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Borough of West Conshohocken v. Soppick

Commonwealth Court of Pennsylvania

June 12, 2017

Borough of West Conshohocken
v.
Joseph and Jane Soppick, Appellants

          Submitted: November 4, 2016

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE DAN PELLEGRINI, Senior Judge.

         ORDER

         NOW, June 12, 2017, upon consideration of appellee's application for reargument, the application is denied to the extent it seeks reargument, but reconsideration is granted.

         The opinion and order filed March 29, 2017, are withdrawn.

         The attached opinion and order are entered.

          OPINION

          MARY HANNAH LEAVITT, PRESIDENT JUDGE

         Joseph and Janet Soppick appeal an order of the Court of Common Pleas of Montgomery County (trial court) directing them to pay $130, 500, plus costs and interest, as a penalty for building a garage that did not conform to their building permit, in violation of the Borough of West Conshohocken's Zoning Ordinance.[1] The Soppicks contend that the Borough could not seek civil penalties while their appeal of the Zoning Officer's Stop Work Order was pending. When the Soppicks lost their appeal, they dismantled the garage. Concluding that the Borough lacked authority to seek a penalty while the Soppicks appealed the judgment that they violated the Borough's Zoning Ordinance, we reverse.

         The Soppicks own property located at 209 Moir Avenue in the Borough of West Conshohocken. In 1996, the Soppicks applied for a building permit to construct a detached, one-story garage on the property, and it was granted. In April 1999, the Borough's Zoning Officer did an inspection and discovered that the Soppicks were constructing an attached, two-story garage, in violation of the Borough's Zoning Ordinance, Building Code, and their permit. On April 23, 1999, the Zoning Officer issued a Stop Work Order under Section 113-131 of the Zoning Ordinance[2] instructing the Soppicks to "cease work immediately on any further construction" and advising that failure to do so would result in daily fines. Reproduced Record at 9 (R.R.___). The Stop Work Order, a one-page letter from the Borough's Zoning Officer, cited the Borough's Construction Codes and the Building Officials and Code Administrators International (BOCA) National Building Codes/1996. The Stop Work Order advised the Soppicks that they had the right to appeal to the Zoning Hearing Board.

         The Soppicks appealed the Stop Work Order. Four years later, on June 11, 2004, the Zoning Hearing Board denied the Soppicks' appeal, stating:

The garage represents an extension of the present nonconforming use of the subject property in excess of that permitted by the Borough Code, is in excess of the dimensions described in the Application for Building Permit which was approved by the Borough Building/Zoning Officer, is a two-story [structure] … and is attached to the existing structure, rather than detached as was described in the plans and representations made by the Soppicks prior to the approval of the permit.

R.R. 12. The Soppicks appealed the decision of the Zoning Hearing Board, and the trial court affirmed by order of February 21, 2007. The Soppicks appealed the trial court's order to this Court.

         On June 19, 2007, while the Soppicks' appeal was pending with this Court, the Borough notified the Soppicks of its intent to enforce the trial court's order. Its letter stated, in relevant part, as follows:

As you are aware, the Court of Common Pleas of Pennsylvania issued an Order dated February 21, 2007. That Order affirmed the West Conshohocken Zoning Hearing Board's denial of your zoning application. A copy of said Order is attached for your review.
In accordance with Section 37-24 of the Borough Code, [3] you are hereby fined $300.00. Every day that this violation continues constitutes a separate offense punishable by a fine of $300.00.

R.R. 56 (emphasis added). When the Soppicks neither paid the fine nor corrected the violation, the Borough filed a complaint. On October 4, 2007, a magisterial district judge entered a judgment on the Borough's complaint against the Soppicks and imposed a penalty of $7, 038.50 which the Soppicks appealed.

         On November 23, 2007, the Borough filed a complaint against the Soppicks in the trial court, seeking penalties in the amount of $47, 100. The Borough's complaint stated that it

obtained declaratory judgment from [the trial court] upholding the June 11, 2004 decision of the Borough's zoning hearing board which held that the [Soppicks] violated Borough Code Sections 37-5C and 37-7C and former building code section[s] 111.2 and 111.3.

         Certified Record (C.R.) Item No. 3 at 5. The complaint alleged that the Soppicks' illegal garage exposed them to a daily fine of $300.

         On February 19, 2008, this Court affirmed the trial court's decision, concluding, in part, that the Zoning Officer was justified in issuing the Stop Work Order pursuant to Section 113-131 of the Borough's Zoning Ordinance because the Soppicks' garage was a "building or structure … erected … in violation of this chapter, " i.e., the Zoning Ordinance Chapter of the Borough Code. Soppick v. Zoning Hearing Board of West Conshohocken, (Pa. Cmwlth., No. 531 C.D. 2007, filed February 19, 2008) (unreported). On August 27, 2008, the Soppicks removed the garage. The Borough's pursuit of penalties continued.

         In 2011, the Borough filed an amended complaint seeking $130, 500 to penalize the Soppicks for having a garage that violated the Zoning Ordinance for a period of 435 days. The Borough measured this period from the date it sent the enforcement notice to the Soppicks, i.e. June 19, 2007, to the date the Soppicks removed the garage, i.e., August 27, 2008.

         On February 6, 2012, the Borough filed a motion for summary judgment. By order dated July 13, 2012, the trial court granted the motion and entered judgment against the Soppicks in the amount of $130, 500, plus interest and costs. On July 18, 2012, the Soppicks filed a motion for reconsideration and for an extension of time to file a response to the Borough's motion for summary judgment. The trial court granted reconsideration and dissolved its order of July 13, 2012. After the Soppicks responded to the Borough's motion for summary ...


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