Robert WALKER, Appellant, v. Philip C. EHLINGER and The Borough of Doylestown, Appellees.
Supreme Court of Pennsylvania.
Submitted Oct. 31, 1995. Decided May 22, 1996.
676 A.2d 213
298
Charles T. McIlhinney, Jamison, for Appellees.
Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and NIGRO, JJ.
OPINION
ZAPPALA, Justice.
This appeal raises the issue of whether concrete barriers installed by Appellant, Robert Walker, constitute a “structure” so as tо require a building permit.
Appellant is the lessee of property in the Borough of Doylestown, Bucks County, and the owner of Doylestown Car Wash. On March 12, 1992, he applied for a fence permit. The Borough denied the application, finding that the fence was actually a “structure” which required a building permit. Appellant then filed an action in mandamus against the Borough of Doylestown and its Director of Building and Zoning, Philip C. Ehlinger (hereinafter collectively referred tо as “Borough“). Therein, Appellant contended that the Borough was “required” to issue the permit because Appellant properly applied for the same and was lawfully entitled to it. The parties thereafter submitted a writtеn stipulation of facts to the trial court for disposition of the case.
The stipulation provided that: (1) the subject concrete barriers measured 8 to 10 feet long, 3 feet high and 1 foot thick, and weighed 2 tons each; (2) the barriers wеre not joined or attached to each other, but were free standing; (3) the barriers did not rest on footings, nor were they affixed to the ground, but rather were simply placed on the ground; (4) the barriers were movable; and, (5) there werе 8 concrete barriers placed upon Appellant‘s property for the purpose of preventing alleged vehicular trespass. The parties further agreed that the only issue for the court was whether the cоncrete barriers constituted a “structure” pursuant to the
Appellant appealed to the Commonweаlth Court. Thereafter, however, the parties filed a joint motion requesting that the matter be considered under the Declaratory Judgments Act,
The Commonwealth Court affirmed. Judge Kelley filed a dissenting opinion in which he stated thаt the placement of non-permanent concrete blocks did not constitute a structure since the blocks were free-standing, not affixed to the ground and did not rest on footings. He found the ramifications of the majority‘s decisiоn troubling since, although the fence seemingly presented an immovable mass blocking vehicular trespass, the same could be said of a large hedge, which is clearly not a “structure.”
Appellant argues that the lower courts еrred in determining that the concrete barriers were a structure.2 He submits that if the concrete monoliths, which are not attached to one another or affixed to real property, are found to be a structure, then the placing of flagstones for a garden path or the setting down of parking lot bumpers would also require building permits. Appellant contends that requiring prior permission of a building official for the moving of concrete blocks renders thе regulatory reach of local government unfettered.
Any construction, or any production or piece of work artificially built up or composed of parts joined together in some definite manner. That which is built or constructed; an edifice or building of any kind. A combination of materials to form a construction for occupancy, use, or ornamentation whether installed on, above, or below the surface of a parcel of land.
Section 107 of the Pennsylvania Municipаlities Planning Code, Act of July 31, 1968, P.L. 805, as amended,
We find that the above-quoted definitions do not enсompass the concrete barriers at issue. As Judge Kelley noted in his dissenting opinion, the concrete blocks were not “built” or “constructed” as a dwelling or commercial establishment. The blocks were not joined to one another nor were they affixed to the property. Instead, they were merely placed on Appellant‘s property to avoid vehicular trespassing. Although we recognize the lower courts’ concern over the fact that the barriers’ weight renders them virtually immovable, we are not persuaded that this factor alone renders them a “structure.”
Accordingly, we find that the trial court erred as a matter of law when it determined that the concrete barrier constituted a
NEWMAN, J., did not participate in the consideration or decision of this case.
CASTILLE, J., files a dissenting opinion.
CASTILLE, Justice, dissenting.
The majority holds that the concrete barriers appellant placed on his leased property to block vehicles from entering are not tantamount to “structures” and that, therefore, appellant did not need a building permit to erect such a blockade. Because I believe that the majority‘s interpretation of “structure” is too narrow and allows appellant to avoid the requirements set forth in the zoning ordinance at issue, I respectfully dissent.
While the Statutory Construction Act specifically applies to construction of state statutes, the principles enumerated therein are applicable in the interpretation of municipal ordinances. Francis v. Corleto, 418 Pa. 417, 211 A.2d 503 (1965). With this in mind, the majority correctly points out that the disputed zoning ordinance requires a building permit in order for a party to erect or place “structures” upon one‘s property and that the term “structures“, as defined by the ordinance, means “that which is built or constructed.”1 Thе ordinance, however, does not define the meaning of the terms “built” or “constructed“.
to build; erect; put togеther; make ready for use. To adjust and join materials, or parts of, so as to form a permanent whole. To put together constituent parts of something in their proper place and order.
Black‘s Law Dictionary 312 (6th ed. 1993).2 Webster‘s New World Dictionary defines “construct” as:
to build, form, or devise by fitting parts оr elements together systematically; something built or put together systematically.
Webster‘s New World Dictionary 299 (3d College ed. 1994). Webster‘s New World Dictionary also defines “build” as:
to make by putting together materials, parts, etc.; construct; еrect; to order, plan, or direct the construction of; to cause to be or grow; create or develop.
Webster‘s New World Dictionary 183 (3d College ed. 1994).
Using these definitions, I would find that the placing of the eight man-made two-ton each concrete barriers, which the majority concedes are “virtually immovable“, next to one another in a systematic and orderly manner for the intended purpose of making what amounts to an approximately sixty-four foot long three foot high conсrete wall to prevent vehicles from trespassing onto appellant‘s property is tantamount to actually building or constructing a cement wall on the property in question.3 The majority reasons that since the barriers wеre “not joined to one another” and were not “affixed” to the land, they were not “built” or “constructed” and therefore did
The majority opinion‘s ruling now allows for the proliferation of these monolithic concrete structures without permits, at least throughout Doylestown. Similar to Breezewood, Pennsylvania, which lures visitors by tоuting itself as the “Town of Motels,” perhaps as a result of the majority‘s ruling, Doylestown can make the best of a bad situation and can now attempt to lure visitors by advertising itself with a new snappy appellation: “Doylestown, Town of Cоncrete Traffic Barriers.”