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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hugh Morgan, Carrie Morgan,
:
David Colletti and Donna Colletti
:

:
v.

:

:
Zoning Hearing Board of Tinicum
:
Township and Tinicum Township
:
Tinicum Township

:

:
v.

:

:
Zoning Hearing Board of Tinicum
:
Township, Hugh Morgan, Carrie
:
Morgan, David Colletti and Donna : No. 1435 C.D. 2004
Colletti

: Submitted: December 17, 2004

:
Appeal of: Tinicum Township
:
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE
DAN
PELLEGRINI, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McGINLEY

FILED: February 24, 2005

Tinicum Township (Township) appeals from the order of the Court of
Common Pleas of Bucks County (common pleas court) which affirmed, in part, the
decision of the Zoning Hearing Board of Tinicum Township (ZHB) to (1) grant
Hugh and Carrie Morgan's (Morgans) application for a building permit to
construct a single family residence; and (2) to grant the Morgans a variance in
order to permit them to continue to use a steeply sloped driveway that was installed

in 1988, prior to the adoption of Tinicum Township Ordinance 75 (hereinafter
"Driveway Ordinance").1

The Morgans are the owners of a 6.6 acre "flag lot"2 located at 278
Headquarters Road, in Tinicum Township. In 1983, the former owner of the
property, Henry Weaver (Weaver), received a subdivision approval for three lots.
In 1988, Weaver constructed a driveway to the subject lot which transcends, via a
right-of-way, through one of the subdivided lots. When Weaver constructed the
driveway, he obtained a Highway Occupancy Permit from PennDOT because the
driveway was connected to a state highway. At that time, the Township did not
require a driveway permit or any other kind of permit.

Weaver sold the lot at issue to the Morgans in 1995. The Morgans
then entered into an agreement of sale to sell the property to David and Donna
Colletti (Collettis). On September 8, 2000, the Collettis, as equitable owners, filed
an Application for Zoning Permit for proposed single-family detached dwelling.
The Tinicum Township Zoning Administrator denied the application by letter
dated September 12, 2000, citing several reasons, the most significant of which
was that the application did not include a "driveway profile plan" as required by

1 The Driveway Ordinance was adopted in 1990 as an amendment to the Tinicum
Township Subdivision and Land Development Ordinance. It prohibited driveways in excess of
thirty degrees slope and required a profile plan in order to determine the slope of the driveway if
the grade exceeded ten percent.
2 A "flag lot" is shaped like a flag. The "flagpole" was located on a steep, impassible
strip of land. The driveway was actually constructed to the left of the "flagpole," on a less steep
slope, outside the flag lot on an adjacent lot.
2

the Township's Ordinance 75, and it did not include a driveway permit
application.3

The Collettis appealed the denial of the zoning permit to the ZHB and,
in the alternative, requested a variance to use the existing drive for access to the
property.

The ZHB held three hearings on December 7, 2000, December 20,
2000, and January 24, 2001, and a site visit on December 10, 2000.

Weaver, the former owner of the property, testified regarding the
construction of the driveway in 1988. He testified that the driveway was built in
the only place that was physically possible because of the steep terrain. Notes of
Testimony, December 7, 2000 (N.T. 12/07/00) at 12, 15, 35; Reproduced Record
(R.R.) at 60a, 63a, 83a. Weaver testified that when he had the driveway
constructed in 1988, he asked the Township if he needed a permit, and was told
that a permit was not necessary. N.T., 12/07/00 at 41; R.R. at 89a. Weaver
believed the slope of the driveway was between twenty-three and twenty-five
degrees. N.T., 12/07/00 at 49; R.R. at 97a.

Ted Greening (Greening) was the contractor who installed the
driveway. N.T., 12/07/00 at 55; R.R. at 103a. He testified that he applied for a

3 A Tinicum Township 2000 Driveway/Encroachment Application was subsequently
filed on October 3, 2000. The Application stated: "[d]riveway already in existence pursuant to
plan of subdivision prepared by Robert D. Cooper, recorded 11/11/83 in Plan Book 220, page
20." The Application, however, was deemed incomplete because it was not accompanied by the
(Footnote continued on next page...)
3

PennDOT permit and met with a PennDOT engineer at the site so the engineer
could verify what state road abutted the driveway. N.T., 12/07/00 at 59-60; R.R. at
107a-108a. Greening stated that he did not obtain a Township permit because a
Township permit was required only if the driveway exited onto a Township road,
and that no Township permit was necessary for this driveway. N.T., 12/07/00 at
60; R.R. at 108a. Greening testified that he installed the driveway in the least-
sloped area of the lot "so it would be more negotiable." N.T., 12/07/00 at 57-59;
R.R. at 105a-107a.

