Opinion
No. 339 C.D. 2013
04-28-2014
Lesley A. Smith and John Fregede, Appellants v. Marietta Borough Zoning Hearing Board and Marietta Borough
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Lesley A. Smith (Smith), the owner and an occupant of the property at 3 East Market Street, Marietta, Pennsylvania (the Property), and John Fregede (Fregede), an occupant of the Property, (together, Appellants) appeal the February 8, 2013 order of the Court of Common Pleas of Lancaster County (trial court) affirming the decision of the Zoning Hearing Board (Board) of Marietta Borough (Borough) that upheld the Borough's denial of Appellants' zoning permit application under the Marietta Borough Zoning Ordinance of 2000 (Ordinance). We reverse.
Marietta Borough, Pa., Zoning Ordinance of 2000 (Dec. 12, 2000).
I. Facts and Procedural History
The Property is located in the Borough's historic commercial zone at the intersection of East Market Street and Waterford Avenue and has a frontage on Blackberry Avenue and East Hazel Avenue. When Smith purchased it in April 2008, the Property was improved with an old wooden fence extending from the rear of the dwelling along all three property lines. In 2009, portions of the old fence were damaged by wind. As a result, Appellants completely removed the old fence and installed a new wooden fence that was approximately six feet high at approximately the same location as the old fence. Appellants did not submit a permit application or obtain a permit prior to erecting the new fence. (Board's Findings of Fact Nos. 4, 10-14, 20-21, 30.)
By letter dated February 2, 2010, Marietta Borough Zoning Officer Mark Harman (Harman) informed Smith that the new fence had been erected without the necessary zoning permit. Appellants submitted a permit application for the new fence on February 4, 2010. The Borough denied Appellants' application on the basis that the location of the new fence violated the height requirement in section 305 of the Ordinance at the intersection of East Hazel and Blackberry Avenues. (Board's Findings of Fact Nos. 22-24.)
Marietta Borough, Pa., Zoning Ordinance at §305.
Appellants appealed to the Board, asserting that the new fence constituted a permitted restoration of a nonconforming building or other structure under section 505.1 of the Ordinance because the dimensions of the new fence remained the same as the old fence. (Board's Findings of Fact Nos. 25-26.) The Board held a public hearing on May 10, 2010. Harman testified that the Property was located in the historic commercial zone. He stated that Fregede had called and asked general questions about permits and he informed Fregede that a permit would be required to replace the old fence. Harman also stated that, subsequent to the construction of the new fence, he issued a courtesy letter to Appellants in order to resolve the matter instead of issuing an enforcement action, and Appellants responded by submitting a permit application. However, Harman explained that the application was denied because the new fence exceeded the maximum height permitted under section 305 of the Ordinance. Harman stated that neither the old fence nor the new fence complied with the height requirement of section 305, but added that he never was able to inspect the old fence to determine whether the new fence was an exact restoration of the old fence or to determine the percentage of the old fence that was damaged. (Reproduced Record (R.R.) at 10-12, 14-15, 17.)
Marietta Borough, Pa., Zoning Ordinance at §505.1.
The reproduced record submitted by Appellants does not follow the proper numbering format, i.e., the Arabic figure followed by a lowercase "a," as set forth in Pa.R.A.P. 2173.
On cross-examination, Harman further testified that, based on information from Borough staff members, Blackberry Avenue is a street dedicated to the Borough and he assumes that the Borough maintains a public right-of-way on it. He also stated that Blackberry Avenue is a paved road that the Borough maintains. On redirect examination, Harman explained that Appellants must have first submitted a permit application before Harman would have inspected the old fence. (R.R. at 22-24, 30.)
