Pittsburgh, PA
Legal Intelligencer
(by Blaine Lucas and Anna Hosack)
A frequent, if folksy, recitation of the purpose behind zoning and land use restrictions is to prevent problems caused by the “pig in the parlor instead of the barnyard.” In other words zoning regulations recognize sometimes a nuisance can be caused by putting the right thing in the wrong place. Therefore, zoning ordinances attempt to keep more “offensive uses” away from more sensitive uses. However, prohibiting a use on paper is one thing, ensuring ordinance compliance is another. The Commonwealth Court in Township of Cranberry v. Randy J. Spencer, Nos. 568, 569, and 570-CD-2022 (Pa. Cmwlth. Aug. 30, 2023) (Spencer II)[1] recently considered one municipality’s decades long battle over operation of a junkyard in violation of its zoning ordinance. A review of the history of this case provides the opportunity to consider the pros and cons of different enforcement options available to municipalities when faced with ongoing violations.
In Spencer, the owner of six parcels located in Cranberry Township, Butler County had been storing a multitude of junk vehicles (117 cars, 11 box trailers, 7 motorhomes, and 8 travel trailers) on his properties in violation of the Township zoning ordinance. The Township had been trying for over a quarter century to induce the property owner to remove the junk vehicles, and he had even paid fines related to the same in the past – yet he never removed the vehicles. In 2019, as authorized by Section 616.1 of the Pennsylvania Municipalities Planning Code, 53 P.S. §616.1 (“MPC”) the Township served five “enforcement notices” (referred to herein as “notices of violation” or “NOVs”) against five of the properties for the unlawful operation of a junk yard in the Township’s A-1 Conservation District. The NOVs ordered the removal of the vehicles and notified him of his right to appeal. In addition, a sixth NOV was issued for one property located in a different district, which asserted that the property owner was in violation of the Township property maintenance code’s (“PMC”) limit on the number of abandoned or junk vehicles allowed on a property. The Second Class Township Code authorizes the Township to enact a PMC to regulate the upkeep of the exterior of properties and structures. 53 P.S. §66704-A.
The property owner did not avail himself of his right to appeal the NOVs to the Township Zoning Hearing Board as authorized by Section 616.1 of the MPC, 53 P.S. §10616.1, or to the Township Uniform Construction Code Appeals Board as authorized by the PMC. Consequently, the Township filed six civil complaints with the local Magisterial District Judge (“MDJ”) as authorized by Section 617.2 of the MPC, 53 P.S. §10617.2. While the violation of most ordinances, including a PMC, is subject to summary criminal penalties and typically will be brought to the MDJ as a “non-traffic citation,” the MPC contains no authority for the imposition of criminal penalties for a zoning violation and matters are brought before the MDJ as a “civil enforcement complaint.” The property owner’s failure in Spencer to appeal the notices to the appropriate boards rendered the violations “unassailable” under both zoning and property maintenance jurisprudence, and the MDJ was not permitted to consider whether or not the property owner was guilty of the violations, but could only impose sanctions – up to the statutory limits of $500 per day under Section 617.2 of the MPC, 53 P.S. §10617.2, for the zoning violations, and up to $1,000 per day under the Second Class Township Code, 53 P.S. §66601, for the PMC violation. In addition to the limits imposed by the MPC and relevant municipal enabling statutes, the Judicial Code, 42 Pa.C.S. § 1515(a)(3), limits the MDJ’s jurisdiction in civil matters to disputes not exceeding $12,000. The MDJ entered six judgments in the amount of $609.25 each in the Township’s favor. The property owner appealed each separately to Common Pleas Court. The lower court adjusted the aggregate award in penalties imposed by the MDJ to $2,437.00.
The property owner’s further appeal led to the Commonwealth Court’s decision in Spencer I, which predominantly addressed the procedural issue surrounding the property owner’s failure to file a separate appeal from each MDJ docket. Ultimately, in Spencer I the Commonwealth Court concluded it could only review the appeal for one single docket concerning one of the six properties. Specifically noting the property owner’s lack of cooperation in resolving the violations, the Court affirmed the lower court order, noting once the Township offered evidence of the property owner’s failure to appeal the NOV, the trial court only possessed discretion to determine the amount of civil penalties.