Paul Wojciechowski (Wojciechowski), a land surveyor with thirty-six
years of experience, also testified. Wojciechowski performed the survey of the
property and determined the slope of various areas of the lots. N.T., 12/07/00 at
90; R.R. at 138a. He testified that the slope of the "flagpole" portion of the lot was
forty-two percent, and the slope of the driveway varied from a maximum of
twenty-eight percent to a minimum of approximately nine percent. N.T., 12/07/00
at 91-92; R.R. at 139a-140a. He also testified that there was no other way to get to
the top lot which is less steep than the driveway. N.T., 12/07/00 at 100; R.R. at
148a. Wojciechowski testified that although he did not make a "profile" of the
driveway, the measurements he took were accurate. N.T., 12/07/00 at 101; R.R. at
149a.

Township Engineer, Thomas Fountain (Fountain), testified that he
visited the site on two occasions but did not survey the property and could not state

(continued...)

requisite fees and the driveway was not shown on the plan of subdivision, as stated. Notes of
Testimony, December 20, 2000 (N.T., 12/20/00) at 93; R.R. at 341a.
4

the exact slope of the driveway. N.T. 12/20/00 at 24; R.R. at 272a. Fountain
estimated that the driveway has a steep area of about forty percent in the middle,
and that his estimate was based on an aerial photograph. N.T., 12/20/00 at 6-7;
R.R. at 254a-255a. Fountain testified that in his opinion it was not reasonable
engineering practice to design a driveway with that kind of slope because there was
the possibility of erosion, and there was no edge to the driveway. N.T., 12/20/00 at
7, 9-10; R.R. at 255a, 257a-258a. He further opined that the driveway would pose
a hazard to public personnel such as firefighters and paramedics. N.T., 12/20/00 at
11-12; R.R. at 259a-260a. Fountain agreed that the portion of the flagpole which
was marked forty-two percent on the plan, was steeper than the current site of the
driveway, and that the site of the current driveway was the least sloped area within
the confines of the lot or the existing right-of-way. N.T. 12/20/00 at 31-32; R.R. at
279a-280a.

With respect to the PennDot permit obtained by Weaver, Fountain
testified that there is another driveway in the area which meets the description of
the driveway in the permit. In other words, Fountain believed that the PennDOT
permit was for another driveway, not the driveway at issue. N.T., 12/20/00 at 13-
22; R.R. at 261a-270a. On cross-examination, however, Fountain admitted that
there were handwritten changes on the permit made by the applicants that he did
not consider when he concluded that the driveway was not constructed consistently
with the permit. N.T., 12/20/00 at 37-40; R.R. at 285a-287a.

Richard O'Brien (O'Brien), Tinicum Township Zoning Administrator,
testified why the zoning permit application was denied. O'Brien testified that even
though the driveway existed prior to the adoption of Ordinance 75, Ordinance 75
still applied because the driveway was not a "permitted" driveway but was put in
5

without a permit. N.T. 12/20/00 at 110; R.R. at 358a. When further questioned by
the ZHB's Solicitor, however, O'Brien testified that he knew of no ordinance
which required a permit at the time the driveway at issue was constructed. N.T.,
12/20/00 at 118; R.R. at 366a.

On January 24, 2001, the last day of hearings, the ZHB voted to
"grant the requested variance to permit the residential single dwelling" with certain
conditions:

THE CHAIRMAN: On the record, I make a motion to
grant the requested variance to permit the residential
single family dwelling with the following conditions.
SOLICITOR: Now the board asked that I announce the
conditions. Obviously I am going to write them up in a
written decision. To the extent that we try to take it off
the top of our head, remember the written decision will
control but the variance is granted subject to the
following conditions....

Notes of Testimony, January 24, 2001 (N.T. 1/24/01) at 77; R.R. at 485.

