IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph F. Lynch, :
Appellant :
:
v. : No. 465 C.D. 2015
: Submitted: September 11, 2015
Denise Solana :
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: September 29, 2015
Joseph F. Lynch (Lynch) appeals the order of the Montgomery
County Court of Common Pleas (trial court) denying his motion for post-trial relief
following a bench trial in which the trial court found in favor of Denise Solana
(Solana) and against Lynch. We affirm.
Lynch and Solana are neighboring landowners in Horsham Township
(Township), Montgomery County. In June 2005, Solana started construction on
her residential property to enlarge her paved driveway and to construct a walkway
and paved steps to her in-ground swimming pool. In July 2005, a Township Code
Enforcement Officer directed Solana to cease construction until she obtained a
permit from the Township. Solana applied for a building permit, but the Township
denied the application because the Code Enforcement Officer found that she was in
violation of the Township’s Zoning Ordinance because the construction increased
the impervious coverage to 31.5% of her lot. As a result, in August 2005, Solana
filed an application with the Township’s Zoning Hearing Board (Board) for a
dimensional variance from the impervious coverage restrictions in the Township’s
Zoning Ordinance.1 Lynch appeared at the Board hearing in opposition to the
variance and in November 2005, the Board granted Solana’s variance application.
In December 2005, Lynch appealed the Board’s decision to the trial
court. In February 2008, following a hearing, the trial court reversed the Board’s
decision granting Solana’s variance request. Solana ultimately discontinued an
appeal of that order to this Court.
In January 2009, Lynch filed a Complaint in Equity for Specific
Performance under Section 617 of the Municipalities Planning Code (MPC)2
1
Article IX, Section 902.4 of the Township’s Zoning Ordinance provides that “[n]ot
more than twenty-five percent (25%) of the lot area shall be occupied by buildings, parking lots,
vehicular accessways or other impervious materials” in the R-4 Medium Density Zoning District.
(Reproduced Record (RR) at 152a). Section 230-5 of the Zoning Ordinance defines “impervious
surface” as “[a]ll buildings, parking areas, driveways, roads, sidewalks, and any areas in
concrete, asphalt, and packed stone shall be considered impervious surfaces within this
definition. In addition, other areas within the meaning of this definition will also be classified as
impervious surfaces….” (Id. at 154a).
2
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10617. Section 617 states, in
relevant part:
In case any building, structure, landscaping or land is, or is
proposed to be, erected, constructed, reconstructed, altered,
converted, maintained or used in violation of any ordinance
enacted under this act or prior enabling laws, … any aggrieved
owner … of real property who shows that his property or person
will be substantially affected by the alleged violation, in addition
to other remedies, may institute any appropriate action or
proceeding to prevent, restrain, correct or abate such building,
structure, landscaping or land, or to prevent, in or about such
(Footnote continued on next page…)
2
asking the trial court to order Solana to remove the impervious structure and
coverage on her property that violates the Zoning Ordinance and to return her
property to its prior condition where those areas were covered in sod and grass.
Specifically, Lynch alleged, inter alia, that “Solana’s impervious structure and
contiguous impervious coverage permanently impairs the use of [his] adjacent
property through the surface water runoff from Solana’s higher property flowing
onto [his] lower property.” (RR at 166a-167a, 326a). Accordingly, Lynch asked
the trial court to issue an order requiring specific performance by Solana to
dismantle the purportedly illegal impervious structure and contiguous impervious
coverage on her property and to return it to its prior condition consisting of sod and
grass thereby bringing it into compliance with the Township’s Zoning Ordinance
regarding impervious coverage.
After discovery was completed, in December 2011, Solana filed a
motion for summary judgment and Lynch filed a cross-motion for summary
judgment. In August 2012, the trial court issued the following order:
To the extent [Lynch]’s Motion for Summary
Judgment seeks a declaration that [Solana]’s property
was not in compliance with Section 902.4 as of February
4, 2008, the Motion is granted. To the extent [Lynch]
seeks Summary Judgment on the basis that [Solana]’s
property currently remains out of compliance with
(continued…)
premises, any act, conduct, business or use constituting a
violation….
3
Section 902.4, same is denied as questions of fact remain
on that issue.
To the extent [Solana] seeks Summary Judgment
on the basis that her property has been returned to
compliance with Section 902.4, same is denied as
questions of fact remain on that issue.
