Pittsburgh Legal Back Talk

Legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus.

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Zoning: Interesting Opinion on Failure of Municipality to Enforce its Setback Requirements.

Posted by Cliff Tuttle| June 28, 2017 | © 2017

No. 1,337

Image: Explore Pa. History

Mr. Justice Musmanno wrote an entertaining opinion in 1963 on a zoning case in which the homeowner replaced a stoop and small overhang with a larger concrete slab and awning.  The concrete slab and overhang, as it turned out, had been in violation of the setback ordinance which existed at the time of the original installation, so it couldn’t be a nonconforming use.  The truth is, lots of stoops are built in violation of the setback lines and nobody complains because they are just stoops.  From the municipal viewpoint, such a violation is de minimis.  The larger patio and awning, not so much.  The Musmanno opinion holds that the municipality cannot fail to enforce its zoning ordinance for ten years and then pounce when the homeowner expands and improves the encroaching feature. To the best of my knowledge, this case has not been overruled by the Supreme Court and is therefore good law.

412 Pa. 570 (1963)

Heidorn Appeal.

Supreme Court of Pennsylvania.
Argued October 7, 1963.
November 27, 1963.
Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O’BRIEN and ROBERTS, JJ.

Roger W. Hager, for appellant.

No argument was made nor brief submitted for appellee.

OPINION BY MR. JUSTICE MUSMANNO, November 27, 1963:

On November 6, 1953, Herman Heidorn and Edna Mae Heidorn, his wife, purchased in Stonycreek Township, Cambria County, a one story frame house which sat back 25 feet from Coldren Street on which it fronted. The dwelling was ornamented with an ugly, gabled wooden projection above the outer doorway, intended presumably to protect visitors from the rain as they knocked at the door for admittance. Beneath their feet the visitors stood on another ungainly projection (this one of stone) called a stoop. The lower contrivance measured 6 to 7 feet in width and extended forward toward Coldren Street 4 or 5 feet. The dimensions of the miniature roof extended a little beyond the measurements of the stoop below, for a good reason. Otherwise, the visitor would receive not only the rain from the skies but the water collecting and falling from the overhanging wooden gargoyle.

For reasons which are unexplained, this porch roof has been referred to in this case by witnesses and lawyers as a “stoop”, so that, if this terminology were to be accepted as correct, the house was equipped in 1953 with two stoops. Webster’s Dictionary defines a stoop as “a raised platform at the entrance of a house with steps and, usually, seats; hence, any small porch at the entrance of a house.”

The overhead eyesore has, therefore, incorrectly been called a “stoop”. For purposes of clarity, it will be called hence forth an overhang.

On March 11, 1958, Stonycreek Township enacted an ordinance (which was re-enacted on April 28, 1959), providing that the building line of all dwellings would be 25 feet from the street. In July, 1959, the Heidorns had their house covered with aluminum siding. In this operation the overhang and the underfoot stoop were removed and replaced by an 18-foot-wide aluminum awning, extending 10 1/2 feet forwardly away from the house. The stoop was replaced by a concrete slab of a size slightly smaller than the overhead aluminum awning so that drippings from the awning would fall on the ground and not on the concrete and people standing thereon. The awning was supported by four slender ornamental wrought iron posts.

Shortly after these improvements were made, the township informed the Heidorns that their awning and slab encroached on setback territory. The Heidorns at once applied to the zoning board of adjustment for a variance, which was refused. They then petitioned the Court of Common Pleas of Cambria County for a variance, submitting that the original overhang and stoop were a nonconformance of the zoning ordinance which had been enacted prior to the purchase of the house by the Heidorns, and that the installation of the awning and platform did not produce such a substantial change in status that the householders lost the privilege of a nonconforming use.

The court took additional testimony and granted the variance. The board filed exceptions and the court, in considering the exceptions, concluded that the applicants were not entitled to a variance but that they could legally retain the improvements described, because they amounted to a reasonable extension of a nonconformance. Did the court of common pleas abuse its discretion or ignore law, in reaching the conclusion stated?[1] We cannot say that it did.

It developed in the proceedings below that there had been in existence, even when the house was originally constructed (in 1950) an ordinance which imposed a setback requirement of 25 feet. The Township, therefore, argues that the Heidorns were not entitled to the privilege of a nonconforming use, but the court held, and properly so, that since the township had allowed approximately 10 years to pass without objecting to the ordinance violation, it was guilty of laches and could not now sustain a violation on the basis of the original ordinance of 1942.[2]While courts are reluctant, and should be, to impose the sanction of laches on governmental divisions, equity cannot close its eyes to the sloth, indifference or official neglect of a municipal body any more than it can to the neglect of an individual where such neglect harms an innocent person.

