Lower Mount Bethel Twp. v. B. Gacki and A. Gacki
150 A.3d 575
| Pa. Commw. Ct. | 2016Background
- Barbara and Adam Gacki built a concrete retaining wall and backfilled river-front property at 5651/5659 Delhaven Road without submitting permits; Lower Mount Bethel Township issued a Violation Notice giving 30 days to apply or appeal to the Zoning Hearing Board (ZHB).
- The Gackis did not appeal the Violation Notice to the ZHB or submit permit applications. The Township commenced enforcement proceedings; a magisterial district judge later entered a judgment against the Gackis, which they appealed to the Court of Common Pleas.
- The Township amended its complaint seeking fines, attorney fees, and a permanent injunction ordering removal of the wall and backfill. The Gackis raised preliminary objections claiming the Township lacked geographic jurisdiction and thus capacity to sue, arguing the structures lay in the Delaware River and were federally controlled.
- The trial court overruled preliminary objections, granted the Township’s motion for judgment on the pleadings (holding the failure to appeal to the ZHB made the Violation Notice unassailable), then held a penalty hearing and ordered $1,200 in fines, $20,430.82 in attorney fees, and removal of the wall/backfill. The Gackis’ post-trial relief was denied; they appealed.
- The Commonwealth Court affirmed: it rejected the geographic-jurisdiction argument, held judgment on the pleadings proper because the ZHB appeal was forfeited, upheld the attorney-fee award under the Municipalities Planning Code, affirmed injunctive relief, and found the fine reasonable.
Issues
| Issue | Plaintiff's Argument (Township) | Defendant's Argument (Gacki) | Held |
|---|---|---|---|
| Capacity / geographic jurisdiction to sue | Township is within its boundary to the middle of the Delaware River and may enforce ordinances on riverbed pursuant to state law and interstate compact | Structures lie in the Delaware River and thus outside Township control / subject to federal jurisdiction | Capacity to sue upheld; riverbed within Township/Commonwealth jurisdiction under state law and compact |
| Judgment on the pleadings / due process | Because Gackis received Violation Notice and failed to appeal to ZHB, the violation is unassailable and only penalty remains; judgment on the pleadings appropriate | Granting judgment deprived Gackis of hearing and due process | Judgment on the pleadings affirmed; failure to appeal to ZHB precluded de novo review and forfeited hearing on violation |
| Attorney fees award | MPC §617.2 mandates reasonable attorney fees to municipality when violator found liable; requested fees reflect work from 2011–2015 and were stipulated reasonable by Gackis’ counsel | Award excessive / abuse of discretion | Fee award ($20,430.82) affirmed as required by MPC and reasonable (counsel’s stipulation supports reasonableness) |
| Injunctive relief (removal order) | MPC §617 authorizes equitable relief to abate ordinance violations; permanent injunction appropriate given conceded violation | Injunction improper without hearing to determine violation | Injunction ordering removal affirmed because violation was conclusively established by failure to appeal |
| Fines / amount | Ordinance prescribes fines per offense; daily violations possible—trial court’s $1,200 fine is within enforcement discretion | Fine excessive given circumstances; should follow different statutory provision | $1,200 fine affirmed as within trial court discretion and consistent with ordinance and MPC enforcement regime |
Key Cases Cited
- Tinicum Fishing Co. v. Carter, 61 Pa. 21 (Pa. 1869) (Delaware River bed ownership extends to middle of the river)
- Township of Penn v. Seymour, 708 A.2d 861 (Pa. Cmwlth. 1998) (failure to appeal zoning violation to ZHB renders notice unassailable; court may only review penalties)
- Newberry Township v. Stambaugh, 848 A.2d 173 (Pa. Cmwlth. 2004) (standard for judgment on the pleadings)
- Pfister v. City of Philadelphia, 963 A.2d 593 (Pa. Cmwlth. 2009) (appellate scope of review and plenary review principles)
- Borough of Bradford Woods v. Platts, 799 A.2d 984 (Pa. Cmwlth. 2002) (MPC attorney-fee awards include fees incurred as result of the violation, not limited to initial proceedings)
- Township of Little Britain v. Lancaster County Turf Products, Inc., 604 A.2d 1225 (Pa. Cmwlth. 1992) (municipality must show violation of specific ordinance provision to obtain injunctive relief)
- Township of South Whitehall v. Karoly, 891 A.2d 780 (Pa. Cmwlth. 2006) (factors for reasonableness of attorney-fee awards)
- City of Philadelphia v. MacDonald, 369 A.2d 1341 (Pa. Cmwlth. 1977) (failure to specifically deny an averment can operate as an admission)