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06/12/97 TOWNSHIP LOWER MILFORD v. DIANE BRITT

June 12, 1997

THE TOWNSHIP OF LOWER MILFORD
v.
DIANE BRITT, APPELLANT



Appealed From No. 96-E-0014. Common Pleas Court of the County of Lehigh. Judge McGINLEY.

Before: Honorable James Gardner Colins, President Judge, Honorable Joseph T. Doyle, Judge (p.), Honorable Charles A. Lord, Senior Judge. Opinion BY Judge Doyle.

The opinion of the court was delivered by: Doyle

OPINION BY JUDGE DOYLE

FILED: June 12, 1997

This is an appeal from an order of the Court of Common Pleas of Lehigh County which granted the Motion for an affirmative Preliminary Injunction filed by the Township of Lower Milford (the Township) to enter and inspect the property of Diane Britt to determine whether she was complying with the Township's zoning ordinance as well as conditions imposed by the Zoning Hearing Board of Lower Milford Township (Board).

Britt owns a 3.7-acre property located in Lower Milford Township, Lehigh County, Pennsylvania. In 1994, Britt applied for a variance from the Township's Zoning Ordinance so that she could lawfully conduct trash hauling activities on her property, which is located in an agricultural-rural zoning district. On February 21, 1995, the Zoning Hearing Board issued a decision *fn1 in which it granted Britt's request for a variance, thereby permitting her to operate a trash hauling business, but limited her ability to do so by very specific conditions specified in the decision. *fn2

On or about March 17, 1995, the code enforcement officer for the Township, along with other Township representatives, inspected Britt's property and observed evidence that Britt was not abiding by the conditions imposed by the Board and that she was conducting prohibited recycling activities as well as unpermitted trash storage. On August 8, 1995, the code enforcement officer again inspected the property *fn3 and observed additional signs that the property was being used for more than merely trash hauling, contrary to the conditions specified in the Board's February 21, 1995 decision. After August 8, 1995, all further attempts by the Township representatives to enter onto Britt's property were denied by Britt.

On April 4, 1996, the Township filed a civil action in equity against Britt, alleging that Britt was not conducting her operations in accordance with the Board's decision. The Township also filed a Motion for a Preliminary Injunction, in which it alleged that Britt would not permit representatives of the Township to enter upon her property for the purpose of determining whether the use of her property for commercial purposes conformed to the provisions of the zoning ordinance.

On April 12, 1996, a hearing was held before the Lehigh County Court of Common Pleas on the issue of whether the Township should be granted injunctive relief to inspect the premises. The court ultimately granted the injunction and determined that Britt was required to permit the Township's zoning officer to "enter onto her property for purposes of inspection between the hours of 7:00 a.m. and 6:00 p.m. Monday through Friday and 7:00 a.m. and 12:00 noon on Saturdays without any prior written or oral notice." (Order of the Court of Common Pleas, 4/12/96, at 1; R.R. at 95a.) The court also ordered that "the Zoning Officer must have the prerequisite suspicion of improper or illegal activity prior to entry as required by law," and that "any entry onto the property at any other hours requires the prerequisite suspicion of improper or illegal activity and written notice of at least 24 hours." (Order of the Court of Common Pleas, 4/12/96, at 1-2; R.R. at 95a-96a.) This appeal followed.

On appeal, Britt argues that "the inspection of provisions of the Court's April 12, 1997 Injunction Order, as well as Section 614 of the Lower Milford Township Ordinance, are unconstitutional as applied to [her]." (Brief of Appellant at 12.)

This Court's standard of review with respect to appeals from a common pleas court's grant of a preliminary injunction is very narrow. We do not review the full merits of the controversy, but rather determine, based on the record, whether there were any reasonable grounds which would justify the trial court's decision. Boyle v. Pennsylvania Athletic Association, 676 A.2d 695 (Pa. Commw. 1996), petition for allowance of appeal denied, 546 Pa. 684, 686 A.2d 1313 (1996). Unless it is plain that no grounds exist to support the decree, or that the rule of law relied upon was palpably erroneous or misapplied, we will not interfere with the decision of the trial Judge. Township of Concord v. Concord Ranch, Inc., 664 A.2d 640 (Pa. Commw. 1995). After a careful review of the record and the relevant case law, we do not believe that such an error was committed in this case.

A search under the Fourth Amendment occurs where there is a government intrusion upon an individual's legitimate expectation of privacy, an expectation which must be actual and one that society recognizes as being reasonable. Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). The Fourth Amendment does not proscribe warrantless searches but rather unreasonable searches, and the reasonableness of a search depends upon the facts and circumstances of a particular case. United States v. Samuels, 374 F. Supp. 684 (E.D. Pa. 1974).

The United States Supreme Court has recognized an exception to the warrant requirement in the case of "closely regulated" industries which have a long history of governmental supervision and oversight enforced by inspection. United States v. Biswell, 406 U.S. 311, 32 L. Ed. 2d 87, 92 S. Ct. 1593 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72, 25 L. Ed. 2d 60, 90 S. Ct. 774 (1970). As the United States Supreme Court stated in Donovan v. Dewey, 452 U.S. 594, 598-99, 69 L. Ed. 2d 262, 101 S. Ct. 2534 (1981),

the greater latitude to conduct warrantless inspections of commercial property reflects the fact that the expectation of privacy that an owner of a commercial property enjoys in such property differs ...


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