IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bill Haggerty, Ray Baldino and :
Kevin McGinnis, :
Appellants :
:
v. :
:
Newtown Township Zoning Hearing :
Board :
:
Earl and Margaret Ebling :
:
v. :
:
Newtown Township Zoning Hearing : No. 50 C.D. 2020
Board : Argued: November 12, 2020
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: December 8, 2020
Bill Haggerty (Haggerty), Ray Baldino (Baldino), and Kevin McGinnis
(McGinnis) (collectively, Objectors) appeal from the Delaware County Common
Pleas Court’s (trial court) December 12, 2019 order (December 12, 2019 Order)
dismissing their appeal from the Newtown Township (Township) Zoning Hearing
Board’s (ZHB) May 16, 2019 order (ZHB’s May 2019 Order)1 granting Earl and
Margaret Ebling’s (collectively, the Eblings) application for variance by estoppel
1
Although the ZHB’s May 2019 decision was reached at its May 16, 2019 meeting, the
ZHB’s written decision was issued on June 20, 2019. See Objectors’ Br. App. A at 11-12; see also
Objectors’ Br. App. C at 1-3.
and affirming its October 20, 2017 order granting the Eblings a special exception
(ZHB’s October 2017 Order). Objectors essentially present two issues for this
Court’s review: (1) whether the ZHB erred by granting the Eblings a special
exception; and (2) whether the ZHB erred by granting the Eblings a variance by
estoppel.2 After review, we affirm in part and reverse in part.
The Eblings owned and operated Earl E. Ebling, LLC Complete
Landscaping (Business) from their home located at 311 North Newtown Street Road,
Newtown Square in the Township. In 1963, the Eblings purchased the property
located at 35 Walnut Street in Newtown Square known as Newtown Heights
(Property), and relocated their home and Business there. The Property is located in
a Residence (R-3) Zoning District. The Code of the Township of Newtown, Chapter
172, Zoning (Zoning Ordinance) does not expressly allow commercial landscaping
businesses in R-3 Zoning Districts. See Zoning Ord. §§ 172.29.A, 172.33.A,
172.34.A (Reproduced Record (R.R.) at 496a-504a).
When the Eblings purchased the Property, Newtown Heights was a
sparsely developed “wilderness,” with a carpenter, a plumber and a roofer living and
operating their businesses adjacent to the Property, and there was a commercial
2
Objectors present five issues in their Statement of the Questions Involved: (1) whether
the ZHB’s October 2017 Order should be reversed because Earl E. Ebling, LLC Complete
Landscaping (Business) was not permitted by special exception under the Code of the Township
of Newtown, Chapter 172, Zoning; (2) whether the ZHB’s October 2017 Order granting the
Eblings a special exception should be reversed because the record lacked substantial evidence that
the Business complies with the objective standards in the Zoning Ordinance; (3) whether the
ZHB’s May 2019 Order granting a variance by estoppel should be reversed where the parties
agreed that the Business would terminate in 2012 and the Eblings have no undue hardship; (4)
whether res judicata barred the Eblings from relitigating the variance by estoppel covered by the
October 16, 1997 Stipulation and Agreement between the Township and the Eblings, where
nothing material has changed and the Eblings received the full benefit of the Stipulation; and (5)
whether the ZHB erred as a matter of law by capriciously disregarding facts and applicable legal
standards. See Objectors’ Br. at 7. Because these issues are subsumed in this Court’s analysis of
whether the ZHB erred by granting the special exception and the variance by estoppel, they have
been combined and will be addressed accordingly herein.
2
nursery located approximately one block away.3 R.R. at 41a; see also R.R. at 43a,
47a, 50a-51a, 136a, 259a-262a. Over the years, the Eblings acquired additional lots
immediately adjacent to their Property, thereby increasing their lot size to its current
1.25 acres. Objectors live in close proximity to the Property.
The Eblings have continuously operated the Business from the Property
since 1963 (i.e., 57 years). The Eblings use the Property to stage employees4 and to
store equipment consisting of heavy-duty pickup trucks, lawn mowers, a leaf
vacuum, a chipper, and a small backhoe. See R.R. at 85a, 265a-267a. The
equipment is kept in the storage garage and/or in a corral on the Property, and the
Eblings planted buffer vegetation to shield it from view. There is no customer
activity at the Property, no mulch delivered or sold from the Property, no firewood
split or sold from the Property, no wood chips are created, stored or sold from the
Property, no nursery stock is grown at the Property, and only a small amount of
nursery stock is kept at the Property for customer jobs. See R.R. at 88a, 113a, 265a-
266a, 283a. Margaret Ebling does the Business’s bookkeeping at the Property.
Beginning in 1967, after the Township’s snowplow trucks broke down,
the Township’s Road Master hired the Business to provide snow plowing operations
on Township roads using the Business’s equipment stored and maintained on the
Property. In 1973, at Township Manager Dan Llewellyn’s suggestion, the Eblings
obtained a building permit and erected a detached garage on the Property to store the
commercial landscaping equipment. See R.R. at 60a, 119a-120a. In 1975, the
Business had 6 to 10 employees and 5 trucks. By 1980, the Business had 8 to 12
employees and 6 trucks.
3
Earl Ebling described that, when the Eblings purchased the Property in 1963, Walnut
Street dead-ended in front of the Eblings’ house and Locust Street ended “one house down” and
“[a]ll the rest [were] woods.” R.R. at 259a.
4
“[E]mployees come, retrieve the equipment and leave to go somewhere else to do the
work of the Business[,]” then they return to drop off the equipment, get in their cars and leave at
the end of the work day. Ebling Br. at 5 n.4; see also R.R. at 22a, 85a, 88a-89a, 267a-268a.
3
In approximately 1983, Township Manager Paul West enlisted Earl
Ebling’s expertise to help draft the Township’s public works landscaping bid
specifications and three-year contract. Thereafter, the Township mailed an
invitation to bid on that contract to the Business at the Property. The Township
ultimately awarded the 1984-1986 contract to the Business, and paid the Business
$75,800.00 under the contract. The Township also bid out its landscaping work for
the 1987-1989 and 1990-1992 contract periods, invited the Business to bid, and
awarded the contracts to the Business. The Township paid the Business $109,620.00
under the 1987-1989 contract, and $168,000.00 under the 1990-1992 contract. As
of 1990, the Business had 12 to 15 employees and 20 pieces of equipment, which it
needed to perform under the contract. The Township did not award the 1993-1995
landscaping contract to the Business, but did award the 1995-1997 landscaping
contract to the Business and paid the Business $208,650.00 thereunder.
For each bid, Earl Ebling supplied the Township with the number of its
employees and pieces of equipment to assure the Township of the Business’s ability
to perform the work. In addition to the landscaping contracts, the Business
performed more than 20 other Township projects for which it was paid more than
$20,000.00. The Township contacted the Business at the Property, all of the work
for the Township was performed by the Business while it operated from the Property,
and the Township sent its payments to the Property. See R.R. at 67a-68a, 172a,
300a-301a. The Eblings paid occupational privilege taxes to the Township, and
applied for a contractor’s license through the Township. See R.R. at 83a, 287a, 299a,
434a-437a.
