Jan 11, 2013 4 min read

A North Strabane Township resident has taken a zoning dispute to the state Supreme Court.

Ledwina Fircak of Thomas-Eighty Four Road petitioned the Supreme Court to allow her to appeal a Commonwealth Court decision rendered last month in the case involving Margaret and Daniel George that sends the matter back to Washington County Court.

“Commonwealth Court did not say Judge Janet Moschetta Bell was incorrect,” said Mary Chmura Conn, who represents Fircak.

“The Georges are trying to benefit from their own mistake. We hope the Supreme Court will finalize this matter, and we expect the township to enforce its ordinances.”

Attorney Brendan O’Donnell, an associate of attorney John Smith, who is representing the Georges, wrote in an email, “We believe that the Commonwealth Court’s decision was well-reasoned and that the court properly applied well-settled principles of law to this case.

“Commonwealth Court recognized that there are fundamental questions of fact related to the jurisdiction of the North Strabane Township Zoning Hearing Board and the Court of Common Pleas of Washington County over this matter that have not been explored and warrant further development.”

Commonwealth Court found that “factual issues exist (on) whether the North Strabane zoning hearing board and the trial court have jurisdiction.”

Former Judge Janet Moschetta Bell summarized the history of the case: Three years ago, Margaret George and her son, Daniel, requested a home operation permit for his excavation and construction business on Linden Road, Eighty Four, which the zoning officer denied.

That official advised the Georges to apply to the zoning hearing board for non-conforming use status, which Margaret George, property owner, filed.

“The trial court was not afforded an opportunity to address this issue, which raises factual questions,” wrote Commonwealth Court Judge Robert Simpson.

In striking down the ruling by Moschetta Bell and returning the case to Washington County, Simpson said the court needs to decide if the Georges’ request to the zoning hearing board was only seeking an advisory opinion for which the board and court lacked jurisdiction, or if the Georges had a timely appeal of a zoning matter.

In April 2010, the township’s zoning hearing board approved the nonconforming use by the Georges, though it limited how they could use the property. Both Fircak and the Georges appealed the decision, with Fircak saying it was not supported by evidence, and the Georges suggesting it was vague and confusing.

Daniel George has parked heavy equipment used in his business on his land in a residential-agricultural zone, which Fircak believes lowers the value of her property.

The Georges appealed Moschetta Bell’s order to Commonwealth Court, claiming she erred in determining that parking and storing excavation and construction equipment for Daniel George’s business on their property was not valid under the township’s zoning ordinance.

The Georges maintain that the North Strabane zoning hearing board lacked jurisdiction on this matter, that their use of their land is valid and that they’ve parked the heavy equipment there since before the township adopted its zoning ordinance in 1988. They also claim they did not initiate the action before the zoning hearing board as an appeal, and that the township did not issue them a notice of violation.

The Georges say they actually requested an interpretation of the zoning ordinance to learn their rights under the law.

In a footnote contained in the 19-page memorandum and opinion, Commonwealth Court indicated the township filed a brief in which it states it will take no position in this matter and it will follow and enforce any order. The zoning hearing board filed a notice of non-participation.

Fircak claims the zoning hearing board was incorrect when it ruled that the Georges established a valid, non-conforming use, and she maintained their business was not grandfathered in.

Commonwealth Court cited a case in which it decided that a zoning board has no authority to render a purely advisory opinion absent a zoning officer making a ruling against someone or a specific request for relief.

Simpson wants the trial court to consider the issues of underlying municipal action, if any, and the timeliness of an appeal to the zoning hearing board.

Moschetta Bell retired at the end of 2012 and it was not immediately clear, if the state Supreme Court upheld Simpson’s ruling, to whom the case would be assigned.