Borough of W. Conshohocken v. Soppick, 164 A.3d 555 (Pa. Commw. Ct. 2017)
Under Sections 616.1 and 617.2 of the Pennsylvania Municipalities Planning Code (MPC), a municipality may initiate enforcement proceedings against an individual who “has violated or permitted the violation of the provisions of a zoning ordinance.” Therefore, any enforcement actions are premature and cannot stand when initiated while an appeal from a notice alleging violations of a zoning ordinance is pending.
Landowners applied for and were granted a permit to construct a one-story detached garage on their property (Property). The Borough’s Zoning Officer (Officer) inspected the Property and noticed Landowners were building a two-story garage, in violation of the Zoning Ordinance (Ordinance), the building code, and their permit. The Officer issued a Stop Work Order (SWO), insisting the Landowners cease construction and informing them that continuing the activity would result in the assessment of daily fines. Landowners appealed the SWO to the Zoning Hearing Board (ZHB), but their appeal was denied. Landowners appealed to the trial court, which affirmed the ZHB’s decision. Landowners then appealed to the Commonwealth Court. While the appeal was pending, the Borough notified Landowners of its intent to enforce the trial court’s order.
The notice stated the Landowners were being fined for each day the violation continued. When the Landowners neither paid the fine nor corrected the violation, the Borough filed a complaint against Landowners and were awarded over $7,000 in penalties. The Commonwealth Court later affirmed the trial court’s decision to uphold the SWO. After a series of appeals and filings, the trial court ordered Landowners to pay over $130,000 plus costs and interest. Landowners again appealed to the Commonwealth Court, arguing the Borough was precluded from seeking penalties until Landowners’ appeal failed, pursuant to Section 617.2(a) of the MPC.
On appeal, the Commonwealth Court reversed the trial court’s order. Under Sections 616.1 and 617.2 of the MPC, a municipality may initiate enforcement proceedings against an individual who “has violated or permitted the violation of the provisions of a zoning ordinance.” When the borough initiated enforcement against Landowners, their appeal was still pending in the Commonwealth Court, which meant no final determination was made as to the alleged violation of the Ordinance. Consequently, enforcement action was premature and could not stand.
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