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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
H.Y.K. Construction Company,
:

Appellant :
v.

:

:
Zoning Hearing Board of Perkiomen
:
Township and Perkiomen Township
: No. 1191 C.D. 2004
H.Y.K. Construction Company
:

:
v.

:

:
Zoning Hearing Board of Perkiomen
:
Township and Perkiomen Township
:

: No. 1325 C.D. 2004
Appeal of: Perkiomen Township
: Submitted: February 11, 1005
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE
DAN
PELLEGRINI, Judge

HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE PELLEGRINI

FILED: March 18, 2005

Before this Court is (1) an appeal by H.Y.K. Construction Company
(HYK) from an order of the Court of Common Pleas of Montgomery County (trial
court) that, among other things, affirmed the decision of the Zoning Hearing Board
of Perkiomen Township (Board) to uphold Perkiomen Township (Township) Code
Enforcement Officer's notice of violation against HYK for beginning construction
on concrete slabs used to expand its concrete mixing business without obtaining a
permit, which was one of the conditions attached by the Board to a subsequent
variance allowing HYK to expand its nonconforming use, and (2) a cross-appeal

by Perkiomen Township (Township) from the trial court's order striking two other
conditions imposed on HYK by the Board.

HYK owns three parcels of land in Perkiomen Township and used, by
permission of Montgomery County (County), two adjacent parcels of land
(Property) as a concrete batch and pre-cast concrete business, which includes the
storage of products and materials on crushed stone or bare ground within the
dimensional yard spaces. In 1975, the Township passed the Perkiomen Township
Ordinance, as amended by Ordinance No. 123 (adopted March 14, 1990) (Zoning
Ordinance), whereby the area in which the Property is located was rezoned as the
Village Commercial Residential (VCR) zoning district. Under the Zoning
Ordinance, a ready-mix concrete or a pre-casting concrete business are not
permitted uses in VCR districts. However, HYK's use is permitted as a pre-
existing, nonconforming use because HYK established the use before the adoption
of the Zoning Ordinance.

The three parcels owned by HYK (Parcels 1, 2, and 3) consisting of
3.6 acres have been used by HYK for business purposes since 1974. In December
2000, HYK deeded roughly 13 acres of land located in a nearby township to the
County in exchange for two parcels (Parcel 4 and 5) adjacent to the three parcels it
owned, consisting of 3.6 acres and .691 acres respectively. While HYK did not
formally lease Parcel 4 from the County in 1974, HYK had used a portion of
Parcel 4 with permission of the County to store pre-cast materials since 1974.
Parcel 4 is at issue in this case.

2

Shortly after HYK finally acquired Parcel 4 from the County, it
expanded its nonconforming concrete business by commencing the construction of
12-inch thick, ground level concrete pads on Parcel 4 totaling approximately 7,000
feet. Although HYK used Parcel 4 for business purposes since 1974, that use was
granted by permission of the County, the owner of the Parcel at the time. HYK
admitted that the expansion would use more of Parcel 4 for its concrete business
than it had used before December 2000.

The Township became aware that HYK commenced the construction
concrete pads on Parcel 4 without first obtaining a building permit as required by
Section 103 of the Township Building Code. On March 30, 2001, the Township,
through its Code Enforcement Officer, issued a notice of violation for that reason
as well as a notice of violation for violating Section 12.63(a) of the Zoning
Ordinance, which limits the expansion of a nonconforming use to the amount of
land owned or leased at the time the Zoning Ordinance was passed.1

On April 27, 2001, in response to the notices of violation, HYK
applied for a building permit to construct the concrete slabs, but that application
was denied by the Township because the proposed construction would violate the

1 Notice of violations or enforcement notices are sent pursuant to Section 616.1 of the
Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10616.1,
which provides:

(a) If it appears to the municipality that a violation of any zoning
ordinance enacted under this act or prior enabling laws has
occurred, the municipality shall initiate enforcement proceedings
by sending an enforcement notice as provided in this section.