On December 1, 1995, when the Business was under contract with the
Township, the Township issued an enforcement notice (1995 Enforcement Notice)
to the Eblings for them to cease and desist from operating the Business from the
4
Property, which the Township later withdrew.5 However, on December 13, 1996,
the Township issued another enforcement notice (1996 Enforcement Notice), again
directing the Eblings to cease and desist from operating the Business from the
Property.6 The Eblings appealed, and a hearing was held before the ZHB on May
29, 1997.
At the hearing, the Township’s Building Inspector/Zoning Officer
Ronald McHatton and Township Manager Larry Comunale acknowledged that the
Eblings had operated the Business from the Property prior to 1995 without having
been cited, and that the Township had contracted with the Business since 1984. See
R.R. at 22a, 26a, 158a-159a, 168a-173a. Earl Ebling testified that the Eblings made
five additional land purchases over the years in reliance on their ability to conduct
the Business at the Property.7 See R.R. at 91a-93a, 98a, 112a, 288a. He stated that
he had no reason to believe his use of the Property was improper until 1995. See
R.R. at 48a, 50a, 114a-116a. Earl Ebling further declared that buying or renting land
to relocate the Business “would put [him] out of business[,]” and the Eblings’ real
estate expert agreed that moving the Business would create a substantial financial
hardship. See R.R. at 99a-102a, 123a-128a. Several neighbors, including Haggerty,
testified at the hearing on the Eblings’ behalf in favor of the Business. See R.R. at
135a-156a, 187a-195a, 343a-344a. Other residents testified in opposition to the
5
In 1995, the Township received a petition from several residents complaining about the
Eblings’ and other Township residents’ commercial uses of their Newtown Heights properties.
See R.R. at 159a-161a. The Township withdrew the 1995 Enforcement Notice “because the
Township [] and the Board of Supervisors decided to study its Zoning Ordinance as it related to
home businesses.” R.R. at 166a.
6
The 1996 Enforcement Notice was issued while the Business was under contract with the
Township to provide landscaping services.
7
The Eblings’ deeds reflect the following purchases: August 1963 ($13,500.00), January
1966 ($750.00), May 1967 ($600.00), June 1972 ($2,250.00), June 1977 ($ illegible), and July
1982 ($15,000.00). See R.R. at 388a-393a.
5
Business use at the Property due to noise and traffic. See R.R. at 174a-182a, 195a-
198a.
On October 16, 1997, the Township and the Eblings entered into a
Stipulation and Agreement (Stipulation) that authorized the Eblings to continue to
operate the Business at the Property, subject to the following conditions:
1) For a period of fifteen (15) years from the date on
which this Stipulation is approved by the [ZHB,] the
Property shall be permitted to be used not only for
residential purposes[,] but also for the operation of [the
Business] as such currently exists and operates at the
Property. Thereafter, the use of the Property for the
operation of [the Business] shall cease unless the
Township extends the time period for the continuation of
such use or unless such use of the Property becomes
classified as permissible by applicable zoning law.
2) No more than [f]ifteen (15) employees will be
employed at the [Business] at the Property (which number
shall include [the Eblings]).
3) No additional equipment beyond that currently in use
in connection with the [Business] shall be kept at the
Property other than replacement equipment of a
substantially similar type, such new equipment as may be
developed in the future to the extent such new equipment
does not significantly alter the existing operation or its
appearance, and miscellaneous equipment which does not
significantly alter the existing operation or its appearance.
. . . [List of then-used equipment attached as Schedule A].
4) Equipment and supplies currently stored in the large
garage located on the Property when not in use shall
continue to be stored there. Items stored outside shall be
arranged to minimize their visibility from the street.
5) [List of the Business’s trucks, associated trailers and
plows permitted to be used and parked at the Property].
No additional trucks shall be used in the [B]usiness at the
Property. The [B]usiness trucks shall be parked in parking
areas so as to minimize their visibility from the street.
6
6) Most off[-]season equipment shall be stored off
premises until time to begin seasonal use.
7) No chipping, splitting or storing of wood or chips
(other than storage of residential firewood for personal
use) shall take place on the Property.
8) Customers shall not be allowed to come to the Property
to conduct business.
9) Traffic entering and exiting the Property shall be
evenly split between Pine Street and Chestnut Street.
10) Without committing or obliging themselves to any
action or conduct of any kind, [the Eblings] will continue
to conduct the [Business] with concern for any complaints
and suggestions of their neighbors and will respond
promptly to them.
11) If the Ebling family ceases to be associated with the
[Business] at the Property or family members no longer
reside at the residence [on] the Property[,] then the use of
the Property for the operation of a landscaping business
shall cease within 30 days[,] unless the Township extends
the time period for the continuation of such use or unless
such use of the Property becomes classified by applicable
zoning law as permissible.
12) During the period in which the Property shall be
permitted to be used for the operation of the [Business,]
and while such operation is conducted consistent with this
[Stipulation], the [T]ownship shall refrain from pursuing
any action to halt or prevent that use, either in whole or in
part, and shall not challenge the continuation of any aspect
of the current use of the Property in connection with the
operation of [the Business].
13) If either party regards the other as acting inconsistently
with this [S]tipulation, such party shall not take any action
against the other unless the other party has failed to cure
any inconsistent conduct within thirty (30) days after
receiving written notice thereof.
7
R.R. at 384a-386a. The ZHB accepted the Stipulation by October 24, 1997 order.
See R.R. at 383a.
In 2005, the Township adopted Business Registration Ordinance 2005-
06, that required business owners operating in the Township to register with the
Township. See R.R. at 422a. The Township did not send an application to the
Eblings to register the Business, nor did the Township enforce the Zoning Ordinance
against them. In April 2013, the Township began sending the Eblings applications
to register the Business, which the Eblings completed and submitted with the
applicable fees for the years 2013, 2014, 2015, 2016 and 2017. See R.R. at 305a-
315a, 418a-440a.
On May 17, 2017, the Township’s Director of Code
Enforcement/Zoning Officer sent the Eblings a letter informing them that they had
to file a special exception application with the Township to continue to operate the
Business at the Property. The Eblings filed an application with the Township on
June 14, 2017, seeking to extend the Stipulation or, in the alternative, a special
exception, a variance by estoppel, equitable estoppel or vested rights, or a variance
to allow the Business’s continued operation from the Property (Application). See
R.R. at 376a-440a.
The ZHB conducted a hearing on the Application on September 21,
2017. See R.R. at 224a-375a. The Township did not appear at the hearing or present
evidence. Earl Ebling admitted that the Eblings were not familiar with zoning and,
thus, did not check the Property’s zoning when they purchased it in 1963. See R.R.
at 261a-262a. He claimed that the Eblings would not have purchased additional
parcels or built the garage if they had known they were not permitted to operate the
Business at the Property. See R.R. at 291a.