Fregede testified for Appellants, stating that several wind storms damaged the old fence. Fregede stated that a contractor informed him that the whole fence should be replaced or it would not be stable. He also testified that the old fence was approximately six feet high and in poor condition. Fregede explained that he received conflicting responses from Borough employees regarding whether a permit was needed to replace the fence. He stated that, as a result of these varying answers, he understood that a permit was not needed, and Appellants replaced the old fence with a new fence of the same height and in the same location. (R.R. at 33, 35-38, 48.) For example, when questioned about applying for a permit, Fregede responded with the following:
[Appellants' Attorney]: So at some point you came to the understanding from various consultations that a permit wasn't required?
[Fregede]: Yes.
[Appellants' Attorney]: And as a result of making that determination -- at least your understanding -- making that determination, what steps did you take? Did you proceed with replacement of the fence?
[Fregede]: Yes.
[Appellants' Attorney]: And so you replaced the entire fence; correct?
[Fregede]: Yes.
[Appellants' Attorney]: And how high is the new fence?
[Fregede]: Less than six foot. It was actually -- I gave you the dimensions. It was --
[Appellants' Attorney]: If I said it was 70 inches, would that sound correct?
[Fregede]: Yes.
[Appellants' Attorney]: And did you locate the fence in the exact same location as the existing fence was in before when you bought the property?
[Fregede]: That is correct. Because when we had the fence tore [sic] out, the pins were in the ground, still in the ground, where the post lines are, where the property lines are. And I took pictures of that to make sure they were done the right way.
[Appellants' Attorney]: And so once the fence was completed, was it your understanding that everything had been done correctly because the new fence was of a height exactly the same or less than the prior fence and had been located in the exact location of the prior fence?(R.R. at 37-38, 48) (emphasis added).
[Fregede]: That is correct, yes.
* * *
[Appellants' Attorney]: And, again, is it your testimony that this newly placed fence is located in the exact location as the old fence?
[Fregede]: That is correct.
[Appellants' Attorney]: And it is of a height equal to or less than what the prior fence was?
[Fregede]: Yes, it is.
Fregede further testified that, after the Borough denied Appellants' permit application, Appellants responded with a letter. He stated that, in the letter, Appellants informed Harman that a member of the Board told Fregede that no permit was needed prior to the construction of the fence. The letter stated that the Board member explained to Fregede that, because the fence was being replaced, not modified, and it existed prior to Smith's purchase of the property, it fell under the grandfather clause in the Ordinance. He also stated that Appellants told Harman in the letter that, in a meeting that Fregede had with fellow Borough resident Wendy Codd (Codd) and the Borough's mayor, Oliver Overlander (Mayor Overlander), Mayor Overlander informed Fregede that the new fence would be grandfathered in under the Ordinance. (R.R. at 41-43.)
Fregede then described Blackberry Avenue, one of the streets that allegedly qualified the Property as a corner lot under section 305 of the Ordinance, as follows:
[Appellants' Attorney]: Blackberry Avenue, is that a heavily traveled thoroughfare?(R.R. at 45-46, 48.)
[Fregede]: No.
[Appellants' Attorney]: Is it maintained regularly, do you know, by the Borough?
[Fregede]: Not that I know of, that I'm aware of, no; because the snowstorms, they didn't plow it.
* * *
[Appellants' Attorney]: Then I'm going to turn your attention to page 5 of Applicant's [Exhibit] 2.
Can you tell the Board what that shows?
[Fregede]: That's the holes in the driveway -- the road there. I call it a driveway, but it's actually Blackberry Avenue. And it shows that it hasn't been maintained either.
The Board recognized Mark Crescenzi (Crescenzi), a neighboring property owner, as a party to the hearing. Crescenzi testified as follows:
[Crescenzi]: The only thing I'd like to add is the height of the current fence is exactly what it was of the previous fence. I've lived behind it for ten years. I've walked past [sic] it numerous amounts of time. And it's two inches above me, so I have a reference point. That's all.
* * *
[Appellants' Attorney]: You indicated the height is the same?
[Crescenzi]: Yes.
[Appellants' Attorney]: And the location of the fence is exactly the same?(R.R. at 63-64.)
