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Montour Cnty. Planning Comm'n v. Cummings

COMMONWEALTH COURT OF PENNSYLVANIA
Jun 13, 2012
No. 876 C.D. 2011 (Pa. Cmmw. Ct. Jun. 13, 2012)

Opinion

No. 876 C.D. 2011

06-13-2012

Montour County Planning Commission, Appellant v. James W. Cummings and Francine I. Cummings, Individually and as husband and wife


BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH

This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.

The Montour County Planning Commission (Commission) appeals from the April 13, 2011, order of the Court of Common Pleas of the Twenty-Sixth Judicial District, Montour County Branch (trial court), which imposed a de minimis civil penalty of $1.00 and attorney fees of $750.00 upon James W. and Francine I. Cummings (the Cummings) for their violation of the Montour County Subdivision and Land Development Ordinance (SALDO). We affirm.

In May 2005, the Commission granted final subdivision approval to the Dawn Quinn-Doiron subdivision located in Mayberry Township, Montour County. The subdivision plan depicted a proposed dwelling location on each lot and included a stormwater management plan. In December 2006, the Cummings, who resided in Langhorne, Pennsylvania, purchased lot number 2 in the subdivision for the purposes of a second residence. In conjunction with their building contractor, Fogarty Homes, the Cummings submitted an erosion and sedimentation control plan to the Montour County Conservation District in September 2007, which depicted a dwelling location that differed from the proposed dwelling location reflected on the original subdivision plan. By letter dated September 5, 2007, the Conservation District approved the Cummings' erosion and sedimentation control plan and the Cummings commenced with construction. Following a complaint from a neighboring landowner regarding water runoff, the Commission hired Mid-Penn Engineering to determine if the construction was in accordance with the original subdivision plan. (R.R. at 48a-57a, 124a-26a, 142a-44a, 270a.)

The Cummings purchased this lot from James and Tina Marie Giles, who themselves had purchased the lot from Dawn Quinn-Doiron and Kenneth Doiron in July 2005. (R.R. at 211a-13a.)

The record is not clear regarding the Cummings' and/or Fogarty Homes' knowledge of the original subdivision plan. James Cummings testified that he and Fogarty Homes picked the location for the home and only later learned that it was different from the location depicted on the original plan. (R.R. at 142a-43a.)

Between October 1, 2007, and November 3, 2007, Mid-Penn Engineering conducted a review of the plans and the construction and discovered the inconsistency. Mid-Penn Engineering submitted its findings to the Commission, along with an invoice for $338.59. On January 15, 2008, the Commission forwarded the invoice to the Cummings and the Cummings immediately faxed the invoice to Fogarty Homes, who advised them that they would investigate the same, but the Cummings heard nothing further. On February 7, 2008, following substantial completion of their dwelling, the Cummings received a copy of a letter from the Commission to Dawn Quinn-Doiron, the original developer of the subdivision, indicating that the change in location of the dwelling adversely affected the existing stormwater management plan and, therefore, the plan had to be revised. The Cummings again contacted their builder, Fogarty Homes, but heard nothing further. Fogarty Homes completed construction in early March 2008, and on March 10, 2008, following a final inspection by a building code official for Mayberry Township, the Cummings received a certificate of occupancy. (R.R. at 144a-48a, 232a, 276a-79a.)

By letter dated March 24, 2008, Betsy Hack, the Commission's director, advised the Cummings that they were in violation of the approved Quinn-Doiron subdivision and stormwater management plans and that the plans needed to be revised. By letter dated April 2, 2008, the Commission's solicitor similarly advised the Cummings that they were in violation of the County's SALDO for constructing a residence in a location significantly different from the location depicted on the approved stormwater management plan and that they needed to submit a revised plan. This letter also noted that the Cummings had failed to pay the invoice from Mid-Penn Engineering and threatened legal action for future non-compliance. The Cummings faxed a copy of this letter to Fogarty Homes, which subsequently contracted with an engineering firm from Bethlehem, Pennsylvania, to prepare a revised stormwater management plan. This engineering firm submitted a revised plan to the Commission on June 17, 2008. However, the Commission discovered that the revised plan was erroneously based on the lot adjoining the Cummings' lot. The Cummings thereafter engaged a local surveyor to prepare and submit a revised plan. (R.R. at 149a-58a, 217a, 280a-81a.)