The Eblings testified that they believed the Business could continue
operation at the Property after the Stipulation’s 2012 expiration as long as they
8
continued to abide by the Township’s conditions, and because the Township issued
licenses for the Business at the Property each year thereafter. See R.R. at 286a, 303a-
305a, 309a, 311a. Earl Ebling also declared that the Eblings have fully abided by
the Stipulation’s conditions, and the Property has not changed since before 1997.
See R.R. at 256a-257a, 269a, 289a-290a. The Eblings and their son, Ed Ebling,
agreed that, if the Township was to extend the Stipulation, they would agree to the
same terms, including a “drop-dead” 15-year dissolution date. R.R. at 293a, 320a.
The Eblings contended that they would be forced to dissolve the
Business if they could no longer operate from the Property, thereby rendering 12
employees (including 4 who have worked for the Business for 37-38 years)
unemployed, and approximately 120 customers without service (70% of whom are
located in Newtown Square). See R.R. at 293a, 299a-300a, 320a. Real estate broker
Barbara Mastronardo testified that there were no properties in commercial districts
in the Newtown Square, Edgmont or Marple areas where the Eblings could relocate
the Business (even if they could reduce their operation to half an acre) and, even if
land was available, it would cost approximately $1 million per acre. See R.R. at
325a-329a.
In addition, Haggerty testified at the September 21, 2017 hearing that
he has lived next to the Property for 30 years, he understood the Stipulation expired
after 15 years, and would like the area to be residential again. See R.R. at 345a-
347a. McGinnis testified that, although he did not object to the Business 15 years
ago, it has grown, his property value has decreased by $50,000.00, and other small
contractors have sprung up in the neighborhood because the Township allowed the
Business. See R.R. at 347a-351a. Baldino testified that the neighborhood has
become a business district. See R.R. at 352a-353a. Intervenor neighbor Mary Ellen
Bowman (Bowman) testified that the Township is not doing its job by allowing
9
businesses to operate in that area. See R.R. at 353a-359a. Other neighbors testified
in support of the Application. See R.R. at 359a-370a.
At its October 19, 2017 meeting, the ZHB voted to grant the Eblings a
special exception subject to, inter alia, the following conditions: (1) “Said special
exception will expire upon the termination of the landscaping business held by the
[Eblings’] son, Ed Ebling[;8]” and (2) “[a]ll company vehicles need to be out of said
property by 7:30 a.m. and back by 3:30 p.m. (or after 4:30 p.m.) so as not to disrupt
school buses and other traffic.” See Objectors’ Br. App. A at 2; see also R.R. at
222a. The ZHB’s October 2017 Order was issued the next day. See Objectors’ Br.
App. A. The ZHB did not address a variance by estoppel. Objectors and the Eblings
appealed from the ZHB’s October 2017 Order to the trial court.9
After reviewing the record, on February 11, 2019, the trial court
remanded the matter to the ZHB for further proceedings to: (1) consider the
evidence, take additional evidence, and render a decision regarding the Eblings’
entitlement to a variance by estoppel to continue to operate the Business at the
Property; and (2) take evidence regarding the size and scope of the Business
permitted by the ZHB’s October 2017 Order to operate, consider mitigating
measures that may be appropriate given the location of the Business, and to better
define the expiration and termination of the Business as it concerns Ed Ebling. See
Objectors’ Br. App. B (Remand Order).
The ZHB conducted a remand hearing (Remand Hearing) on April 18,
2019, pursuant to the trial court’s order. See R.R. at 441a-492a. The Eblings did
not offer additional evidence at the Remand Hearing, but agreed to terminate the
Business operation at the Property at the end of 15 years, even in the event the ZHB
8
Ed Ebling testified at the September 21, 2017 hearing that the Business will end with him
because he has no children. See R.R. at 371a.
9
On August 15, 2018, the trial court consolidated the appeals and allowed Bowman to
intervene.
10
granted a variance by estoppel. See R.R. at 476a-478a. Baldino testified regarding
his concern for truck traffic dangers, particularly for school buses, and strangers
coming and going from the Property. See R.R. at 457a-464a. McGinnis reiterated
his prior claim that his property value has decreased. See R.R. at 465a-474a. On
May 16, 2019, the ZHB voted to affirm its October 2017 Order granting the special
exception and also granted the Eblings a variance by estoppel. See Objectors’ Br.
App. C (ZHB’s May 2019 Order) at 1-3.
In its written decision issued on June 20, 2019, the ZHB declared, in
pertinent part:
[T]he [Eblings’] request for a variance by estoppel to
continue the operation of [the Business] in a residential
neighborhood is approved. However, said relief expires
fifteen (15) years from October 19, 2017 [(i.e., October 20,
2032),] which supersedes the relief granted in 2017. In
addition, the [ZHB] confirms its granting of the previously
approved special exception subject to the following
conditions:
1. The [Eblings are] bound to any representations,
agreements or testimony set forth at the hearing
and to any specific conditions set forth in this
Order. Noncompliance or violation of any of these
conditions will void the relief herein granted.
....
5. [The Eblings] . . . shall abide by all conditions
agreed to during the course of the [p]ublic
[h]earing and reflected in the notes of testimony of
said [h]earing, and the same are herein
incorporated by reference.
6. The [ZHB] reserves the right to change, alter or
amend any condition of this Order upon
application to it by [the Eblings] and without the
need for a public hearing, if, in the opinion of the
[ZHB], such change, alteration or amendment is
consistent with this Order as a whole.
11
7. All company vehicles need to be out of said
property by 7:30 a.m. and back by 3:30 p.m. (or
after 4:30 p.m.) so as not to disrupt school buses
and other traffic.
8. The variance by estoppel relief expires fifteen
(15) years from October 19, 2017.
9. Commercial vehicles are not to be parked in the
residential neighborhood streets.
Findings of Fact and Conclusions of Law will be drafted
shortly.
It is the decision, of the [ZHB], that each and every
condition aforesaid is an integral part of the relief granted
and if any condition is removed or violated in any way, the
variance by estoppel would not have been granted.
Objectors’ Br. App. C at 1-3.
Thereafter, the ZHB issued Amended Supplemental Findings of Fact
and Conclusions of Law, wherein the ZHB concluded:
[T]he [Eblings] satisfactorily proved the elements of
‘variance by estoppel’ as the [Eblings] (at all relevant
times hereto) acted in good faith and relied innocently
upon the validity of the [B]usiness use throughout the
proceeding; that the [Eblings] made substantial
expenditures in reliance upon their belief that the
[B]usiness use was permitted; that there was an extended
period of time in which the [T]ownship did not enforce the
[Z]oning [O]rdinance and/or acquiesced to the [B]usiness
use; and that a denial of the variance would impose an
unnecessary hardship on the [Eblings].
Objectors’ Br. App. C (ZHB’s Amended Supplemental Findings of Fact and
Conclusions of Law) at 3.