The ZHB rendered its written Decision on February 22, 2001,
granting a variance to the Collettis:

1.
The Zoning Board finds that the driveway was
constructed prior to the adoption of Ordinance 75
and, at the time it was constructed, a driveway permit
was not required. (Emphasis added).
....
4.
The Board concludes that only a PennDOT permit
was required at the time that the driveway was
constructed and that the Applicant's (Collettis')
predecessor in title did obtain such a permit.
....
6

7. The Board finds that there are exceptional
topographical conditions peculiar to the property due to
the steep slopes.
8. The Board finds that the steep slopes create a
hardship which is not created by the Applicant
(Collettis).
9. The Board finds that because of the physical
circumstances or conditions there is no possibility that
the property can be developed in strict conformity with
the provisions of the Zoning Ordinance.
10. The Board finds that the variance requested is the
minimum variance necessary to enable the reasonable use
of the property for residential purposes.
11. The Board finds that the variance being sought is a
dimensional variance and it is reasonable to grant such a
variance in order to permit the use of the property under
all the circumstances, including the approval by the
Township of the subdivision and the location of the
driveway in an area that is less steep than other areas on
the site.
12. The Board is concerned with the safety aspects of
the driveway that is so steep, especially if it is used by
persons unfamiliar with the driveway or emergency
personnel who may be forced to use the driveway to
access the site.
....
14. After deliberation, it was moved by Chairman Eric
Hindrichs, seconded by Vice-Chairman Barry Kessler,
and unanimously approved that the prayer of the
application is granted, the action of the Zoning
Officer is reversed, and a variance is granted in order
to allow the use of the driveway as constructed,
subject to the following conditions: (Emphasis added).
A. A guardrail shall be constructed along the
downslope side of the driveway for its entire length up to
the Penn Dot right-of-way.

7

B.
The driveway is to be paved for its entire length.
C. Signage shall be erected at the Penn Dot right-of-
way east of the driveway on the left for vehicles heading
west warning vehicles of the hidden driveway.
D. Two pull offs shall be created to allow vehicles to
pass each other if they should meet going in opposite
directions.
E. The
Applicant
(Collettis) shall provide a storm
water management plan acceptable to the Township
engineer sufficient to avoid undermining the driveway
and water running onto the highway.
F. The Applicant (Collettis) shall provide a driveway
maintenance escrow with an agreement acceptable to
Tinicum Township that shall provide the sum of Five
Thousand ($5,000.00) Dollars in escrow for perpetuity to
guarantee the maintenance of the driveway and the
required guardrail, storm water management, pull off
areas and signs.
G. The construction of the guardrail, the creation of
the pull-off area and the erection of the signs shall be
inspected and approved by the Township Engineer prior
to occupancy of the residence.

Decision of the Tinicum Township Zoning Hearing Board, February 22, 2001,
Conclusions of Law Nos. 1, 4, 7-12, 14 at 9-11.

The Township, the Morgans and the Collettis appealed to the common
pleas court. The common pleas court affirmed the ZHB's decision to reverse the
Zoning Officer's denial of the zoning permit, and reversed the conditions imposed
by the ZHB. The common pleas court found that "the Morgans did not apply for a
variance in the first place." Common Pleas Court Opinion, June 2, 2004, at 15.
The common pleas court found that even if the Morgans had requested a variance,
8

the conditions imposed by the ZHB were impermissibly vague and not supported
by substantial evidence.

On
appeal4, the Township raises four issues: (1) Whether the ZHB's
written decision, which granted a variance and reversed the zoning officer's denial
of the building permit, was void because the ZHB did not vote to reverse the
Zoning Officer at the public hearing? (2) If the written decision was valid, whether
the ZHB erred when it found the driveway was a preexisting non-conforming use?
(3) Whether the ZHB erred when it found that (a) the Morgans suffered an
unnecessary hardship; (b) the variance would not pose a threat to the health, public
safety or welfare; and (c) the variance requested was the minimum variance to
afford relief? and (4) Whether the common pleas court properly struck the
conditions?

First, the Township contends that the oral vote of the ZHB at the
January 24, 2001, hearing, and not the written decision, constituted the
adjudication. The Township asserts that the ZHB's vote at the hearing was limited
to its grant of a variance. In its written decision, however, the ZHB granted the
variance and also "reversed" the zoning officer's denial of the building permit.
The Township maintains that the ZHB was not authorized to grant relief beyond

4 In zoning appeals, as here, where the trial court takes no additional evidence, this
Court's scope of review is limited to determining whether the zoning hearing board committed an
abuse of discretion or an error of law. Baker v. Chartiers Township Zoning Hearing Board, 677
A.2d 1274, 1276 (Pa. Cmwlth.1996). A conclusion that the zoning hearing board abused its
discretion may be reached only if the zoning hearing board's findings are not supported by
substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. Bailey v. Upper Southampton Township, 690
A.2d 1324 (Pa.Cmwlth.1997).
9

what it orally granted on the record at the hearing. The common pleas court
thereby erred when it affirmed the ZHB's "inoperative" reversal of the zoning
officer. Although the Township couches the issue as an error committed by the
common pleas court, its contention that the decision of the ZHB was void because
it differed from the hearing record, is essentially a challenge to the ZHB's decision
for noncompliance with the Sunshine Act, 65 Pa.C.S. §§701-716.5

The Morgans argue that the Township waived this issue because it
failed to raise it before the common pleas court. Examination of the Township's
"Zoning Appeal" reveals that the Township did not raise the issue and the
Morgans' waiver argument is valid. In its "Zoning Appeal" the Township raised
twenty "errors of law, abuse[s] of discretion and [findings which were not
supported by] ... substantial evidence" before the common pleas court. Tinicum
Township Zoning Appeal, March 22, 2001, at 2-4; R.R. at 29a-31a.