[Crescenzi]: The location is exactly the same, because the ferns didn't move. And the ferns that are -- that are around the perimeter of the fence are the exact location. The landscaping did not change, so the fence area is the same.
The Board also allowed members of the audience who were not parties to make statements. Mayor Overlander testified as follows:
I met with John Fregede and a Wendy Codd on some day in October of 2009. That meeting did take place. The purpose for that meeting was two fairly new individuals that moved into the Borough had some questions about the police and ordinances. And during that meeting I learned of their dislikes and likes of the Borough.(R.R. at 64-65.) He also stated that "[n]o fee was discussed. I had said that if the fence -- if they wanted to do the fence, they should go through [Shaffner] and the zoning officer." (R.R. at 66.)
Was the fence discussed? The question was asked of me about the fence. I did make the statement I thought it was grandfathered, but that very meeting I excused myself, went out and talked to [Shaffner], who is on the Borough staff, and I presented that question to her, told her how I felt, which I felt it was grandfathered. And she said no, because of some of the new changes in the zoning that, in fact, would not be grandfathered.
Codd testified that the fence was never discussed at the meeting with Fregede and Mayor Overlander. (R.R. at 68.) Codd stated that "the direct question asked of [the] mayor was, when do you need a permit? . . . [H]e told us that if you are replacing something exactly as it is, you don't need a permit, but if you are building something new and it costs over $500, then you do need a permit." (R.R. at 69) (emphasis added).
The Board affirmed the denial of the permit on the basis that the new fence was not in compliance with the Ordinance. The Board determined that Mayor Overlander's and Codd's testimonies were more credible than Fregede's testimony. (Board's Finding of Fact No. 32.) The Board's reasoning for affirming the permit denial was as follows:
[Conclusion of Law No. 1]: Single family detached dwellings and accessory uses are permitted as of right within the Historic Commercial Zone (HC). Zoning Ordinance §§210.2.16, 210.2.
[Conclusion of Law No. 2]: The Zoning Ordinance defines the term "structure" to specifically exclude "such things as fences, sand boxes, decorative fountains, swing sets, birdhouses, bird feeders, mailboxes, and any other similar non-permanent improvements" Zoning Ordinance §112.C.
[Conclusion of Law No. 3]: The Zoning Ordinance defines the term "nonconforming structure" to be a "structure or part of a structure manifestly not designed to comply with the applicable use or extent of use provisions in the Zoning Ordinance . . . where such structure lawfully existed prior to the enactment of such ordinance . . .". Zoning Ordinance § 112.C.
[Conclusion of Law No. 4]: Because accessory uses to permitted principal uses are permitted as of right in the Historic Commercial Zone (HC) if the Old Fence is considered a structure, it does not meet the definition of a "nonconforming structure".
[Conclusion of Law No. 5]: If the Old Fence is not considered a structure as that term is defined in the Zoning Ordinance, the Old Fence cannot be considered a nonconforming structure.
[Conclusion of Law No. 6]: Section 505 of the Zoning Ordinance authorizes the reconstruction of "[a]ny lawful nonconforming building or other structure which has been involuntarily damaged or destroyed by fire, explosion, windstorm or other similar active cause" subject to certain conditions.
[Conclusion of Law No. 7]: Because the Old Fence is not a "nonconforming structure", Section 505 of the Zoning Ordinance is not applicable to the Old Fence.
[Conclusion of Law No. 8]: Section 305 of the Zoning Ordinance [pertaining to any visual obstructions] prohibits the maintenance of any "structure, planting, excavation, [or] other visual obstruction" within the clear sight triangle which is greater than 30 inches in height.
[Conclusion of Law No. 9]: The portion of the Old Fence within the clear sight triangle which was in excess of 30 inches in height was dimensionally nonconforming as to the height.
