Township of Penn v. Seymour

• Decision Date: 24 February 1998
• Citation: 708 A.2d 861
• Parties: TOWNSHIP OF PENN, York County, Pennsylvania, Appellant, v. Bradley V. SEYMOUR.
• Court: Pennsylvania Commonwealth Court

Page 861

708 A.2d 861

TOWNSHIP OF PENN, York County, Pennsylvania, Appellant, v. Bradley V. SEYMOUR.

Commonwealth Court of Pennsylvania.

Argued Dec. 9, 1997.

Decided Feb. 24, 1998.

Walter A. Tilley, III, York, for appellant.

Judith Koper Morris, Hanover, for appellee.

Before DOYLE and LEADBETTER, JJ., and RODGERS, Senior Judge.

DOYLE, Judge.

The Township of Penn appeals an order of the Court of Common Pleas of York County, which vacated an order of a District Justice entering judgment against Bradley Seymour for violating the Township's zoning ordinance.

Seymour owns four Rottweiler dogs which he houses in a fenced area located in the backyard of his residence. He breeds two of the dogs once each year and sells the puppies when they are eight weeks old. Seymour's residence is located in the Township's R-15 Suburban Residential zoning district. Single family homes and group homes are permitted by right in the R-15 zone; various other uses, primarily personal service, professional, and public service uses, are permitted by special exception. Section 203.2 of the Penn Township Zoning Ordinance (Ordinance).

The Township received complaints that Seymour had an excessive number of dogs on his property and was breeding dogs. On May 21, 1996, the Township's zoning officer issued a notice of violation to Seymour for operating a kennel in a residential zone. The Township's zoning ordinance defines the term "kennel" in part as a building or land used for the boarding or breeding of four or more dogs. Section 103.3 of the Ordinance. It is undisputed that kennels are not a permitted use in the R-15 zoning district.

On July 11, 1996, Seymour filed an application with the Township's Zoning Hearing Board (ZHB) for a variance to allow him to maintain a kennel on his property. The ZHB denied the application on August 14, 1996. Seymour, however, continued to operate the kennel, and on November 21, 1996, the zoning officer issued a second notice of violation for operating a kennel in a residential zone. The notice included, inter alia, the following language:

FAILURE TO COMPLY WITH THIS NOTICE WITHIN THE TIME SPECIFIED CONSTITUTES A VIOLATION. EACH DAY THAT A VIOLATION CONTINUES WILL CONSTITUTE A SEPARATE VIOLATION.... YOU HAVE THE RIGHT TO APPEAL TO THE ZONING HEARING BOARD. SAID APPLICATION FOR APPEAL SHALL BE FILED WITH THE TOWNSHIP ZONING OFFICER BY THE DATE CORRECTIVE ACTION WAS TO HAVE BEEN COMPLETED. (Emphasis added.)

Seymour did not correct the violation, nor did he appeal the notice of violation to the ZHB.

On December 27, 1996, the Township filed a zoning enforcement complaint against Seymour with the District Justice. After a hearing, the District Justice entered a judgment against Seymour in the amount of $750.00 plus costs. The District Justice further ordered that, if the zoning violation continued after March 2, 1997, judgment in the amount of $250.00 per day would be imposed.

Seymour appealed the District Justice's order to the Common Pleas Court, and, in accord with Pa. R.C.P.D.J. No. 1004(B), ¹ a rule was entered directing the Township to file a complaint. The Township filed a complaint seeking both a penalty and fine as well as an injunction directing Seymour to cease and desist from operating a kennel. In response, Seymour filed preliminary objections challenging the constitutionality of the Ordinance the validity of the enforcement action, and asserting that the Ordinance was preempted by state statute. The Township filed preliminary objections to Seymour's preliminary objections, in which it argued that the Common Pleas Court did not have subject matter jurisdiction over the issues raised by Seymour because he never appealed the November 21, 1996 violation notice to the ZHB.

Common Pleas determined that the violation notice issued by the zoning officer did not fully inform Seymour of his right to appeal to the ZHB and, for that reason, vacated the District Justice's order. The court noted that, when zoning enforcement actions are litigated, the zoning hearing board determines whether a zoning violation has occurred, and the penalty is decided and imposed by a district justice. Johnston v. Upper Macungie Township, 162 Pa.Cmwlth. 170, 638 A.2d 408 (1994). The Court explained:

[I]t is the Court's opinion that this [violation] notice is not sufficient as the law has been modified by Johnston.... A notice merely stating that a defendant has the right to file an appeal to the Zoning Hearing Board does not begin to inform a defendant that the failure to do so results in a binding determination that he has committed a violation. In fact, the use of the term "appeal" itself is misleading. It would be more appropriate to inform a defendant that he is entitled to request a hearing as to whether the defendant is in violation. More important[ ], the notice should state that the failure to request a hearing creates a binding determination that the defendant is in violation. Since the revised procedure established by Johnston ... is little known to lawyers and municipal officials, let alone the general public, most defendants would be deprived of their day in court unless this hybrid procedure ... is adequately explained to them.

