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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ledwina Fircak v. North Strabane Township and North Strabane Township Zoning Hearing Board and Margaret George and Daniel George v. North Strabane Township and North Strabane Township Zoning Hearing Board Appeal of: Margaret George and Daniel George BEFORE: : : : : : : : : : : : : : : : : :

No. 1942 C.D. 2011 Argued: November 13, 2012

HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: December 5, 2012

In this zoning appeal with a unique procedural posture, Margaret and Daniel George (collectively, Applicants) ask whether the Court of Common Pleas of Washington County (trial court) erred in determining Applicants' use of their property for the parking and storage of excavation and construction equipment did not constitute a valid nonconforming use. Applicants do not challenge the trial court's decision on the merits; rather, they assert the North Strabane Township Zoning Hearing Board (ZHB),

and, on further appeal, the trial court, lacked subject matter jurisdiction over this matter. Because factual issues exist regarding whether the ZHB and the trial court did, in fact, have subject matter jurisdiction over Applicant's request for relief, we vacate and remand for further proceedings to fully evaluate this issue.

I. Factual and Procedural History Margaret George owns the property located at 884 Linden Road, Eighty Four, North Strabane Township (subject property), which lies in a residential-agricultural zoning district. Margaret and her son Daniel reside on the subject property. Additionally, Daniel uses the subject property for the parking and storage of construction and excavation equipment in connection with his business.

On February 12, 2010, Margaret George filed a pre-printed form, entitled "Notice of Appeal" with the ZHB, seeking an "interpretation" of Section 1701(A) of the North Strabane Township Zoning Ordinance1 (zoning ordinance) (relating to nonconforming uses) in order to "continu[e] [the] existing use" of the subject property. Reproduced Record (R.R.) at 2a-3a. A hearing ensued before the ZHB.

At the hearing, Daniel George and others testified that use of the subject property for the parking and storage of construction and excavation

The record does not contain a complete copy of the zoning ordinance. However, the zoning ordinance can be viewed at TOWNSHIP OF NORTH STRABANE, PA, CHAPTER 27 ZONING, available at http://www.ecode360.com/11770574.

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equipment constituted a valid nonconforming use in that it predated a prohibitory zoning enactment, which was passed in 1988. Ledwina Fircak (Objector), who owns an adjoining property, and others testified in opposition. Thereafter, at its April 2010 meeting, the ZHB approved Applicants' "request for a nonconforming use status relative to the staging and storage of commercial or business-related construction and/or excavation equipment on the subject property[,]" with certain limitations. R.R. at 169a. Shortly thereafter, the ZHB issued a brief letter memorializing its decision on Applicants' request for an "interpretation to permit parking of construction vehicles [on the subject property]." R.R. at 181a. The ZHB's letter did not contain findings of fact or conclusions of law. Id.

Objector, through counsel, appealed to the trial court, asserting that the ZHB's decision was not supported by substantial evidence and that the ZHB erred in determining Applicants established a valid nonconforming use.

In addition, Applicants, through counsel, filed a cross-appeal, asserting the ZHB's letter decision was vague and general, lacking the specificity required by law for enforcement. Applicants also requested a de novo hearing. R.R. at 188a.

In May 2010, Objector filed a motion with the trial court to stay the proceedings before the ZHB. Specifically, she asserted that, prior to her appeal to

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the trial court, the ZHB informed her it intended to take further action, including clarifying its letter decision. The trial court granted the stay. Also, on Applicants' motion, the trial court consolidated the parties' cross-appeals. Thereafter, the ZHB's Solicitor filed the ZHB's findings of fact and conclusions of law, which further explained and clarified the ZHB's decision granting Applicants' request for recognition of its nonconforming use. Objector then filed a motion to strike the ZHB's newly filed findings of fact and conclusions of law and, alternatively, a response to the ZHB's findings and conclusions. Objector also requested a de novo hearing before the trial court. Additionally, Applicants' counsel filed proposed findings of fact and conclusions of law in which Applicants fully adopted the ZHB's findings and conclusions.

The trial court subsequently scheduled and conducted a de novo hearing. After the hearing, the trial court issued a decision that contained findings of fact and conclusions of law in which it denied Applicants' request to recognize the use of the subject property for the staging and storage of commercial- or business-related construction and excavation equipment as a valid nonconforming use.2

In so doing, the trial court credited Objector's testimony that Applicants' storage use did not lawfully predate the applicable zoning ordinance that prohibited it. Further, the trial court rejected Applicants' testimony to the contrary.

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Applicants appealed to this Court, and the trial court directed Applicants to file a statement of matters complained of on appeal, which they did through new counsel. The trial court then issued a brief supplemental opinion further explaining its decision.

Shortly thereafter, Applicants filed a motion for leave of court to file an amended 1925(b) Statement "now for then" with the trial court. Through their motion, Applicants sought to include an assertion, set forth more fully below, that the ZHB and the trial court lacked subject matter jurisdiction over this matter. The trial court denied this motion.

In addition, after Applicants appealed to this Court, they filed an Application for Remand for the Filing of an Amended Concise Statement of Matters Complained of on Appeal Pursuant to Pa. R.A.P. 1925(c)(2).

Through their application, Applicants argued they did not initiate this action before the ZHB as an "appeal." See Appl. for Remand for the Filing of an Am. Concise Statement of Matters Complained of on Appeal Pursuant to Pa. R.A.P. 1925(c), 2/21/12, at

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