3

rear and side-yard setback requirements under the Zoning Ordinance. HYK
appealed to the Board, challenging the alleged violations of the Zoning Ordinance
and requesting a variance.

The Board upheld the notice of violations, concluding that a building
permit had to be obtained before commencing construction of the slabs under the
Township Building Code and that HYK expanded its nonconforming use onto
newly acquired land without the necessary approvals. No sanctions were ever
imposed as a result of these violations. As to the requested variance, the Board
held that (1) HYK's use of a portion of Parcel 4 with the permission of the County
at the time the Zoning Ordinance was passed (1975) constituted a pre-existing,
nonconforming use, a reasonable expansion of which was permissible under the
Zoning Ordinance; and (2) HYK would receive the variances needed to obtain a
permit and complete construction of the concrete pads as requested. The Board
also placed the following conditions upon its approval, which are at issue in this
appeal:

· that any additional or future use of or construction on the
parcels subject to HYK's application shall conform to all
Township ordinances (Condition A.3);

· that any reasonable expansion of HYK's nonconforming
business to which HYK was or could be entitled or
permitted has been entirely exhausted by the growth and
expansion that has already occurred (Condition C.3); and

· that HYK cannot expand its business in any manner
beyond what was specifically permitted by the Board
regarding Parcels 1 through 5, except in strict conformity

4

with all Township ordinances and any other applicable
laws or regulations (Condition C.4).

HYK appealed that order to the trial court, contending that the notice
of violations should not have been upheld because the construction of the concrete
pads did not require building permits since building permits are only required for
structures and a concrete pad is not a structure; that it had the right to expand
without limiting the use of the property; and that the Board abused its discretion or
committed an error of law by imposing the previously mentioned conditions. The
trial court affirmed the Board's upholding of the notice of conditions, struck down
Conditions C.3 and C.4 because they foreclosed the possibility of HYK to seek any
permission to expand its use in the future without considering any future changes
in circumstances, but upheld Condition A.3 that HYK was required to comply with
all valid Township ordinances. This appeal and cross-appeal followed.2

I. Appeal of HYK

On appeal, HYK essentially contends that the trial court erred in
affirming the Board's finding that HYK was in violation of the Zoning Ordinance
for failing to obtain a permit before constructing the concrete slabs because those
slabs are not "structures" within the meaning of the Zoning Ordinance that require
a permit before construction. HYK also argues that a concrete slab is similar to the
pre-cast, concrete traffic barriers in Walker v. Ehlinger, 544 Pa. 298, 676 A.2d 213
(1996), that our Supreme Court held were not structures that were "built" or

2 Where no additional evidence is considered by the trial court, our scope of review is
limited to determining whether an abuse of discretion occurred or whether errors of law were
committed. Baker v. Chartiers Township Zoning Hearing Board, 677 A.2d 1274 (Pa. Cmwlth.
1996), petition for allowance of appeal denied, 547 Pa. 738, 690 A.2d 238 (1997).

5

"constructed" even though the weight of those barriers rendered them virtually
immovable.

The Zoning Ordinance defines "building" as:

Any combination of materials forming any structure
which is erected on the ground and permanently affixed
thereto designed, intended, or arranged for the housing,
shelter, enclosure, or structural support of persons,
animals, or property of any kind.

(Reproduced Record at 4a) (Emphasis added). "Structure" is defined as:

Any material or a combination of materials which are
constructed or erected, the use of which requires location
on the ground or attached to something located on the
ground.

(Id. at 5a). Applying that definition here, these slabs will be mixed and poured into
the ground and will become permanently attached thereto for the purpose of
storing HYK's pre-cast concrete materials in conjunction with its business.
Accordingly, the concrete slabs at issue in this case fall well within the definition
of "structure" under the Zoning Ordinance,3 and no reading of Walker prevents that
conclusion because in that case, movable concrete barriers were not "structures"
since they were not built or constructed in conjunction with a commercial
establishment; they were not joined to one another; and they were not "affixed to

3 Significant deference is given to a zoning board's interpretation of its own ordinances.
Smith v. Zoning Hearing Board of Huntingdon Borough, 734 A.2d 55 (Pa. Cmwlth. 1999).

