  KEANE went to that office to submit an application for approval of the work he proposed at ROCKLEDGE.  He met with Greg Hetrick.  A difference of recollection exists with respect to this meeting.

KEANE testified that he provided to the Planning Department a packet containing all of the same documents he had presented to the Campmeeting Association.  Although HETRICK remembers seeing the photographs that were a part of the packet, and while HETRICK vividly remembers concluding that there was an “urgent” need for work to prevent a collapse of ROCKLEDGE, HETRICK does not remember seeing all of the documents that comprised the Campmeeting Association packet.  However, at the hearing before the Zoning Hearing Board, a copy of the entire file maintained by the Lebanon County Planning Department was photocopied and made part of the record.  This file included documents and information that KEANE had prepared for the Campmeeting Association.  Because of this, and because it was clear to this Court that KEANE had a more vivid and accurate recollection of the Planning Department meeting than did HETRICK[4], we conclude that KEANE did in fact provide the packet of information to the Lebanon County Planning Department that contained most of the documents that had been provided to the Campmeeting Association.  The packet specifically described the plan to raise ROCKLEDGE 48” above it previous height.

Zoning approval was issued by the Lebanon County Planning Department for APPELLANTS’ foundation remediation project.  A separate building permit was sought thereafter and it was likewise approved by the Planning Department.  KEANE provided credible testimony that no employee of the Planning Department questioned the ultimate height of ROCKLEDGE or the number of stories that it would comprise.

APPELLANTS embarked upon the project as planned.  When ROCKLEDGE was raised over its existing foundation to effectuate repairs, neighbors took notice.  Eventually, Ted Martin of the Campmeeting Association began to question whether the ultimate height of ROCKLEDGE would be incompatible with other buildings located in the Campmeeting neighborhood.  Because of this, another meeting was scheduled at the project site.  A contractor was hired to use a laser measuring device.  This laser measuring device confirmed that the “new” height of ROCKLEDGE would be 48 inches higher than the “old” height.  Ultimately, Mr. Martin agreed that the elevation of ROCKLEDGE would be raised by four feet.

Once the ROCKLEDGE repair project was nearly complete following the expenditure by APPELLANTS of over $70,000.00, neighbors complained that the “new” height of ROCKLEDGE was incompatible with all of the other structures in the Campmeeting neighborhood.  Although we do not have any direct evidence about interactions between Township officials and complaining neighbors, we do know that ultimately a Notice of Zoning Violation issued to APPELLANTS.  That Notice of Zoning Violation eventually led to the litigation now before this Court.

 

 

 

1. DISCUSSION

 

1. Scope of Review

Generally, when a decision of a Zoning Hearing Board is appealed to a Common Pleas Court that does not receive additional evidence, all legal decisions must be rendered based upon the record created before the Zoning Hearing Board.  See Ulsh v. Zoning Hearing Board of Lower Paxton Township, 22 A. 3d 244 (Pa. Cmwlth 2011).  However, a Court of Common Pleas has the discretion to schedule a new hearing in order to receive additional evidence.  See Wilson v. Plumstead Township Zoning Hearing Board, 936 A. 2d 1061 (Pa. 2007).  When a Trial Court receives additional evidence, it must then render a de novo decision.  Baily v. Zoning Board of Adjustment, 780 A. 2d 809 (Pa. Cmwlth 2001).  Here, we received additional evidence at a hearing that occurred on June 2, 2020.  We had the ability to eyeball both David Keane and Greg Hetrick.   Ultimately, we will now render a de novo decision.

 

1. Legal Principles

The law governing zoning and land use disputes is not formulaic or blind to the equities that surround a given fact pattern.  Using the broad moniker of “Estoppel”, Pennsylvania Courts have applied principles of fundamental fairness to land use regulation.  See, Springfield Township v. Kim, 792 A.2d 717 (Pa. Cmwlth. 2002).  Estoppel is an equitable doctrine based upon the French word “estoup”, which was employed to close the mouth of an individual who attempts to speak or act inconsistent with prior positions.  (See, Black’s Law Dictionary (9^th Ed.) 2009, definition of Estoppel found at page 629).

Because the term “Estoppel” is grounded in equity and broadly employed, most Pennsylvania Appellate cases have addressed equitable defenses to land use regulation by using the broad term “variance by Estoppel”.  However, there are actually three different types of Estoppel arguments that can be employed as a defense to land use regulation.  As the Commonwealth Court made clear in a case emanating from Lebanon County, the three different Estoppel-based defenses applicable to enforcement of zoning rules are:

• Estoppel based upon a “vested right” that was created by affirmative action on the part of a municipality;
• Estoppel based upon a municipality’s acquiescence and inaction in the face of a known and obvious zoning infraction; and
• Estoppel based upon intentional or negligent misrepresentations by a municipality.

