A municipal official and his wife this week asked the Indiana County Common Pleas Court to overturn an October lower court ruling that they failed to obtain a building permit for the construction of a garage behind their house near Homer City.
John Bertolino, a member of the Center Township board of supervisors, and his wife Rosemary, represented by Indiana attorney Wayne Kablack, on Wednesday filed papers for a summary appeal before a county judge, hoping to overturn a conviction following testimony at a hearing in Homer City District Court.
District Judge Susanne Steffee on Oct. 7 found each guilty of a violation of a township ordinance that requires property owners to gain formal approval of building plans, including any needed variances from land use guidelines, before commencing certain projects.
Steffee ordered each to pay a $100 fine and $168.05 in court costs. The township ordinance allows a maximum fine of $300 for such a conviction but does not empower the township or a judge to order the removal of a building that was constructed without a permit.
At issue is a combination garage office that originally was built in 2016 as an open air carport and, according to John Bertolino, enclosed in 2017 for winter vehicle storage by the couple’s son.
Bertolino, of Oak Street, testified that he had built and replaced carports on the same spot over the years and never had been required by township officials to get a building permit. He testified also that the township had a record of granting permits after-the-fact to property owners who had not notified the township office before beginning their projects.
Bertolino, 69, was elected in 2007 and 2013 to the board of supervisors. He was defeated by Matt Housholder in the Democratic primary this year and will finish his term the first Monday of January.
His colleagues on the board, David “Butch” Smyers and James Gatskie, first acknowledged Bertolino’s project in early 2018 after township residents complained about it. Smyers and Gatskie later rejected Bertolino’s tardy requests for a variance on a setback requirement and for a building permit, then township code officer Andy Szentmiklosi filed citations against John Bertolino on June 13 and Rosemary Bertolino on July 19.
Although disputed between John Bertolino and township residents at several public meetings of the supervisors, the question of whether Bertolino owns the ground where he built the garage was not formally contested at the district court hearing. Smyers and Gatskie sanctioned a surveyor’s drawing of the Kunkle Development that concluded, just as township residents had argued, that the garage was built on a public right of way, Cherry Alley.
Bertolino has said the township has failed to formally adopt, pave, plow and maintain Cherry Alley as a public road since the plan of lots was laid out in the 1950s. In turn, owners of the adjacent building lots are entitled to personal use of Cherry Alley, he said.
Kablack said following Steffee’s verdict that the appeal to the county court is intended to strengthen Bertolino’s position and help to head off a possible civil action by the township to have the garage removed.