Com. of PA v. D. Litman ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania : CASES CONSOLIDATED
:
v. : Nos. 499 C.D. 2021
: 555 C.D. 2021
Donald Litman, :
Appellant :
Commonwealth of Pennsylvania :
:
v. : Nos. 525 C.D. 2021
: 554 C.D. 2021
Celia Litman, : Argued: March 10, 2022
Appellant :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE LEAVITT FILED: May 6, 2022
Donald and Celia Litman (Landowners) appeal two orders1 of the Court
of Common Pleas of Montgomery County (trial court) that denied their appeals of
two judgments of the Magisterial District Court holding them liable for not obtaining
a permit for the accessory structure on their residential property, in violation of
Towamencin Township’s Zoning Ordinance.2 Accordingly, the trial court ordered
Landowners to remove the accessory structure, which was a trailer, upon penalty of
1
Landowners appealed the trial court’s November 2, 2020, and December 8, 2020, orders. On
June 17, 2021, this Court granted Landowners’ Application for Consolidation of Appeals.
2
TOWAMENCIN TOWNSHIP ZONING ORDINANCE of 1956, as amended by Ordinance No. 95-10 of
1995 (ZONING ORDINANCE), §§153-100—153-1301.
a fine of $10,000 and $500 for each day the trailer remained on the property. On
appeal, Landowners argue that the Township’s zoning violation notice was invalid
because it did not sufficiently describe the violation or its consequences; the zoning
officer did not have authority to initiate criminal proceedings against Landowners;
and the trailer on Landowners’ property was not an accessory structure. After
review, we affirm the trial court.
Background
Landowners own a single-family detached residence located at 43
Saratoga Lane, Harleysville, in Towamencin Township, Montgomery County. In
2019, Landowners built a new driveway on which they placed a trailer. They
attached utilities to the trailer and constructed a plywood deck to facilitate access to
the trailer from the house. The Township concluded that the trailer was “an
accessory structure,” for which Landowners had not obtained a permit. On August
9, 2019, the Township’s Zoning Officer, Jennifer Guckin, sent a violation notice to
Landowners, which stated:
The Township has observed that an accessory structure has been
constructed and/or placed on your property. A permit was not
obtained for this project. Construction without a permit is in
violation of []Section 153-204 of the Towamencin Township
Zoning Code[.]
Reproduced Record at 224 (R.R. __). The violation notice further stated:
The township is requiring you to obtain a permit or remove the
structure and cease any work being done upon receipt of this
notice.
The Township is ordering you to correct these violations within
10 days of the date of this notice. Failure to comply with this
notice will result in the Township taking legal action, which will
2
include the filing of citations with the District Justice[3] seeking
fines and/or penalties of up to $500.00 for each violation, each
and every day a violation continues is deemed a separate offense.
Id. (emphasis in original).
The violation notice explained that Landowners had a right to appeal
the notice to the Township’s Zoning Hearing Board (Zoning Board) and provided
directions on how to file such an appeal. Specifically, it stated:
Appeal Rights: You have the right to appeal this notice to the
[Zoning Board] within thirty (30) days from the above date. This
notice is for Zoning Ordinance Violations only. Such appeals
must be via the [Zoning Board] application process.
Applications may be obtained at the Towamencin Township
Municipal Building between the hours of 8:00am through
4:30pm Monday through Friday or on the Township website at
www.towamencin.org. All [Zoning Board] application fees in
the Towamencin Township Fee Schedule shall apply.
R.R. 225.
Landowners did not remove the trailer. They did not obtain a permit
for the accessory structure, and they did not appeal the violation notice to the Zoning
Board.
Accordingly, on September 26, 2019, Zoning Officer Guckin initiated
an enforcement proceeding before the Magisterial District Court seeking the
imposition of fines upon Landowners for their violation of the Zoning Ordinance.
On December 3, 2019, after a hearing, the Magisterial District Court found that
Landowners violated the permit requirement in Section 153-204 of the Zoning
3
District justices were redesignated as magisterial district judges by the Act of November 30,
2004, P.L. 1618, No. 207.
3
Ordinance and imposed a fine of $500 plus costs. R.R. 213, 277. On January 2,
2020, Landowners appealed the orders of the Magisterial District Court.