See, In Re: Kreider, 808 A.2d 340 (Pa. Cmwlth. 2002).[5]

The most applicable of the three equitable doctrines recognized in Kreider is the so-called “vested right” doctrine.  In another case emanating from Lebanon County, the Commonwealth described this doctrine as follows:

“The vested rights doctrine permits a landowner to use his property without obtaining a variance.  However, that doctrine applies only to cases where the applicant, in good faith reliance upon a permit issued in error, incurs significant non-recoverable costs.”

 

Hitz v. Zoning Hearing Board of South Lebanon Township, 734 A.2d 60 (Pa. Cmwlth. 1999).

 

The key case involving the so-called “vested right” equitable doctrine is Petrosky v. Zoning Hearing Board of Upper Chichester Township, 402  A.2d 1385 (Pa. 1979).  In Petrosky, the Pennsylvania Supreme Court cited five (5) factors that a court must consider when applying the vested rights doctrine:

• The landowner’s due diligence in attempting to comply with the law;
• The landowner’s good faith throughout the proceeding;
• The expenditure of substantial unrecoverable funds;
• The expiration without appeal of the time period following issuance of the permit; and
• The insufficiency of evidence to prove that the public health, safety or welfare would be adversely affected by the permit.

Although all of the above factors must be considered, the Supreme Court stopped short of declaring them to be “elements” of the doctrine; a more global examination of equities is required.  In Petrosky, the Supreme Court emphasized that the landowner acted in good faith and expended considerable funds in reliance of a permit issued by Chichester Township.  Largely because of these facts, Pennsylvania’s Highest Court stated:

“All of the relevant factors to be considered in determining whether a citizen has acquired a vested right leads us to the conclusion that the facts weigh heavily in favor or the Appellants and they are therefore entitled to continue the use of their property, even though the setbacks are less than required by the Zoning Ordinance.”

 

Id at page 1390.

 

While we recognize that the five factors identified in Petrosky are not elements, we will nevertheless analyze this case through the prism created by those five factors.  In addition, because “Estoppel” is an equitable doctrine that requires a global evaluation of all evidence, we will also include our visceral reaction to the fact pattern that has been presented by the parties.  Because we will be basing our decision upon the vested rights equitable doctrine, we will not address the Township’s technical arguments about whether or how APPELLANTS violated the Zoning Code.[6]

 

 

1. Factors Set Forth in Petrosky

• The landowner’s due diligence in attempting to comply with the law

The first factor established by Petrosky requires us to analyze the “due diligence of the landowner.”  The term “due diligence” is defined in Black’s Law Dictionary as: “The diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement…” (See, Black’s Law Dictionary (9^th Ed.) 2009, definition of due diligence found at page 523.)   Thus, we must examine the extent to which APPELLANTS sought to comply with their obligations under the law.

In this case, APPELLANTS first approached their neighbors – via the Campmeeting Association – before even making application for governmental permits.  APPELLANTS were completely forthcoming with respect to what they planned to accomplish.  The packet of information provided to the Campmeeting Association included the following:

• A letter sent in which APPELLANTS clearly state their plan that ROCKLEDGE ultimately be raised by forty-eight (48) inches. (Exhibit 29);
• Attached to the letter were two drawings. Both showed the plan to raise the structure.  One of the drawings included a narrative: “Final elevation 48” over A [starting point].”
• A document entitled “Total house height measurements” (Exhibit 33) that depicts the planned height of the structure;
• A plan depicting a side foundation view of the project that shows the rear of the building being located eight (8) foot above grade level (Exhibit 35, page 5);
• A construction drawing attached to the Campmeeting letter that again reveal APPELLANTS’ plan to raise the cottage by roughly forty-eight (48) inches.

KEANE even traveled from his home in Florida to appear before the Campmeeting Association Board of Directors in order to answer questions about the project.

Once the Campmeeting Association signed off on APPELLANTS plans, KEANE went to the office in the Lebanon County Municipal Building that is responsible for handling all zoning and building permits.   He provided most if not all of the information that he provided to the Campmeeting Association.  Ultimately, a zoning permit was issued as was a building permit.

Not one shovel of dirt was extracted until APPELLANTS had a zoning permit, a building permit and approval by the Campmeeting Association.  Once all of those approvals were procured, APPELLANTS proceeded with their project as planned.  There have been three different Court hearings regarding this matter.  No one has alleged at any Court proceeding that the final outcome of the ROCKLEDGE project was different than what had been set forth in the original plans that were submitted to the Campmeeting Association and to the Lebanon County Planning Department.

