Opinion
No. 540 C.D. 2014
01-30-2015
Scott T. Young, Appellant v. New Milford Borough
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This matter is an appeal by Scott T. Young (Landowner), pro se, from an order of the Court of Common Pleas of Susquehanna County (the trial court) that affirmed a $1,008.00 judgment against him in a zoning enforcement proceeding brought by New Milford Borough (Borough) pursuant to the Pennsylvania Municipalities Planning Code (MPC). We affirm, although on different grounds than the trial court.
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 - 11201. The sections of the MPC at issue here, Sections 616.1, 617.1, 617.2, and 909.1, 53 P.S. §§ 10616.1, 10617.1, 10617.2, and 10909.1, were added by the Act of December 21, 1988, P.L. 1329.
Landowner is the owner of a parcel of real property in the Borough located on Susquehanna Street alongside Interstate 81 (the Property). (Transcript of Trial Court Hearing (H.T.) at 3-4, 50, Supplemental Reproduced Record (Supp. R.R.) at 9b-10b, 56b.) Other than a billboard sign, the Property is undeveloped. (Borough Ex. 1 Photographs; H.T. at 6, 38, 50, Supp. R.R. at 12b, 44b, 56b.) Prior to the events at issue in this case, the part of the Borough where the Property is located was rezoned from I-1 (Industrial) to D-1 (Redevelopment). (H.T. at 11, 56, 58-60, Supp. R.R. at 17b, 62b, 64b-66b; Borough Ordinance No. 157-6-7-12, Supp. R.R. at 75b-80b.) The Borough's Zoning Ordinance permits residential, office and light commercial uses in the D-1 district, but prohibits heavy commercial and industrial uses and prohibits the storage of trailers and other vehicles without valid inspection stickers. (Borough Ordinance No. 157-6-7-12, Supp. R.R. at 76b; H.T. at 19, 41-43, Supp. R.R. at 25b, 47b-49b.)
In or about October 2012, Landowner brought four trailers to the Property intending to assemble them into two mobile offices to rent to a natural gas company. (H.T. at 4-6, 9, 20-21, 30-32, 48-49, 53, Supp. R.R. at 10b-12b, 15b, 26b-27b, 36b-38b, 54b-55b, 59b Borough Ex. 3, Supp. R.R. at 92b.) The Borough Zoning Officer inspected the Property on October 25, 2012, and sent Landowner a Notice of Violation advising him that the trailers were in violation of Section 7.100 of the Borough's Zoning Ordinance, which requires the obtaining of a zoning permit for "any new construction, structural alterations or changes in the use of a structure, building or lot." (Borough Ex. 2, Supp. R.R. at 89b; Zoning Ordinance § 7.100, Supp. R.R. at 81b; H.T. at 3-6, 13-15, 20, 37, Supp. R.R. at 9b-12b, 19b-21b, 26b, 43b.) This Notice of Violation further directed Landowner to remove the trailers or obtain permits for them by November 25, 2012 and advised him that failure to do so would result in court action against him, including assessment of penalties under Section 7.800 of the Borough's Zoning Ordinance, which provides for penalties of up to $500 per day plus costs for failure to abate violations. (Borough Ex. 2, Supp. R.R. at 89b; Zoning Ordinance § 7.800, Supp. R.R. at 86b-87b.)
On or about October 30, 2012, Landowner applied for a permit to assemble the trailers into two mobile office units on the Property, stating that sewage disposal for the mobile offices would be provided by a portable toilet and that no water supply would be provided. (Borough Ex. 3, Supp. R.R. at 92b-93b; H.T. at 6-8, 49, Supp. R.R. at 12b-14b, 55b.) The Borough's Zoning Officer denied the permit application because Landowner did not provide for connection to sewer and water systems as required by Borough ordinances. (Borough Ex. 3, Supp. R.R. at 91b-93b; H.T. at 7-8, 31, 49, Supp. R.R. at 13b-14b, 37b, 55b.) Landowner concluded that the long-term cost of connection to the water and sewer systems made it unprofitable to proceed with the mobile offices, and did not appeal the denial of the permit to the Borough's Zoning Hearing Board or make any further efforts to obtain a permit. (H.T. at 13, 33, 52-56, 60, Supp. R.R. at 19b, 39b, 58b-62b, 66b.) Landowner did no further assembly or construction work with respect to the trailers, but left the trailers on the Property. (Id. at 12, 17-21, 26, 34, 55-56, Supp. R.R. at 18b, 23b-27b, 32b, 40b, 61b-62b.)