At the trial court hearing on August 27, 2020, Donald Litman, who is
an attorney, represented himself and his wife. The trial court affirmed the
Magisterial District Court and gave Landowners 30 days to remove the trailer.
Additionally, the trial court ordered a fine of “$10,000 plus $500 per day thereafter
until the [accessory] structure is removed.” Trial Court PA. R.A.P. 1925(a) Op. at
3; R.R. 9.
Landowners retained counsel, who filed a motion for reconsideration,
which the trial court granted. In doing so, the trial court rescinded its September 1,
2020, orders. The hearing on reconsideration was held on October 23, 2020, at
which Zoning Officer Guckin and Donald Litman both testified.
Zoning Officer Guckin testified that she has served as the Township’s
Zoning Officer for five years. She is a licensed professional engineer and has
worked for engineering firms, land use developers, and three municipalities. She
also has served on two zoning hearing boards. Sometime before August 9, 2019,
she received “complaints that there was an accessory structure constructed on
[Landowners’] property[, but] there [were] no records that there had been a permit
request for that [structure].” Notes of Testimony, 10/23/2020, at 27 (N.T. __); R.R.
117. She visited Landowners’ property and found the accessory structure to be “a
small home-like structure” with electrical service. N.T. 31; R.R. 121. Based upon
her inspection, Zoning Officer Guckin sent a violation notice to Landowners on
August 9, 2019.
On cross-examination, Guckin acknowledged that the violation notice
did not specify that the accessory structure was the trailer. She also acknowledged
4
that she did not contact Landowners prior to issuing the violation notice, and she did
not inspect the inside of the trailer. Guckin agreed that the trailer had tires, a hitch,
and a license plate. She testified that, in her opinion, what made the trailer a
permanent structure were the blocks keeping it in place, the utilities, and the man-
made ramp, or decking, between the house and the trailer.
Donald Litman testified that he, his wife and their two sons live in the
house on Saratoga Lane in Harleysville. He explained that their 25-year-old son,
who has disabilities, will need to “live independently” in the future. N.T. 66; R.R.
156. Initially, Landowners sought to put an addition onto the house, to use as a
classroom for their son to learn household tasks, such as cooking and cleaning.
However, their request for a variance was denied. Litman testified that the Chairman
of the Zoning Board advised him that he could put a trailer on the property because
they were “looking for [] a classroom for a short period of time[.]” N.T. 67; R.R.
157. Litman testified that they put it in a new driveway and leased a trailer on or
about May 22, 2019.
Litman testified that he was confused by the Township’s violation
notice because the trailer was not “constructed” as stated in the violation notice but,
rather, a vehicle registered with the Pennsylvania Department of Transportation.
Litman sent an email to Zoning Officer Guckin seeking clarification and requesting
her to withdraw the violation notice. When Guckin did not respond, Litman believed
the notice had been withdrawn “because it [was] so ridiculous[] on its face[.]” N.T.
71; R.R. 161. Litman explained that he did not think that the trailer was a “structure”
because it was a motor vehicle and movable, albeit fixed on “jack stands.” N.T. 72;
R.R. 162. Further, the trailer was not intended to be permanent.
5
Litman testified that he removed the trailer after the trial court issued
the September 2020 order. He leased another trailer for a classroom but removed it
because the neighbors complained. He then brought back the original trailer, stating
that “no one said it ha[d] to be kept off” the property permanently. N.T. 90-91; R.R.
180-81.
Litman testified that he did not understand that he had to appeal the
violation notice in order to challenge its merits in the subsequent enforcement
proceeding before the magisterial district judge.
On November 2, 2020, the trial court denied Landowners’ appeals and
imposed a fine of “$10,000 plus $500 per day thereafter until the ‘accessory
structure’ is removed.” Trial Court Order, 11/2/2020, at 1. These orders gave
Landowners 15 days to remove the “accessory structure.” Id.