From the above, we conclude that APPELLANTS used due diligence to pursue their foundation remediation plans.  Thus, the first factory of Petrosky must be weighed in favor of APPELLANTS.

 

(2) The landowner’s good faith throughout the proceeding

Factor 2 is related to the first factor.  Factor 2 requires us to analyze the degree to which APPELLANTS used good faith to complete their project.  Although good faith encompasses everything that we articulated above regarding due diligence, it also requires the Court to analyze whether APPELLANTS employed deception or withheld pertinent information.

There is absolutely no evidence in this case of deceit on the part of APPELLANTS.  From the beginning, APPELLANTS were clear that their project would result in the raising of ROCKLEDGE by four (4) feet.  Throughout the remediation process – and even after complaints were forthcoming from neighbors – APPELLANTS continued to affirm that they planned to increase the height of ROCKLEDGE by 4 feet.  At no point did APPELLANTS promise anything else.

Nor can it be credibly claimed that APPELLANTS withheld pertinent information from anyone.  We have concluded as a finding of fact that APPELLANTS provided to the Lebanon County Planning Department the same pertinent information they had given to the Campmeeting Association.  The packet of information clearly outlined the plans and even contained drawings depicting how the final project would appear.  In the words of David Keane, “We did not hide anything.”[7]

We conclude that APPELLANTS used good faith throughout the process of remediating the ROCKLEDGE foundation.  Therefore, the second factor of the Petrosky test must also be weighed in favor of APPELLANTS.

 

(3) The expenditure of substantial unrecoverable funds

APPELLANTS provided evidence backed by documentation that they sent in excess of $70,000.00 to effectuate the foundation repair that had been described in detail within their pre-approved plans.  Stated differently, APPELLANTS expended over $70,000.00 to do exactly what they said they would do.  By almost any definition, these expenditures must be considered “substantial”.

At the June 2, 2020 hearing, the Court asked KEANE questions aimed at discerning how much it would cost to lower the entire structure.  KEANE provided testimony – unrebutted by the Township – that is would not be possible to lower ROCKLEDGE to the height it had been prior to the remediation project.  However, KEANE also testified that it would be possible to lower ROCKLEDGE by two (2) feet so that its final height would be two (2) feet above its pre-existing elevation.  KEANE estimated that it would cost $25,000.00 to complete the work necessary to lower ROCKLEDGE by 2 feet so that its final height would be 2 feet above the pre-existing level.

This Court finds KEANE’s testimony regarding additional remediation to be credible.  We conclude that lowering ROCKLEDGE to its previous elevation would be so prohibitively expensive as to render it practically unfeasible.  We also conclude that APPELLANTS expended $70,000.00 in funds that would be “unrecoverable” if they would be required to put ROCKLEDGE back to the same elevation where it was prior to the remediation project.  Accordingly, we will weigh the third factor of Petrosky in favor of APPELLANTS.

 

(4) The expiration without appeal of the time period following issuance of the permit

In this case, the zoning permit was issued on October 11, 2018.  The building permit was issued on November 16, 2018.  A Notice of Zoning Violation was served upon APPELLANTS on June 17, 2019.  Clearly, the thirty (30) day time deadline for appealing the decision of the Zoning Officer and the decision to issue a building permit had expired by the time that the Notice of Zoning Violation was issued.  This factor will also be weighed in favor of APPELLANTS.

 

 

(5) Evidence that the public health, safety or welfare would be adversely affected by the permit

The final factor of Petrosky requires us to analyze whether issuance/enforcement of the challenged permit would adversely affect “public health, safety or welfare.”  In this case, the Township argues that the final height of ROCKLEDGE would create an eyesore that would be incompatible with the historic and bucolic Mount Gretna Campmeeting neighborhood.  APPELLANTS challenge this premise and argue that the work they accomplished was necessary to preserve ROCKLEDGE and prevent it from collapsing.  APPELLANTS also point out that the final appearance of ROCKLEDGE is consistent with numerous structures located in Mount Gretna.[8]

We do not desire to depreciate the feelings of Campmeeting residents about the final appearance of ROCKLEDGE.  The Campmeeting is a historically significant area of Lebanon County.  ROCKLEDGE is one of the largest structures in the Campmeeting.  We have little doubt that residents of the Campmeeting have objections to the ROCKLEDGE project that are honest and driven by legitimate emotion.  In an ideal world, everyone should have undertaken a closer examination of APPELLANTS’ plans before approval of the project was afforded.