6

the property." Those barriers were simply placed on the property to avoid vehicular
trespass. Because it is a structure, the concrete slab was a structure and the setback
requirements applied.

HYK also contends that the other notice of violation that was issued
for expanding its nonconforming use should not be upheld because it was
permitted as of right to expand its nonconforming use of Parcel 4 to the entire
parcel. However, Section 12.63(a) provides as follows:

No such non-conforming use shall be enlarged or
increased nor extended to occupy a greater area of land
than was owned or leased by the user at the effective date
of adoption of such amendment to this Ordinance.

(Reproduced Record at 5a). Under the Zoning Ordinance, HYK could only
maintain its nonconforming use on that portion of Parcel 4 that it used for its
business as of 1975 when the Zoning Ordinance passed. In other words, if HYK
wanted to expand its nonconforming use, it must have done so by way of variance
from Section 12.63(a) of the Zoning Ordinance. See Sweeney v. Zoning Hearing
Board of Lower Merion Township, 534 Pa. 197, 203, 626 A.2d 1147, 1151 (1993)
(where a nonconforming use expands onto a "portion of land ... not used in
furtherance of the nonconforming use prior to the ordinance, then the appropriate
remedy would be to obtain a variance").4

4 To the extent that HYK is attempting to challenge the validity of the Zoning Ordinance,
we note that HYK originally raised such challenges before the Board and withdrew those
challenges at the Board's hearing.

7

As to HYK's third issue, it argues that Condition A.3 should be
stricken, just as Conditions C.3 and C.4 were stricken by the trial court (discussed
infra), because Condition A.3 has a res judicata effect on future applications for
variances by HYK or its predecessors and any attempts to govern potential future
proceedings involving HYK or its predecessors in interest.5 HYK's argument
misses the mark because Condition A.3 simply states that future uses of or
construction on the Property must comply with Township ordinances. Removing
that condition, HYK, its predecessors in interest, and everyone in the Township for
that matter is and will always be required to comply with all valid Township
Ordinances anyway. Accordingly, HYK's argument is rejected.

II. Cross-Appeal of Perkiomen Township

In its cross-appeal, the Township argues that the trial court erred by
striking Conditions C.3 and C.4 from the Board's order because it was within the
discretion of the Board to impose those conditions, which did not prevent HYK
from filing future applications for zoning relief, and because neither restriction was
unreasonable, unlawful, or prejudicial to the rights of HYK. Conditions C.3 and
C.4 essentially state that HYK has exhausted all of its rights to expand its

5 Section 910.2(b) of the Municipalities Planning Code, Act of July 31, 1968 P.L. 805, as
amended, 53 P.S. §10910.2(b), provides as follows:

(b) In granting any variance, the board may attach such reasonable
conditions and safeguards as it may deem necessary to implement
the purposes of this act and the zoning ordinance.

53 P.S. §10910.2(b). The conditions imposed must bear a reasonable relation to the protection of
the public interest, see VanSciver v. Zoning Board of Adjustment, 396 Pa. 646, 152 A.2d 717
(1959), and be reasonable under the facts of the case. Appeal of Board of Supervisors of
Solesbury Township, Bucks County, 412 A.2d 163 (Pa. Cmwlth. 1980).

8

nonconforming use now and in the future and is prohibited from expanding in the
future beyond that which the Board has permitted already. Unlike Condition A.3,
which is simply a restatement of HYK's legal obligations even if that condition
were not specifically imposed, Conditions C.3 and C.4 have a more profound
affect: they take away any potential future rights of HYK to expand its
nonconforming use and practically prohibit any such expansion without
considering future circumstances or future amendments to the Zoning Ordinances.
In effect, the Board has decided against HYK in every potential proceeding in the
future involving HYK and its nonconforming use on the Property. While HYK
may not prevail in future attempts to seek zoning relief, a condition of approval for
a variance that completely forecloses the ability of a landowner to seek any relief
in the future is neither reasonable nor in the public interest.