On November 6, 2020, Landowners filed a motion for reconsideration
and an extension of time for removing the trailer. On November 17, 2020,
Landowners filed an amended motion for reconsideration. They explained that they
had purchased a cover for the trailer and requested a stay of the trial court’s orders
until the Zoning Board ruled on their application for a permit. Landowners also
appealed the trial court’s orders of November 2, 2020.4
The trial court did not act on Landowners’ motion within 30 days of
November 2, 2020. On December 8, 2020, the trial court convened a conference
call on Landowners’ motions for reconsideration. In that conference, the trial court
explained that in an earlier conference of November 24, 2020, the court had agreed
to a new deadline for Landowners to remove the trailer should reconsideration be
granted. See Valley Forge Center Associates v. Rib-It/K.P., Inc., 693 A.2d 242, 245
4
Commonwealth v. Litman (Pa. Cmwlth., Nos. 499 C.D. 2021 and 554 C.D. 2021).
6
(Pa. Super. 1997) (trial court loses the power to act upon both the petition for
reconsideration and the original order unless reconsideration is granted within 30
days). However, the trial court was unable to rule on the reconsideration motion
within 30 days because of working remotely during the COVID-19 pandemic.
Landowners’ appeal deprived the court of jurisdiction to change the deadline for
imposition of the fines.
During the conference call, counsel for Landowners made an oral
motion for reconsideration of the requested stay nunc pro tunc. Hearing Transcript,
12/8/2020, at 5. Counsel for the Township had no objection. Accordingly, the trial
court granted Landowners’ motion and ordered Landowners to remove the trailer
within 15 days.
Landowners then appealed the trial court’s December 8, 2020, orders.5
Appeal
Before this Court, Landowners raise three issues, which we have
reordered for this opinion.6 First, they argue that the violation notice was invalid
because it did not include the information required by the Pennsylvania
Municipalities Planning Code (MPC).7 Second, they argue that Zoning Officer
Guckin improperly initiated a criminal proceeding against them. Third, they argue
that the trailer, licensed as a vehicle, is not an accessory structure because it is not
permanent.
5
Commonwealth v. Litman (Pa. Cmwlth., Nos. 525 C.D. 2021 and 555 C.D. 2021).
6
Our standard of review determines whether the trial court committed an abuse of discretion or an
error of law. Lower Southampton Township v. Dixon, 756 A.2d 147, 150 n.7 (Pa. Cmwlth. 2000).
7
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
7
Analysis
We begin with a review of the provisions in the MPC that relate to the
enforcement of zoning ordinances. See Section 616.1 of the MPC, 53 P.S.
§10616.1.8 Where a municipality alleges a zoning ordinance violation, it must send
a notice to the Landowner, 53 P.S. §10616.1(a), and the violation notice must include
the following items:
(1) The name of the owner of record and any other person against
whom the municipality intends to take action.
(2) The location of the property in violation.
(3) The specific violation with a description of the requirements
which have not been met, citing in each instance the applicable
provisions of the ordinance.
(4) The date before which the steps for compliance must be
commenced and the date before which the steps must be
completed.
(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
specified, unless extended by appeal to the zoning hearing board,
constitutes a violation, with possible sanctions clearly described.
53 P.S. §10616.1(c) (emphasis added). These requirements are mandatory.
Township of Robinson v. Esposito, 210 A.3d 1146, 1149 (Pa. Cmwlth. 2019).
Further, the violation notice becomes final and binding if not appealed.
This Court has held that once a landowner has been given notice of a zoning violation
pursuant to Section 616.1 of the MPC, the asserted violations can be challenged only
8
Added by the Act of December 21, 1988, P.L. 1329.
8
by appeal to the municipality’s zoning hearing board. The landowner cannot
challenge the merits of the zoning violation in its defense of the enforcement
proceeding before the magisterial district judge. City of Erie v. Freitus, 681 A.2d
840, 842 (Pa. Cmwlth. 1996). On the other hand, “[a] municipality’s failure to
comply with Section 616.1 precludes it from seeking penalties under Section 617.2
of the MPC.”9 Id. In short, a municipality cannot initiate a civil enforcement
proceeding “with a district [judge] unless an enforcement notice that complies with
the requirements of the MPC has first been issued.” Township of Lower Milford v.
Britt, 799 A.2d 965, 968 (Pa. Cmwlth. 2002).
With these principles in mind, we turn to the issues raised in
Landowners’ appeal.
