Johnston v. Upper Macungie Tp.
| Decision Date | 17 February 1994 |
| Citation | 162 Pa.Cmwlth. 170,638 A.2d 408 |
| Parties | James JOHNSTON and Betty Johnston v. UPPER MACUNGIE TOWNSHIP, Appellant. |
| Court | Pennsylvania Commonwealth Court |
William E. Schantz, for appellant.
Marc S. Fisher, for appellees.
Before CRAIG, President Judge, SMITH, Judge, and KELTON, Senior Judge.
Pursuant to order granting reargument, we now reconsider Upper Macungie Township's appeal of an order of the Court of Common Pleas of Lehigh County that (1) denied the township's motion to strike an appeal of landowners James and Betty Johnston from an order of a district justice and (2) remanded the case to the district justice to hold a hearing regarding the question of whether or not the landowners violated a provision of the township's zoning ordinance, by operating a business in their home.
The issues the township raises in this appeal are: (1) whether the trial court's remand order, although interlocutory, is one that is appealable; and (2) when a municipal zoning officer charges a landowner before a district justice with a violation of a zoning ordinance, may the landowner, without appealing the zoning officer's determination to a zoning hearing board, then raise before the district justice the substantive defense that the landowner has not violated the ordinance.
The facts as determined by the trial court are as follows. The landowners conducted a business in their home. The business involved the sale of books and materials related to antiques and collectibles. The township's zoning officer determined that the business constituted a "home occupation" under section 201 of the ordinance, and that home occupations are not permitted uses in the zoning district in which the landowners' property is located. Hence, the officer concluded that the landowners were in violation of the ordinance.
The township notified the landowners that the use of their home as a business violated the ordinance and that they had two options; they could either appeal the determination to the zoning hearing board or discontinue using their home for their business. The notice also informed them (1) that if they chose the former option they must appeal the determination to the zoning hearing board within thirty days, (2) that the township would commence an enforcement proceedings against them if they did not discontinue the use, and (3) of the nature of the enforcement procedure.
The landowners continued to use their home for the business and did not appeal the township's violation notice. The township initiated an enforcement proceeding against the landowners. A district justice conducted a hearing on the enforcement matter. At the hearing, the district justice refused to allow the landowners to present evidence regarding the violation of the ordinance. The district justice apparently relied upon section 616.1(c) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10616.1(c)(6), which states that "failure to comply with ... [an enforcement] notice within the time specified, unless extended by appeal to the zoning hearing board, constitutes a violation...."
Based on that provision, the district justice determined that the landowners' failure to appeal the township's violation notice to the zoning hearing board rendered the township's charge of ordinance violation binding and unassailable, and that the only function a district justice can perform in such an enforcement proceeding is to impose a fine for the established violation.
The landowners appealed the district justice's order to the trial court. The township filed a motion to strike the appeal. The trial court denied the motion and concluded that the district justice erred in concluding that the landowners could not challenge the ordinance violation on the merits before the district justice. The trial court remanded the case to the district justice, and the township appealed that order to this court.
After the township filed this appeal, this court noted that there was a question as to whether or not we have jurisdiction over this appeal based on the interlocutory nature of the trial court's order. After a hearing, this court issued an order dismissing the township's appeal. The township filed an application for reargument of that single-judge order, which this court granted. In this court's reargument order, the court directed the parties to file briefs addressing both the issue of whether the trial court correctly concluded that the district justice should have considered the merits of the landowners' ordinance violation argument and whether the trial court's order is appealable.
the Violation Determination Unassailable
Although courts generally should not engage in a review of the merits of an appeal when there is also a jurisdictional issue presented, the resolution of the "merits" in this case has a bearing on the question of whether the trial court's order is an appealable order. Accordingly, we will first address the substantive issue presented.
The township's legal position has been that a landowner, when given a notice of zoning ordinance violation by a zoning administrator, can contest the charge only by way of an appeal to the township's zoning hearing board, rather than by defending against the charge when the township seeks ordinance violation fines before a district magistrate. The township relies upon a 1988 amendment to the MPC, referring in particular to sections 616.1, 617.1 and 617.2 of the MPC, 53 P.S. §§ 10616.1, 10617.1, 10617.2. As a consequence, the township has proceeded here upon the basis that the landowners, who received a notice from the zoning officer and did not resort to the zoning hearing board, are precluded from a de novo review of the zoning violation question before a district justice. Amicus curiae, consisting of two other townships, a borough and the Pennsylvania State Associations of Township Supervisors and of Boroughs, have also submitted briefs and argument in support of the township's view.
The township and amicus curiae rely particularly upon the concluding portion of section 616.1 of the MPC which, after providing that a municipality's zoning enforcement notice shall identify the owner, the property, the specific ordinance provisions violated, and the required time frame for compliance, concludes its description of notice content with the following:
(5) That the recipient of the notice has the right to appeal to the zoning hearing board within a prescribed period of time in accordance with procedures set forth in the ordinance.
(6) That failure to comply with the notice within the time frame specified, unless extended by appeal to the zoning hearing board, constitutes a violation, with possible sanctions clearly described.
MPC 617.1 states only that "[d]istrict justices shall have initial jurisdiction over proceedings brought under section 617.2"
MPC § 617.2(a), in pertinent part, states as follows:
(a) Any person, partnership or corporation who or which has violated or permitted the violation of the provisions of any zoning ordinance enacted under this act or prior enabling laws shall, upon being found liable therefor in a civil enforcement proceeding commenced by a municipality, pay a judgment of not more than $500 plus all court costs, including reasonable attorney fees incurred by a municipality as a result thereof. No judgment shall commence or be imposed, levied or payable until the date of the determination of a violation by the district justice. If the defendant neither pays nor timely appeals the judgment, the municipality may enforce the judgment pursuant to the applicable rules of civil procedure. Each day that a violation continues shall constitute a separate violation, unless the district justice determining that there has been a violation further determines that there was a good faith basis for the person, partnership or corporation violating the ordinance to have believed that there was no such violation, in which event there shall be deemed to have been only one such violation until the fifth day following the date of the determination of a violation by the district justice and thereafter each day that a violation continues shall constitute a separate violation. All judgments, costs and reasonable attorney fees collected for the violation of zoning ordinances shall be paid over...
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