* * *
A trial is Ordered on the issue of whether or not
[Solana]’s property is currently in compliance with
Section 902.4….
(RR at 157a).
At the bench trial, Lynch testified and presented photographs to
support his assertion that the alterations that Solana made to her neighboring
property by constructing walls and a parking area caused flooding and water
damage in his basement. He offered no evidence of causation other than his own
opinion3 that the condition of Solana’s property caused the flooding in his
basement stating, “You don’t need an expert to know when you’ve got water in the
basement and where it’s coming from.” (RR at 329a). He also relied upon the trial
court’s order granting partial summary judgment alleging that it established that
the current condition of Solana’s property violates Section 902.4 of the Township’s
3
Lynch explained that he is a self-employed attorney in general practice and that he is
familiar with zoning, land development and storm water management issues through his
participation in the instant litigation over the past ten years. (RR at 311a). He conceded that he
is not a civil engineer, he is not a licensed land planner, and he has never been employed by a
municipality. (Id. at 313a).
4
Zoning Ordinance and that Solana had the burden in the proceedings to
demonstrate that her property has come into compliance with its provisions.
Lynch conceded that Solana had replaced a portion of the asphalt
driveway with mulch and a brick area with mulch and five stepping stones. (RR at
387a-388a). However, he argued that while Solana may have replaced some of the
asphalt or other impervious materials on her property with mulch, those areas still
fall within the Section 902.4 limitation because they are used to park vehicles and
that the mulch itself is an impervious material for purposes of the Zoning
Ordinance. He also conceded that he had no evidence indicating what percentage
of Solana’s property currently has impervious coverage. (Id. at 343a-345a).
Solana testified and presented evidence that she has made alterations
to her property to come into compliance with Section 902.4 of the Zoning
Ordinance since the grant of her variance application was reversed in 2008. She
stated that she removed the asphalt from the semi-circular area of her driveway and
replaced it with mulch “to conform and be within the guidelines of the Township
requirement.” (RR at 17a). She testified that she went to the Township and asked
what she needed to do to come into compliance with the Zoning Ordinance and
that she was told that she had to remove 458 square feet of impervious material so
she took away a rose arbor, removed the semi-circular area of her driveway, and
took away a part of the walkway from her yard replacing the impervious materials
with mulch. She stated that she hired a landscaper to take away the arbor and the
pavers, and hired another to redo her driveway after the trial court reversed the
grant of the variance. She introduced an application for a building permit from
5
August 2008 stating that the work was the “Removal of impervious pavers and
repair driveway. Remove black top, install turf stone.” (Id. at 248a). She also
introduced a Permit issued by the Township certifying completion of the work
stating “HZB 05-32, REPAVE DRIVEWAY REMOVE IMPERVIOUS
MATERIAL TO CONFORM TO JUDGE STEVEN O’NEILL ORDER
OVERTURNING HZB APPROVAL.” (Id. at 251a).4
Solana also presented the testimony and report of Robert Blue, P.E.,
P.L.S. (Blue), an expert in civil engineering, storm water management and
flooding land. Blue explained that “a pervious surface, it is something that can
absorb water and let it flow into the ground.” (RR at 154a). He stated that
“[i]mpervious is something that will not allow water to flow back down into the
ground, into the ground water, or percolate back in: Such as hard paving, such as
certain types of concrete, asphalt, rooftops, concrete walkways. They’re
impervious areas.” (Id. at 155a). He testified that “mulch is pervious,” that he did
not “know of any impervious mulch,” and that it is required for landscaping in the
Township. (Id. at 155b, 156b, 157b). He specifically stated that he did not believe
that the pervious character of mulch would change as a result of a vehicle being
parked on it. (Id.).
4
See also Letter dated August 29, 2008, from Township Manager Michael McGee to
Lynch stating, “I have been requested by Council to respond to your letter dated August 18, 2008
regarding the above referenced matter. I have been advised that Mr. and Mrs. Solana have been
in contact with the Horsham Township Code Enforcement office and have removed some of the
impervious surface coverage. They have been issued a permit to bring the subject property back
into compliance as per the township code [sic].” (RR at 5a).
6
Blue opined that, “Based upon my engineering experience, based
upon my inspection of the site, based upon the verification that the material that
was taken out is still removed and is as mulch, there is nothing on the Solana
property that would cause an impact to the Lynch property.” (RR at 169a).
