The opinion of the court was delivered by: Judge Leavitt
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JOHNNY J. BUTLER, Judge.
Woodward Township appeals an order of the Court of Common Pleas of Clinton County (trial court) that denied the Township's request for a mandatory injunction directing Lisa Zerbe, Amy Bechdel, David Zerbe, and Chester Zerbe (collectively, the Zerbes) to remove the walls enclosing the second floor of their recreational pavilion located along the West Branch of the Susquehanna River. Concluding that the trial court did not abuse its discretion in refusing to grant the Township this injunction, we affirm.
In connection with a flood control levee project along the West Branch of the Susquehanna River, the City of Lock Haven, the Township and the Lock Haven Area Flood Control Authority entered into an inter-governmental cooperation agreement on July 20, 1988. That agreement provided, inter alia, that the City and Township would regulate land use in the flood plain to limit uses to those compatible with the flood control project, a joint initiative of the Authority and the United States Army Corps of Engineers. The Zerbe property is located within the area of the flood control project and is subject to a 1993 flowage easement granted by the Zerbes to the Authority. The deed of easement, inter alia, requires written approval of the Authority and the Army Corps for any construction on the Zerbe property.
On August 18, 1998, the Authority authorized Chester Zerbe to construct "an open, elevated pavilion on an existing concrete pad within the flowage easement area of Woodward Township." Township's Exhibit 6 (emphasis in original). The Army Corps also approved Zerbe's proposed construction of a pavilion. Thereafter, on April 21, 1999, Chester Zerbe filed a building permit application with the Township to construct a "raised pavilion built on [a] concrete pad." Township's Exhibit 5. Specifically, the application described the proposed pavilion as "similar to Larry Lytle's," referring to a pavilion located on a neighbor's property. Id. The Lytle pavilion is open on the first level and fully enclosed on the second level.
In 2000, Chester Zerbe retained Cedar Run Environmental Services to prepare an application to the Pennsylvania Department of Environmental Protection (DEP) for a water obstruction and encroachment permit for his proposed pavilion. On March 31, 2000, Steven J. Bason, a professional wetland scientist employed by Cedar Run, submitted the application to DEP. On June 14, 2000, DEP issued Chester Zerbe a permit to "construct and maintain a raised pavilion with open sides" on the property. Township's Exhibit 9, at 1.*fn1
On August 1, 2001, Jeffrey Yarnell, the Township's Zoning Officer, visited the Zerbe property for the first time, by which time the pavilion was nearly complete. The pavilion was open on the ground level, and the second floor level was enclosed with exterior siding and openings for windows. Yarnell advised the Zerbes that the Township had never acted on their 1999 building permit application, and the permit was still needed. Because the Zerbes had obtained the necessary approvals from the Authority, Army Corps and DEP, the Township issued a building permit to Chester Zerbe the next day, August 2, 2001, which authorized the construction of a "raised pavilion." Township's Exhibit 10.
By deed dated November 5, 2001, Chester and Olive Zerbe transferred title to the property to their children, Lisa Zerbe, David Zerbe and Amy Bechdel.
In late spring 2002, James Yoxtheimer, the Executive Director of the Authority, inspected the Zerbe property. He notified Yarnell that the now completed pavilion did not conform to the requirements of the Authority and the Army Corps. In turn, Yarnell advised the Zerbes to bring the structure into compliance. Lisa Zerbe wrote a letter to Yoxtheimer on August 20, 2002, requesting the Authority either to approve the pavilion or to advise the Zerbes on how to modify it to be "flood-proof." Zerbe explained that her father had received approval from the Army Corps in 1998 to build a "raised pavilion," and that her family was not aware of the prohibition on second floor walls when they built their pavilion. Township's Exhibit 13.
On August 4, 2003, Yarnell issued a notice of violation to the Zerbes, alleging a violation of the Code of Ordinances of the Township of Woodward (Ordinance) for constructing the pavilion in a manner that did not comply with the building permit, the DEP permit and the regulations of the Authority and the Army Corps. The notice of violation stated that failure to comply could be sanctioned by a criminal conviction and fine. The notice also stated that the Zerbes could appeal to the Zoning Hearing Board, and they did so.
Following a hearing, the Zoning Hearing Board upheld the Township's notice of violation of Section 208(3) of the Ordinance.*fn2 The Board denied the Zerbes' request for a variance, but it did not specifically impose criminal penalties or sanctions.
The Zerbes appealed to the trial court, and the Township intervened. The trial court affirmed the decision of the Zoning Hearing Board, and the Zerbes appealed to this Court. By unpublished decision and order filed September 28, 2004, this Court reversed the trial court's order. Zerbe v. Woodward Township Zoning Hearing Board, (Pa. Cmwlth., No. 207 C.D. 2004, filed September 28, 2004). We concluded that the Zoning Hearing Board lacked jurisdiction because the notice of violation sought to impose criminal sanctions, including imprisonment, which were beyond the ability of a zoning hearing board to grant. The Ordinance did not establish civil sanctions for any violations of its terms.
On October 7, 2004, Yarnell issued a second notice of violation against the Zerbes, directing them to remove the walls from the second floor of the pavilion by November 15, 2004. The second notice of violation did not mention criminal sanctions. Instead, it stated that "any person who fails to comply . shall be subject to an action in equity to enforce compliance.." Township's Exhibit 14, at 2. Similar to the first notice, the second notice provided for a right of appeal to the Zoning Hearing Board. The Zerbes again appealed and challenged the Board's subject matter jurisdiction. The Board agreed with the Zerbes that it lacked jurisdiction, noting that the Ordinance provided only criminal sanctions for any violations thereof.
The Township appealed to the trial court. Because the second notice of violation did not seek to impose any criminal penalties, the trial court remanded the matter to the Zoning Hearing Board to consider the merits. On remand, the Board upheld the notice of violation, reasoning that the Zerbes had constructed a building different from that authorized by their building permit. The Zerbes appealed to the trial court, which dismissed the Zerbes' appeal. The Zerbes appealed to this Court, again challenging the jurisdiction of the Zoning Hearing Board because the only sanctions established in the Ordinance were criminal in nature. This Court held that The Second Class Township Code*fn3 and the Pennsylvania Municipalities Planning Code (MPC)*fn4 conferred the Zoning Hearing Board with jurisdiction to consider a zoning violation notice so long as it did not seek to impose criminal sanctions. Woodward Township v. Woodward Township Zoning Hearing Board, (Pa. Cmwlth., No. 2588 C.D. 2005, filed October 17, 2006), slip op. at 7-8.This Court affirmed the Board's conclusion that the Zerbes had violated the Ordinance.
In January 2007, the Township filed a Complaint to Enforce Compliance of Building Permit Violation under authority of Section 617 of the MPC, 53 P.S. §10617, which states, in pertinent part, as follows:
In case any building, structure, landscaping or land is, or is proposed to be, erected, constructed, reconstructed, altered, converted, maintained or used in violation of any ordinance enacted under this act . the governing body or, with the approval of the governing body, an officer of the municipality, or any aggrieved owner or tenant of real property who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding to prevent, restrain, correct or abate such building, structure, landscaping or land..
53 P.S. §10617 (emphasis added). The Township requested the trial court to issue a mandatory injunction directing the Zerbes to "comply with the October 7, 2004, Notice of Violation and to remove the vertical walls constructed on [the Zerbes'] pavilion." Township's Complaint. The trial court conducted a hearing on the Township's complaint on January 15, 2009.
At the hearing, counsel for the Zerbes questioned Yarnell about Section 208 of the Ordinance, which the Zerbes were charged with violating. ...