On February 13, 2013, the Borough's Zoning Officer sent Landowner a second Notice of Violation advising him that he was in violation of Section 7.100 of the Zoning Ordinance and that failure to remove the trailers or obtain permits for them by March 13, 2013 would result in court action against him, including assessment of penalties under Section 7.800 of the Zoning Ordinance. (Borough Ex. 4, Supp. R.R. at 94b; H.T. at 10, Supp. R.R. at 16b.) When Landowner did not remove the trailers or obtain a permit by that March 13, 2013 deadline, the Borough initiated proceedings against him before a magisterial district judge (MDJ) seeking a $500 fine plus $508 in attorney fees and other costs and charges. (Magisterial District Court Docket Entries; Non-Traffic Citation.) In addition, the Borough on April 18, 2013, sent Landowner a final Zoning Enforcement Notice advising him that he was in violation of Section 7.100 of the Zoning Ordinance and that he would be subject to sanctions of up to $500 day plus all court costs, including reasonable attorney fees incurred by the Borough, if he did not remove the trailers from the Property on or before April 28, 2013. (Borough Ex. 5, Supp. R.R. at 95b-96b; H.T. at 11, Supp. R.R. at 17b.) This final Zoning Enforcement Notice specifically advised Landowner:
YOU HAVE THE RIGHT TO APPEAL THIS ENFORCEMENT NOTICE TO THE NEW MILFORD ZONING HEARING BOARD WITHIN TWENTY (20) DAYS OF THE DATE OF THIS NOTICE IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN THE ZONING ORDINANCE. YOU MAY OBTAIN INFORMATION ABOUT YOUR RIGHT TO APPEAL AND APPROPRIATE FORMS AND FEES ASSOCIATED WITH SUCH AN APPEAL AT THE NEW MILFORD BOROUGH OFFICES.(Borough Ex. 5, Supp. R.R. at 96b.) Landowner filed no appeal to the Zoning Hearing Board from this Zoning Enforcement Notice or from either of the previous Notices of Violation that he received from the Borough. (H.T. at 60, Supp. R.R. at 66b.)
On May 20, 2013 the MDJ held a hearing and entered judgment against Landowner in the amount $1,008.00, consisting of the $500 fine plus $508 in attorney fees and other costs and charges sought by the Borough. (Magisterial Court Judgment, Supp. R.R. at 2b). Landowner timely appealed this judgment to the trial court. The trial court held an evidentiary hearing at which the Borough introduced evidence of the two Notices of Violation and the final Zoning Enforcement Notice, the denial of Landowner's permit application, and Landowner's failure to file any appeal to the Zoning Hearing Board. The Borough also introduced evidence that Landowner had not removed the four trailers and that they remained on the Property on the date of the hearing, over a year after the first Notice of Violation and the denial of the permit. Landowner did not dispute any of these facts, but contended that his failure to remove these trailers did not violate Section 7.100 of the Zoning Ordinance because he no longer was developing them into mobile offices and asserted that he had a right to store them on the Property because he had stored other trailers on the Property prior to the change in the Property's zoning classification to D-1.
Landowner erroneously filed his appeal in the criminal division of the trial court, but the appeal was transferred to the civil division on August 7, 2013. (8/7/13 Order, Supp. R.R. 4b.)
Following the evidentiary hearing, the trial court on March 3, 2014 issued an order and opinion affirming the judgment against Landowner, finding that Landowner's placement of the trailers on the Property for construction of mobile offices without a permit and his failure to remove them after his permit application was denied constituted a violation of Section 7.100 of the Zoning Ordinance and rejecting Landowner's defenses. (Trial Court Op. at 2-6.) On March 31, 2014, Landowner timely appealed to this Court.
