N.L. Hufford v. East Cocalico Twp. ZHB ~ Appeal of: N.L. Hufford

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Neal L. Hufford, Edward Young, : and Kozette Young : : v. : No. 1973 C.D. 2014 : Submitted: July 17, 2015 East Cocalico Township Zoning : Hearing Board : : Appeal of: Neal L. Hufford :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI FILED: August 5, 2015

Neal L. Hufford (Objector) appeals the order of the Lancaster County Court of Common Pleas (trial court) dismissing his appeal and affirming the decision of the East Cocalico Township (Township) Zoning Hearing Board (Board) affirming the issuance of Building Permit No. 13-009 (Permit) to Anthony Jenkins (Landowner) for the construction of a detached garage. We affirm.

Landowner owns a 1.61-acre lot in the Township’s Agricultural Zoning District that is improved with a single-family detached residential dwelling with an attached two-car garage and a separate 12’ by 24’ storage shed. In January 2013, Landowner filed an application for a building permit to construct a 40’ by

40’ detached pole barn with a concrete floor on the property to be used as a garage.1 In September 2013, Anthony Luongo (Luongo), the Township’s Zoning Officer, issued the Permit to Landowner and Objector appealed to the Board.2

Luongo testified at the Board’s December 2013 hearing that Landowner sought the Permit to construct the 40’ by 40’ single-floor garage with an actual building size of 36’ by 40’ and two 10’ by 10’ carriage type overhead doors, and that he intended to use it for the private storage of his multiple classic cars that he had paid over the years to store off site at different storage facilities. He stated that Landowner had previously sought to install a garage to store his

1 The use of the property as a single-family detached residential dwelling is a permitted use in the Agricultural Zoning District under Section 220-12.B.(7) of the Township’s zoning ordinance. (Reproduced Record (RR) at 31.) Section 220-11 of the Township’s zoning ordinance defines “accessory use” as “[a] use customarily incidental and subordinate to the principal use or building and located on the same lot as the principal use or building.” (RR at 27.) That section also defines “structure, accessory” as “[a] structure associated with an accessory use (e.g., swimming pools, patios, antennas, tennis courts, garages, utility sheds, etc.)….” (Id. at 28) (emphasis added). In turn, that section defines “garage, private” as:

An accessory building for the storage of one or more automobiles and/or other vehicles accessory and incidental to the primary use of the premises; provided, however, that one commercial vehicle not exceeding a gross vehicle weight of 11,000 pounds may be stored therein where the use of such vehicle is not incidental to the use of the premises. No business, occupation or service shall be conducted therein, nor shall space there for more than one vehicle be leased to a nonoccupant of the premises….

(Id. at 29.)

2 Two other adjoining landowners, Edward and Kozette Young, appealed the Permit’s issuance before the Board and the two appeals were consolidated for disposition. The Youngs also participated in the appeal to the trial court, but they are not participating in this appeal.

classic cars on another property, but was told that it was located in a flood zone and that no permit could be issued. Landowner then purchased the instant property. He testified that Landowner never indicated that space in the garage would be leased to other car owners or that commercial vehicles would be stored there; that Landowner’s primary occupation is as a contractor; that he did not know if Landowner would repair or maintain the vehicles in the garage; and that he did not know if Landowner races cars. He stated that while he did not know how many cars that a structure of this size would hold, he stated that a standard parking space for a car in the zoning ordinance is 9’ by 18’ and that “We can do the math.” He testified that he was aware of the size of the proposed overhead doors and that that door size was not unusual in the Agricultural Zoning District, and that there is not any maximum or standard garage door sizes in the zoning ordinance.

Luongo also testified that the structure would be within the setback and impervious surface requirements of the zoning ordinance, that the garage would contain a concrete floor, and that there would be no electric, water or sewage service to the garage. He explained that the Township’s zoning ordinance does not restrict the size of an accessory building, that there is no restriction on the storage of classic cars, and that there are no standard requirements regarding the amount of traffic coming and going from an accessory building. He also identified photographs depicting three neighboring properties that have large accessory structures, including those of Objector, who has a detached two-story library/office; the Youngs, who have both an attached two-car garage and a detached two-car garage; and another neighboring property with a detached garage with four garage doors, three of which are over 10’ high and which houses multiple

vehicles in that accessory structure. He also stated that many people in the Township have an R.V. and some store them indoors requiring a door larger than 10 feet. He concluded that Landowner’s proposed garage is a permitted accessory use and structure under the zoning ordinance.3