In the meantime, on May 8, 2008, the Commission filed two civil complaints with the local district justice, the first seeking a judgment of $8,000.00 for the Cummings' ongoing violation of the County's SALDO, plus attorney fees, and the second seeking a judgment for $388.00 for the invoice from Mid-Penn Engineering. After the Commission refused to release certain documents to the Cummings' new surveyor until the invoice from Mid-Penn Engineering was paid, the Cummings paid the same. The district justice subsequently entered judgment on the second complaint in favor of the Commission for $109.00, solely representing costs. On October 1, 2008, the Cummings and the Commission agreed to resolve the remaining civil complaint and a judgment was entered in favor of the Commission for $1,435.00, representing a civil penalty of $500.00, costs of $185.00, and attorney fees of $750.00. (R.R. at 154a-55a, 282-87a.)

As noted above, the original invoice from Mid-Penn Engineering was for $338.59. See R.R. at 276a. The record is unclear as to how the Commission arrived at a figure of $388.00.

The Cummings submitted a revised site plan to the Commission in October 2008 and a revised stormwater management plan in November 2008. By letter dated April 15, 2009, the Commission's solicitor requested that the Cummings submit $1,300.00 to cover the engineering review fees for the revised plans. The Cummings submitted a check for this amount to the Commission via a letter from their counsel dated April 21, 2009. By letter dated June 17, 2009, Mid-Penn Engineering recommended approval of the Cummings' revised plans, with some minor administrative corrections, and the matter seemed to be progressing smoothly. (R.R. at 92a-93a, 219a-20a, 288a-89a.)

This review was also conducted by Mid-Penn Engineering.

In September 2009, the Commission's solicitor forwarded a Stormwater Facilities Maintenance Agreement (Agreement) to counsel for the Cummings, which required the Cummings to submit financial security in the amount of $11,715.00 as an improvement guarantee. The Agreement offered two options for providing this financial security, either a restricted or escrow account with a licensed financial institution, with no monies being withdrawn from the account without the express written approval of the Commission, or an irrevocable letter of credit from a licensed lending institution. The Agreement was executed by the Cummings on October 6, 2009, and returned to the Commission. (R.R. at 66a-67a, 159a, 290a-300a.)

The Cummings contacted their local bank, National Penn Bank of Langhorne, to set up a restricted escrow account as instructed in the Agreement, and deposited the required amount of $11,715.00. Thereafter, Thomas Maclin, the bank's vice president, contacted the Commission to determine the proper account titling and to obtain the name of a signer on the account. Maclin indicated that banking regulations required the signer to provide detailed personal information, including name, address, date of birth, Social Security number, driver's license number, and driver's license issuance and expiration dates. Counsel for the Commission subsequently notified Maclin that the Commission would not agree to a restricted escrow account which requires the release of the personal information of any County employee and that the Cummings should obtain a letter of credit. After Maclin notified the Cummings of the Commission's response, counsel for the Cummings contacted the Commission to propose alternative methods of establishing a restricted escrow account, including utilizing a local attorney as the escrow agent in lieu of a bank. However, the Commission rejected the proposed alternatives. (R.R. at 70a, 104a-05a, 132a-34a, 160a, 301a-02a.)

These new regulations were derived from the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (otherwise known as the Patriot Act), Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001). The Patriot Act was enacted in response to the events of September 11, 2001, and included provisions requiring financial institutions to expand their record keeping requirements.

The Commission then filed another civil complaint against the Cummings in November 2009, seeking civil penalties of $500.00 per day, plus attorney fees, for the Cummings' continued violation of the County's SALDO. The Cummings responded by filing their own civil complaint against the Commission, seeking judgment in the amount of $500.00 for the Commission's alleged breach of the Agreement by refusing to comply with the requirements for a restricted escrow account. The district justice entered judgment in favor of the Commission on both complaints and awarded the Commission $4,546.50, representing a civil penalty of $2,000.00, costs of $146.50, and attorney fees of $2,400.00. The Cummings appealed to the trial court, which heard the matter de novo.

The trial court heard testimony from both James and Francine Cummings, and Betsy Hack, the Commission's director, which established the facts recited above. Hack provided additional testimony explaining that the Commission rejected the Cummings' proposal of an alternative restricted escrow account with a private attorney because the Commission was not familiar with the attorney, who was from a neighboring county, or with the procedure relating to escrow accounts. In fact, Hack indicated that no developer had ever offered to use such an account as a financial guarantee and that, although not noted in the Agreement, a letter of credit was the Commission's preferred method. According to Hack, the Cummings indicated that they did not want to provide a letter of credit because the bank's fee for the same was $500.00. Hack noted that the Cummings remain in noncompliance and requested that the trial court impose a civil penalty of $500.00 per day beginning March 24, 2008, when the Cummings first received notice that they were in violation of the County's SALDO. (R.R. at 31a-35a, 70a-79a, 96a-97a, 103a.)