Our review on this appeal is limited to examining whether the trial court abused its discretion or committed an error of law. Lower Southampton Township v. Dixon, 756 A.2d 147, 150 n.7 (Pa. Cmwlth. 2000).
Landowner argues that the trial court erred in finding that he violated Section 7.100 of the Zoning Ordinance because, after the permit denial, the trailers were no longer being assembled and were merely being stored on the Property, and because mobile trailers mounted on wheels are not structures for which Section 7.100 requires a permit. These arguments fail because Landowner is barred from disputing that he violated Section 7.100 of the Zoning Ordinance by his failure to file any appeal to the Zoning Hearing Board.
Landowner also argues that he had vested rights to store trailers on the Property and that the trial court erred in allegedly characterizing his asking price in his attempts to sell the Property and the trailers as unreasonable. To the extent that these arguments are raised as defenses to whether the four trailers remaining on the Property without a permit violated Section 7.100 of the Zoning Ordinance, they are likewise necessarily barred by Landowner's failure to appeal to the Zoning Hearing Board. To the extent that Landowner is arguing that he has a vested right to store other trailers on the Property or that his prior storage of trailers on the Property excuses him from Zoning Ordinance provisions barring storage of vehicles, those issues were not raised by the zoning violation notices at issue here, which involve only these four trailers and Section 7.100 of the Zoning Ordinance, and those arguments are neither relevant to nor resolved by this appeal.
The law is well established that a landowner can contest whether his property is in violation of a municipality's zoning ordinance only through an appeal to the municipality's zoning hearing board and that failure to file such an appeal from a zoning violation notice conclusively establishes the violation of the zoning ordinance. Lower Southampton Township v. Dixon, 756 A.2d 147, 150, 152 n.12 (Pa. Cmwlth. 2000); Township of Penn v. Seymour, 708 A.2d 861, 864-65 (Pa. Cmwlth. 1998); Moon Township v. Cammel, 687 A.2d 1181, 1185-86 (Pa. Cmwlth. 1997); City of Erie v. Freitus, 681 A.2d 840, 842 (Pa. Cmwlth. 1996); Johnston v. Upper Macungie Township, 638 A.2d 408, 411-12 (Pa. Cmwlth. 1994).
Section 616.1 of the MPC provides that zoning enforcement proceedings are commenced by the municipality sending the landowner a notice of the violation specifying a date by which the landowner must take action to comply with the zoning ordinance and advising him of the sanctions for failure to comply. 53 P.S. § 10616.1(a)-(c); Lower Southampton Township, 756 A.2d at 152 n.12; Township of Penn, 708 A.2d at 863-64 & n.2. This enforcement notice must also advise the landowner of his right to appeal the violation to the zoning hearing board. 53 P.S. § 10616.1(c)(5); Township of Penn, 708 A.2d at 864 n.2. Section 909.1 of the MPC grants municipal zoning hearing boards exclusive jurisdiction to hear appeals from such notices and adjudicate whether the landowner's property is in violation of the zoning ordinance. 53 P.S. § 10909.1(a)(3); Lower Southampton Township, 756 A.2d at 152 n.12; Township of Penn, 708 A.2d at 864; Freitus, 681 A.2d at 842; Johnston, 638 A.2d at 412. Accordingly, a "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." Township of Penn, 708 A.2d at 864 (quoting Freitus); Freitus, 681 A.2d at 842.
If the landowner does not bring his property in compliance with the zoning ordinance by the deadline set forth in the notice of violation, the municipality may bring a civil enforcement proceeding before an MDJ in which the MDJ may award up to $500 per day against the landowner, plus reasonable attorney fees and other costs. 53 P.S. §§ 10617.1, 10617.2; Moon Township, 687 A.2d at 1185. If the municipality has provided the notice required by Section 616.1 of MPC and the landowner has not filed a timely appeal to the zoning hearing board, the MDJ is required to find that the landowner committed the zoning violation and the only issue before the MDJ, or before the trial court or this Court on appeal, is the amount of the penalty and costs imposed for the violation. Lower Southampton Township, 756 A.2d at 152 n.12; Township of Penn, 708 A.2d at 864-65; Freitus, 681 A.2d at 842; Johnston, 638 A.2d at 412. As this Court has previously explained,
[i]f a landowner does not appeal a zoning violation notice to the zoning hearing board, the failure to appeal renders the violation notice unassailable. Therefore, in the event a landowner does not appeal to the zoning hearing board and the municipality files an enforcement action with a district justice, neither the district justice nor a common pleas court may conduct a de novo review of the question of whether the landowner violated the zoning ordinance. In that circumstance, the only question before the district justice and the Common Pleas Court is whether the penalty imposed for the violation was proper.Township of Penn, 708 A.2d at 864-65 (citations omitted).