There is nothing in the record to excuse the township’s indifference to the presence of the overhang and stoop in front of the Heidorn house. It cannot be said that these objects were concealed from public view. The overhang stuck out like the proverbial sore thumb, and the stoop stuck out like the stoop it was for the world to see and stumble over.

The township argues that there is a difference between the original wooden overhang and the present aluminum awning. The overhang was attached to the house by diagonal braces and thus was suspended in midair, as it were, and therefore, the township argues, it was not part of the building line and accordingly did not violate the setback restriction. The awning to 574*574 the contrary, the township points out, is supported by posts anchored in the platform beneath, and therefore the ensemble constitutes a moving forward of the building line into the prohibited setback No-Man’s Land. This argument crumbles at the slightest touch of the pointer of reason. The township could not possibly argue that if the Heidorns had built an additional room or two, latitudinously extending from the roof and supported by diagonal braces that this would not constitute an encroachment on the setback limitation.

The original homely overhang was there for the world to see and frown upon and if it did not offend the esthetic senses of the township for some ten years, the present attractive awning and platform should not. The aluminum porch which now graces the front of the Heidorn home improves its appearance considerably and in no way impedes enjoyment by others of their property. There is not the slightest suggestion that the patio effect of the front of the Heidorn home is detrimental to the welfare, safety and health of the community. The lower court, with acute perceptiveness, legal appreciation, and practical wisdom, said: “While there is an enlargement of the stoop into what might be called a patio, this enlargement only encroaches an additional 5 1/2 feet into the setback line, and from the testimony and exhibits (pictures before and after the construction) it cannot be said that this is such a change in the nonconformance that it is not a reasonable extension. The appellants have merely done what any logical person would do, and that is they have attempted to beautify the front of their property and house by the planting of a nice lawn and shrubbery, and thereafter by covering the entire house with aluminum siding and removing at the same time this stoop which would then be an eyesore, and replacing it with a canopy and cement slab more in keeping with the architectural style of the building, thus resulting 575*575 in a change in the esthetic nature of the neighborhood and the use of the property.”

No citizen of the township has objected to what the Heidorns have done. Some 75 houseowners in the immediate vicinage signed a petition urging retention of the patio.

The township stands not on a logical platform but on a dialectical stoop to argue its case. It says that if the Heidorns are permitted to retain their patios then every “property owner in the Commonwealth of Pennsylvania” is entitled to have a front porch and that therefore building setback lines will become a “nullity.” This is like worrying that the oceans will some day go dry. The law, while concerned about the future, focuses its attention on the immediate problem at hand and cannot allow an injustice to occur on the theory that a certain decision will become a ghost to haunt posterity.[3] It cannot be influenced by the argument that if a certain privilege is allowed a hunchback, the whole world will become humpbacked.

The short answer to the appellant’s thesis in this field is that if our decisionbecomes a precedent to allow other exceptions to setback requirements, so let it be. When another case comes along to duplicate the history and circumstances of this case, the decision should be, and must be, the same, namely, that the householders will be entitled to a reasonable extension of a nonconforming use.

Affirmed.

Mr. Justice BENJAMIN R. JONES, Mr. Justice COHEN and Mr. Justice EAGEN dissent.

[1] Archbishop O’Hara’s Appeal, 389 Pa. 35, 50.

[2] “Laches however may be imputed to a municipality that has stood by and permitted large expenditures to be made upon the faith of an irregular order of court, or of municipal consent informally or tacitly given, where formal consent would have been effective.” (Pgh. v. P. & L.E., 263 Pa. 294). Stahl v. First Pennsylvania Banking and Trust Company, 411 Pa. 121.

[3] The Township cites Fagan v. Zoning Board of Adjustment, 389 Pa. 99, and Yocum Zoning Case,393 Pa. 148, in support of its position. We have examined these cases and find them inapplicable as to facts and appertaining law.

 

Landlord & Tenant: When the Occupant is not the Tenant.

Posted by Cliff Tuttle| June 26, 2017 | © 2017

No. 1,336

The Continuing Education of the Bar (CEB) Blog raises some important questions for landlords to consider.  When the apartment is not be occupied by the party who is paying the tab conflicts can arise.  For example, when an employer rents an apartment for one or more employees, you the landlord may be placed in a double bind unless you have a contract with the occupant as well.