Objectors appealed from the ZHB’s May 2019 Order to the trial court,
and the Eblings and the Township intervened. Without taking additional evidence,
on December 12, 2019, the trial court issued an “Order Dismissing Zoning Appeals
and Confirming [the ZHB’s May 2019 Order] with Conditions,” with numerous
12
detailed findings of fact and conclusions of law. Objectors’ Br. App. D (December
12, 2019 Trial Ct. Op.) at 1.
Objectors appealed to this Court. The trial court ordered Objectors to
file a Concise Statement of the Errors Complained of on Appeal pursuant to
Pennsylvania Rule of Appellate Procedure (Rule) 1925(b), which they did. On
March 30, 2020, the trial court filed an opinion in support of its December 12, 2019
order (Rule 1925(a) Opinion). See Objectors’ Br. App. E.
Discussion
Preliminarily, Section 1005-A of the Pennsylvania Municipalities
Planning Code (MPC)10 provides, in relevant part:
If, upon motion, it is shown that proper consideration of
the land use appeal requires the presentation of additional
evidence, a judge of the court may hold a hearing to
receive additional evidence, may remand the case to the
body, agency or officer whose decision or order has been
brought up for review, or may refer the case to a referee to
receive additional evidence . . . . If the record below
includes findings of fact made by the [zoning hearing
board] whose decision or action is brought up for review
and the court does not take additional evidence or appoint
a referee to take additional evidence, the findings of the
[zoning hearing board] shall not be disturbed by the court
if supported by substantial evidence.
53 P.S. § 11005-A. Accordingly, this Court has explained:
Where, as here, the trial court does not take additional
evidence, our scope of review is limited to determining
whether the [ZHB] committed an error of law or ‘a
manifest abuse of discretion.’ Valley View Civic Ass[’]n
v. Zoning B[d.] of Adjustment, . . . 462 A.2d 637, 639 ([Pa.]
1983). A zoning [hearing] board abuses its discretion
‘only if its findings are not supported by substantial
10
Act of July 31, 1968, P.L. 805, as amended, added by Section 101 of the Act of December
21, 1988, P.L. 1329, 53 P.S. § 11005-A.
13
evidence.’ Id. at 640. Substantial evidence is ‘such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’ Id.
Pequea Twp. v. Zoning Hearing Bd. of Pequea Twp., 180 A.3d 500, 504 n.1 (Pa.
Cmwlth. 2018).
In the instant matter, where a complete record was made before the
ZHB and the ZHB made findings of fact, conclusions of law and issued an order
with conditions,11 it is unclear why the trial court likewise did so. The trial court
stated in the Remand Order:
1. This consolidated [a]ppeal is hereby REMANDED to
the [ZHB] for further proceedings, as determined
necessary by said [ZHB] . . . :
A. To consider the evidence, and hear such
additional evidence and render a decision on the
entitlement of [the Eblings], to a variance by
estoppel to continue the operation of their
landscape [B]usiness in a residential
neighborhood; and
B. In the presentation and consideration of the
variance by estoppel, the [p]arties and/or [ZHB],
as appropriate, shall present and or consider
evidence, and make relevant findings, regarding
defin[ing] the size and scope of the landscaping
[B]usiness which it permitted in its October 20,
2017 Order, consider any mitigating measures
11
This Court has defined a ‘full and complete record’ as ‘a complete
and accurate record of the testimony taken so that the appellant is
given a base [sic] upon which he may appeal and, also, that the
appellate court is given a sufficient record upon which to rule on the
questions presented.’ In re: Thompson, 896 A.2d 659, 668 (Pa.
Cmwlth. 2006) . . . (citations omitted). Only if the trial court
determines that the record before the agency is incomplete, does it
have discretion to hear the appeal de novo or remand to the local
agency.
Kuziak v. Borough of Danville, 125 A.3d 470, 475 (Pa. Cmwlth. 2015).
14
which may be appropriate given the location of the
landscaping [B]usiness in a residential
neighborhood, and to better define the expiration
and termination of the operation of the landscaping
[B]usiness in the residential neighborhood as it
concerns the cessation of involvement and
participation of the son of [the Eblings], Ed Ebling
in the landscape [B]usiness[.]
3. [sic] All parties to this appeal shall be parties below,
including [Haggerty], [Baldino], [McGinnis], [Bowman],
[the Eblings], and [the] Township.
4. [sic] This [trial c]ourt retains jurisdiction over the
consolidated appeals and, after the decision of the [ZHB]
on remand, any of the parties listed in Paragraph 3 may
recommence this appeal by filing an amended Notice of
Appeal within 30 days of the remand decision.
5. [sic] The [ZHB] shall reinstitute any public hearing on
this matter with[in] ninety (90) days of the date of this
Order.
Remand Order at 1-2. It did not appear that the trial court intended that the ZHB
was to take additional evidence as a hearing officer on the trial court’s behalf.
Nevertheless, in its December 12, 2019 opinion, the trial court
concluded, in relevant part:
23. The Eblings have established their right to a variance
by estoppel by clear, precise and unequivocal evidence.
24. In the decades which followed the establishment of
their [Business] at the Property, the Eblings have
innocently and in good faith relied upon the Township’s
unparalleled active acquiescence in supporting the validity
of the operation of [the] Business on and from the
Property.
....
27. By not only allowing, but contributing to and
facilitating the Ebling[s’] Business on and from the
Property for a period now reaching close to 57 years, the
Township without question engaged in a course of active
15
acquiescence necessary to satisfy the requirements of
variance by estoppel.
28. The events and circumstances confirm that the Eblings
not only acted innocently and in good faith in establishing
and continuing their Business at the Property, but are
entitled to equitable relief to continue the Business at the
Property. This [trial c]ourt finds that ‘compelling facts’
and the circumstances surrounding a municipality’s role in
perpetuating a landowner’s commercial use of
residentially-zoned [P]roperty for 36 years could not be
ignored, results [sic] in a finding that the landowner
maintained a vested right to continue commercial use of
[the P]roperty in a residential zoning district, with
reasonable conditions to preserve the character of the
neighborhood.
29. Based upon the unique circumstances involved in this
case, as discussed above, the Eblings have unquestionably
met and far surpassed the burden necessary to permit the
awarding of a variance by estoppel necessary to permit the
continued operation of their Business operation at the
Property.
....
31. The uncontroverted evidence presented before th[e
ZHB] in 2017, including the testimony . . . both in 2017
and 2019, confirms that the Eblings fully complied with
the terms of the Stipulation without exception and without
complaint.
32. The [ZHB] made the proper determination that the
Eblings were entitled to a [s]pecial [e]xception to continue
operation of their Business on and from the Property,
subject to the remand condition that the operation of the
Business would permanently cease within 15 years
calculated from October 19[], 2017.
33. Under the unique facts and circumstances of this case
and upon the record before the [ZHB], the [ZHB’s]
decision is overwhelmingly supported by the record with
the reasonable required conditions, further set forth herein
of the Eblings that the operation of the Business on and
from the Property will cease in 15 years from October
19[], 2017.