9
Added by the Act of December 21, 1988, P.L. 1329. Section 617.2(a) states, in relevant part, as
follows:
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. . . . 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. . . .
53 P.S. §10617.2(a) (emphasis added).
9
Sufficiency of Violation Notice
In their first issue, Landowners challenge the sufficiency of the
Township’s violation notice. They contend that the enforcement notice did not
conform to Section 616.1 of the MPC and, thus, the Township was precluded from
seeking penalties in an enforcement proceeding before the Magisterial District
Court. First, the notice did not state that it was the trailer, as opposed to one of
several sheds on Landowners’ property, that constituted the offensive “accessory
structure.” Second, the notice did not state that a failure to file a zoning appeal would
preclude them from defending against the merits of the zoning violation in the “legal
action” before a “District [Judge].” R.R. 224.
The violation notice issued to Landowners stated that
an accessory structure has been constructed and/or placed on
your property. A permit was not obtained for this project.
Construction of an accessory structure without a permit is a
violation of []Section 153-204 of the Towamencin Township
Zoning Code[.]
R.R. 224 (emphasis added). Landowners argue that this language did not comply
with Section 616.1(c) of the MPC because it did not specify that “the requirements
which have not been met” concerned the trailer. 53 P.S. §10616.1(c).
The term “structure” is defined in the Zoning Ordinance as “[a]ny man-
made object having an ascertainable stationary location on or in land or water,
whether or not affixed to the surface.” ZONING ORDINANCE, §153-1301. In addition,
the Zoning Ordinance has listed specific examples of accessory structures allowed
in residential districts:
(c) The following residential accessory structures shall be
permitted in conjunction with single-family detached and single-
family semidetached dwellings only:
10
[1] Buildings such as storage sheds, private
greenhouses and gazebos.
[2] Detached garages for personal vehicles.
[3] Private swimming pools.
[4] Accessory structure detached from, but located on
the same lot as the principal structure, the use of which is
incidental and accessory to that of the principal structure.
[5] Sports courts.
[6] Any accessory structure permitted under this
section shall comply with the setbacks established for
accessory buildings in the district in which the accessory
structure is to be located.
ZONING ORDINANCE, §153-502(H)(8)(c) (citations omitted) (emphasis added). The
term “building” is defined in the Zoning Ordinance as “[a]ny structure having
enclosed walls and roof, intended for support or sheltering a use or occupancy, and
attached to the land. Included shall be all mobile homes and trailers used for human
habitation.” ZONING ORDINANCE, §153-1301 (emphasis added). Although the
Ordinance does not define “accessory,” it is commonly understood to mean a use
incidental and subordinate to the principal structure. BLACK’S LAW DICTIONARY 15
(8th ed. 2004) (“Something of secondary or subordinate importance.”).10
In Township of Lower Milford, 799 A.2d 965, this Court considered
whether a violation notice complied with Section 616.1 of the MPC. In that case,
the violation notice used the term “industrial activity,” rather than the more precise
term “trash hauling,” to identify the conduct that violated the zoning ordinance. The
10
Additionally, the Zoning Ordinance defines “building, accessory” as “[a] building located on
the same lot as a principal building and incidental and subordinate to the principal building. Any
portion of a principal building devoted or intended to be devoted to an accessory use is not an
accessory building.” ZONING ORDINANCE, §153-1301.
11
more general term “industrial activity” was the term used in the zoning ordinance
and broad enough to encompass “trash hauling.” Accordingly, we rejected the
landowner’s challenge to the sufficiency of the enforcement notice. This Court also
found it relevant that the landowner knew that the notice referred to her trash hauling
business because she had previously sought a variance from the zoning ordinance’s
10-acre lot size minimum for a trash hauling use.
At issue in Herbert v. West Reading Borough Zoning Hearing Board
(Pa. Cmwlth., No. 1113 C.D. 2020, filed October 14, 2021) (unreported),11 was a
violation notice that identified the violations as “Parking Vehicle(s) in Rear Yard on
Grass.” Slip op. at 17. The landowner appealed the violation to the zoning hearing
board challenging, inter alia, the specificity of the notice because “vehicle” was not
defined in the zoning ordinance. This Court agreed with the zoning board that a
trailer was an instrument of conveyance that met the common understanding of the
term “vehicle.” Notably, the landowner in that case also understood that it was the
trailer, used to transport lawn mowers, to which the notice referred.
