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Lower Mount Bethel Township v. North River Company

January 20, 2012

LOWER MOUNT BETHEL TOWNSHIP
v.
NORTH RIVER COMPANY, LLC APPEAL OF: NORTH RIVER COMPANY, LLC AND ANTHONY J. SABELLA



The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

Argued: October 18, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge*fn1 HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN

North River Company, LLC (North River) appeals from: (1) the April 8, 2010, order of the Court of Common Pleas of Northampton County (trial court) granting Lower Mount Bethel Township's (Township) motion for judgment on the pleadings in an enforcement action; and (2) the August 31, 2010, trial court order directing North River to pay $31,854.05 in attorney fees to the Township. Anthony J. Sabella (Sabella) also appeals from the March 9, 2009, order of the trial court denying Sabella's petition for leave to intervene. We affirm all three orders.

North River is a Pennsylvania limited liability company and the owner of property at 4650 N. Delaware Drive, Easton, Pennsylvania (Property). Sabella is an officer, shareholder and agent of North River. North River operates a coffee shop on the Property, which is located in both the agricultural zoning district and the conservation overlay zoning district. A coffee shop is not a permitted use in either of these districts.

In September 2005, North River began constructing an enclosed porch and deck attached to the coffee shop without first obtaining a building permit. On January 5, 2006, the Township's building code officer posted a stop-work order on the Property. North River filed a zoning appeal with the Zoning Hearing Board (ZHB), seeking a variance to continue operation of the coffee shop with the porch and deck.

After a hearing on the matter, on May 18, 2006, the ZHB granted North River a variance to operate the coffee shop with the porch and deck subject to several conditions. One of the conditions was that North River must allow the Township's building code officer to inspect the original structure, the porch and the deck to ensure compliance with the Uniform Construction Code (Code), 34 Pa. Code §§401.1-- 405.42. North River did not appeal this decision. However, North River did not allow the building code officer to inspect the Property to ensure compliance with the Code and continued to operate the coffee shop utilizing the porch and deck.

On December 4, 2006, the Township's zoning officer sent North River a zoning enforcement notice (Enforcement Notice) informing North River that its use of the Property was in violation of the Township's zoning ordinance (Ordinance) and that North River failed to comply with the ZHB's decision of May 18, 2006, which is also a violation of the Ordinance.

On February 7, 2007, the Township filed a civil complaint against North River with the magisterial district judge (MDJ). The Township sought fines and attorney fees for North River's failure to comply with the Enforcement Notice. On July 24, 2007, the MDJ entered judgment in the amount of $2,519.50 in favor of the Township, which included $2,000.00 in fines, $500.00 in attorney fees and $19.50 in court costs.

North River appealed to the trial court and sought a rule requiring the Township to file a complaint.*fn2 The Township filed its complaint with the trial court in September 2007. In response, North River filed an "Answer, New Matter, Third Party Complaint, and Counterclaim," which raised issues relating to the Township's issuance of the Enforcement Notice.*fn3

The Township filed preliminary objections seeking dismissal of North River's new matter and counterclaim. On February 14, 2008, the trial court sustained the Township's preliminary objections and dismissed the new matter and counterclaim for lack of jurisdiction. The trial court explained that, because North River failed to appeal the Enforcement Notice to the ZHB, the Enforcement Notice was unassailable; thus, the trial court's jurisdiction was limited to a review of the penalties imposed by the MDJ.

Sabella filed, among other things, a motion to reconsider and vacate the order of the trial court; however, the trial court dismissed Sabella's filings because Sabella was not a party to the action. Sabella then filed a petition for leave to intervene, which the trial court denied on March 9, 2009. Sabella filed a motion for reconsideration and an application for a determination of finality under Pa. R.A.P. 341(c). The trial court denied the motion for reconsideration, and Sabella filed an appeal to this court. The Township, in response, filed a motion to quash the appeal. On August 18, 2009, this court granted the motion to quash and dismissed Sabella's appeal without prejudice to its right to appeal the denial of intervention following issuance of a final order by the trial court.

The Township filed a motion for judgment on the pleadings with the trial court, and, on April 8, 2010, the trial court granted the Township's motion because North River had not appealed the Township's Enforcement Notice to the ZHB. The trial court also ordered a hearing to determine appropriate sanctions under section 617.2 of the Pennsylvania Municipalities Planning Code (MPC).*fn4 On August 23, 2010, the trial court ordered North River to ...


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