Specifically, with respect to storm water, Blue stated, “I did not see anything on
the Solana property that caused concern with regards to stormwater runoff or
impact to the adjacent Lynch property.” (Id. at 160a). With respect to the
driveway extension on the Solana property, Blue stated that “[i]t is a mulched
surface that allows the water to percolate down into the ground. So it is not an
impervious surface; it is a porous or a pervious surface.” (Id. at 169a). He
explained that based on his professional experience and opinion, there are various
construction and grading issues on Lynch’s property that are the cause of water
issues in his house and on his property. (Id. at 161a-166a).
In January 2015, the trial court issued a Decision in which it
determined that Lynch had failed to sustain his burden of proving that he has been
“substantially affected” by Solana’s alleged violation of Section 902.4 of the
Township’s Zoning Ordinance and, therefore, does not have standing to bring an
action under Section 617 of the MPC. The trial court also determined that he
failed to sustain his burden of proving that Solana is currently violating Section
902.4 of the Township’s Zoning Ordinance. As a result, the trial court found in
favor of Solana and against Lynch, and subsequently denied Lynch’s motion for
post-trial relief.
7
In this appeal,5 Lynch raises 20 allegations of error6 that the trial court
purportedly committed in denying his request for relief under Section 617 of the
5
This Court’s scope of review in equity matters is limited to determining whether the
trial court’s findings are supported by substantial evidence, whether an error of law was
committed, or whether the trial court abused its discretion. Babin v. City of Lancaster, 493 A.2d
141, 143 (Pa. Cmwlth. 1985). As we have explained:
The fact that there exists evidence in the record contrary to th[e]
findings does not mean that those findings are not supported by
substantial evidence as it is wholly within the province of the [trial
court] to accept the testimony of one witness over another. It is
well-settled that issues of witness credibility and evidentiary
weight are within the exclusive province of the [trial court].
Where the [trial court]’s findings are based upon his evaluation of
the credibility of witnesses who appeared before [it], and are
supported by substantial evidence, they will not be disturbed by an
appellate court on review….
Id. at 144 (citations omitted).
6
We refer Lynch to the insights of the late Judge Ruggero J. Aldisert of the United States
Court of Appeals for the Third Circuit:
With a decade and a half of federal appellate court experience
behind me, I can say that even when we reverse a trial court it is
rare that a brief successfully demonstrates that the trial court
committed more than one or two reversible errors. I have said in
open court that when I read an appellant’s brief that contains ten or
twelve points, a presumption arises that there is no merit to any of
them. I do not say that it is an irrebuttable presumption, but it is a
presumption nevertheless that reduces the effectiveness of
appellate advocacy. Appellate advocacy is measured by
effectiveness, not locquaciousness.
United States v. Hart, 693 F.2d 286, 287 n. 1 (3d Cir. 1982), quoting Aldisert, “The Appellate
Bar: Professional Competence and Professional Responsibility – A View From the Jaundiced
Eye of One Appellate Judge,” 11 Cap. U.L.Rev. 445, 458 (1982).
8
MPC. However, we agree with the trial court that Lynch does not have standing
under Section 617 to maintain the instant action.
In Geschwindt v. Wagner, 1 A.3d 970 (Pa. Cmwlth. 2010), objecting
property owners brought a private enforcement action under Section 617 seeking to
compel the removal of a neighboring property owner’s garage that violated the
local zoning setback requirements; to obtain a cease and desist order to prevent the
neighboring property owner from operating a construction contracting business
from the home because it did not qualify as a home business; and to prevent the
neighboring property owner from parking business vehicles in the vicinity of the
home. Following a non-jury trial, the trial court granted a directed verdict,
concluding that the objecting property owners did not have standing under Section
617 because they did not meet their burden of proving that they were substantially
affected by the garage and business. Regarding the garage, the trial court found
that the objecting property owners objected to it based on aesthetic reasons.
Regarding the business, the trial court found that the objecting property owners
failed to prove that it had any impact on the neighborhood or that the vehicles were
at the home other than for short periods of time.
On appeal, objecting property owners alleged, inter alia, that the trial
court improperly failed to credit their testimony in granting a directed verdict on
the issue of standing. In rejecting this claim of error, we explained that “we agree
with the trial court that the issue of standing is an element of the cause of action
under Section 617 of the MPC, inasmuch as an aggrieved owner of property must
show that his property or person will be substantially affected by the illegal act.”
