Lower Mt. Bethel Twp. v. Gacki, 150 A.3d 575 (Pa. Commw. Ct. 2016)

When a landowner receives a notice of violation of an ordinance and fails to appeal within the time permitted, he or she loses the right to appeal, resulting in a “conclusive determination of [the] violation of the [o]rdinance.”
Case Details:

Landowners owned property (Property) located in the floodplain. In violation of the Township’s floodplain management ordinance, Landowners constructed a concrete retaining wall and backfilled the Property. Landowners received a notice of violation from the Township’s floodplain administrator which gave Landowners 30 days to file an appeal with the Zoning Hearing Board (ZHB), submit a permit for the concrete wall and backfilling, or submit a permit for the removal of the same. Landowners did not file an appeal nor take other action. Following the appeal period, the Township brought a zoning enforcement action against Landowners. Landowners appealed the judgement to the trial court. The Township amended its complaint to seek fines, attorneys fees, and a permanent injunction. Landowners filed an answer and new matter and the Township moved for judgement on the pleadings, which was granted. The Township was awarded fines, attorneys fees and a permanent injunction. Landowners appealed to the Commonwealth Court.

Landowners did not dispute that they received a notice of violation, were given 30 days to appeal, and did not do so. Therefore, no genuine issues of material facts existed in the dispute. When a landowner fails to appeal a notice of violation to the zoning hearing board, he or she loses the opportunity to obtain relief; thus, the Commonwealth Court determined Landowners forfeited their right to appeal and the fines were warranted. With respect to the attorney fees, the Court stated Landowners failure to appeal from the notice resulted in a “conclusive determination of their violation of the [o]rdinance,” and resulted in enforcement proceedings which led to the Township having to pay fees to their attorneys. Under Section 10617.2(a) of the Pennsylvania Municipalities Planning Code, when violators of zoning ordinances are found liable in a civil enforcement action, they must pay reasonable attorney fees incurred by the municipality as a result of that proceeding and violation. It is within the trial court’s discretion to determine the reasonableness of attorney fees.

Landowners’ opposition to the injunctive relief granted fared no better. Where there is a violation of a specific provision in a zoning ordinance, requests for injunctive relief may be granted. Here, the Township proved Landowners’ violation of the ordinance simply because Landowners failed to appeal the notice of violation; accordingly, injunctive relief was warranted.

Date of Decision: 11/30/16

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