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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Philip L. Godino and Lori M. Godino v. Zoning Hearing Board of the City of Scranton and Charles Santarsiero BEFORE: : : : : : : :

No. 1312 C.D. 2011 Submitted: November 4, 2011

HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: December 30, 2011

Charles Santarsiero (Santarsiero) appeals the order of the Court of Common Pleas of Lackawanna County (common pleas court) that reversed the decision of the Zoning Hearing Board of the City of Scranton (Board) which concluded that a building permit (permit) to construct a pole barn should not have been issued, that the pole barn should not have been built before the issuance of the permit, and that the permit should be revoked because the use of the pole barn appeared to be commercial.

Philip L. Godino (Godino) and Lori M. Godino (Mrs. Godino), (collectively, the Godinos) own real property (Property) located at 707 Newtown Road in the City of Scranton (City). For tax purposes the property is considered as one parcel though it is described in the deed as two parcels. On July 28, 2009, the Godinos through their contractor applied for a building permit to erect a pole barn on the Property. Michael J. Wallace (Wallace), the zoning officer of the City, reviewed the application and found it to be in compliance with the City of Scranton

Zoning Ordinance (Ordinance) and orally approved the permit. The permit was not actually issued until September 21, 2009, because the City lost the check for the permit fee and arrangements needed to be made for the issuance of a new check. The Godinos did not wait for the issuance of the permit to build the pole barn.

On or about September 24, 2009, Santarsiero, a neighboring landowner of the Godinos, appealed the issuance of the permit to the Godinos.

On November 4, 2009, the Board heard the appeal. Santarsiero's attorney, Thomas Ratchford, outlined the basis for the appeal: 1) the irregularities of the permit process in that the Godinos applied for a permit on July 28, 2009, but the permit was not issued until September 21, 2009, after Santarsiero inquired as to whether a permit had been issued; 2) the pole barn was erected before the permit was issued; 3) the Property was located in an area zoned residential but the pole barn was used for commercial purposes; and 4) another garage owned by the Godinos appeared to be on a separate tract of land but did not have a principal structure on it. Notes of Testimony, November 4, 2009, (N.T.) at 4-7; Reproduced Record (R.R.) at RR4-RR7.

Santarsiero testified that a truck in front of one structure on the Property was "parked there all the time" and the truck brought cars to the Property that looked like they had to be repaired. N.T. at 9; R.R. at RR9. Santarsiero further testified that he had a collection of automobiles himself but could not get

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permission to build a storage facility on his property because it was in an R-1 zone. As a result, he built a facility three miles from his house. N.T. at 37; R.R. at RR37.

Wallace testified that the Property was almost 1.4 acres in size and the pole barn was a permitted accessory use. Wallace approved the permit application. After Santarsiero complained about the construction of the barn, Wallace went to the Property and observed the barn and "didn't see a problem." N.T. at 9-11; R.R. at RR9-RR11. Wallace explained that he did not have anything to do with the check for the permit application. N.T. at 10-11; R.R. at RR10-RR11. Wallace explained that sometimes applicants began construction before they received the building permit. N.T. at 12; R.R. at RR12.

Godino testified that he has old cars and wanted to keep the cars out of the weather in the barn. He had four classic or collector cars stored there. N.T. at 14-15; R.R. at RR14-RR15. Godino testified that the Property was "Almost 1.5 acres, 1.4 acres." N.T. at 17; R.R. at RR17. Godino testified that his property was on one parcel and not two. N.T. at 25; R.R. at RR25.

Mrs. Godino testified that they would never work on cars there because she owned a body shop. Mrs. Godino explained that the truck was not a commercial vehicle but a "daily driver." N.T. at 15-16; R.R. at RR15-RR16. The Board's solicitor, Daniel Penetar, suggested that the Board vote on whether the permit was issued correctly or incorrectly. N.T. at 43; R.R. at

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RR43. The Board voted 5-0 that the permit was issued incorrectly. N.T. at 44; R.R. at RR44.

In its written decision the Board made the following pertinent conclusion of law: 16. By a vote of 5-0, the Board found that there was sufficient evidence to conclude the building permit should not have been issued under

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