However, upon questioning from the trial court, the Commission's solicitor acknowledged that she was familiar with the private attorney identified by the Cummings and his good reputation and had conveyed the same to the Commission. (R.R. 199a.) However, in her cross-examination testimony, Hack denied that the solicitor ever made such a representation to the Commission. (R.R. at 106a.)

During his testimony, James Cummings explained that he preferred the escrow account over the letter of credit because he and his wife were in the process of refinancing two properties, they had two children in college, and they were limited with regard to their credit options. (R.R. at 162a.) James Cummings also confirmed that he advised his counsel to offer the Commission a letter of credit in November 2010. (R.R. at 163a, 184a.)

By order dated April 13, 2011, the trial court concluded that the Cummings were in violation of the County's SALDO, but it reduced the civil penalty to $1.00 and the attorney fees to $750.00. (R.R. at 314a.) After the Commission filed a notice of appeal, the trial court issued an opinion in support of its order explaining the reduction in the civil penalty and attorney fees. Initially, the trial court indicated that the Cummings "were credible in every respect," but that the Commission "was not credible and acted in bad faith." (Trial court op. at 6, R.R. at 320a.) The trial court explained that the Cummings' technical violation of the County's SALDO was mitigated by their "good will" and the Commission's "intransigence and unreasonableness" throughout the course of these proceedings. (Trial court op. at 9, R.R. at 323a.) The trial court noted that the Agreement envisioned an escrow account or a letter of credit to provide the necessary financial security, but that the Commission rejected the Cummings' attempts to establish the former. (Trial court op. at 10, R.R. at 324a.)

The trial court also noted that the de minimis civil penalty reflected the "good faith of Cummings and the bad faith of the Planning Commission" with respect to the establishment of an escrow account. (Trial court op. at 11, R.R. at 325a.) Finally, the trial court stated that it awarded $750.00 in attorney fees "only because Cummings could have tried harder to educate the Planning Commission about the effect of the letter of credit on their financial situation." Id. The trial court concluded that any additional attorney fees would be "unreasonable and unnecessary." Id.

On appeal to this Court, the Commission argues that the trial court erred and/or abused its discretion in imposing a de minimis penalty after finding the Cummings in violation of the County's SALDO and in failing to recognize the ability of the Commission to accept or reject the method of posting financial security. We disagree.

Our scope of review of a trial court's decision in a zoning enforcement proceeding is limited to determining whether the trial court committed an abuse of discretion or an error of law. Borough of Bradford Woods v. Platts, 799 A.2d 984 (Pa. Cmwlth. 2002).

Section 2.041(A) of the County's SALDO permits the Commission to require a developer to make certain improvements to a property, including, inter alia, sidewalks, sewers, water supply systems, and stormwater controls. (R.R. at 342a.) Section 2.041(B) provides that the improvements "shall be installed...or a suitable financial guarantee shall be provided which shall ensure the provision of the improvements at the standards set forth in these regulations." Id. Section 2.042(A) states that the financial guarantee shall equate to 110% of the costs of the improvements as estimated by a professional engineer. Id. The SALDO does not specify the type of financial security that is required. However, section 509(c) of the Pennsylvania Municipalities Planning Code (MPC) provides guidance on this issue, indicating that irrevocable letters of credit and restrictive or escrow accounts in federal or state chartered lending institutions constitute acceptable financial security.

Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10509(c).

Section 4.10 of the County's SALDO sets forth specific requirements for designing, installing, and maintaining stormwater and erosion controls on property being developed within the County. (R.R. at 346a-50a.) Section 4.103(f) states that a subdivider/developer "shall submit" a stormwater management plan or a stormwater maintenance agreement. (R.R. at 348a.) As noted above, the Cummings executed such an agreement in October 2009, which required them to post financial security in the amount of $11,715.00 (110% of the estimated costs) via either a restricted or escrow account or an irrevocable letter of credit. (R.R. at 291a-92a.)

