HomeMy WebLinkAbout98-5651 CivilJEFFREY L. BLACK and LAURIE
A. BLACK,
Appellants
ZONING HEARING BOARD OF
SILVER SPRING TOWNSHIP,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -- LAW
No. 98-5951 CIVIL TERM
TOWNSHIP OF SILVER SPRING,
Plaintiff
Vo
JEFFREY L. BLACK and LAURIE
A. BLACK,
Defendants
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -- EQUITY
No. 98-6101 EQUITY TERM
IN RE: LAND USE APPEAL; PRELIMINARY OBJECTIONS TO COMPLAINT
BEFORE HESS and OLER, JJ.
ORDER OF COURT
AND NOW, this 10th day of March, 1999, after careful consideration of the land use
appeal docketed at No. 98-5951 Civil Term, and of the preliminary objections to the
complaint filed at No. 98-6101 Equity Term, and for the reasons stated in the accompanying
opinion, it is ordered and directed as follows:
1. At No. 98-5951 Civil Term, the decision of Appellee
at Application No. A-98-2, dated September 22, 1998, is
vacated.
2. At No. 98-6101 Equity Term, Defendants' preliminary
objection in the form ora motion to dismiss Plaintiff's claim for
attorney's fees is sustained; Defendants' remaining preliminary
,objections are denied.
Andrew C. Sheely, Esq.
127 Market St.
P.O. Box 95
Mechanicsburg, PA 17055
Attorney for Jeffrey L. Black
and Laurie A. Black
Steven J. Weingarten, Esq.
Carol A. Steinour, Esq.
McNees, Wallace & Nurick
100 Pine St.
P.O. Box 1166
Harrisburg, PA 17108-1166
Attorneys for the Zoning Hearing Board
of Silver Spring Township
Richard C. Snelbaker, Esq.
Philip H. Spare, Esq.
Snelbaker, Brenneman & Spare, P.C.
44 West Main St.
P.O. Box 318
Mechanicsburg, PA 17055
Attorneys for the Township
of Silver Spring
BY THE COURT,
esley Ol¢~?Jr., J. c,- ,
JEFFREY L. BLACK and LAURIE
A. BLACK,
Appellants
Vo
ZONING HEARING BOARD OF
SILVER SPRING TOWNSHIP,
Appellee
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· CIVIL ACTION -- LAW
· No. 98-5951 CIVIL TERM
TOWNSHIP OF SILVER SPRING,
Plaintiff
JEFFREY L. BLACK and LAURIE
A. BLACK,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
· CIVIL ACTION -- EQUITY
· No. 98-6101 EQUITY TERM
IN RE: LAND USE APPEAL; PRELIMINARY OBJECTIONS TO COMPLAINT
BEFORE HESS and OLER, JJ.
ORDER and OPINION OF COURT
OLER, J., March 10,1999·
The above-captioned cases have been consolidated by an order of this court.~ In
dispute in each case is whether certain activity of Jeffrey L. Black and Laurie A. Black on
premises in Silver Spring Township constituted a violation of the township's storm water
management ordinance.
At No. 98-5951 Civil Term, the Blacks have appealed from a decision of the
township's zoning hearing board denying their appeal from an enforcement notice of
violation issued jointly by the township's zoning officer and its code enforcement officer.
The notice alleged that "land disturbance activity" conducted without a permit in violation
of the township's~,~1995 storm water management ordinance, existed on property owned by
~ Order of Court, March 10, 1999.
the Blacks in Enola, Pennsylvania.2 Among the issues for disposition in this appeal is
whether the zoning hearing board had jurisdiction to hear the matter.
At No. 98-6101 Equity Term, the township has sued the Blacks to enjoin the alleged
violation of the storm water management ordinance. For disposition in this case are
preliminary objections filed by the Blacks to the township's complaint.
Oral argument was held in these cases on December 12, 1998. For the reasons stated
in this opinion, the decision of the zoning hearing board at No. 98-5951 will be vacated,
because of an absence of jurisdiction on the part of the board to hear the matter which was
presented to it; the preliminary objections at No. 98-6101 Equity Term to the township's
complaint will be sustained in part and denied in part.
STATEMENT OF FACTS
The following facts do not appear to be in dispute: Jeffrey L. Black and Laurie A.
Black are the owners of property in the 6900 block of Wertzville Road, Enola, Silver Spring
Township, Cumberland County, Pennsylvania. Certain earth moving activity has allegedly
occurred on the premises without a permit in violation of the township's storm water
management ordinance, which was enacted on October 11, 1995; the earth moving activity
allegedly dammed a swale which served as a natural watercourse.
By an amended "enforcement notice of violation" dated May 19, 1998, the
township's zoning officer and its code enforcement officer sent notice of the alleged
violation to Jeffrey Black. The notice advised that certain "land disturbance activity"
constituted a violation of Section 301 of Township Ordinance No. 95-13 (the Silver Spring
Township Stormwater Management Ordinance). It further advised of a "right to appeal this
notice to the Silver Spring Township Zoning Hearing Board within thirty (30) days from the
date of delivery [of the notice]" and that "[a] copy of the Zoning Ordinance may be examined
at the Silver Spring Township Municipal Building .... "
Enf.orcei~ent Notice of Violation, dated May 29, 1998.
