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Loganville Borough v. Gary D. Godfrey

December 27, 2012

LOGANVILLE BOROUGH, APPELLANT
v.
GARY D. GODFREY



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Argued: September 10, 2012

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge*fn1 HONORABLE P. KEVIN BROBSON, Judge

OPINION BY JUDGE LEAVITT

Loganville Borough (Borough) appeals an order of the Court of Common Pleas of York County (trial court) that granted the Borough's petition for attorneys' fees and costs it incurred in its enforcement action against Gary D. Godfrey (Landowner). However, the trial court denied the Borough's request for a civil penalty judgment in the amount of $367,000. The Borough argues that the trial court erred because Section 617.2(a) of the Municipalities Planning Code (MPC)*fn2 mandates the imposition of a monetary fine in some amount for each day that a landowner has been adjudged to be in violation of a zoning ordinance. We affirm the trial court.

In July 2009, the Borough's zoning officer issued an enforcement notice to Landowner, alleging that he had violated the Borough's zoning ordinance by "improving and occupying a detached structure as a dwelling without a Zoning Permit or a Use Certificate." Reproduced Record at 25a (R.R. __). The "structure" targeted in the notice is a two-story building that is adjacent to Landowner's house and connected thereto by a stone patio. Landowner built the house and adjoining structure in 1986. Over the years, the offending "structure" has been used as Landowner's office and as a bedroom for Landowner's daughter. The enforcement notice contended that the "structure" should not have been used to provide sleeping quarters.

Landowner responded by letter to the Borough's notice that he intended to appeal the enforcement notice and had retained counsel. Landowner denied the zoning officer's claim that the structure in question, which had been permitted when built and occupied since 1986 without any challenge, violated the zoning ordinance. Landowner's attorney prepared an appeal on the Borough- prescribed form and filed it on August 4, 2009. The Loganville Borough Zoning Hearing Board rejected the appeal as untimely because it was filed one day late. The trial court reversed the Zoning Hearing Board, holding that Landowner's letter was sufficient to effect a timely appeal. However, instead of proceeding to a hearing before the Zoning Hearing Board, the Borough appealed. This Court reversed the trial court. Godfrey v. Loganville Borough Zoning Hearing Board, (Pa. Cmwlth., No. 1229 C.D. 2010, filed April 13, 2011).

On July 1, 2011, the Borough notified Landowner that he had five days to prove compliance with the zoning ordinance. On July 6, 2011, Landowner, under the watchful eye of the zoning officer, capped the plumbing in the offending "structure." The Borough was satisfied that this action by Landowner ended the violation and brought the structure into compliance with the zoning ordinance.

On August 4, 2011, the Borough petitioned the trial court for the imposition of fines, attorneys' fees and costs of suit upon Landowner. The Borough sought $500 per day in fines totaling $367,000,*fn3 as well as attorneys' fees and costs totaling $11,869.77. The trial court concluded that the requested fine was unconscionable and assessed a fine of $0. The trial court awarded $5,000 in reasonable attorneys' fees to the Borough. The trial court did not specify an amount for costs, noting that "[c]court costs follow the judgment in this matter in favor of the Borough and are collectable." Order, December 8, 2011, at 2; R.R. 332a. The Borough appealed.

On appeal,*fn4 the Borough argues that the trial court erred by not imposing a fine upon Landowner, which it contends to be mandated by Section 617.2(a) of the MPC, 53 P.S. §10617.2(a). Landowner responds that Section 617.2 gave the trial court the discretion to fashion the appropriate judgment, taking into account the facts and circumstances of the case. Having done so in this case, the trial court did not abuse its discretion in finding the Borough's request for $367,000 in penalties was unconscionable.

We begin with Section 617.2(a), which states, in relevant part, as follows:

(a) Any person . . . who . . . has violated . . . the provisions of any zoning ordinance enacted under this act or prior enabling laws shall, upon being found liable therefore in a civil enforcement proceeding commenced by a municipality, pay a judgment of not more than $500 plus all court costs, including reasonable attorney fees incurred by a municipality as a result thereof. No judgment shall commence or be imposed, levied or payable until the date of determination of a violation by the district justice. If the defendant neither pays nor timely appeals the judgment, the municipality may enforce the judgment pursuant to the applicable rules of civil procedure.

Each day that a violation continues shall constitute a separate violation, unless the district justice determining that there has been a violation further determines that there was a good faith basis for the person . . . violating the ordinance to have believed that there was no such violation, in which event there shall be deemed to have been only one such violation until the fifth day following the date of the determination of a violation by the district justice and thereafter each day that a violation continues shall constitute a separate violation. All judgments, costs and reasonable attorney fees collected for the violation of zoning ordinances shall be paid over to the municipality whose ordinance has been violated.

53 P.S. ยง10617.2(a) (emphasis added). In short, a person who violates a zoning ordinance "shall . . . pay a judgment of not more than $500 plus all court costs and reasonable attorney fees ...


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