16
December 12, 2019 Trial Ct. Op. at 12-14 (footnote omitted).
Moreover, the trial court’s order contained the following conditions:
1) Compliance with the terms and conditions of the
stipulated order dated October 24, 1997[,] and Stipulation
dated October 16, 1997[,] unless said condition[s are]
modified or clarified by this Order, or inconsistent with
this Order, in which case, the terms set forth in this Order
will control;
2) The variance by estoppel, and the corresponding
operation of the [B]usiness shall expire and cease on the
earlier of either [Ed Ebling,] who currently runs the
[B]usiness either ceasing to work for the [B]usiness or
fifteen years from [the] October 19, 2017 hearing, that
being October 20, 2032[,] and shall not be extended or
renewed; nor that the variance ‘runs with the land[;]’
3) Consistent with the 1997 [s]tipulated [o]rder, the
[B]usiness should also terminate if the [Eblings] or Ed
Ebling no longer reside at the [P]roperty;
4) All company vehicles leaving the [P]roperty for the
work day must depart the [P]roperty by 7:30 a.m. and shall
not return between the hours of 3:30 p.m. or 4:30 p.m. to
avoid conflicts with school bus traffic;
5) In addition, the [B]usiness must comply with the
following additional representations made by Earl Ebling
at the September 21, 2017 hearing:
a) No mulch, wood chips, or firewood (other than
mulch or wood for personal use, or small amounts
of mulch for nursery stock on the [P]roperty), shall
be delivered to, stored or sold from the [P]roperty;
b) Nursery stock shall not be grown on or sold
from the [P]roperty and no retail sales from
[P]roperty;
c) Nursery stock that is delivered to or stored on
the [P]roperty shall not exceed the approximate
30’x30’ area currently used;
17
d) Any equipment not stored in the garage shall be
maintained in the existing corral which will [be]
maintained and not expanded;
e) employee vehicles shall be parked on the
[P]roperty not streets, roadside or shoulder of
roads;
f) Business will only be conducted Monday
through Friday, no weekends, with the exception
of snow removal that shall be permitted with no
exception;
g) Existing vegetative buffers existing on the
[P]roperty must remain as necessary. If requested
by code enforcement[,] the buffer and border areas
shall be supplemented, replanted and re-enforced
to safeguard the privacy of properties;
h) No additional buildings or structures will be
constructed in connection with the [B]usiness.
December 12, 2019 Trial Ct. Op. at 15-16.
Problematically, the trial court did not order the remand because there
was not a full and complete factual record of the ZHB’s proceedings. Rather, since
the ZHB’s October 2017 Order only addressed the special exception portion of the
Eblings’ Application, the trial court remanded the matter for the ZHB to determine
whether the Eblings were entitled to a variance by estoppel.12 At the April 2019
Remand Hearing, the ZHB incorporated and referred to testimony from the prior
hearings, took very limited testimony and, although no new facts were introduced,
issued supplemental findings and conclusions. Because the trial court did not take
additional evidence or hear the appeal de novo, it should not have issued its own
findings of fact, conclusions of law and conditions.13 Accordingly, this Court will
12
In their brief, Objectors represented that the ZHB conceded its failure to address the
variance by estoppel and “requested that the [trial court] remand the matter so it could consider
the appropriate standard.” Objectors’ Br. at 14.
13
Where, as here, a record includes the zoning hearing board’s findings of fact and the trial
court does not take additional evidence, it exceeds the confines of its appellate review by adopting
18
limit its review to whether the ZHB erred as a matter of law or abused its discretion
by granting a special exception and a variance by estoppel.14 Pequea Twp.
(1) The ZHB’s October 2017 Order – Special Exception
Objectors argue that the ZHB erred by affirming the ZHB’s October
2017 Order granting the Eblings a special exception. They specifically assert that
the ZHB’s October 2017 Order should be reversed because the Business was not
permitted by special exception under the Township’s Zoning Ordinance, and
because the record lacked substantial evidence that the Business complies with the
objective standards in the Zoning Ordinance. Objectors further claim that the ZHB
erred as a matter of law by capriciously disregarding facts and applicable legal
standards.
Generally speaking, ‘[a] special exception is not
an exception to a zoning ordinance, but rather a
use which is expressly permitted, absent a
showing of a detrimental effect on the
community.’ Manor Healthcare Corp. v. Lower
Moreland [Twp.] Zoning Hearing [Bd.], . . . 590
A.2d 65, 70 ([Pa. Cmwlth.] 1991). In other words,
as stated in our seminal decision in Bray v. Zoning
Board of Adjustment, . . . 410 A.2d 909, 911 ([Pa.
Cmwlth.] 1980)[:] ‘The important characteristic of
a special exception is that it is a conditionally
permitted use, [and] legislatively allowed if the
standards are met.’ This Court recently
explained that an applicant for a special exception
has both the duty of presenting evidence and the
burden of persuading the [ZHB] that the proposed
use satisfies the objective requirements of the
zoning ordinance for the grant of [a] special
exception.
the role of factfinder, and “generally may be precluded from making its own findings . . . .” Sowich
v. Zoning Hearing Bd. of Brown Twp., 214 A.3d 775, 785 (Pa. Cmwlth. 2019) (quoting Koutrakos
v. Zoning Hearing Bd. of Newtown Twp., Del. Cnty., 685 A.2d 639, 642 (Pa. Cmwlth. 1996)).
14
Notably, Objectors properly presented their issues in terms of whether the ZHB erred.
19
Tower Access Grp., LLC v. S. Union Twp. Zoning Hearing
Bd., 192 A.3d 291, 300 (Pa. Cmwlth. 2018) . . . .
Vineyard Oil & Gas Co. v. N. E. Twp. Zoning Hearing Bd., 215 A.3d 77, 85 (Pa.
Cmwlth. 2019) (original emphasis omitted; emphasis added).
Once the applicant meets these burdens, a presumption
arises that the use is consistent with the health, safety and
general welfare of the community. The burden then
normally shifts to the objectors of the application to
present evidence and persuade the [zoning hearing b]oard
that the proposed use will have a generally detrimental
effect.[15]
MarkWest Liberty Midstream & Res., LLC v. Cecil Twp. Zoning Hearing Bd., 102
A.3d 549, 553 (Pa. Cmwlth. 2014) (quoting Greaton Props. v. Lower Merion Twp.,
796 A.2d 1038, 1045-46 (Pa. Cmwlth. 2002)).
In the instant matter, special exceptions are governed by Section 172.13
of the Zoning Ordinance. See R.R. at 493a-495a. Section 172.13.A(1) of the Zoning
Ordinance mandates that “the applicant shall show . . . [t]hat his application falls
within the provision of this chapter which accords the applicant the right to seek a
special exception.” Zoning Ord. § 172-13.A(1) (R.R. at 493a). Therefore, as a
threshold matter, an applicant’s use must be expressly permitted by the Zoning
Ordinance.