Here, the trial court concluded that the violation notice satisfied the
requirements of Section 616.1 of the MPC. The language “accessory structure” was
broad enough to encompass the trailer, which was “man-made” and had an
“ascertainable stationary location.” ZONING ORDINANCE, §153-1301. Accordingly,
the trailer met the definition of “structure,” and “accessory” is a word commonly
understood. Indeed, the Zoning Ordinance describes a residential “accessory
structure” as a structure “detached from, but located on the same lot as the principal
11
An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for
its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code §69.414(a).
12
structure, the use of which is incidental and accessory” to the principal structure.
ZONING ORDINANCE, §153-152(H)(8)(c).
The trial court also found, as fact, that Landowners knew the “accessory
structure” in question was the trailer. The trial court based this finding on Litman’s
testimony that he leased the trailer after Landowners were denied a variance for an
addition to their house. The trailer closely approximated the location of the proposed
home addition because it was several feet from the house and connected to electricity
and water; the deck, or ramp, was built to facilitate access to the trailer from the
house. Trial Court PA. R.A.P. 1925(a) Op. at 10; R.R. 16. Finally, the trailer was
used for the same purpose as the addition denied a variance, i.e., as a classroom for
Landowners’ son.
Litman testified that he was confused by the violation notice, thinking
that it referred to a shed he was painting when he received the notice. The trial court
rejected this testimony as “disingenuous and not credible.” Trial Court PA. R.A.P.
1925(a) Op. at 11; R.R. 17. That particular shed had been on his property for over
20 years. Further, Litman acknowledged that “sheds [were] structures,” for which
he “always had permits.” N.T. 73; R.R. 163. With respect to a plastic shed on the
side of his house, Litman testified that the Township informed him that he did not
need a permit for that type of shed. The same was true for his outdoor cat house.
Both have been in his backyard for more than a decade.
In short, the only new structure that had been “constructed and/or
placed” on Landowners’ property at the time of the issuance of the violation notice
was the trailer. R.R. 224.
It also is not disputed that Landowners did not obtain a permit or inquire
about whether a permit would be needed for the trailer, as was the case for the
13
various sheds located on the property. The trial court’s finding that Landowners
knew that the offending “accessory structure” was the trailer parked adjacent to their
house is supported by the record. In any case, the term in the Zoning Ordinance,
i.e., “accessory structure,” was an appropriate way to describe “the requirements
which have not been met, citing in each instance the applicable provisions of the
ordinance.” Section 616.1(c) of the MPC, 53 P.S. §10616.1(c). See also Township
of Lower Milford, 799 A.2d at 971. Here, the term accessory structure includes a
building, the definition of which includes all trailers. ZONING ORDINANCE, §153-
1301.
In sum, the term “accessory structure” was sufficient to put Landowners
on notice that they needed a permit for their trailer. Had they appealed to the Zoning
Board, they may have been successful in arguing that the trailer was a temporary
structure and, thus, no permit was required. However, Landowners did not appeal
to the Zoning Board.
Landowners also challenge the validity of the violation notice because
it did not state that a failure to appeal to the Zoning Board would leave them unable
to challenge the merits of the alleged zoning violation in a subsequent enforcement
proceeding. For this reason, Landowners contend the violation notice was defective.
Section 616.1(c) of the MPC requires that the landowner be given
notice that he or she “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.”
53 P.S. §10616.1(c). We have held that this does not mean that the municipality
must explain the “consequences of failing to file such an appeal” or advise the
landowner that failure to appeal the violation notice results in a binding
determination that the ordinance has been violated. Township of Penn v. Seymour,
14
708 A.2d 861, 864 (Pa. Cmwlth. 1998). Further “a court may not graft additional
provisions onto a statute which the General Assembly did not see fit to include.” Id.Here, the violation notice expressly informed Landowners that they had
the right to appeal to the Township’s Zoning Board. It also stated that failure to
correct the violation could result in penalties of $500 per day. It was not necessary
to specify that failure to appeal to the Zoning Board would make the Township’s
violation notice binding in any subsequent enforcement proceeding before the
District Judge. Seymour, 708 A.2d at 864.