In the California case noted in the CEB, an employer who had entered the contract and was paying the tab directed the landlord to lock out the tenant and remove the furniture, which it did.  In so doing, the occupant was deprive of statutory rights.  It should be good policy to have every occupant who is over 18 sign the lease or a guaranty.  Thus, if the contracting party terminates the lease but the occupant stays on, the occupant will continue to have an obligation to pay.

In addition, the occupant should sign an agreement to comply with rules relating to occupancy.

Strangely enough, landlords often find themselves evicting strangers — people who took over occupancy from the tenant without permission.  Landlords often think they can just change the locks.  Problem is, you have to prove that this successor tenant doesn’t belong there. This is especially true when the individuals were sharing the apartment with the tenant, such as family members.

CLT

Positive Thinking.

Posted by Cliff Tuttle| June 25, 2017 | © 2017

No. 1,335

Seen on a bulletin board.

None Dare Call It Unconstitutional.

Posted by Cliff Tuttle| June 25, 2017 | © 2017

No. 1,334

The State of California has a growing list of other states which it believes have enacted laws that discriminate against the LGBT. So says the Washington Post. One of the latest is Texas, which empowers adoption agencies to refuse to grant adoptions to persons believed to lack satisfactory religious convictions. The Texas provision is probably unconstitutional for a variety of reasons and will no doubt be tested in the Courts.

However, some Californians (in positions of power) can’t wait for the wheels of justice to grind.  They have provided that State funds cannot be used to fund or sponsor travel to and certain other black listed States.

According to a press release dated June 22, 2017, California Attorney General Xavier Becerra  announced that California will prohibit state-funded and state-sponsored travel to Alabama, Kentucky, South Dakota and Texas based on discriminatory legislation enacted in each state. Tennessee, North Carolina, Mississippi and Kansas are already on the list.

“Our country has made great strides in dismantling prejudicial laws that have deprived too many of our fellow Americans of their precious rights. Sadly, that is not the case in all parts of our nation, even in the 21st century. I am announcing today that I am adding four states to the list of states where California-funded or sponsored travel will be restricted on account of the discriminatory nature of laws enacted by those states,” said Attorney General Becerra. “While the California DOJ works to protect the rights of all our people, discriminatory laws in any part of our country send all of us several steps back. That’s why when California said we would not tolerate discrimination against LGBTQ members of our community, we meant it.”

Of course, it is old news that a host of professional and amateur sports organizations ganged up on North Carolina for its famous bathroom bill, HB2.  But this is a state acting against other states.  What if the target states started to make it reciprocal? This could get complicated very quickly.

But wait a minute! Haven’t we been here before?  Isn’t there a Constitutional right of interstate travel?

In Shapiro v. Thompson, 394 U.S. 618 (1969), Mr. Justice Brennan, in considering a regulation requiring a one-year waiting period for welfare benefits,  brought us up on the history of the concept:

“This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement. That proposition was early stated by Chief Justice Taney in the Passenger Cases, 7 How. 283, 492 (1849):

“For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.”

We have no occasion to ascribe the source of this right to travel interstate to a particular constitutional provision. It suffices that, as MR. JUSTICE STEWART said for the Court in United States v. Guest, 383 U. S. 745, 757-758 (1966):

“The constitutional right to travel from one State to another . . . occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.

“. . . [T]he right finds no explicit mention in the Constitution. The reason, it has been suggested, is 631*631 that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.”

Thus, the purpose of deterring the in-migration of indigents cannot serve as justification for the classification created by the one-year waiting period, since that purpose is constitutionally impermissible. If a law has “no other purpose . . . than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it [is] patently unconstitutional.” United States v. Jackson, 390 U. S. 570, 581 (1968).”

The right of citizens to travel, and thus the prohibition of the states to impede that right, has been interpreted to flow from the Privileges and Immunities Clause, Article IV, Section 2. See Corfield v Coryell, 6 Fed. Cas. 546, No. 3230 C.C.E.D.Pa. 1823. In some cases, it may also be protected under the Fourteenth Amendment.

In addition, the provision is very likely a violation of Article I, Section 8, the Commerce Clause, per Edwards v. California,  314 U.S. 160 (1941). In that case, California had made it a crime during the Depression to transport a pauper into the state.

This is not new stuff.  Yet as times and politics change, the old becomes new again.  See you in court, California.

