I recently argued a case before the Commonwealth Court that arose out of a zoning enforcement action in Northampton County. While there are a couple of “takeaways” from this case, I will focus on one aimed at assisting landowners who may receive a violation notice from their local zoning officer. This case is a lesson in what you should not do, namely – DO NOT SIT ON A ZONING VIOLATION NOTICE.
In this particular case, Lower Mount Bethel Township sent landowners a Violation Notice listing violations of various sections of the Township’s Floodplain Management Ordinance as a result of having constructed a concrete retaining wall and backfilling the property, which lies in the Delaware River’s floodplain. The Violation Notice notified the landowners that they had 30 days to submit a permit application for the retaining wall and backfill, submit a permit application to remove the retaining wall or backfill, or appeal the Violation Notice to the Lower Mount Bethel Zoning Hearing Board (“ZHB”). The landowners never submitted a permit application or appealed to the ZHB.
The Township subsequently filed an enforcement action against the landowners in magisterial district court where a judgment was obtained against the landowners in the amount of $1,230.10. Following the entry of this judgment and about two years after they were served with the initial Violation Notice, the landowners appealed to the trial court. In response to the Township’s averments in legal pleadings that the landowners never applied for the necessary permits or appealed the Violation Notice to the ZHB, the landowners merely denied the averment as a conclusion of law. The Township argued that this should be deemed an admission.
The trial court later granted a motion filed by the Township requesting fines, attorney’s fees in the amount of $20,430.82, and a permanent injunction to remove the retaining wall and backfill. The trial court stated that the landowners failed to appeal the Violation Notice to the ZHB, and therefore, the court was precluded from reviewing the Violation Notice. When a landowner ignores a Violation Notice, the amount of the penalty is the only question for the court to determine. The landowners forfeited their right to challenge the violations by failing to appeal the Violation Notice to the ZHB. The Commonwealth Court upheld this decision and affirmed the Court of Common Pleas of Northampton County.
This case is instructive to property owners. If you get a Violation Notice, act quickly because time is running out.
This case is reported as Lower Mount Bethel Twp. v. Gacki, 150 A.3d 575, 577 (Pa. Commw. Ct. 2016).