Citation:

South Whitehall Twp. v. Karoly,
891 A.2d 780 (Pa. Cmwlth. 2005), Petition for Allowance of Appeal denied, 906 A.2d 546 (Pa. 2006).

Summary:
MPC Section 617.2 is constitutional (allowing recovery of reasonable attorney fees and costs against the violator) and losing parties have the burden of showing the unreasonableness of the requested fee award.
Case Details:

Landowners erected a shed and placed an unscreened dumpster next to their office building without obtaining zoning approval, a building permit or land development approval.  As a result, the township sent enforcement notices to the landowners, who failed to correct the violations.  The township then filed a criminal action and prevailed before the district justice.  Landowners appealed to the trial court, which granted a motion to transfer the proceeding to the civil division.  The township then filed a civil complaint alleging four violations of its ordinances, including violations of its Zoning Ordinance, Building Code, Solid Waste Management Ordinance, and Subdivision and Land Development Ordinance.

After hearing testimony, the trial court ruled in favor of the township on the Zoning Ordinance and Building Code counts; however, it found no violation of the Subdivision and Land Development Ordinance.  The count alleging a violation of the Solid Waste Management Ordinance was dropped because landowners agreed to remove it.

After the trial court rendered its decision, pursuant to MPC Section 617.2, the court granted the township’s petition for attorney fees and costs in the amount of $28,493.  Landowners appealed, arguing that 1) Section 617.2 effected an unconstitutional deprivation of due process and equal protection; 2) they were the prevailing party; 3) fees and costs should have been assessed from the date of the filing of the civil action, not the date of the enforcement action; and 4) the fees and costs assessed were unreasonable.

The Commonwealth Court affirmed the award in all respects.  First, the Court upheld the constitutionality of Section 617.2 and stated that the law neither impacted a fundamental right nor targeted a suspect class.  Second, the Court found that because landowners prevailed on only one of four counts, they were not the prevailing party (as required by the MPC).  Third, the Court held that the township could recover fees and costs from the date it initiated the enforcement action, i.e. the date it sent the enforcement notices. Finally, the Court held that the landowners had the burden of refuting the fee amount and had to show how much time the township spent on its unsuccessful Subdivision and Land Development count before the fee could be diminished.  The landowners failed to present any evidence on this issue.  Accordingly, the Court held that landowners waived this argument.

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