With the above being acknowledged, we cannot consider APPELLANTS project as constructed to be a danger to “public health, safety, or welfare.”  We simply do not consider esthetic consistency within a neighborhood to fall within that category.  More important, the work performed by APPELLANTS on ROCKLEDGE actually enhanced public safety because it prevented an aging structure from collapsing.  Such a collapse would have, at a minimum, created an eyesore.  At worst, a collapse could have endangered the physical well-being of a human being.

Based upon everything presented, this Court concludes that the ROCKLEDGE foundation project as planned and implemented by APPELLANTS enhanced – rather than endangered – the public health, safety and welfare of Mount Gretna.  Accordingly, we will weigh the fifth factor of Petrosky in favor of APPELLANTS.

 

III.           CONCLUSION

We have considered all five (5) factors set forth in Petrosky.  Each must be weighed in favor of APPELLANTS.  In addition, our visceral reaction to all of the facts presented at all of the hearings is that APPELLANTS became the victim of “buyer’s remorse” on the part of a township – and a campmeeting association – that had initially applauded their foundation remediation plans.  It is clear to this Court that the reality of the 4 foot increase in height of ROCKLEDGE far exceeded its conceptual visualization.  However, plans were approved based upon that conceptual visualization and it would not be fair to “undo” those approvals simply because reality exceeded expectations.

Without question, the so-called “vested right” doctrine applies in this case.  In fact, we are hard-pressed to think of a factual scenario to which the vested right doctrine would be more applicable than the one at bar.

Before we conclude, we would like to editorialize by proposing a solution to the dilemma that was submitted to this Court.  As noted above, it is economically feasible to lower ROCKLEDGE by two (2) feet so that the final location of the building will be two (2) feet over its previous elevation.  The cost to effectuate such an undertaking would be $25,000.00.  For all of the reasons articulated in this Opinion, we do not believe that it would be legally supportable or fair to expect APPELLANTS to pay that entire cost.  However, this amount should be achievable if everyone affected, including the Campmeeting Association and the Township, contributes to defray this expense.  If in fact the Campmeeting Association and/or the Township feels strongly that ROCKLEDGE should be lowered by two (2) feet, the simple resolution to this dispute would be for the everyone to contribute toward the $25,000.00 that will be needed to lower the structure to two (2) feet above its original elevation.[9]  If an agreement cannot be reached about the cost of lowering ROCKLEDGE, then our decision today will allow ROCKLEDGE to remain at four (4) feet above its previous elevation.  Fairness dictates no other result.

 

 

 

 

[1] We acknowledge that Amy Elder is the sole land owner of Rockledge.  However, because Ms. Elder is married to David Keane, and because Mr. Keane was primarily responsible for pursing approvals for the Rockledge repair project, we have decided to combine our description of actions taken by the owner(s) of Rockledge using the plural moniker of “APPELLANTS”.

[2] This amount was later reduced to $70,000.00 via an itemization of expenses set forth in Exhibit 12 admitted at the 6/2/2020 hearing before this Court.

[3] The hearing was scheduled earlier but it was postponed due to the COIVD-19 pandemic.

[4] This is understandable given that the meeting was the only one ever attended by KEANE.  In contrast, HETRICK’s job requires him to meet with people on a daily basis to address zoning issues.

[5] In Kreider, the Commonwealth Court noted the three theories it identified shared some common elements, such as good faith on the part of the landowner and detrimental reliance “such as making substantial expenditures”.  See, Kreider, supra at page 343.

[6] The Township avers that the Rockledge structure height violates the terms of the Zoning Code of West Cornwall Township.  APPELLANTS dispute this.  Today, we render no opinion one way or the other about whether the existing height of the Rockledge structure is in conformity with applicable zoning regulations.

[7] To the extent necessary, we find Mr. Keane’s testimony in this regard to be completely credible.

[8] We are not sure whether all the structures referred to by APPELLANTS were located in the Campmeeting neighborhood or not.  Not all of Mount Gretna Borough is considered a part of the “Campmeeting”.

[9] Of course, it is never easy for a homeowner’s association and/or a governmental entity to pay money they perceive as money that should be owed by one landowner.  However, in this case the Township and the Association should recognize that its own agents were largely responsible for the 4 foot increase in the height of ROCKLEDGE.  Had the Association and/or the Township undertaken a closer evaluation of the plans that were submitted by APPELLANTS, any problem with a 4 foot height increase could and should have been discerned before APPELLANTS expended $70,000.00 to implement the plan about which they were so transparent.