[Conclusion of Law No. 10]: Section 230.11.2 of the Zoning Ordinance [pertaining to nonconforming uses and structures in the floodplain zone] allows the replacement, repair or rebuilding of a nonconforming use or structure if such use or structure is "damaged or destroyed by any means, including floods, to the extent of less than fifty percent (50%) of its fair market value at the time of its damage or destruction."
[Conclusion of Law No. 11]: A zoning permit may not be issued unless the proposed use or structure meets all applicable regulations of the Zoning Ordinance. Zoning Ordinance §701.1.4.A. [governing applications for permits for construction or alteration of structures].
[Conclusion of Law No. 12]: If the Zoning Officer expresses doubt as to the compliance of the application with the Zoning Ordinance, "it will be incumbent upon the applicant to furnish adequate evidence in support of his application." Zoning Ordinance §701.1.5. [governing applications for permits for construction or alteration of structures].
[Conclusion of Law No. 13]: By failing to file an application for a zoning permit prior to the construction of the New Fence, Appellants eliminated the ability of the Zoning Officer to request information in accordance with Section 701.1.5. of the Zoning Ordinance.
[Conclusion of Law No. 14]: To the extent the fair market value of the damaged portion of the Old Fence is relevant, Appellants could not shift the burden to demonstrate the fair market value of the damaged portion of the Old Fence to the Borough by failing to make application for a permit and eliminating the ability of the Zoning Officer to request information pursuant to Section 701.1.5 of the Zoning Ordinance.
[Conclusion of Law No. 15]: To the extent that Section 230.11 of the Zoning Ordinance is relevant, Appellants have failed to present evidence that the Old Fence was damaged to less than fifty percent of its fair market value and, therefore, failed to demonstrate that Appellants were authorized to replace the Old Fence with the New Fence within the clear sight triangle.(Board's Conclusions of Law Nos. 1-16.) The Board never reached a conclusion on whether the new fence is classified as a structure under the Ordinance but merely concluded that, in this situation, the new fence does not qualify as a restoration of a nonconforming structure under section 505 of the Ordinance, regardless of whether the fence is a structure.
[Conclusion of Law No. 16]: Even if the portion of the property within the clear sight triangle of Blackberry Avenue and East Hazel Avenue is within the Floodplain Zone, the right to reconstruct structures granted by Section 230.11 cannot be expanded to authorize the removal and replacement of a visual obstruction within a clear sight triangle which is dimensionally nonconforming as to its height.
The trial court concluded that Harman's testimony constituted substantial evidence to support the Board's determination that the new fence violated the height limitation in section 305 of the Ordinance. The trial court noted that the fence is expressly excluded from the Ordinance's definition of a structure, and, thus, substantial evidence supported the Board's determination that section 505 concerning nonconforming structures is inapplicable. The trial court also concluded that Harman's testimony supported the Board's finding that the Property is located in the floodplain zone and that Appellants' construction of the new fence prior to submitting a permit application deprived Harman of the opportunity to determine the fair market value of the old fence and the damage it sustained. Further, the trial court noted that Fregede's testimony that the old fence was damaged less than 50 percent of its fair market value did not persuade the Board, and stated that it must defer to the Board's determination. Accordingly, the trial court affirmed the Board's decision.
On appeal to this Court, Appellants argue that: (1) the Board erred in finding that the fence was an "accessory use" but not an "accessory structure," or, in the alternative, the Ordinance is vague and contradictory such that the Ordinance's definition of "structure" must be interpreted in Appellants' favor under section 603.1 of the Pennsylvania Municipalities Code (Code); (2) substantial evidence does not support the Board's determination that the Property is a corner lot under section 305 of the Ordinance; (3) the Board erred in determining that section 505 of the Ordinance is inapplicable to the fence; (4) substantial evidence does not support the Board's finding that the Property is located in the floodplain zone; and (5) the Board committed an error of law or an abuse of discretion by discrediting Fregede's uncontradicted testimony regarding the old fence's damage and fair market value.
