The Legal Intelligencer
On June 27, the Commonwealth Court rendered a decision in Smith v. Ivy Lee Real Estate, 2017 Pa. Commw. LEXIS 412 (Pa Commw. Ct. 2017), holding that municipal subdivision and land development ordinances (SALDO) can be enforced through private causes of action. The case was a matter of first impression under the Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101 et seq., (MPC), the state law establishing the framework for zoning and land use development regulations in Pennsylvania.
In Smith v. Ivy Lee, Ivy Lee Real Estate owned real property in Taylor Township. In 2015, Ivy Lee commenced construction activities on its property to convert an existing dwelling into a restaurant. The township does not have a zoning ordinance, but had adopted a SALDO pursuant to the MPC. The township concluded that Ivy Lee’s proposed project did not rise to the level of a “land development” under its SALDO. This decision is important because a “land development” requires submittal of a land development plan. That plan, and supporting application material, must comply with specific standards and criteria under the SALDO and undergo formal review and approval at various public meetings.
Believing Ivy Lee’s project did trigger the SALDO as a land development, the adjacent property owners (the Smiths) filed a private enforcement action against Ivy Lee in the form of a petition for permanent injunction. In the petition, the Smiths alleged that Ivy Lee’s construction activities constitute a land development under the SALDO, Ivy Lee is required to submit a land development plan to the township for review and approval, Ivy Lee’s plan, as-is, does not conform to the requirements of the SALDO, and the Smiths are authorized by Section 617 of the MPC to file a private action to enforce the SALDO.
Section 617 of the MPC reads, in pertinent part, as follows: “In case any building, structure … or land is … reconstructed, altered, or converted … in violation of any ordinance enacted under this act … the governing body … an officer of the municipality, or any aggrieved owner or tenant of real property who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding to prevent, restrain, correct or abate such building, structure, landscaping or land, or to prevent, in or about such premises, any act, conduct, business or use constituting a violation.”
The trial court disagreed with the Smiths’ interpretation of Section 617 because Article VI of the MPC, which includes Section 617, is titled “Zoning,” and “almost all existing case law that has applied Section 617 has been in the context of zoning.” As a result, the trial court concluded that the Smiths lack standing to enforce the SALDO and denied their request for injunctive relief. Specifically, the trial court determined that Section 617 creates a private cause of action only for zoning violations and cannot, therefore, be relied upon by an owner of real property, such as the Smiths, to seek private enforcement of a SALDO.
Emphasizing that Section 617 expressly allows a private cause of action for a “violation of any ordinance enacted under this act” and contending that the phrase “this act” refers to the entire MPC, not just Article VI related to zoning, the Smiths appealed.
The Commonwealth Court agreed that the plain language of Section 617 permits a private cause of action to enforce an alleged violation of any ordinance enacted under the MPC, including a SALDO, and reversed. In rendering its decision, the court performed a statutory construction analysis of Section 617, pursuant to which it concluded the following:
• The phrase “this act” under Section 617 refers to the entire MPC, not just Article VI. The court based its conclusion on the following observations: the term “act” is not defined under the MPC, when used elsewhere in the MPC the term “act” clearly refers to the MPC as a whole, and there are other instances in Article VI (the subchapter of the MPC under which Section 617 is located) and throughout the MPC where language other than “this act” is used, thereby evidencing an intent by the General Assembly to only apply that particular provision to a specific part of the MPC, rather than the entire MPC.
• The trial court erred in allowing the title of Article VI (zoning) to control in disregard to the plain language of Section 617. The court explained that while headings or titles in a statue can serve to aid in its construction, they are is not dispositive or controlling.
• The trial court erred in finding that the lack of appellate case law applying Section 617 outside of the zoning context is dispositive. The court stated that the lack of appellate case law does not mean Section 617 may only be used to enforce a zoning ordinance, it simply means this is a question of first impression.
• Sections 515.1 and 515.3 of the MPC, both of which relate to the enforcement of a SALDO, are not the exclusive means by which a SALDO can be enforced and therefore do not preclude a private enforcement action under Section 617.
*Reprinted with permission from the 9/5/17 issue of The Legal Intelligencer. © 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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