CLT

 

 

Docu-phish!

Posted by Cliff Tuttle| June 20, 2017 | © 2017

No. 1,333

If you have been involved in a real estate transaction in recent times you have probably used Docusign or some equivalent electronic signature software. It is a real estate agent’s dream.  They can obtain an electronic signature quickly and easily via the internet.

However, a well-known app that can be used for legitimate transactions can easily be impersonated for evil purposes.  So watch out for this one or others like it.  Stealing the logo is easy.  However, composing a believable pitch to get you to click the link is another matter.  If you get such an email, delete it.  If it is real, the legitimate party who wants to sign will contact you.

Don’t be a phish.  Don’t bite the hook.

Note: The name of the recipient (inserted here)has been deleted.

Would you fall for this? Why isn’t “your company” identified? Easy. It isn’t legit. If you get one that is a little more authentic looking, you can verify by alternate means.

 

Kicking the Canned Speech Down the Road.

Posted by Cliff Tuttle| June 16, 2017 | © 2017

No. 1,332

Here’s an item from Time that is worth sharing.  A graduate gave his own commencement speech rather than read the one he was directed to give by the school administration.  In retaliation, the school withheld his diploma, at least temporarily.

I was surprised that a school would do such a thing.  After all, the purpose is to put on display the product of 12 years of learning. But upon reflection, we all know that schools typically  reward compliance, rote memory and polly parrot answers.

CLT

Mindfulness and Lawyering

Posted by Cliff Tuttle| June 11, 2017 | © 2017

No. 1,331

Gotta go.  But before I do, I want to leave you a link to a great blog.  Its about lawyering.  Lawyering is hard.  It is painful.  Too often our best efforts end in defeat.  So here’s the link to a post that hits a chord.  More about it later.

CLT

Happy Father’s Day, Phil Mickelson!

Posted by Cliff Tuttle| June 10, 2017 | © 2017

No. 1,330

Image: frost snow.com

Fortunately for Phil Mickelson, he had the power to make the choice.  Passing up the US Open to attend the high school graduation ceremony where his daughter would speak as valedictorian was, in his words “a no brainer.”

Nice of him to say it that way, but the truth is that it involved a conscious choice, one that his family will always remember.

I heard a sports talk host suggest that he might have been able  to attend the graduation and hop a jet as soon as the speech was over.  That’s the “Solomonic splitting the baby” logic that sends the wrong message.  Phil knew that he should give the whole day to this event.

That’s what being a champion is about.  Happy Father’s Day to all fathers who have quietly put their family first when nobody else knew.

CLT

Happy Father’s Day! Now Drop Dead!

Posted by Cliff Tuttle| June 5, 2017 | © 2017

No. 1,329

The most thoughtful gift since Andy Capp bought his wife a mop for her birthday in the funny papers.

The name of the sender of this Father’s Day Card been deleted.

What is the Value of a Friend?

Posted by Cliff Tuttle| May 28, 2017 | © 2017

No. 1,328

According to FIOS, its One Hundred Dollars! But, of course, you presumably get to keep the friend, even after you facilitated the purchase of a package of time-wasting, mind numbing TV that he didn’t need. Selfish? Perhaps.

But its not like you sold your friend into bondage for a Benjamin.

“Thanks for breakfast,” my friend said. “You’re welcome, but I really wasn’t buying food,” I replied. “I am buying conversation.”

Friendship is not purchased on the open market, like bacon and eggs. But it does cost something. Fortunately, we pay for it on the installment plan, primarily with our time.  It is impossible to gain a friendship without investing time.  That’s lucky, because its a currency we all happen to have on hand.

Many of our best and strongest friendships happened by chance.  In school, in the military service, in the neighborhood.  I heard the story (possibly apocryphal) about two men who met when they had an automobile accident with each other and ended up as business partners.  According to the story, they both had the bad habit of reading the newspaper while driving.  This was long before the advent of texting.

A few of my friends have become clients.  But many more of my clients, people who were strangers when I took their case, have become good friends.  Its the most natural thing in the world and I am sure all other lawyers have had the same experience. After all, you’ve been through a lot together.

I read that personal relationships, friendships, are one of the keys to happiness and even longevity.  Not surprising, is it?

But what about making money through friendship?  Well, consider what my boss of many years ago, L. Robert Kimball, a pioneer in marketing of professional services once told me.  “First  they must be your friend.”

What’s the value of a friend?  Everything.

CLT

 

 

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Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 40 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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