Section 172-34.A of the Zoning Ordinance lists the following permitted
uses in the Township’s R-3 Zoning Districts:
15
“The burden that is placed upon the objectors requires more than mere speculation of
possible harm.” Thompson, 896 A.2d at 679. Rather, the law requires that “objector[s] must prove
to a high degree of probability that the impact from the proposed use will substantially affect the
health, safety and welfare of the community to a greater extent than would be expected normally
from that type of use.” Blancett-Maddock v. City of Pittsburgh Zoning Bd. of Adjustment, 6 A.3d
595, 600 (Pa. Cmwlth. 2010). Moreover, this Court has consistently held that protection of
neighborhood aesthetics and property values are insufficient bases upon which to deny special
exceptions. Wyomissing Area Sch. Dist. v. Zoning Hearing Bd. of Wyomissing Borough, 128 A.3d
851 (Pa. Cmwlth. 2015).
20
Permitted uses. A building may be erected or used and a
lot may be used or occupied for any of the following
purposes and no other:
(1) Any use permitted in R-2 Residence Districts.
....
(3) The provisions of [Section] 172-29[.]A(1)[-
](3) [of the Zoning Ordinance] also apply.[16]
Zoning Ord. § 172-34.A (R.R. at 501a). Uses that are expressly permitted in R-2
Zoning Districts include “[a]ny use permitted in R-1 Residence Districts.” Zoning
Ord. § 172-33.A(1) (R.R. at 499a). Uses expressly permitted in R-1 Zoning Districts
include “[a] building . . . erected or used and a lot . . . used or occupied for any of
the following purposes and no other:” (1) single-family detached dwellings; schools,
churches, religious or philanthropic uses when authorized as special exceptions;
nonprofit clubs when authorized as special exceptions; tilling of soil; municipal
buildings and municipal uses; and accessory uses on the same lots with and
customarily incidental to the foregoing permitted uses.17 Zoning Ord. § 172-29.A(1)
(R.R. at 496a). Landscaping businesses are not expressly permitted in the
Township’s R-1 Zoning Districts and, thus, are not uses permitted in the Township’s
R-3 Zoning Districts, by special exception or otherwise.
Because the Eblings’ Application did not meet the threshold criteria
that their Business use is expressly permitted in the Township’s R-3 Zoning
Districts, the Eblings did not establish the elements necessary for the ZHB to grant
16
Section 172-29.A of the Zoning Ordinance authorizes the following listed permitted uses
“and no other[,]” Zoning Ord. § 172-29.A(1): cluster development communities with conditional
use approval, see Zoning Ord. § 172-29.A(2); and “[c]onditional uses . . . processed pursuant to
Article IV. [Amended 11-11-1985 by Ord. No. 1985-13].” Zoning Ord. § 172-29.A(3).
17
Accessory uses exclude business uses, except for the following: single-story garages,
professional offices and no-impact home businesses by special exception; parking; accessory
buildings; signs; and domestic and other animals. See Zoning Ord. § 172-29.A(1) (R.R. at 496a-
497a).
21
them a special exception. Accordingly, the ZHB erred as a matter of law by
concluding that the Eblings’ evidence was sufficient to satisfy the Zoning
Ordinance’s special exception requirements.18
(2) The ZHB’s May 2019 Order - Variance by Estoppel
Objectors also argue that the ZHB erred by granting a variance by
estoppel. Specifically, Objectors contend that the ZHB’s May 2019 Order should
be reversed because the parties agreed that the Business would terminate in 2012,
the Eblings have no undue hardship, and res judicata barred the Eblings from
relitigating the variance by estoppel covered by the October 16, 1997 Stipulation.
Objectors further claim that the ZHB erred as a matter of law by capriciously
disregarding facts and applicable legal standards.
“A variance by estoppel is an unusual remedy and is granted only in the
most extraordinary of circumstances.” Springfield Twp. v. Kim, 792 A.2d 717, 721
(Pa. Cmwlth. 2002). This Court has explained:
There are four factors relevant to whether a [zoning
hearing board] should grant a variance by estoppel.
Such variances are appropriate when a use
does not conform to the zoning ordinance and
the property owner establishes all of the
following: (1) 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; (2)
the landowner acted in good faith and relied
innocently upon the validity of the use
18
Even if the Business use was expressly permitted in an R-3 Zoning District, the ZHB did
not analyze whether the Eblings proved that such use satisfied the general standards for special
exceptions in Section 172-13.C of the Zoning Ordinance, see Zoning Ord. § 172-13.C (R.R. at
493a-494a), and the specific standards for special exceptions in Section 172-13.D of the Zoning
Ordinance, see Zoning Ord. § 172-13.D (R.R. at 494a-495a).
22
throughout the proceeding; (3) the landowner
has made substantial expenditures in reliance
upon his belief that his use was permitted;
and (4) denial of the variance would impose
an unnecessary hardship on the applicant.
Borough of Dormont v. Zoning Hearing Bd. of Borough of
Dormont, 850 A.2d 826, 828 (Pa. Cmwlth. 2004)
(citations omitted).
Hafner v. Zoning Hearing Bd. of Allen Twp., 974 A.2d 1204, 1212 (Pa. Cmwlth.
2009). “For [a]pplicants to prevail under a variance by estoppel theory, they must
prove the essential factors by clear, precise and unequivocal evidence.” Pietropaolo
v. Zoning Hearing Bd. of Lower Merion Twp., 979 A.2d 969, 980 (Pa. Cmwlth.
2009).
In the instant matter, the ZHB granted the variance by estoppel until
October 20, 2032, concluding that the Eblings satisfied all four factors. Relative to
the first factor, the ZHB concluded that “that there was an extended period of time
in which the [T]ownship did not enforce the [Z]oning [O]rdinance and/or acquiesced
to the [B]usiness use[.]” ZHB’s Amended Supplemental Findings of Fact and
Conclusions of Law at 3.
“Municipal inaction in enforcing an ordinance, without more, cannot
support the granting of a variance.” Klanke v. Zoning Bd. of Adjustment of the City
of Pittsburgh, 477 A.2d 907, 909 (Pa. Cmwlth. 1984). Rather, active acquiescence
requires an affirmative act by the municipality, such as “granting a building permit
or reasonably leading a landowner to conclude his use was lawful.” Pietropaolo,
979 A.2d at 981.19
19
In Pietropaolo, this Court affirmed the township zoning hearing board’s denial of a
property owner’s appeal from an enforcement notice requiring the owners to cease use of their
residentially zoned property for a landscaping business. The owners argued, inter alia, that the
zoning hearing board had erred in denying their variance by estoppel request. In finding that the
owner failed to demonstrate that the township actively acquiesced in the use, the Pietropaolo Court
explained:
23
Here, the record evidence established that the Eblings have owned the
Property and continuously, and openly, operated the Business therefrom since 1963
(i.e., 57 years). In 1963, the Township hired the Business for snow removal. In
1973, the Township issued the Eblings a permit to build a garage after the Township
Manager recommended they store the Business’s equipment therein. In 1983, the
Township Manager enlisted Earl Ebling’s assistance in drafting bid specifications
for the Township’s landscaping contract. Thereafter, the Township contracted with
the Business for its landscaping needs for 12 years (i.e., 1984-1992, 1995-1997),
paying the Business approximately $580,000.00 for those services and other
miscellaneous jobs during that time period. The Eblings even increased their staff
and added equipment in order to meet the Township’s contract specifications. At all
times, the Business invoiced the Township from the Property, the Township sent its
payments to the Business at the Property, the Eblings paid occupational privilege
taxes and Earl Ebling held a contractor’s license related to the Business through the
Township.
