Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Ivy Lee Real Estate, LLC

Commonwealth Court of Pennsylvania

June 27, 2017

Dennis L. Smith; Constance A. Smith; Sandra L. Smith; Jean Claycomb; Kevin Smith; Elaine Snivley; Julie Bonner; and James Smith, Appellants
v.
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, Senior Judge

          OPINION

          JULIA K. HEARTHWAY, Judge.

         Appellants[1] (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 court.

         The 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.

         In 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, [2] the Smith Family can bring a private enforcement action under the Pennsylvania Municipalities Planning Code (MPC), [3] specifically section 617, 53 P.S. § 10617.

         The 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.[4] 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.

         The 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.

         The 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 ordinance.

         Succinctly 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.[5] 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).

         Section 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 violation.

53 P.S. § 10617 (emphases added).

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.