Dennis L. Smith; Constance A. Smith; Sandra L. Smith; Jean Claycomb; Kevin Smith; Elaine Snivley; Julie Bonner; and James Smith, Appellants
Ivy Lee Real Estate, LLC; George E. Kensinger; Dona L. Kensinger; Melvin Shoenfelt, Jr.; Lisa C. Shoenfelt; Michael J. Macovitch; Paula M. Dick; Roger L. Bowser; Elaine K. Bowser; Erma Mae Snyder; Tyne N. Palazzi; Sky E. Pote; First Energy Corp.; Billie Jean Emert; Travis A. Keagy; James S. Frederick; Connie J. Frederick; Tamara J. Ogg; and all other Persons Claiming any Interest in the Property Described in this Action
ARGUED: June 5, 2017
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE
JULIA K. HEARTHWAY, Judge HONORABLE JAMES GARDNER COLINS,
K. HEARTHWAY, Judge.
Appellants (Smith Family) appeal from
the March 18, 2016 order of the Court of Common Pleas of
Blair County (trial court) denying the Smith Family's
request for injunctive relief under Count II of its Amended
Complaint. We reverse and remand the matter to the trial
Smith Family owns land in Taylor Township, Blair County. Ivy
Lee Real Estate, LLC (Ivy Lee) owns an adjacent parcel of
property. On October 29, 2015, the Smith Family commenced
this action against Ivy Lee by a two-count complaint.
Subsequently, by consent, the Smith Family filed an amended
three-count complaint naming additional defendants. Relevant
here is the requested injunctive relief against only Ivy Lee
in Count II of the Amended Complaint.
Count II of its Amended Complaint, the Smith Family alleges
that Ivy Lee has engaged in construction activities that
constitute "land development" under the Taylor
Township Subdivision and Land Development Ordinance (SALDO).
(R.R. at 120a, Amended Complaint (AC) ¶ 52.) The Smith
Family further alleges that Ivy Lee has not submitted a land
development plan as required by the SALDO and that Ivy
Lee's plan does not conform to the SALDO's
requirements. (R.R. at 120a, AC ¶ 54.) The Smith Family
alleges that Ivy Lee's violations of the SALDO prevent
the Smith Family from using certain property and from
accessing its property. (R.R. at 120a-21a, AC ¶ 55.) The
Smith Family seeks, among other things, a permanent
injunction against Ivy Lee preventing construction activities
unless and until Ivy Lee complies with the SALDO. (R.R. at
121a.) The Smith Family contends that even though Taylor
Township has refused to enforce the SALDO in this
circumstance,  the Smith Family can bring a private
enforcement action under the Pennsylvania Municipalities
Planning Code (MPC),  specifically section 617, 53 P.S. §
trial court held an evidentiary hearing, and subsequently
issued an opinion and order denying the Smith Family's
request for injunctive relief in Count II. The trial court
ruled that the Smith Family does not have standing to enforce
the SALDO pursuant to section 617 of the MPC. The trial court
determined that section 617 creates a private cause of action
solely for zoning violations, and Taylor Township does not
have a zoning ordinance. In making this determination, the
trial court relied on the fact that section 617 is contained
in the subchapter of the MPC entitled "zoning, "
and also stated that almost all existing case law has applied
section 617 in the context of zoning.
Smith Family now appeals from the trial court's order to
this Court, arguing that the trial court erred by holding
that a private cause of action does not exist under the MPC
to enforce alleged violations of a SALDO, and thus, that the
trial court erred in denying the Smith Family's request
for injunctive relief.
Smith Family points to language in section 617 of the MPC
allowing for a private cause of action for a "violation
of any ordinance enacted under this act" and contends
that "this act" refers to the entire MPC, not just
the zoning article. Therefore, the Smith Family contends that
because the Township's SALDO was passed pursuant to the
"act, " meaning the entire MPC, it has a private
cause of action under section 617 to enforce the SALDO. The
parties do not dispute that Taylor Township has enacted a
SALDO pursuant to the MPC and that it has no zoning
put, we are asked to determine whether section 617 of the MPC
permits a private cause of action to enforce a SALDO. Because
the issue before this Court presents a question of statutory
construction, it raises a pure question of law subject to our
plenary review. Southeastern Reprographics, Inc. v.
Bureau of Professional & Occupational Affairs, 139
A.3d 323 (Pa. Cmwlth. 2016). In cases involving a question of
statutory interpretation, we are subject to the rules of
statutory construction as set forth by the General Assembly
in the Statutory Construction Act of 1972. Commonwealth
v. Berryman, 649 A.2d 961 (Pa. Super. 1994). When
interpreting a statute, our role is to ascertain the intent
of the General Assembly and give that intention effect.
Statutory Construction Act of 1972, 1 Pa. C.S. §
1921(a); Mishoe v. Erie Insurance Company, 824 A.2d
1153 (Pa. 2003). "Thus, if possible, statutes must be
construed so that every word is given effect."
Mishoe, 824 A.2d at 1155; see 1 Pa. C.S.
§ 1921(a). "When the words of a statute are clear
and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit." 1
Pa. C.S. § 1921(b).
617, entitled causes of action, provides in relevant part:
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 or prior enabling
laws, 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, or to prevent, in or about such
premises, any act, conduct, business or use constituting a
53 P.S. § 10617 (emphases added).
issue presented boils down to whether the phrase, "in
violation of any ordinance enacted under this act"
pertains to alleged violations of any ordinance enacted under
the MPC or whether it pertains only to alleged violations of
any ordinance enacted under Article VI of the MPC. We are
persuaded by the Smith Family's apt arguments and
analysis set forth in their brief. We agree that, as written,
the plain language of section 617 permits a ...