For these reasons, the order of the trial court is affirmed.

________________________

DAN
PELLEGRINI,
JUDGE

9

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

H.Y.K. Construction Company,
:

Appellant :

:

v.

: No. 1191 C.D. 2004

:
Zoning Hearing Board of Perkiomen
:
Township and Perkiomen Township
:
H.Y.K. Construction Company
:

:

v.

: No. 1325 C.D. 2004

:
Zoning Hearing Board of Perkiomen
: Submitted: February 11, 2005
Township and Perkiomen Township
:

:
Appeal of: Perkiomen Township
:
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE
DAN
PELLEGRINI, Judge

HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
CONCURRING AND DISSENTING OPINION
BY SENIOR JUDGE KELLEY

FILED: March 18, 2005

I concur in the Majority's disposition of Perkiomen Township's cross-
appeal; however, I disagree with a part of the Majority's disposition of HYK's
appeal. More specifically, I disagree with the Majority's affirmance of the Board's
conclusion that HYK had violated Section 103 of the Township Building Code by

pouring the ground level concrete pads without first obtaining the necessary
permit.

On March 30, 2001, the Perkiomen Township Code Enforcement
Officer issued an Ordinance Violation Notification which referenced Ordinance
Number 103 of the Township Building Code and stated, in pertinent part:
It is a violation of the referenced ordinance to expand a
building without a building permit. You shall remove the
concrete slab or obtain a building permit within five (5)
days of receipt of this notice. Failure to comply with this
notice shall result in commencement of enforcement
proceedings before [a] District Justice....

Reproduced Record (RR) at 27a. Following hearings, the Board determined that
HYK "[v]iolated Ordinance 103 of the Perkiomen Township Zoning Ordinance by
pouring ground level concrete pads without first obtaining the necessary permit."
Id. at 43a. Both before the trial court, and in the instant appeal to this Court, HYK
alleges in part that the Board erred in this regard.

As noted by the Majority, Section 12.11 of the Zoning Ordinance
defines "building", in pertinent part, as:
Any combination of materials forming any structure
which is erected on the ground and permanently affixed
thereto, designed, intended, or arranged for the housing,
shelter, enclosure, or structural support of persons,
animals or property of any kind....

RR at 4a. In turn, Section 12.11 defines "structure" as "[a]ny material or a
combination of materials which are constructed or erected, the use of which
requires location on the ground, or attached to something located on the ground."
Id. at 5a.

Although the ground level concrete pads at issue in this case clearly
fall within the foregoing definition of a "structure", they are not a "building" under
JRK-12

the foregoing definition, or any common sense understanding of that term.6 As a
result, HYK should not have been cited for violating Section 103 of the Township
Building Code for "[e]xpand[ing] a building without a building permit...", the
Board erred in determining that HYK had violated the Ordinance, and neither the
trial court nor this Court should affirm the Board's determination in this regard.

Accordingly, unlike the Majority, I would reverse the trial court's
affirmance of the Board's determination that HYK had violated Section 103 of the
Township Building Code by expanding the "building" without first obtaining a
building permit; I agree with the Majority's disposition of the appeal and cross-
appeal in all other respects.

_________________________________

JAMES R. KELLEY, Senior Judge

6 It is true that a zoning hearing board's interpretation of its own zoning ordinance is
entitled to great weight and deference from a reviewing court. Smith v. Zoning Hearing Board
of Huntingdon Borough, 734 A.2d 55 (Pa. Cmwlth.), petition for allowance of appeal denied,
561 Pa. 664, 747 A.2d 904 (1999). However, it is well settled that zoning ordinances should be
construed in a sensible manner. Council of Middletown Township v. Benham, 514 Pa. 176, 523
A.2d 311 (1987).
JRK-13