[I]n cases where this Court granted a variance by estoppel, the
municipalities did not passively stand by. Rather, they committed
an affirmative act, for example, granting a building permit or
reasonably leading a landowner to conclude his use was lawful. See,
e.g., Knake v. Zoning Hearing Bd. of Dormont, . . . 459 A.2d 1331
([Pa. Cmwlth.] 1983) (variance by estoppel granted where borough
failed to act for 44 years, knew the use was impermissible for 27
years, and issued a building permit for the impermissible use); Three
Rivers Youth v. Zoning Bd. of Adjustment of [the] City of Pittsburgh,
. . . 437 A.2d 1064 ([Pa. Cmwlth.] 1981) (inaction by municipality
for seven years plus issuance of building permit by municipality and
reliance by landowner on zoning officer’s interpretation of
regulation); Twp. of Haverford v. Spica, . . . 328 A.2d 878 ([Pa.
Cmwlth.] 1974) (inaction by municipality for 36 years and issuance
of building permit where municipality knew of intended
construction).
Pietropaolo, 979 A.2d at 981 (emphasis in original).
24
Until it issued the 1995 Enforcement Notice to the Eblings, the
Township had not enforced the Zoning Ordinance against them and, even then, the
Township withdrew that action. Moreover, after the Township issued the 1996
Enforcement Notice, the Township entered into the Stipulation, which allowed the
Eblings to continue to operate the Business from the Property for another 15 years.
The Eblings fully abided by the Stipulation’s conditions. Although the Township
did not expressly extend the Stipulation, Township representatives began to send the
Eblings business registration applications in 2013, and they have registered the
Business with the Township ever since.20 In May 2017, in response to information
received from the Township’s Director of Code Enforcement/Zoning Officer, the
Eblings filed a special exception application with the Township to continue to
operate the Business at the Property. Accordingly, record evidence supported the
ZHB’s findings and conclusions that the Township failed for a long period of time
to enforce the law, when the Township knew of the violation and actively acquiesced
in the use.21
Regarding the second variance by estoppel factor, the ZHB concluded
that, “at all relevant times hereto[, the Eblings] acted in good faith and relied
innocently upon the validity of the [B]usiness use throughout the proceeding[.]”
ZHB’s Amended Supplemental Findings of Fact and Conclusions of Law at 3.
20
Objectors argue that the Eblings’ registering of the Business could not have extended the
Stipulation because the Township and the ZHB are segregated entities. However, the Township
Solicitor executed the Stipulation on the Township’s behalf, see R.R. at 386a, and the ZHB
accepted the Stipulation by October 24, 1997 order. See R.R. at 383a. Thus, long before the
Township Manager requested the Eblings to register the Business, both the Township and the ZHB
were fully aware that the Township could extend the Stipulation.
21
Objectors further argue: “The use of this [P]roperty, since October 24, 1997, has been
under the authority of the Stipulation. It was not due to acquiescence.” Objectors’ Br. at 29.
However, “acquiescence” is defined at Merriam-Webster.com as “passive acceptance or
submission.” https://www.merriam-webster.com/dictionary/acquiescence (last visited
12/7/2020). Certainly, actual acceptance by Stipulation exceeds the minimum passive
acceptance threshold required for a variance by estoppel.
25
Objectors contend that the Eblings “are not good faith applicants
because they were the subject of a prior enforcement action, failed to inquire as to
the zoning when they first started, and then specifically agreed to cease the use if
given 15 years to come into compliance.” Objectors’ Br. at 34-35. This Court
acknowledges that “a landowner is duty-bound to check the zoning status of a
property prior to purchase [and, w]here a landowner fails to review the relevant
zoning ordinance before purchasing a property, he may not advance the resulting
ignorance in support of a variance by estoppel.” Hafner, 974 A.2d at 1212.
Here, the Eblings testified that they were ignorant of zoning matters and
did not ascertain the Property’s zoning status prior to purchasing it. However,
because, in the 1997 Stipulation, the Township expressly authorized the Business to
continue to operate at the Property thereafter, the portion of Hafner prohibiting a
variance by estoppel for an owner who does not check an ordinance before
commencing his/her use does not apply. Moreover, “the good faith contemplated
for the application of [a variance by] estoppel to zoning matters centers on a
landowner’s innocent belief that the use of land is permitted at the time [of the
municipality’s acquiescence].” Victory Gardens, Inc. v. Warrington Twp. Zoning
Hearing Bd., 224 A.3d 1110, 1118 (Pa. Cmwlth. 2020).22
The Township accepted the Business use at the Property in 1997 by
Stipulation. The Eblings operated the Business at the Property in strict compliance
with the Stipulation. Moreover, the Eblings have always gone to great measures to
ensure that the neighbors did not suffer any detriment because of the Business, even
22
Although equitable estoppel (i.e., where a property owner relies on a municipality’s
intentional or negligent misrepresentations regarding an illegal use), see Victory Gardens, Inc.,
rather than a variance by estoppel (i.e., where municipal action or inaction amounts to active
acquiescence to an illegal use), was before the Victory Gardens, Inc. Court, because the factors for
both are similar, its reasoning is applicable here.
26
before they were aware it was not permitted.23 In fact, the only complaint against
the Business was brought after 34 years, and was resolved by an agreement that
expressly permitted it to continue operating for 15 years (i.e., 2012), and beyond if
“the Township extend[ed] the time period for the continuation of such use . . . .”
R.R. at 384a. The record supports that the Eblings reasonably believed the
registration certificates the Township issued for the Business thereafter authorized
the Business to continue, and they have operated the Business in compliance with
the Stipulation since 1997. Objectors did not present any evidence to the contrary.
Further, rather than seeking permission for a variance by estoppel in
perpetuity that would allow them to expand the Business operation, the Eblings
request only to continue the operation as it currently exists for a limited additional
time period so they do not have to close the Business and put 12 long-standing
employees out of work. Under these specific circumstances, this Court agrees that
the record evidence supported the ZHB’s findings and conclusions that the Eblings
acted in good faith and relied innocently upon the validity of the Business use at the
Property since 1997 and, thus, met the second factor.
