No Parking!

July 01, 2024

B&A Property, LLC v. Bensalem Township Zoning Hearing Board, 2024 WL 2266460 (Pa Cmwlth. Ct. May 20, 2024(opinion not reported) is a case that was recently decided by the Commonwealth Court of Pennsylvania that is instructive on interpreting definitions in a zoning ordinance and reviewing the requirements for obtaining equitable relief from a zoning enforcement notice.

B&A wanted to purchase a lot that had an existing small building and an empty parking lot. The property had a split-zone for highway commercial and light industrial. B&A requested a zoning certification to use the parking lot for semi-trucks and a mechanic shop.  The township inspector issued the zoning certification that the proposed use was permitted.   To help facilitate the sale of the property,  the township issued a commercial use and occupancy certificate with the understanding that B&A intended to use the property to store personal vehicles during the day and van-type vehicles overnight.  The township expected B&A to file a subsequent application to further clarify its use of the property. However, after purchasing the property, B&A began operating a trucking business without getting any permits and used the parking lot to store semi-trucks. Later, B&A filed another zoning application to use the property as an office.  It was then that the Township issued a notice of violation. The notice indicated that B&A’s  use of the property as a trucking yard or terminal is only permitted in the General Industrial zoning district. B&A appealed the notice of violation arguing: (1) that the use is permitted, or (2) that it is entitled to equitable relief.  The zoning hearing board and the lower court denied the appeal.

 B&A’s first argued that the use was permitted because the zoning ordinance expressly authorizes a “parking garage or lot” for trucks and “other self-propelled motor driven vehicle[s].” Since B&A was just parking trucks, this language is broad enough to encompass its use.

 The Commonwealth Court found that although the Highway Commercial zoning district permits the property to be used as a parking lot, a trucking yard is only allowed in the General Industrial zoning district.  In short, a parking lot and a trucking yard are two distinct uses and the zoning ordinance is not ambiguous.  The facts showed that B&A was doing more than just parking trucks on the property – it was running a full-scale trucking operation that did not belong in the Highway Commercial zoning district.  The Commonwealth court found that the zoning hearing board’s interpretation was consistent with the plain language of the zoning ordinance.

 B&A’s second argument was that it was entitled to equitable relief under either the vested rights doctrine or the variance by estoppel doctrine. A property owner may acquire certain vested rights in its property where a municipality has erroneously issued the property owner a permit.

In this case, the township issued a zoning certification, but it never granted B&A a permit to use the property as a trucking terminal.  In fact, the certification explicitly stated that it was not a permit, and that no land shall be used or occupied until all appropriate approvals and permits were obtained. With no permit issued, B&A could not establish a right to relief under the doctrine of vested rights.

  Under the variance by estoppel doctrine, a property owner must establish: (1) a long period of municipal failure to enforce the law, when the municipality knew or should have known of the violation, in conjunction with some form of active acquiescence in the illegal use; (2) the landowner acted in good faith and relied innocently upon the validity of the use throughout the proceeding; (3) the landowner has made substantial expenditures in reliance upon his belief that his use was permitted; and (4) denial of the variance would impose an unnecessary hardship on the applicant.

 To prevail under a variance by estoppel theory, each of the elements must be established by clear, precise and unequivocal evidence. The mere passage of time does not, in itself, entitle a property owner to a variance by estoppel. Similarly, mere inaction is insufficient to establish that the municipality has actively acquiesced to the illegal use. Rather, the property owner must show that the municipality performed an affirmative act, such as issuing a permit, which would reasonably lead a landowner to conclude his use was lawful. In this case, B&A failed to establish that the township committed an affirmative act that would reasonably have led B&A to conclude that its use of the property was lawful. Instead, the record established that the township never conveyed to B&A that its use of the property to operate a trucking business was permitted.  In fact, the township had informed B&A that it would need to provide additional information to clarify its intended use of the property. The Township’s actions could not reasonably lead B&A to conclude that it could use the property to operate a trucking business.  Additionally, only a short period of time elapsed between B&A beginning its illegal use of the property and the Township issuing a notice of violation. The Commonwealth Court found that there was no support in the record for B&A’s claim that the Township actively acquiesced to its illegal use for a long period of time.