11 A.3d 564
Pa. Commw. Ct.2010Background
- Basile owns Grande Pizza Restaurant in Moosic; Renovation Application approved for building, demolition, and construction of a 20x40 outdoor Patio but without a roof.
- Renovation included Patio but not roof, and Borough approved permit without SALDO/MPC land development review.
- During renovation, Zoning Officer observed a roof being built; Stop Work Order issued on July 18, 2008.
- Borough filed equity action seeking injunction to stop roof until land development approvals were obtained; Basile argued roof had been approved and continued work only maintained structural integrity.
- Stipulation allowed Basile to submit a nunc pro tunc Roof Permit to the Zoning Officer; ZHB denied the Roof Permit for land development reasons; trial court affirmed denial.
- Court held roof over the approved Patio is not land development under SALDO or MPC; reversal of trial court’s denial and issuance of Roof Permit is warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether roof over Patio is land development under SALDO/MPC | Basile: Patio approved; roof is not a new land development | Borough: any improvement constitutes land development under SALDO/MPC | Roof over Patio not land development; reversal of denial |
Key Cases Cited
- Upper Southampton Township v. Upper Southampton Township Zoning Hearing Board, 594 Pa. 58 (Pa. 2007) (definition of development and plan consequences)
- Tu-Way Tower Co. v. Zoning Hearing Board of the Township of Salisbury, 688 A.2d 744 (Pa. Cmwlth. 1997) (extension/building not necessarily land development)
- Marshall Township Board of Supervisors v. Marshall Township Zoning Hearing Board, 717 A.2d 1 (Pa. Cmwlth. 1998) (construction not land development)
- Kirk v. Smay, 28 Pa. Cmwlth. 13, 367 A.2d 760 (Pa. Cmwlth. 1976) (single building on completed shopping center not land development)
- Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (Pa. 1983) (scope of review in zoning matters; development plans)