Relative to the third variance by estoppel factor, the ZHB concluded
that the Eblings “made substantial expenditures in reliance upon their belief that the
[B]usiness use was permitted[.]” ZHB’s Amended Supplemental Findings of Fact
and Conclusions of Law at 3. The undisputed record evidence reflected that, over
the years, the Eblings purchased five additional parcels of land, purchased and
erected a large garage, and cleaned and landscaped the Property, not only to
accommodate the equipment, but to avoid imposing on their neighbors. The Eblings
also added equipment and staff necessary to conduct work under the Township’s
23
A significant majority of the neighbors testified in support of the Eblings’ continued
operation. Objectors did not present any evidence to support their claims that the Eblings’
employees or traffic going to and from the Property are a hazard to the community.
27
landscaping contracts. Earl Ebling testified that the Eblings would not have
undertaken these steps if they had known they could not conduct the Business at the
Property. Accordingly, record evidence supported the ZHB’s findings and
conclusions that the Eblings made substantial expenditures in reliance upon their
belief that the Business use was permitted at the Property.
Regarding the fourth variance by estoppel factor, the ZHB concluded
that “denial of the variance would impose an unnecessary hardship on the [Eblings].”
ZHB’s Amended Supplemental Findings of Fact and Conclusions of Law at 3. This
Court has explained:
[U]nlike the considerable hardship burden placed on an
applicant in a traditional variance application, the hardship
required to apply equitable estoppel may take the form of
the loss of expenditures made in reliance on a
municipality’s misrepresentation or the loss of sources of
income that would result from the enforcement of a zoning
ordinance. See Dombroski v. Dallas Twp. Zoning Hearing
Bd. (Pa. Cmwlth.[] No. 1050 C.D. 2018, filed May 21,
2019),[24] slip op. at 15 . . . (loss of expenditures to convert
first floor of building to apartment and continued rental
income satisfied the hardship requirement for the
application of equitable estoppel); Vaughn [v. Zoning
Hearing Bd. of Twp. of Shaler, 947 A.2d [218,] 225 [(Pa.
Cmwlth. 2008)]] (finding that substantial expenditures to
build a retaining wall and the anticipated cost of removal
of the wall satisfied the hardship requirement for the
application of equitable estoppel).
Victory Gardens, Inc., 224 A.3d at 1116 (footnotes omitted).
The Eblings testified that they purchased five additional parcels of land
in order to operate the Business without disrupting the neighbors, built the large
garage exclusively to hold the Business’s equipment, hired additional employees and
24
Pursuant to Section 414(a) of the Commonwealth Court’s Internal Operating Procedures,
210 Pa. Code § 69.414(a), unreported panel decisions of this Court, issued after January 15, 2008,
may be cited for their persuasive value.
28
acquired new equipment to meet the Township’s landscaping contract requirements,
and paid to register the Business each year. In addition, the continued employment
of the Business’s staff (at least a third of whom have worked for the Business in
excess of 37 years) would be jeopardized. The Eblings further stated, and their real
estate expert agreed, that there are no comparable properties available in the
Township or the immediate surrounding communities to which the Business could
be relocated and, even if there were, the cost to buy or rent the necessary land (even
half the Property’s size) and pay the utilities, would put the Eblings out of business.
Accordingly, record evidence supported the ZHB’s findings and conclusions that
denying the variance would impose an unnecessary hardship on the Eblings. See
Victory Gardens, Inc.
Finally, Objectors claim that res judicata barred the Eblings from
relitigating the variance by estoppel covered by the Stipulation. This Court has
explained:
The doctrine of res judicata is applied ‘sparingly’ in
zoning cases. Harrington v. Zoning Hearing Bd. of E.
Vincent Twp., . . . 543 A.2d 226, 228 ([Pa. Cmwlth.] 1988).
This is because ‘zoning is a continuing regulation and
flexibility in zoning matters outweighs the risk of
repetitive litigation.’ Schubach v. Silver, . . . 336 A.2d
328, 333 ([Pa.] 1975) (quotation marks omitted). Res
judicata applies if the following elements concur:
(1) the identity of the thing sued for; (2) the
identity of the cause of action; (3) the identity of
the persons and parties to the action; and (4) the
identity of the quality in the persons for or against
whom the claim is made, and then, only if there are
no substantial changes in circumstances relating to
the land itself.
Callowhill Ctr. Assocs., LLC v. Zoning Bd. of Adjustment,
2 A.3d 802, 809 (Pa. Cmwlth. 2010).
29
Further, res judicata ‘subsumes’ collateral estoppel. Id.
This doctrine applies if: (1) the issue previously decided is
identical to the one presented in the later case; (2) there
was a final judgment on the merits; (3) the party against
whom the plea is asserted was a party or in privity with a
party in the prior case; (4) there was a full and fair
opportunity to litigate the issue in the prior proceeding;
and (5) the determination in the prior proceeding was
essential to the judgment. Id.
Fowler v. City of Bethlehem Zoning Hearing Bd., 187 A.3d 287, 294-95 (Pa.
Cmwlth. 2018).
In the instant matter, the Township and the Eblings agreed to the 1997
Stipulation after the Eblings appealed from the 1996 Enforcement Notice. Because
the Stipulation did not reference or acknowledge any Zoning Ordinance violation by
the Eblings, it did not represent a final judgment on the merits of the 1996
Enforcement Notice. Moreover, neither the 1996 Enforcement Notice nor the
Stipulation involved or referenced a variance by estoppel. Rather, the first ruling on
the variance by estoppel was the ZHB’s May 2019 Order. Because the issues were
not identical and the Stipulation was not a final judgment on the merits, res judicata
did not apply, and the Stipulation did not preclude the ZHB from granting a variance
by estoppel.
Because substantial record evidence supports the ZHB’s conclusions of
law that the Eblings met the requirements for a variance by estoppel, the ZHB did
not err or abuse its discretion by granting them one.
Conclusion
Based on the foregoing, because the ZHB erred by granting the Eblings
a special exception, the portion of the trial court’s order affirming the ZHB’s October
30
2017 Order is reversed. Because the ZHB properly granted the Eblings a variance
by estoppel, the trial court’s order affirming the ZHB’s May 2019 Order is affirmed.
___________________________
ANNE E. COVEY, Judge
Judge Fizzano Cannon did not participate in the decision in this case.
31
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bill Haggerty, Ray Baldino and :
Kevin McGinnis, :
Appellants :
:
v. :
:
Newtown Township Zoning Hearing :
Board :
:
Earl and Margaret Ebling :
:
v. :
:
Newtown Township Zoning Hearing : No. 50 C.D. 2020
Board :
ORDER
AND NOW, this 8th day of December, 2020, the portion of the
Delaware County Common Pleas Court’s (trial court) December 12, 2019 order
affirming the Newtown Township Zoning Hearing Board’s (ZHB) October 20, 2017
order is REVERSED. The portion of the trial court’s December 12, 2019 order
affirming the ZHB’s May 16, 2019 Order is AFFIRMED.
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ANNE E. COVEY, Judge