Conspicuously missing was any contention that the ZHB violated the Sunshine Act
or otherwise erred because its written decision was not confined to the original oral
recitation of its decision on the record. Accordingly, because the issue was not
raised before the common pleas court and the common pleas court did not have an
opportunity to address it, the issue is waived. Sojtori v. Douglass Township Board
of Supervisors and Moyer, 296 A.2d 532 (Pa. Cmwlth. 1972); Agnew v. Bushkill
Township Zoning Hearing Board, 837 A.2d 634 (Pa. Cmwlth. 2003).

Next, the Township contends that the ZHB erred when it concluded
that the driveway was a preexisting non-conforming use because the driveway was

5 Section 704 of the Sunshine Act, 65 Pa.C.S. § 704, states the general rule, with
exceptions there enumerated: "Official action ... by a quorum of the members of an agency shall
(Footnote continued on next page...)
10

not the driveway depicted in the 1983 subdivision plan and referenced in the
PennDOT permit. The Township contends that this driveway was, therefore, never
"lawful" and was not protected as a preexisting non-conforming use.

A preexisting non-conforming use arises when a lawful existing use is
subsequently barred by a change in the zoning ordinance. Scalise v. Zoning
Hearing Board of Borough of West Mifflin, 756 A.2d 163 (Pa. Cmwlth. 2000).
The right to maintain a preexisting nonconformity is available only for uses that
were lawful when they came into existence and which existed when the ordinance
took effect. Pre-existing illegal uses cannot become non-conforming uses with a
protected right to exist upon enactment of a new ordinance prohibiting them. Id. It
is the burden of the party proposing the existence of such non-conforming use to
establish both its existence and legality before the enactment of the ordinance at
issue. Lantos v. Zoning Hearing Board of Haverford Township, 621 A.2d 1208
(Pa. Cmwlth. 1993).

After careful consideration of the record, this Court is satisfied that
the ZHB did not err or abuse its discretion when it determined that the driveway
constituted a lawful, preexisting non-conforming use. The prior owner of the
property, Weaver, testified that the property was subdivided in 1983, and that the
driveway was built in 1988 in accordance with the specifications of the state
permit. Weaver's contractor, Greening, testified that he built the driveway in
1988, and he obtained the requisite PennDOT permit. Greening met with the
PennDot engineer at the site in the course of PennDOT's review. Greening

(continued...)

take place at a meeting open to the public...."
11

explained that he did not obtain a Township permit because a Township permit
was not required in 1988. The Township zoning administrator, O'Brien, conceded
that no Township permit was required for driveways in 1988, and that the
driveway ordinance cited in his denial letter was not enacted until July 1990.

Based on this evidence, the ZHB found that the driveway was
constructed prior to the adoption of Ordinance 75, that a Township driveway
permit was not required at the time of construction, and that the predecessor,
Weaver, acquired the only permit required at that time, the PennDot permit. The
ZHB further specifically found that "while there may be some discrepancies with
regard to the actual location of the highway access, the permit refers to the
driveway actually constructed by Mr. Greening in 1988." Zoning Hearing Board
Decision, February 22, 2001, Conclusion of Law No. 5 at 9.

Accordingly, this Court concludes that the Morgans met their burden
and proved that the non-conforming driveway came into existence legally and
predated Ordinance 75, which rendered it non-conforming. Because this Court
concludes that the Morgans have a valid and continuing preexisting non-
conforming use of the driveway, the Court need not address the Township's
remaining variance issues.6

6 This Court notes that there was no allegation that the preexisting, non-conforming use
was abandoned, or that the Morgans sought to change or expand the non conforming use, which
would have required an application for a variance and support for the imposition of conditions.
12

For the foregoing reasons, the order of the common pleas court of
Bucks County granting the zoning permit to use the existing driveway, and striking
the conditions imposed on the Morgans is affirmed.

______________________________

BERNARD L. McGINLEY, Judge

13