Woll v. Monaghan Tp., 1888 C.D. 2007.

• Decision Date: 22 May 2008
• Docket Number: No. 1888 C.D. 2007.,1888 C.D. 2007.
• Citation: 948 A.2d 933
• Parties: Colby S. and Monica WOLL, Appellants v. MONAGHAN TOWNSHIP and Monaghan Township Zoning Hearing Board.
• Court: Pennsylvania Commonwealth Court

948 A.2d 933

Colby S. and Monica WOLL, Appellants v. MONAGHAN TOWNSHIP and Monaghan Township Zoning Hearing Board.

No. 1888 C.D. 2007.

Commonwealth Court of Pennsylvania.

Submitted on Briefs April 7, 2008.

Decided May 22, 2008.

Richard Koch, Carlisle, for appellants.

David J. Lenox, Dillsburg, for appellee, Monaghan Township.

BEFORE: McGINLEY, Judge, and PELLEGRINI, Judge, and LEAVITT, Judge.

OPINION BY Judge McGINLEY.

Colby and Monica Woll (Landowners) appeal from the order of the Court of Common Pleas of York County (common pleas court) affirming the Monaghan Township Zoning Hearing Board (Board) decision that Landowners were in violation of Sections 201.2 and 112.C of the Monaghan Township Ordinance (Ordinance) which limited the maximum number of domestic pets at any one single-family residence, as an accessory use, to no more than six.

Landowners live in a rural residential zone (RR) in Monaghan Township. They have fourteen dogs. There is no fence around the property and the dogs are uncontrolled. Neighbors complained on numerous occasions to the police about being threatened physically by the dogs and continual and incessant barking 24-hours a day.

Sometime in August 2005, Landowners contacted the zoning officer regarding the possibility of getting permission to establish a dog kennel at the premises. The zoning officer advised Landowners that a kennel was not a permitted use in the RR district.

On January 12, 2006, the zoning officer issued an "Enforcement Notice" to Landowners that they were in violation of Section 112.C, which defines the keeping of domestic animals as an accessory use, and Section 201.2, which delineates the permitted principle uses in the RR district. In essence, a maximum of six domestic animals may be kept as pets as an accessory use in a single family residence in the RR district.¹

Landowners appealed to the Board and a hearing was held on March 20, 2006. They argued that the Ordinance which regulated the number of domestic pets as an accessory use was vague and arbitrary.

Testimony was offered by the zoning hearing officer and one of the complaining neighbors, Mickey Long (Mrs. Long). Mrs. Long testified that she lived next door to Landowners. There was "continual incessant obsessive barking" at all hours of the day and night. At times the dogs sounded "like they were murdering each other." Notes of Testimony, March 20, 2006, (N.T.) at 34; Reproduced Record (R.R.) at 76a. She testified that she was unable to sleep and the noise had grown to the point where she no longer used her back deck to dine outside. N.T. at 35; R.R. at 77a. She also testified that the dogs were often in her yard barking at her and defecating on her property.

Landowners presented no testimony although a stipulation was entered on the record that Landowners continued to keep fourteen dogs.

On April 18, 2006, the Board sustained the action of the zoning officer and found Landowners to be in violation of Section 201.2 of the Ordinance. Landowners appealed and the common pleas court affirmed:

The [trial] Court finds that the provisions of the Monaghan Township Ordinance, which regulate the number of domestic pets as an accessory use, are within the Township's general authority to promote the health, safety and welfare of the community. Further, based on the evidence presented before the Zoning Hearing Board, Plaintiffs [Landowners] were clearly in violation of Section 201.27 and Section 112.C of the Township Zoning Ordinance. Therefore, Plaintiffs' [Landowners] Appeal is denied.

On appeal², Landowners raise three issues, all of which this Court finds to be without merit.

I.

In their first issue, Landowners challenge the course of action taken by the Township. They assert that the Township failed to follow the procedures outlined in Section 700.4 of the Ordinance. Specifically, Landowners contend that the Township was required to bring this action before a magisterial district judge. Landowners have misconstrued the law.

Section 700.4 of the Ordinance, which follows verbatim Section 617.2 of the Pennsylvania Municipalities Planning Code³ (MPC), added by section 62 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10617.2, provides, in part:

700.4 Enforcement Remedies — Any person, partnership or corporation who or which has violated or permitted the violation of the provisions of this Zoning Ordinance ... upon being found liable therefore in a civil enforcement proceeding commenced by the Township, pay a judgment of not more than five hundred dollars ($500) plus all court costs, including reasonable attorney fees incurred by the Township as the result thereof. No judgment shall commence or be imposed, levied or be payable until the date of the determination of a violation by the district judge ....