In sum, the Township’s August 9, 2019, violation notice complied with
the requirements of Section 616.1 of the MPC for a valid notice of violation.
Enforcement of Zoning Violation
In their second issue, Landowners argue that certain criminal
procedural requirements were not properly followed. Specifically, they argue that
due process requires that the criminal citation apprise them of “the statute or
ordinance allegedly violated, together with a summary of the facts sufficient to
advise [them] of the nature of the offense charged[.]” PA.R.CRIM.P. 403(A)(6). The
Township responds that the Pennsylvania Rules of Criminal Procedure do not apply
to enforcement proceedings initiated under the MPC for a zoning ordinance
violation.
At one time, Section 616 of the MPC, formerly 53 P.S. §10616,
provided that zoning ordinances were to be enforced through summary criminal
proceedings. However, this provision was repealed by the Act of December 21,
1988, P.L. 1329. The effect of the repeal was to decriminalize zoning enforcement
proceedings before a Magisterial District Court. Seymour, 708 A.2d at 865.
15
Section 153-211 of the Zoning Ordinance, which relates to violations
and penalties, provides, in relevant part as follows:
Any person, partnership, firm or corporation who or which has
violated or permitted the violation of any provision of this
chapter, or who fails to comply with any requirement, order or
directive of the Zoning Officer, or of a permit or certificate issued
under provision of this chapter, shall be subject to fines and
penalties of not more than $500, plus all court costs, including
reasonable attorney fees incurred by the municipality as a result
thereof, which fines and penalties may be collected by suit or
summary proceeding brought in the name of the Township of
Towamencin, providing no judgment shall commence or be
imposed, levied or payable until the date of the determination of
a violation by the District [Judge] or other court of competent
jurisdiction . . . . Each day that a violation continues shall
constitute a separate violation.
ZONING ORDINANCE, §153-211 (emphasis added). Section 153-211 of the Zoning
Ordinance is consistent with Section 617.2(a) of the MPC,12 which makes it clear
that a municipality’s enforcement proceeding is “civil” in nature. 53 P.S.
§10617.2(a). Neither the MPC nor the Zoning Ordinance provides for imprisonment
as a penalty for zoning code violations.
In Town of McCandless v. Bellisario, 709 A.2d 379 (Pa. 1998), our
Supreme Court explained:
While the enforcement of municipal ordinances that provide for
imprisonment upon conviction or failure to pay a fine or penalty
must follow the Rules of Criminal Procedure, the same is not true
for municipal ordinances that do not provide for imprisonment
upon conviction or failure to pay a fine or penalty, which, by
12
See supra note 9 for text of Section 617.2(a) of the MPC.
16
definition, are not Penal Laws, and are therefore not included in
the definition of “criminal proceedings.”
Id. at 381 (emphasis in original). Section 617.2(a) of the MPC and Section 153-211
of the Zoning Ordinance authorize only civil penalties for a violation. See Lower
Southampton Township, 756 A.2d at 151. Therefore, the Pennsylvania Rules of
Criminal Procedure do not apply to enforcement proceedings brought under Section
617.2 of the MPC and Section 153-211 of the Zoning Ordinance. Id. Thus, we reject
Landowners’ argument in this regard.
Landowners also challenge the Township’s enforcement action because
it was brought in the name of the Commonwealth and not in the name of the
Township. In response, the Township explains that this classification of the citation
filed with the Magisterial District Court as “criminal” was inadvertent and
immaterial. We agree.
In Commonwealth v. Harchelroad, 623 A.2d 878, 879 (Pa. Cmwlth.
1993), an enforcement proceeding was filed with the magisterial district judge by
the code enforcement officer and denominated a “criminal complaint.” We rejected
the landowner’s challenge to the citation as fatally defective. The case was “simply
an appeal from a summary conviction for the violation of [the] illegal commercial
use of property zoned R-2 single family Residential . . . no more, no less.” Id. at
881. Likewise, here, although the citation was filed as criminal, Landowners
understood that the enforcement proceeding concerned a civil penalty, not the
possibility of imprisonment.