Despite the finality of the Court’s decision in Spencer I, the property owner persisted in failing or refusing to remove the junk vehicles from his properties. Consequently, in 2021, the Township filed three new civil enforcement actions with the MDJ seeking to collect additional civil penalties for the period following the Spencer I decision. The MDJ entered a judgment in his jurisdictional maximum of $12,000, plus costs in each case. The property owner again appealed to the lower court, which determined it was not subject to the magisterial jurisdictional limit of 42 Pa.C.S. § 1515(a)(3), and imposed the maximum civil penalties allowed by the MPC: $500 per day per violation, which amounted to $92,500 in each case, for a total of $277,500. The property owner appealed again to the Commonwealth Court, resulting in Spencer II, where the Court reviewed the timeliness of the property owner’s appeal (finding it was), as well as his allegations of bias by the lower court judge (rejecting this contention) and affirming the lower court’s judgment in its entirety.
Although the Township ultimately prevailed on the merits, Spencer I and Spencer II offer a clear example of something most municipal solicitors and zoning officers already know – even when a municipality takes aggressive action against a violative use, an obstinate property owner can draw out the enforcement process for a long period of time. While the typical enforcement path outlined in the MPC – (1) issuance of a notice of violation, (2) if no appeal is filed, issuance of citation before the MDJ, and, ultimately, (3) the MDJ’s assessment of civil penalties and costs – may result in compliance in some instances, it often can take years and still may not result in correction of the violation.
Municipalities struggling with persistent offenders who will not comply with MDJ orders requiring the payment of civil penalties, who will not remediate the violations, and/or who will file repeated appeals, should consider filing equitable actions directly with Common Pleas Court. In addition to the authority to seek civil penalties from the MDJ under Section 617.2 of the MPC, Section 617 authorizes the municipality to “institute any appropriate action or proceeding to prevent, restrain, correct or abate” the offending use. 53 P.S. §10617. Similar provisions are found in most municipal enabling statutes, including the Second Class Township Code, 53 P.S. §66601(c.1)(1), and can be used for violations of a property maintenance or other municipal ordinances. Courts routinely find that the violation of a municipal ordinance constitutes irreparable harm entitling the municipality to an injunction, even a preliminary one, mandating correction of the violation. See, e.g., Pa Cent. Realty Invest. v. Middlesex, 566 A.2d 931, 934 (Pa. Cmwlth. 1989). This method also allows the municipality to seek its costs associated with the enforcement matter. This avenue works particularly well when a property owner does not appeal the initial NOV to the municipality’s zoning hearing board. A failure to do so renders an ordinance violation determination “unassailable.” Johnston v. Upper Macungie Twp., 638 A.2d 408, 412 (Pa. Cmwlth. 1994).
In addition, when a property owner fails to comply with a property maintenance ordinance, a municipality can complete the work necessary to effectuate compliance and then file a municipal lien with the Common Pleas Court. See, e.g., Borough of Walnutport v. Dennis, 13 A.3d 541 (Pa. Cmwlth. 2010) (Borough entitled to attorney fees and reimbursement for the cost of work associated with cutting down trees and removing tree stumps to bring a property into compliance). However, this option does not guarantee that the municipality will successfully recoup the funds expended and should generally be used when the benefit of remedying the violation outweighs the financial cost.
In summary, in many instances, pursuit of civil penalties under the MPC and fines under other statutes and ordinances may result in ordinance compliance. However, in other situations other alternatives may be necessary such as filing an equitable action or opting for self-help options under a property maintenance code.
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[1] Spencer II is the culmination of a procedurally complicated saga, originally considered by the Commonwealth Court in Township of Cranberry v. Spencer, 249 A.3d 9 (Pa. Cmwlth. 2021)(“Spencer I”) from which certain facts addressed in this article have been drawn.
Blaine A. Lucas is a Shareholder in the Public Sector Services and Energy and Natural Resources groups of the Pittsburgh law firm of Babst, Calland, Clements & Zomnir. Anna R. Hosack is an associate in Babst Calland’s Public Sector Services group and focuses her practice on zoning, subdivision, land development, and general municipal matters.
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Reprinted with permission from the October 12, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved.