Where, as here, the trial court takes no additional evidence, our scope of review is limited to determining whether the zoning hearing board committed an error of law or abuse of discretion in rendering its decision. In re Heritage Building Group, Inc., 977 A.2d 606, 611 n.4 (Pa. Cmwlth. 2009). When the reviewing court considers no further evidence, "questions of credibility and evidentiary weight are solely within the province of the zoning hearing board." Whitpain Township Board of Supervisors v. Whitpain Township Zoning Hearing Board, 550 A.2d 1355, 1360 (Pa. Cmwlth. 1988).
Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §10603.1.
II. Discussion
"The rules of statutory construction apply to ordinances as well as statutes." In re Holtz, 8 A.3d 374, 378 (Pa. Cmwlth. 2010). Under the rules of statutory construction, it is presumed that the Borough does not intend an absurd result. Section 1922(1) of the Statutory Construction Act of 1972 (Act), 1 Pa.C.S. §1922(1). "The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions." Section 1921(a) of the Act, 1 Pa.C.S. §1921(a). When the words of a statute are clear, courts must adhere to the plain meaning of the language. Section 1921(b) of the Act, 1 Pa.C.S. §1921(b). "The headings prefixed to titles, parts, articles, chapters, sections and other divisions of a statute shall not be considered to control but may be used to aid in the construction thereof." 1 Pa.C.S. §1924.
1. Fence is not a structure
First, pursuant to Appellants' argument, we must determine whether the fence is a structure or whether the Ordinance is contradictory and ambiguous in this regard. The definition of a structure found in section 112.C of the Ordinance states:
Marietta Borough, Pa., Zoning Ordinance at §112.C.
STRUCTURE - Any manmade object, including buildings, having an ascertainable stationary location on or in land or water, whether or not affixed to the land.
Structure, Accessory: A structure associated with an accessory use (e.g., swimming pools, patios, antennas, tennis courts, garages, utility sheds, etc.). However, for the purpose of establishing setbacks, any accessory building larger than seven hundred twenty (720) square feet shall comply with principal structure setbacks.
Structure, Principal: A structure associated with a primary use.
(R.R. at 109-10) (emphasis added). It is clear here that the definition of structure in the Ordinance expressly excludes fences from the definition of any type of structure, including accessory or principal structures.
Structures shall not include such things as fences, sandboxes, decorative fountains, swingsets, birdhouses, birdfeeders, mailboxes, and any other similar nonpermanent improvements.
However, Appellants assert that their new fence should be considered a structure under Ordinance section 303.2, a subsection of section 303 of the Ordinance, entitled "Setback Modifications," that provides as follows:
Marietta Borough, Pa., Zoning Ordinance at §303.2.
Marietta Borough, Pa., Zoning Ordinance at §303.
Section 303 Setback Modifications
303.2. Accessory or Appurtenant Structures - The setback regulations do not apply to:
(R.R. at 157) (emphasis added).1. Bus shelters; telephone booths; and cornices, eaves, chimneys, steps, canopies, and similar extensions, but do apply to porches and patios, whether covered or not;
2. Open fire escapes;
3. Minor public utility structures, articles of ornamentation or decoration;
4. Fences, hedges and retaining walls; and,
5. Driveways and access drives are exempt from front yard setbacks.
Because the term "fences" appears under the sub-heading entitled "Accessory or Appurtenant Structures" here, Appellants claim that the Ordinance is ambiguous. Appellants also claim that, because section 301.1 of the Ordinance includes fences under a separate sub-heading of accessory uses and structures, this sub-heading also renders the Ordinance ambiguous. Section 301.1 states:
Marietta Borough, Pa., Zoning Ordinance at §301.1.
