Posted by: Patricia Salkin | December 14, 2010

PA Appeals Court Holds that a Roof Does Not Constitute a Land Development Under Either the Municipal Planning Code Nor Local Ordinance

The Zoning Hearing Board (ZHB) denied Basile’s permit to build a roof over an outdoor concrete patio attached to his restaurant.  Basile had previously obtained a permit to renovate his restaurant and build a patio behind the building.  But during the renovation, a zoning officer noticed that a roof was being built over the patio but the permit did not include the roof.  Subsequently, the Borough filed a complaint seeking injunctive relief until Basile obtained the proper land development approvals. The trial court held a hearing and suggested that the Borough and Basile stipulate that Basile would submit a Building Permit Application for the roof.  Basile submitted his application but the Zoning Officer denied the application for failure to meet land development requirements.  Basile appealed to the ZHB but it upheld the decision by the Zoning Officer.  Basile appealed again, and the trial court upheld the decision by the ZHB because Basile had failed to obtain land development approvals.

On further appeal, Basile claimed the construction of a roof over an approved patio does not constitute land development.  The Borough argued that land development included any improvements to the building but Basile argued that the issue merely concerned the erection of a roof.  The Court determined that the Borough’s definition of “land development” under the application laws was too broad since it would require land development plans for a construction of a roof.  Here, the entire building had been approved for improvement, including the small patio and no land development plans were required.  As such, the trial court’s order denying the roof permit was reversed.

Borough of Moosic v. Zoning Hearing Bd. of Borough, 2010 WL 4867614 (Pa.Cmwlth. 12/1/ 2010)

The opinion can be accessed at: http://caselaw.findlaw.com/pa-commonwealth-court/1546486.html


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