Section 7.06(A) addresses enforcement remedies and provides as follows:

Any person, partnership or corporation who or which has violated the provisions of the Montour County Subdivision and Land Development Ordinance upon being found liable therefore in a civil enforcement proceeding commenced by the Montour County Planning Commission, before the district justice with appropriate jurisdiction, shall pay a judgement of not more than $500 plus all court costs, including reasonable attorney fees incurred by the Montour County Planning Commission as a result thereof. All such fines shall be paid to Montour County. No judgment shall commence or be imposed, levied or be payable until the date of the determination of a violation by the district justice. If the defendant neither pays nor timely appeals the judgement, the Montour County Planning Commission may enforce the judgement 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 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.[]
(R.R. at 352a-53a.) Neither the SALDO nor the MPC sets forth the standard for appealing a finding of a violation. However, the Rules of Civil Procedure for Magisterial District Judges provide that the magisterial district judge shall advise a party of his right to appeal to the local common pleas court within 30 days after the date of the entry of judgment and that the appeal shall be heard de novo. Pa. R.C.P. M.D.J. Nos. 324, 1002, 1007. Moreover, in hearing the matter de novo, the common pleas court retains exclusive province over issues of witness credibility and evidentiary weight and its findings will not be disturbed on appeal when they are based upon an evaluation of the credibility of the witnesses who appeared before it and are supported by substantial evidence. Babin v. City of Lancaster, 493 A.2d 141 (Pa. Cmwlth. 1985).

The enforcement remedies in this section mirror the enforcement remedies set forth in section 515.3 of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10515.3.

By its very terms, section 7.06(A) of the County's SALDO, which authorizes a judgment "of not more than $500," affords a certain amount of discretion to the district justice, and, consequently, the trial court hearing the matter de novo, with respect to the amount of any civil penalty. In exercising its discretion to impose a de minimis penalty in this case, the trial court reviewed the extensive history herein as well as the testimony presented, ultimately crediting the Cummings' testimony in its entirety.

When acting as factfinder, it is the province of a trial court to weigh conflicting testimony and determine credibility. D'Emilio v. Board of Supervisors, 628 A.2d 1230 (Pa. Cmwlth. 1993).

As the trial court noted, this testimony reveals that the Cummings acted promptly and appropriately at every stage of these proceedings. For example, in January and February 2008, the Cummings immediately contacted their building contractor, Fogarty Homes, upon receipt of the invoice from Mid-Penn Engineering and the letter from the Commission with respect to the change of location of their dwelling and the requirement for revised plans. By this time, the dwelling had been substantially completed, as evidenced by the receipt of a certificate of occupancy in March 2008. After unsuccessful attempts on the part of Fogarty Homes to submit revised plans in June 2008, the Cummings hired their own local surveyor and submitted a revised site plan to the Commission in October 2008, followed by a revised stormwater management plan in November 2008. After receiving a letter from the Commission dated April 15, 2009, requiring $1,300.00 to cover the engineering review fees for these revised plans, the Cummings submitted a check through their counsel only one week later.

Upon approval of these plans, the Commission forwarded the Agreement to the Cummings, noting the required financial security and the two options for the same, either a restricted or escrow account or an irrevocable letter of credit. The Cummings chose the first option and made the necessary arrangements with their local bank. However, the Commission subsequently refused to provide the information required by federal law for the establishment of an escrow account. The Commission further rejected alternate plans suggested by the Cummings. Instead, the Commission opted to file another civil complaint against the Cummings. Contrary to the Commission's argument, the trial court did not fail to recognize the ability of the Commission to accept or reject the method of posting financial security. Rather, the trial court merely indicated that it was the Commission that first proposed the option of a restricted or escrow account as a means of financial security and then later refused to proceed with this option. Thus, we cannot conclude that the trial court erred and/or abused its discretion in imposing a de minimis penalty and reduced attorney fees.

James Cummings credibly explained before the trial court that he and his wife favored the escrow account option over the letter of credit option because of their ongoing credit obligations. --------

Accordingly, the order of the trial court is affirmed.

/s/_________

PATRICIA A. McCULLOUGH, Judge ORDER

AND NOW, this 13th day of June, 2012, the order of the Court of Common Pleas of the Twenty-Sixth Judicial District, Montour County Branch, dated April 13, 2011, is hereby affirmed.

/s/_________

PATRICIA A. McCULLOUGH, Judge


Summaries of

Montour Cnty. Planning Comm'n v. Cummings

COMMONWEALTH COURT OF PENNSYLVANIA
Jun 13, 2012
No. 876 C.D. 2011 (Pa. Cmmw. Ct. Jun. 13, 2012)
Case details for

Montour Cnty. Planning Comm'n v. Cummings

Case Details

Full title:Montour County Planning Commission, Appellant v. James W. Cummings and…

Court:COMMONWEALTH COURT OF PENNSYLVANIA

Date published: Jun 13, 2012

Citations

No. 876 C.D. 2011 (Pa. Cmmw. Ct. Jun. 13, 2012)