Section 301 Accessory Uses and Structures
(R.R. at 154.)301.1 Fences and Walls - No fence or wall (except as expressly required under the terms of this Ordinance) shall be erected to a height of more than six feet (6') within the H-R, R-1, R-2, R-3, R-4, and HC Zones. All fences constructed within the front yard must include a point of access between the lot and the street. Within the OS, LC and I Zones, no fence nor wall shall be erected to a height of more than ten feet (10') in any yard. No fence shall block motorist view of vehicles entering or exiting the property. This section does not apply to fences used for enclosure of livestock[.]
Appellants contend that notwithstanding the express exclusion of fences from the definition of structures, the headings of these subsections make the Ordinance ambiguous. Though headings may aid in interpreting the construction of a statute, they do not control, especially when the language of the ordinance is clear. See 1 Pa.C.S. §1924; Commonwealth v. Haag, 603 Pa. 46, 54, 981 A.2d 902, 907 (2009) (holding that consideration of a statutory section's heading is unnecessary when its language is clear and unambiguous). Although Appellants claim the inclusion of fences under these provisions makes the Ordinance ambiguous, the express language of the Ordinance under section 112.C makes clear that fences are excluded from the definition of accessory or principal structures. The plain language of the Ordinance controls. 1 Pa.C.S. §1921(b) ("When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.").
The definition of a structure in section 112.C of the Ordinance expressly excludes fences by providing that "[s]tructures shall not include such things as fences[.]" (R.R. at 109-10) (emphasis added). The fact that provisions concerning fences appear under inapposite headings does not cause an ambiguity as to the clear definition. See 1 Pa.C.S. §1924 ("The headings prefixed to titles, parts, articles, chapters, sections and other divisions of a statute shall not be considered to control but may be used to aid in the construction thereof."); Commonwealth v. Magwood, 503 Pa. 169, 177, 469 A.2d 115, 119 (1983) ("It is also a well-established rule that the title cannot control the plain words of the statute and that even in the case of ambiguity it may be considered only to resolve the uncertainty.") (internal quotations and citation omitted); Medical Shoppe, Ltd. v. Wayne Memorial Hospital, 866 A.2d 455, 463 (Pa. Cmwlth. 2005) ("The case law explains that a heading is to be given consideration in the limited situation where the plain words of the statute are ambiguous, and, even in those cases, is not conclusive.") (internal quotations and citation omitted). Applying these principles here, the Ordinance expressly delineates two types of structures, principal and accessory, and fences are excluded from each. Thus, under the plain language of the Ordinance, fences are not considered structures.
Having determined that the fence is not a structure, we look to whether Appellants were required to apply for a permit to reconstruct their fence. Section 701.1.1 of the Ordinance provides the general requirements for zoning permits as follows:
Marietta Borough, Pa., Zoning Ordinance at §701.1.1.
Section 701 Permits
701.1. General Requirements for Zoning Permits:
1. A zoning permit shall be required prior to:
(R.R. at 228) (emphasis added). Clearly, fences are not included in any of the categories under which a permit is required. Because a permit is not required for the construction of Appellants' new fence, the trial court erred in affirming the Board's decision.A. a change in use of land or structure;
B. the erection, construction, improvement, demolition, or alteration of any of the exterior dimensions of the structure or portion thereof;
C. the alteration or development of any improved or unimproved real estate, including, but not limited to, mining, dredging, filling, grading, paving, excavation or drilling operations;
D. the erection or alteration of any signs specified in Section 313 of this Ordinance; and/or,
E. the construction or installation of animal waste impoundments, lakes, ponds, dams, or other water retention basins.
We also note that there is not substantial evidence in the record to support the Board's determination that Appellants' fence does not comply with section 305 of the Ordinance's clear sight triangle requirement. Section 305 states in pertinent part as follows:
On corner lots, there shall be provided and maintained a clear sight triangle of at least forty feet (40'), as measured along the centerline from the intersecting roads. No structure, planting, excavation, nor other visual obstruction shall be permitted at a height greater than thirty inches (30") within such area. . . . A public right-of-way shall also be reserved for the purpose of removing any visual obstruction within the clear sight triangle.