Because the Rules of Criminal Procedure are inapplicable to
proceedings under Section 617.2 of the MPC, the trial court did not err in not
applying those rules of procedure to Landowners’ summary appeals.
17
Accessory Structure
In their third issue, Landowners argue that the trailer is not an accessory
structure that required a permit under Section 153-204 of the Zoning Ordinance.
Section 153-204 of the Township’s Zoning Ordinance states:
There shall be no change of use of land or a structure or portion thereof,
and prior to the change, alteration, or extension of a nonconforming use
or structure, or the construction, razing, moving, erection, structural
change, alteration of, or addition to, any structure or portion thereof,
the grading or earth moving, and/or erection of any stationary sign
unless and until a valid permit has been approved by, and acquired
from, the Towamencin Township Zoning Officer or his designated
representative in conformance with all the regulations and procedures
herein specified. Failure to obtain a required permit shall constitute a
violation of this chapter as herein provided.
ZONING ORDINANCE, §153-204 (emphasis added). Landowners contend that their
trailer is a non-stationary, registered vehicle and allowed on their property without
a permit. They contend that connecting the trailer to water and electricity did not
transform it into an accessory structure within the meaning of the Zoning Ordinance.
They further argue that Section 153-204 of the Zoning Ordinance violates
substantive due process under the Fourteenth Amendment to the United States
Constitution, U.S. CONST. amend. XIV.13
13
The Fourteenth Amendment states, in part: “nor shall any State deprive any person of life,
liberty, or property, without due process of law[.]” U.S. CONST. amend. XIV, §1. “The substantive
component of the Due Process Clause provides protection against government interference with
certain fundamental rights and liberty interests.” Taylor v. Pennsylvania State Police, 132 A.3d
590, 608 (Pa. Cmwlth. 2016). “[F]or substantive due process rights to attach there must first be
the deprivation of a[n] … interest that is constitutionally protected.” Id. at 609 (quoting Khan v.
State Board of Auctioneer Examiners, 842 A.2d 936, 946 (Pa. 2004)).
18
As explained above, Landowners were able to contest the violation
“only by way of appeal” to the Zoning Board. Seymour, 708 A.2d at 864.
Landowners’ failure to appeal to the Zoning Board rendered the Township’s
violation notice immune from any attack, even on constitutional grounds. We have
held that a challenge to the “constitutionality and enforceability of the ordinance” is
waived where the landowner has “failed to appeal the notice of violation to the
[Zoning Board].” Id.Neither the magisterial district judge nor the trial court may conduct a
de novo review of the question of whether Landowners violated the Zoning
Ordinance. Landowners’ challenge to the constitutionality and enforceability of
Section 153-204 of the Zoning Ordinance before this Court has been waived because
they did not appeal the violation notice to the Zoning Board.
Conclusion
The Township’s violation notice complied with Section 616.1(c)(3) of
the MPC because it described the “requirements which have not been met, citing in
each instance the applicable provisions of the ordinance.” 53 P.S. §10616.1(c)(3).
The violation notice specified the right of appeal and the possibility of sanctions if
Landowners failed to comply with the notice. 53 P.S. §10616.1(c)(5), (6).
The notice could have, and probably should have, stated that the trailer
parked next to the house was an “accessory structure” that needed a permit. Plain
language is always preferred. Landowners also make a good point that a landowner
should not have to pay a fee of $2,250 to appeal a violation notice that a landowner
believes was issued in error. However, the level of the Zoning Board fee is a political
question to raise with the Township’s legislative body.
19
For the above-explained reasons, we affirm the trial court’s orders
dismissing Landowners’ appeals.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania : CASES CONSOLIDATED
:
v. : Nos. 499 C.D. 2021
: 555 C.D. 2021
Donald Litman, :
Appellant :
Commonwealth of Pennsylvania :
:
v. : Nos. 525 C.D. 2021
: 554 C.D. 2021
Celia Litman, :
Appellant :
ORDER
AND NOW, this 6th day of May, 2022, the orders of the Court of
Common Pleas of Montgomery County, dated November 2, 2020, and December 8,
2020, are AFFIRMED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita