Tamaqua man loses zoning appeal when he fails to show
Failure to appear in Schuylkill County court on the day his appeal was to be heard proved costly to a Tamaqua property owner.
Clyde Bachert, owner of several properties in the borough, filed an appeal to court from alleged zoning ordinance violations. He claimed he had complied and was asking the court to enter an order nunc pro tunc allowing him to appeal the alleged violations of the zoning ordinance or in the alternative to allow him to apply for the appropriate permits or variances as required from the Tamaqua Zoning Hearing Board.
Judge John E. Domalakes presided at the court hearing Thursday morning.
Attorney Keith Hoppes, counsel for Bachert, informed the court his client failed to appear although reminded the day before about the hearing but asked the court to proceed on the appeal. Attorney Robert S. Frycklund, representing the borough, raised no objection. The court had Bachert paged over the loud speaker to appear in court and when there was no appearance court recessed.
Later in the day Domalakes handed down an order denying his petition. In the order the judge noted Bachert failed to appear in court and failed to establish his claims to grant him nunc pro tunc status and his petition is dismissed.
James Barron, code enforcement officer for the borough, cited Bachert for violating the borough's zoning ordinance Number 638, pertaining to requirements for a zoning permit.
He charged Bachert with performing work on his properties at 300 and 304 E. Broad St. without a permit and any approval from the borough's HARC Commission or zoning approval.
The violations were cited by the borough in action brought before Magisterial District Judge Stephen J. Bayer that a rear porch/deck enclosure installed at 300 E. Broad St. and a porch/deck enlargement at 304 E. Broad St. without setback and adding a doorway to 300 E. Broad St; off-street parking to 304 E. Broad St., and 9 S. Greenwood St.
Bachert was also cited for violating Ordinance 304 by failing to have his property at 304 E. Broad St. connected to the municipal sewer system and discharging wastewater directly into the Panther Creek.
In his appeal Bachert claims late 2011 they discussed a sewer line problem with his properties, wherein 304 was not properly connected to the public sewer line and how the line would be connected. The discussion encompassed his contractors and plumbers and the code enforcement officer and representatives of the sewer authority and as a result of their discussions it was determined that the sewer line would be connected to the public sewer line through the sewer line in 300 and that the line would run under the existing porch between the properties.
Bachert also claimed in his appeal his contractor, Tom Bartasavage, determined the porch between the residences should be removed in order to properly complete the work and the porch was reconstructed to the same dimensions as the existing porch.
In his petition Bachert claimed on or about March 2, 2012, he received notice of alleged zoning ordinance violations due to the work being performed on the two properties related to the porch and he immediately contacted the zoning officer. He states on March 5 he received a letter regarding the inspection of the sewer line and that the installation met with the borough's specification and further thanked him for his timely response to the violation notice. However, on March 14 the borough filed with District Justice Bayer requested $2,500 in damages based on the alleged violations and claimed they had not been appealed.
In his petition Bachert claims he was in contact with the zoning office throughout the project and when he received notice of the violations he believed this constituted an appeal. He claims there was a breakdown in communications and that he had attempted to remedy the situation before filing the appeal but was unable to resolve the matter and that the zoning office will not be prejudiced by allowing him to appeal the alleged violations to seek appropriate permits or variances if required.
By failing to appear in court the judge ruled he could not act on his petition for appeal nunc pro-tunc. In general a court ruling nunc pro-tunc applies retroactively to correct an earlier ruling.