Monaghan Township Ordinance, § 700.4 (emphasis added).

Section 700.3 of the Ordinance, which follows verbatim Section 616.1 of the MPC, also added by section 62 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10616.1, sets forth the civil enforcement procedure for violations of zoning ordinances:

700.3 Violations — If it appears to the Township that a violation of this Zoning Ordinance ... the Township shall initiate the enforcement proceedings by sending an enforcement notice ...

* * *

2. An enforcement notice shall state at least the following:

* * *

C. The specific violation with a description of the requirements that have not been met, citing in each instance the applicable provisions of the Ordinance;

D. The date before which the steps for compliance must be commenced and the date before which the steps must be completed;

E. 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 the procedures set forth in the Ordinance, and

F. That failure to comply with the notice within the time specified, unless extended by appeal to the Zoning Hearing Board, constitutes a violation, with possible sanctions clearly described.

Monaghan Township Ordinance, § 700.3 (emphasis added).

To summarize the procedure, a landowner in receipt of an enforcement notice of violation of a zoning ordinance from a municipality may appeal that notice to the zoning hearing board. Ordinance, § 700.3; Section 616.1 of the MPC, 53 P.S. § 10616.1.

A landowner's failure to appeal the notice of violation results in a final adjudication that the landowner violated the zoning ordinance. If the landowner fails to appeal, he may not later deny there was a violation. If after receiving an enforcement notice, the landowner continues to violate the zoning ordinance without appealing the enforcement notice, Section 616.1(c)(6) of the MPC, 53 P.S. § 10616.1(c)(6), dictates a conclusive determination of violation, and entitles a municipality to either initiate district justice action for sanctions or file a complaint in equity to enjoin the landowner from further violations (independent of the MPC). Township of Maidencreek v. Stutzman, 164 Pa.Cmwlth. 207, 642 A.2d 600 (1994).

If the landowner does appeal to the zoning hearing board the MPC vests in the zoning hearing board exclusive jurisdiction to hear such an appeal. The MPC does not confer upon the magisterial district justice jurisdiction to hear appeals from notices of violations; rather the MPC vests in the magisterial district justice the power to levy fines once the violation is finally adjudicated by the zoning hearing board.

Consequently, because Landowners did appeal the enforcement notice, there was no conclusive determination of a violation upon which the Township could have proceeded to seek sanctions. The Township could not commence an action before the magisterial district judge until the issue of whether a violation occurred was determined by the zoning hearing board. Township of Concord v. Concord Ranch, Inc., 664 A.2d 640 (Pa.Cmwlth.1995).

The jurisdiction of the magisterial district judge is only invoked in one of two situations when either: (1) the enforcement notice is appealed and there is a final adjudication by the zoning hearing board that there was a violation, or (2) the enforcement notice is not appealed and the violation notice, per se, becomes binding and unassailable.

Here, Landowners appealed the enforcement notice; consequently, there was nothing for the magisterial district judge to act upon unless and until a violation was conclusively established through the appeal process. See Township of Maidencreek. This Court notes that the violation is still not conclusively established in light of Landowners' appeal to this Court and will not be until their appeal as of right is exhausted.

Accordingly, the Township followed the proper procedure in accordance with the Ordinance and was not, as Landowners contend, required to file an action with the magisterial district judge.

II.

Next, Landowners question whether a municipality may arbitrarily fix a number that is an acceptable number of pet dogs that may be maintained at a single-family residence. Landowners assert that the Township "has offered no evidence to support the contention that a prohibition against more than six (as opposed to five or seven, for example) pets contributes in any substantial way to the health, safety, morals or well being of the community." Landowners' Brief at 18. Like the common pleas court, this Court is not persuaded.

It is well settled law in Pennsylvania that a municipality may enact zoning ordinances reasonably restricting the property right to protect and promote the public health, safety and welfare under its police power. Cleaver v. Board of Adjustment, 414 Pa. 367, 200 A.2d 408 (1964).⁴ A zoning ordinance is presumed to be valid. Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975). Therefore, one challenging the zoning ordinance has the heavy burden of establishing its invalidity. Id. Where the validity of the zoning ordinance is debatable, the legislative...