Accordingly, we reverse.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 28th day of April, 2014, the February 8, 2013 order of the Court of Common Pleas of Lancaster County is reversed.
/s/_________
PATRICIA A. McCULLOUGH, Judge BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED
DISSENTING OPINION BY JUDGE SIMPSON
Because I would affirm the Court of Common Pleas of Lancaster County (trial court), I respectfully dissent.
Appellants occupy a residential lot, a portion of which is in a floodplain zone. There was an old fence on the lot which by its height obstructed sight at a small intersection, and the sight obstruction rendered the fence non-conforming. Despite being told that a permit was needed to replace the old fence, Appellants replaced the fence without a permit. As a result, the zoning officer was not able to inspect the old fence.
Appellants appealed the denial of a later-sought permit to the Zoning Hearing Board of Marietta Borough (ZHB). Under the Zoning Ordinance, Appellants had the burden of proof. After a hearing, the ZHB denied the appeal. Essentially, the ZHB accepted the testimony of the zoning officer.
The testimony of the zoning officer was sufficient to establish that the lot is a corner lot and a portion of it is in the floodplain zone. In such a zone, a non-conforming use or structure can be replaced if it is damaged to an extent of less than 50% of its fair market value. The only testimony on this point came from one of the Appellants, because the zoning officer was not able to inspect the old fence. The ZHB did not find that testimony persuasive.
Appellants assail their inability to replace the old fence with a new fence of the same dimensions. However, it is a reasonable legislative decision to restrict reconstruction of non-conforming structures in or near a floodplain zone, and that legislative judgment is not reviewable here. Based on the credibility findings by the ZHB, affirmance is warranted. I would affirm the denial of the later-sought permit for the reasons set forth by the Honorable Joseph C. Madenspacher, President Judge of the trial court.
/s/_________
ROBERT SIMPSON, Judge
(R.R. at 158.)
Section 112.C of the Ordinance defines a corner lot as follows: "[a] lot at the point of intersection of and abutting two (2) or more intersecting streets, and which has an interior angle of less than 135 degrees at the intersection of the two street lines. Corner lots shall have two (2) front yards, one (1) side and one (1) rear yard." (R.R. at 101.) Harman's testimony that Blackberry Avenue, one of the "streets" that qualified Appellants' property as a corner lot, was a dedicated street and that the Borough retained a public right-of-way on it was based on his assumption from second-hand information received from Borough staff members. (R.R. at 22-24.) To the contrary, Fregede testified that Blackberry Avenue was not regularly maintained by the Borough and the Borough did not plow Blackberry Avenue whenever it snowed. Fregede described Blackberry Avenue as an "alleyway." (R.R. at 45-46, 48.) The Board did not specifically reject this testimony from Fregede. The Borough failed to establish that Blackberry Avenue is a dedicated street. The Borough has also failed to present any evidence to establish that Appellants' fence qualifies as a "visual obstruction." Thus, Appellants' fence is not subject to section 305's requirements.
Moreover, there is no evidence in the record that Appellants' fence does not meet the Ordinance's height requirement. Section 301.1 of the Ordinance provides that "[n]o fence or wall . . . shall be erected to a height of more than six feet (6') within the . . . HC Zone[]." (R.R. at 154.) Fregede specifically testified that Appellants' new fence is an exact restoration of Appellants' old fence, which did not exceed six feet in height. (R.R. at 33, 37-38, 48.) Crescenzi corroborated Fregede's testimony, stating that the new fence's height is exactly the same as the old fence's height. (R.R. at 63-64.) The Board specifically found that Appellants' property is located in the historic commercial zone and that Appellants' new fence, at approximately the same location as Appellants' old fence, is six feet tall. (Board's Findings of Fact Nos. 3, 20.) Thus, the evidence in the record establishes that Appellants' new fence meets the height requirement under section 301.1.