District justices were re-designated as magisterial district judges by the Act of November 30, 2004, P.L. 1618, No. 207.
Here, the Borough's April 18, 2013 notice to Landowner complied with all of the requirements of Section 616.1 of the MPC, including giving specific notice of Landowner's right to appeal the violation to Zoning Hearing Board and that such an appeal must be filed within twenty days as provided by the Zoning Ordinance. (See Borough Ex. 5, Supp. R.R. at 95b-96b.) The evidence before the trial court was undisputed that Landowner filed no appeal to the Zoning Hearing Board from this notice or any of the previous violation notices that he had received. (H.T. at 60, Supp. R.R. at 66b.) Therefore, as of the date of the hearing before the MDJ on May 20, 2013, 32 days after the April 18, 2013 notice, Landowner was barred from contesting the Zoning Officer's determination that the failure to remove the four trailers from the Property violated Section 7.100 of the Zoning Ordinance and both the MDJ and the trial court were required to find him in violation of Section 7.100 of the Zoning Ordinance. Lower Southampton Township, 756 A.2d at 152 n.12; Township of Penn, 708 A.2d at 864-65; Moon Township, 687 A.2d at 1186; Freitus, 681 A.2d at 842; Johnston, 638 A.2d at 412.
The two earlier violation notices did not fully comply with Section 616.1 because they did not advise Landowner of his right to appeal to the Zoning Hearing Board, and the period for appeal had therefore not expired at the time that the Borough commenced the enforcement proceeding. This, however, does not alter the validity of the final April 18, 2013 notice or the conclusive effect of Landowner's failure to appeal to the Zoning Hearing Board in response to that valid notice of violation. Moon Township, 687 A.2d at 1185. --------
The fact that trial court erroneously addressed the merits of whether Landowner violated Section 7.100 of the Zoning Ordinance does not change this. This Court may affirm a trial court's order on other grounds where affirmance is required for a reason different from that on which the trial court based its decision. Orange Stones Co. v. City of Reading, 87 A.3d 1014, 1023 (Pa. Cmwlth. 2014); Guy M. Cooper, Inc. v. East Penn School District, 903 A.2d 608, 618 & n.9 (Pa. Cmwlth. 2006); Freitus, 681 A.2d at 843. Because Landowner's failure to appeal the violation to the Zoning Hearing Board conclusively established that the continued presence of the trailers that he brought to the Property for mobile offices was a violation of Section 7.100 and required the MDJ and trial court to find him in violation of Section 7.100, any claimed error in the trial court's reasoning in finding the violation is necessarily harmless and cannot constitute grounds for reversal. Freitus, 681 A.2d at 843.
Because Landowner did not appeal the April 18, 2013 violation notice to the Zoning Hearing Board, the only issue that he can contest in this appeal is whether the MDJ or trial court erred with respect to the amount of the penalty and costs imposed for the violation. Lower Southampton Township, 756 A.2d at 152 n.12; Township of Penn, 708 A.2d at 864-65; Freitus, 681 A.2d at 842; Johnston, 638 A.2d at 412. Landowner, however, does not assert any error in the amount of the $500 fine or $508 in attorney fees and other costs that the MDJ imposed on him. As Landowner has asserted no ground on which the MDJ's judgment could be reversed, we affirm the order of the trial court.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 30th day of January, 2015, the order of March 3, 2014 of the Court of Common Pleas of Susquehanna County in the above-captioned matter is AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge