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SIEGMOND v. FEDOR

June 29, 2004.

WARREN SIEGMOND, and JEANNINE SIEGMOND, his wife, Plaintiffs
v.
RICHARD FEDOR, Individually and as Zoning Officer of the Borough of Parryville, BOROUGH OF PARRYVILLE, Defendants.



The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge, District

MEMORANDUM

This case presents substantive and procedural due process claims in the context of zoning enforcement actions that terminated in Plaintiffs' favor. Both Plaintiffs and Defendants have moved for summary judgment. Because the statutory scheme for zoning enforcement actions provided Plaintiffs the requisite process for the presentation of a full and complete defense, Defendants are entitled to judgment in their favor on the procedural due process claim. Because the record, viewed in a light most favorable to Plaintiffs, does not show any interference with the use and enjoyment of their property or conscienceshocking conduct on the part of Defendants, summary judgment in Defendants' favor on the substantive due process claim is also warranted. I. Background*fn1

Plaintiffs Warren and Jeannine Siegmond are owners of 11.6 acres of land that lies partly in the Township of Lower Towamensing and partly in the Borough of Parryville, Carbon County, Pennsylvania. The portion of the Plaintiffs' property located in Parryville Borough is in an agricultural zoning district as delineated by the Parryville Borough Zoning Ordinance adopted on August 4, 1986.

  This case arises from three incidents involving zoning enforcement or property use matters that were adjudicated from April of 1998 until January of 2001. Plaintiffs seek to recover the attorneys' fees and litigation expenses incurred in connection with the property use proceedings. In addition to compensation for these out-of-pocket costs, Plaintiffs seek punitive damages, attorneys' fees, and costs of this suit. Named as Defendants are Richard Fedor, the Zoning Officer for the Borough of Parryville, and the Borough of Parryville.

  The first incident concerned various fences and boundary markers erected by Plaintiffs on their property over a period of years. In April of 1998, Fedor sent correspondence and an Enforcement Notice pursuant to the Pennsylvania Municipalities Planning Code, directing Plaintiffs to obtain zoning permits for fences and structures as required by the Parryville Borough Zoning Ordinance. Specifically, by letter dated April 10, 1998, Fedor informed Mr. and Mrs. Siegmond as follows: It has come to my attention that you have erected several structures adjacent to your existing fence. They include the addition of wooden pallets, the addition of plank boards in excess of ten feet in height and the addition of some type of concrete and metal structure.

 
Please be advised that Section 7.401 of the Parryville Borough Zoning Ordinance requires a zoning permit to be issued by the zoning officer prior to erecting a structure or altering an existing structure in a major way. All construction activity on your property must be discontinued until a permit is secured.
Therefore, please take a moment to secure the necessary permits. You are hereby given ten (10) days to comply with the regulations and avoid further action by this office.
(Ex. 6, Defs.' Exs. in Supp. of Mot. for Summ. J.) When the Siegmonds did not comply with this directive, Fedor, on April 24, 1998, issued an enforcement notice under § 616.1 of the Pennsylvania Municipalities Planning Code, 53 Pa. Stat. Ann. § 10616.1. The notice advised Plaintiffs of their right to appeal to the Zoning Hearing Board within twenty days. The notice indicated that penalties for violation of the Parryville Borough Zoning Ordinance would not accrue while any appeal was pending with the Zoning Hearing Board.

  Plaintiffs timely appealed to the Zoning Hearing Board of the Borough of Parryville to challenge both the legal sufficiency of the Enforcement Notice and the bases for the Zoning Officers' decisions.*fn2 Specifically, the Siegmonds, through counsel, argued that (a) the Enforcement Notice was not sufficiently specific to adequately apprise them of violations of the zoning ordinance; (b) Fedor had misinterpreted and misapplied the ordinance; (c) Fedor had "irrationally and unreasonably discriminated" against them; (d) Plaintiffs had vested rights in the allegedly infringing structures and fences based upon advice previously given by the Borough Zoning Officer; and (e) the zoning ordinance was unconstitutional on its face and as applied to Plaintiffs. The Siegmonds requested a hearing on their appeal.

  Following several hearings occurring intermittently over a period of about eighteen months, the Zoning Hearing Board affirmed the Enforcement Notice and dismissed the appeal on January 31, 2000. Specifically, the Zoning Hearing Board concluded that a permit was required for the fences erected on the Siegmonds' property, and that the Zoning Officer had correctly cited the Siegmonds.

  Plaintiffs timely appealed to the Court of Common Pleas of Carbon County, raising procedural and substantive challenges to the Zoning Hearing Board's decision. In a Memorandum Opinion dated October 31, 2000, the court reversed the decision of the Zoning Hearing Board on the ground that Fedor's Enforcement Notice itself was deficient in failing to provide proper notice of the purported violations of the zoning ordinance. The court, however, did not address question of whether permits had been required for the fences and other structures. Instead, it merely concluded that the Zoning Hearing Board had "committed an error of law and abuse of discretion in sustaining the validity of the enforcement notice." The ruling of October 31, 2000 concluded the first incident underlying Plaintiffs' claims in this litigation.

  The second incident arose shortly after the issuance of the April 24, 1998 Zoning Enforcement Notice when the then-current Borough Mayor, Robert H. Bashore, on behalf of the Borough, filed a citation against Plaintiffs. The May 29, 1998 citation alleged that Plaintiffs had constructed a concrete block wall with steel rods which constituted a danger to the welfare of persons. At a hearing held on June 18, 1998, a state district magistrate dismissed this citation on procedural grounds.

  The third and final incident concerned a pool shed on Plaintiffs' property. By letter dated December 29, 1998, Fedor informed Plaintiffs as follows:
It has come to my attention that you have erected an accessory structure at 2266 Cherry Hill Road. In reviewing the borough's zoning records, I have found no permits have been issued for this type of construction.
Please be advised that Section 7.401 of the Parryville Borough Zoning Ordinance requires a zoning permit to be issued by the zoning officer prior to erecting a structure or altering an existing structure in a major way. All construction activity on your property must be discontinued until a permit is secured.
Therefore, please take a moment to secure the necessary permits. You are hereby given ten (10) days to comply with the regulations and avoid further action by this office. . . .
(Ex. 13, Defs.' Exs. in Supp. of Mot. for Summ. J.) On January 18, 1999, Fedor issued an Enforcement Notice for the alleged failure to obtain a permit to erect this structure. Plaintiffs responded by filing an appeal with the Zoning Hearing Board, and hired counsel to assist them with the appeal. Hearings were held on May 8 and November 13, 2000. The Zoning Hearing Board unanimously sustained Plaintiffs' appeal on January 31, 2001, finding that the Siegmonds had indeed obtained a permit for the structure from Fedor's predecessor, and repairs made to the pool shed in 1998 did not alter the structure in such a way as to require a new permit.*fn3

  Plaintiffs commenced this civil rights action on November 28, 2001. Defendants moved to dismiss on statute of limitations grounds. The Borough of Parryville also sought dismissal on the ground that the Complaint failed to allege a basis for municipal liability under Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658 (1978). By Order dated December 20, 2002, the motion to dismiss was denied.*fn4 Defendants moved for summary judgment on March 28, 2003, and Plaintiffs moved for summary judgment on April 14, 2003. Briefing is complete and the matter is ripe for decision.

  II. Discussion

  A. Summary Judgment ...


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