9
Geschwindt, 1 A.3d at 973. We affirmed the trial court’s determination that the
objecting property owners had failed to present sufficient evidence demonstrating
standing, stating:
As correctly observed by the trial court, however,
and later addressed by this Court, it was not enough for
[objecting property owners] to merely state that they
were “aggrieved” and “substantially affected.” Section
617 of the MPC requires that an aggrieved owner must
show that his property or person will be substantially
affected. (Emphasis added.) Because [objecting
property owners] must show that their persons or
property would be substantially affected, the trial court
did not err in discrediting [their] bald assertion that they
were substantially affected. The allegata must be
supported by the probata.
Id. at 974.
In this case, while the trial court’s order granting summary judgment
established that Solana’s property was not in compliance with Section 902.4 of the
Township’s Zoning Ordinance as of February 4, 2008, it specifically noted that it
was a question of fact as to whether or not it was in compliance as of August 2012
or thereafter. Lynch failed to present any evidence on the factual question of
whether or not Solana’s property was in compliance with the requirements of
Section 902.4 of the Zoning Ordinance as of August 2012 or thereafter. The only
evidence presented to the trial court which was offered by Solana and confirmed
by Lynch was that Solana had made changes to the impervious coverage on her
property since February 4, 2008, to bring it into conformity with the requirements
of Section 902.4 of the Township’s Zoning Ordinance.
10
Additionally, while Lynch alleged that the unproved illegality had
caused flooding and water damage in his basement, he offered no evidence of
causation other than his own discredited opinion. As a result, the trial court did not
err in determining that Lynch does not have standing under Section 617 to
maintain the instant action. See Geschwindt, 1 A.3d at 975-76 (“When proceeding
under Section 617 of the MPC, it is not sufficient to simply allege that one is
aggrieved by the fact that a zoning regulation has not been enforced, one must
show that the alleged violation has damaged Appellants’ property to the point that
the party is ‘substantially affected.’ We agree with the trial court that Appellants
failed to meet their burden of proving how they were substantially affected by the
garage…. Appellants [also] failed to prove that the business functions occurring at
the home had any impact on the neighborhood and there was no evidence that the
[business] vehicles were at Wagner’s home other than for short periods of time.”)
(citation omitted).7
7
Based on our disposition of this issue, we will not reach the other allegations of error
raised by Lynch in this appeal relating to the merits of the case or the trial court’s evidentiary
rulings as he did not have standing to maintain the action in the first instance. However, Lynch’s
final claim that the trial court exhibited bias in its rulings and questions requires comment. It is
presumed in Pennsylvania that a judge is unbiased and impartial, Beharry v. Mascara, 516 A.2d
872, 875 (Pa. Cmwlth. 1986), appeal denied, 527 A.2d 548 (Pa. 1987), and that a judge has the
ability to assess his or her ability to make rulings impartially and without prejudice.
Commonwealth v. Tedford, 960 A.2d 1, 55 (Pa. 2008). Our review of the record of this case
confirms the foregoing and demonstrates that the trial court disposed of this matter in a just and
expeditious manner. Moreover, it is well settled that a party seeking recusal or disqualification
of a trial judge must raise the objection at the earliest possible moment or the claim will be
regarded as time barred. Reilly v. Southeastern Pennsylvania Transportation Authority, 489
A.2d 1291, 1300 (Pa. 1985). “Once the trial is completed with the entry of a verdict, a party is
deemed to have waived his right to have a judge disqualified, and if he has waived that issue, he
cannot be heard to complain following an unfavorable result.” Id. (citation omitted). In
disregard of Pa. R.A.P. 2117(c) and 2119(e), Lynch has failed to include in his brief any
statement advising the manner in which the issue was raised in the trial court and the place in the
(Footnote continued on next page…)
11
Accordingly, the trial court’s order is affirmed.
(continued…)
record where the preservation of this issue may be found. Therefore, we deem this argument
waived.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph F. Lynch, :
Appellant :
:
v. : No. 465 C.D. 2015
:
Denise Solana :
PER CURIAM
ORDER
AND NOW, this 29th day of September, 2015, the order of the
Montgomery County Court of Common Pleas dated March 17, 2015, at No. 2009-
00863, is affirmed.