Antrim and Todd Auto Body spar before judge
By PAT FRIDGEN Echo Pilot

Jeff Todd, right, and his attorney David H. Martineau leave the court of Judge David E. Hawbaker Oct. 3. The judge will decide what fines Antrim Township can collect for zoning violations by Todd Auto Body.

The two lawyers involved in the Todd Auto Body dispute with Antrim Township disagreed with the use of the property at 13545 Worleytown Road. They argued their points before Judge David E. Hawbaker Friday following a ruling by Franklin County Court Judge John Walker Sept. 12 that proceedings could continue at the Magisterial District Justice level.

Antrim had filed two civil actions with Judge Duane Cunningham, Greencastle, who recused himself, and turned the case over to Hawbaker, based in Mercersburg. The township alleges Jeff Todd, owner of TAB, constructed several buildings larger than allowed on building permits, did not file a land development plan, and did not meet the setback requirements of a commercial business. It sent Todd a Notice of Violation July 25, 2007.

That definition of the business is what separated the two sides during three and a half hours of deliberation.

David H. Martineau, attorney for Todd, said TAB was a customary home occupancy business with accessory buildings. John Lisko, Antrim Township solicitor, said the business was now commercial is a residential neighborhood, with accessory buildings.

Witnesses

Lisko called on five witnesses to offer testimony, needed before Hawbaker could decide the amount of a fine to assign Todd. They were Sylvia House, Antrim Zoning Officer; James Pahel, Clearfield, a registered land surveyor; William Kick, a civil engineer with Martin and Martin, Inc.; Tim Witter, registered land surveyor with Shelly and Witter; and Keith Yohn, a neighbor on Worleytown.

Martineau called only Todd.

Lisko first asked to enter an amendment to the complaint, alleging Todd's driveway violated the township code since it was within 10 feet of the property line and created a safety concern. Martineau contered that the amendment was beyond the township's authority, that it was really a zoning issue, not a development issue.

When Hawbaker asked why the topic was not in the original complaint, Lisko said that though the township was aware of the driveway location, it had simply missed putting it in the document. The judge threw out the amendment.

Lisko said Hawbaker should be bound by the Antrim Zoning Hearing Board decision, made by five members and their solicitor. The Court of Common Pleas could overturn the board and a magisterial judge.

Hawbaker chuckled. "I've got to fine a man up to $16,000 without evidence? I'm in a vacuum unless I have some facts to base my decision."

The questions and cross-examinations then began.

Testimony

Pahel's firm took the aerial photographs of the Todd property. He calculated the sizes of two buildings and the house from the images.

Witter's surveys showed that the corner of one building was 1.52 feet from the David Minnich property, and the other corner 4.37 feet. He did not find all the original rebar pins, he said, but did find one in a place it shouldn't be.

Yohn said a small piece of Todd's driveway was on his property.

House explained that on four permits, Todd's four business buildings should have measured approximately 7,000 square feet, but were double that. His house and garage were also larger than applied for. Her analysis of the sizes based on an aerial photograph were not accepted as from an expert witness. Hawbaker agreed with Martineau that two years of college did not qualify her.

She also testified that Todd made improvements to buildings without getting permits and did not file a subdivision plan before paving a parking lot.

Lisko wanted Kick to testify about the movement of dirt for that project, but Martineau objected that he was not an expert, since he had not yet taken the test to become a licensed engineer. Hawbaker agreed.

Martineau argued that Antrim always referred to the buildings on Worleytown as 'accessory', which he said were exempt from land development plans. "The distinction is important to this suit," he said. He maintained the buildings were accessory to the house, for the customary home occupancy business. Lisko reiterated that the main TAB building was for commercial use, and the other buildings were accessory to that. He said the Zoning Hearing Board had been correct in its assessment of violations. "You have to use common sense."

Because Antrim charged Todd had not properly filed a development plan, Martineau asked House, "Would Antrim Township approve a land development plan for a purpose that is not permitted (commercial)?"

On examination by Martineau, Todd admitted his structures were larger than on the permits, because the filing fee had been based on the project cost, so he thought he could build the size he wanted up to that dollar amount, and that only the county assessor was concerned about size when he set the tax rate. "That was my error on every one."

He said the violation notice did not mention his house. He also didn't believe his building was over the setback according to where he found pins. His property line dispute with Minnich is currently also in court, he said.

Todd stated that he had offered to move his business to another location in Antrim Township, which he did in August 2007, and a conversation with supervisor Curtis Myers led him to believe that would make everything ok. He also said discussions with township representatives had yielded a close tentative agreement, but it had never been brought to the supervisors as a whole. He has a variance request before the township now to leave everything where it is on the site, said to be an option by former Zoning Officer Angela Garland.

Martineau clarified that Todd was willing to move his building and foundation back 5 feet, as acceptable for an accessory building for a residential business, but not 10 feet as required by Antrim for a commercial business.

Closing

In closing arguments, Martineau said buildings larger than recorded on a permit are not actually forbidden in Antrim's 'poorly written' ordinance. The setback issue couldn't be settled until the property line was determined. The variance issue was also not yet settled and the supervisors had no provision to approve a land development plan for an 'illegal use.' He said the Municipal Planning Code did not require a subdivision plan for accessory buildings, and Antrim Township did not require it for residential use. He thought the remedy was to move the business, which has been done.

Lisko thought not proceeding until the variance request was settled was 'egregious', since Walker ruled the case could proceed. "I don't want to upset Judge Walker with a contempt of court."

He also said the defense for the setback, 'I thought the line was somewhere else,' was unreasonable. He contended that though the business had moved, the offense had still been committed and the buildings remaining on Worleytown were still in violation.

Lisko submitted paperwork to Hawbaker asking for restitution of attorney fees of nearly $19,000 for Antrim, in addition to up to $8,000 each in fines for Todd's violations of the building permits and subdivision plans. Martineau said he would file objections to the numbers.

Hawbaker had five days to consider the evidence, according to the civil procedures that govern magisterial district justices.

He thanked the attorneys for their patience and professionalism.