....

Since the Court has determined that the Township's notice was defective, the Court hereby finds that the District Justice had no jurisdiction to hear this enforcement action. Even though the defendant did not raise that objection, jurisdiction is a matter that can be addressed by the Court on its own motion. Therefore, the Court finds that the District Justice had no jurisdiction to hear the Complaint because of the lack of a proper notice, and therefore the proceedings of the District Justice should be vacated.

(Common Pleas Court Opinion at 4-6.)

Further, the Common Pleas Court determined that the procedure for filing a complaint under Pa. R.C.P.D.J. No. 1004(B) was not applicable in this matter. The Court concluded that, because the issues in zoning enforcement appeals are limited to whether the violation has been discontinued and the amount of the civil penalty, there is no need for pleadings, and the matter may be treated in a manner similar to a summary criminal appeal. This appeal by the Township followed.

The Township contends that (1) the notice of violation was legally and factually sufficient to inform Seymour of his appeal rights, (2) Seymour's failure to appeal to the ZHB waived his challenges to the constitutionality, validity, and enforceability of the Ordinance, and (3) the Common Pleas Court erred in concluding that Pa. R.C.P.D.J. No. 1004(B) was not applicable to Seymour's appeal from the District Justice. We agree with each of the Township's contentions.

Formerly, municipalities enforced zoning ordinances by instituting a summary criminal action before a district justice. Plains Township v. Krasner, 7 Pa.Cmwlth. 56, 298 A.2d 627 (1972); Commonwealth v. Joki, 330 Pa. Superior Ct. 406, 479 A.2d 616 (1984). The district justice's decision could be appealed to a common pleas court, which heard the case de novo. Township of Vanport v. Brobeck, 22 Pa.Cmwlth. 523, 349 A.2d 523 (1975). In 1988, however, the General Assembly changed this procedure. Zoning enforcement proceedings are now commenced by a municipality sending an enforcement notice to the landowner in accordance with Section 616.1 of the Pennsylvania Municipalities Planning Code (MPC). ² When a landowner has been given notice of a zoning violation under Section 616.1 of the MPC:

[the] landowner can contest the asserted violations only by way of appeal to the municipality's zoning hearing board and cannot merely defend the charge when the municipality seeks ordinance violation fines before a district justice. Johnston v. Upper Macungie Township, 638 A.2d 408 (Pa.Cmwlth.1994). In Johnston, we explained that zoning hearing boards have exclusive jurisdiction over ordinance violation determinations, and, therefore, a landowner's failure to appeal a Section 616.1 zoning violation notice to the zoning hearing board is fatal and results in a conclusive determination of guilt for which a district justice may impose sanctions under Section 617.2 of the MPC. For this reason, we held that a district justice may not conduct a de novo review of the merits of a violation notice where the landowner has not gone first to the zoning hearing board; rather in that situation, upon the municipality's showing that no appeal was taken by the landowner, a district justice is limited to imposing a fine pursuant to Section 617.2 of the MPC [, 53 P.S. § 10617.2].

City of Erie v. Freitus, 681 A.2d 840, 842 (Pa.Cmwlth.1996), petition for allowance of appeal denied, 547 Pa. 738, 690 A.2d 238 (1997) (emphasis in original).

The Township first contends that the Common Pleas Court erred in holding that the notice of violation was insufficient as a matter of law to advise Seymour of his rights. Specifically, the Township argues that, contrary to the MPC, the Court erroneously concluded that the notice of violation had to explain the "hybrid" procedure outlined in Freitus and Johnston and that the failure to appeal the notice to the ZHB, would result in a binding determination that the Ordinance was violated. This argument is well taken.

Section 616.1(5) of the MPC requires a municipality to include in a violation notice a statement 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." Nothing in Section 616.1 requires a municipality to explain to a landowner the consequences of failing to file such an appeal or to outline the procedures articulated in Johnston and Freitus.

The Township's November 21, 1996 notice of violation was in compliance with Section 616.1 of the MPC. The notice informed Seymour that he had a right to appeal to the ZHB, and no further explanation of Seymour's appeal rights...