At the conclusion of the hearing, the Board upheld the Zoning Officer’s decision to issue the Permit to construct the garage as “an accessory structure to a dwelling unit that is the principal use of the property in the agricultural zone.” (RR at 107-108.) In its written decision, the Board found the Zoning Officer’s testimony to be “credible, confident and unshaken.” (Board 1/8/14 Decision at 6.) The Board noted the Zoning Officer’s testimony that it is not uncommon in the Agricultural Zoning District to have accessory structures, including garages, with doors large enough to garage vehicles larger than cars and that “[a]s long as the garage was private and not for the rental of garage space to car owners who resided elsewhere or associated with some commercial endeavor, it would be considered an accessory use and structure and not a second primary use and structure.” (Id.) The Board also noted that “[h]ere, the size of the proposed structure is 1520 sq. ft.,” that “[t]he size of the principal structure is 2128 sq. ft. if measured at the foot print,” and that the principal residential structure could be larger “if you consider the second floor and basement.” (Id. at 7.) (See also RR at 20.) The Board concluded that the proposed “garage, which could hold up to 8

3 The only other witness to testify was Mr. Young, who is not participating in the instant appeal. He testified that he thought that the size of the proposed garage was larger than the footprint of Landowner’s dwelling. (RR at 102.) He stated that he has a detached garage with 7’ by 8’ foot doors that stores his primary car and one classic vehicle. (Id. at 104-105.)

cars, and was still a smaller structure than the principal structure and is therefore inferior or subordinate to it. It consumes a little over .2% of the entire lot.” (Id.) Objector appealed the decision to the trial court which affirmed.

In this appeal,4 Objector claims that the trial court erred in affirming the Board’s decision that the proposed garage is an “accessory structure,” “accessory use,” and “private garage” under the Zoning Ordinance because it is not based on substantial evidence.5 However, because the Honorable Donald R.

4 Where, as here, the trial court has not taken additional evidence, our scope of review is limited to determining whether the Board abused its discretion or committed an error of law. Sky’s the Limit, Inc. v. Zoning Hearing Board of Smithfield Township, 18 A.3d 409, 412 n.4 (Pa. Cmwlth.), appeal denied, 29 A.3d 374 (Pa. 2011). The Board abuses its discretion only if its findings are not supported by substantial evidence which is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.

5 While not cited by Objector to the Board or to the trial court, his reliance on Hess v. Warwick Township Zoning Hearing Board, 977 A.2d 1216 (Pa. Cmwlth. 2009), appeal denied, 990 A.2d 731 (Pa. 2010), in this appeal does not compel a different result. In that case, we explained:

“Customarily incidental” is best understood as invoking an objective reasonable person standard. Under this standard, we may look not only at how frequently the proposed accessory use is found in association with the primary use (if such evidence is available, it certainly is relevant) but also at the applicant’s particular circumstances, the zoning ordinance and the indications therein as to the governing body’s intent regarding the intensity of land use appropriate to the particular district, as well as the surrounding land conditions and any other relevant information, including general experience and common understanding, to reach a legal conclusion as to whether a reasonable person could consider the use in question to be customarily incidental. This approach respects the need for an understandable legal standard and the flexibility that is a necessary component of the analysis.

(Footnote continued on next page…)

Totaro of the Lancaster County Court of Common Pleas thoroughly addressed this issue in a well-reasoned January 27, 2014 opinion, we adopt that reasoning and affirm the trial court’s order.

_________________________________ DAN PELLEGRINI, President Judge

(continued…)

Hess, 977 A.2d at 1224 (footnote omitted). The record demonstrates that the Board and the trial court considered all of the foregoing factors and properly concluded as a matter of law that the proposed garage is an accessory use and structure that is customarily incidental to the primary residential use under the relevant provisions of the Township’s zoning ordinance and the circumstances of this case.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Neal L. Hufford, Edward Young, : and Kozette Young : : v. : No. 1973 C.D. 2014 : East Cocalico Township Zoning : Hearing Board : : Appeal of: Neal L. Hufford :

ORDER

AND NOW, this 5th day of August, 2015, the order of the Lancaster County Court of Common Pleas dated November 3, 2014, at No. CI-14-00165, is affirmed.

_________________________________ DAN PELLEGRINI, President Judge