2
The Blacks appealed, in accordance with the advice of the notice, to the Silver Spring
Township Zoning Hearing Board by letter dated June 17, 1998. In so appealing, however,
the Blacks expressly declined to concede that the zoning hearing board had jurisdiction over
the matter.3
A hearing on the appeal was held by the zoning hearing board on July 13, July 27, and
August 10, 1998. At the hearing, counsel for the Blacks reiterated their position that the
board was not the proper forum for a resolution of the dispute under the ordinance in
question.4 However, the board's solicitor concluded that the board had jurisdiction to
proceed pursuant to Section 909.1 (a)(9) of the Municipalities Planning Code.5
On September 22, 1998, the zoning hearing board issued a decision denying the
Blacks' appeal from the enforcement notice of violation. The decision predicated the board's
jurisdiction upon Section 909.1 (a)(9) of the Municipalities Planning Code.6
On October 16, 1998, the Blacks filed a notice of appeal from the decision of the
board, docketed at No. 90-5951 Civil Term.7 The notice of appeal challenged the jurisdiction
of the board to have heard the matter, inter alia? A certified record of the proceedings was
3 See Letter from Andrew C. Sheely, Esq., to James E. Hall, Zoning Officer, dated
June 17, 1998.
4 N.T. 3-5, Hearing, July 13, 1998; N.T. 2-8, Hearing, July 27, 1998..
SSee N.T. 4, Hearing, July 27, 1998. This provision of the Municipalities Planning
Code is quoted hereafter in the text.
6 Findings and Order, Zoning Hearing Board of Silver Spring Township, Application
No. A-98-2, at 5-6.
7 Notice of Appeal of Jeffrey L. Black and Laurie A. Black from the September 22,
1998 Written Decision of the Silver Spring Township Zoning Hearing Board, filed October
16, 1998.
8 Id., paragraph 17.
thereafter filed by the board pursuant to a writ of certiorari issued by the prothonotary.
On October 26, 1998, the township filed a complaint in equity against the Blacks,
docketed at No. 98-6101 Equity Term; the complaint alleged an unpermitted "land
disturbance activity," interfering with a natural watercourse, on the part of the defendants,
in violation of the municipality's storm water management ordinance.9 More specifically,
the one-count, sixteen-paragraph complaint included these averments:
6. Subsequent to October 16, 1995, Defendants installed
on Black Land certain soil and other materials generally in the
area of the watercourse mentioned in paragraph 5 above, thereby
preventing the natural flow of stormwater through the Black
Land and causing such water to accumulate and pond on lands
adjoining Black Land.
7. On October 11, 1995, Plaintiff, in its legislative
capacity, enacted Ordinance No. 95-13 entitled "Silver Spring
Township Storm Water Management Ordinance" (hereinafter
called "Ordinance"), which became effective on October 16,
1995.
8. Said Ordinance requires a Storm Water Management
Permit to be applied for and issued by Plaintiff before any
person engages in Land Disturbance Activity, which latter term
is defined in said Ordinance to include "[d]iversion or piping of
any natural or man-made watercourse."
9. The activities averred in paragraph 6 hereinabove
constituted Land Disturbance Activity.
10. Defendants failed to comply with the permitting
requirements of the Ordinance before engaging in the Land
Disturbance Activity.
11. Defendants' Land Disturbance Activity does not
comply with any of the substantive requirements of the
Ordinance.
9 Plaintif('s Complaint, paragraphs 4-15.
4
The complaint requested prohibitory and mandatory injunctive relief, l° In addition,
it sought an award of "attorney's fees, expenses and costs of [the] action.''~
Preliminary objections were filed by the Blacks to the township's complaint on
November 17, 1998. The preliminary objections sought (a) dismissal of the complaint on
jurisdictional grounds related to the existence of an adequate remedy at law and state agency
jurisdiction, (b) dismissal of the complaint on ground of the pendency of a prior action, (c)
dismissal of the complaint and dismissal of the claim for attorney's fees on ground of legal
insufficiency of the pleading, (d) a striking of the complaint on ground of a failure to
segregate separate causes of action in separate counts, and (e) a direction for a more specific
complaint, identifying the ordinance sections allegedly violated.~2
DISCUSSION
Black v. Zoning Hearing Board
No. 95-5951 Civil Term
The enabling act for the adoption of a storm water management ordinance by a
municipality is the Storm Water Management Act? The basic enabling act for the adoption
Id., claim for relief clause.
ll/d.
Preliminary Objections of Defendants to Plaintiff's Complaint, paragraphs 8-30.
13 Act of October 4, 1978, P.L. 864, §§ 1 et seq., as amended, 32 P.S. §§ 680.1 et seq.
Section 1 l(b) of the act provides as follows:
Within six months following adoption and approval of
the watershed storm water plan [by the county], each
municipality shall adopt or amend, and shall implement such
ordinances and regulations, including zoning, subdivision and
development, building code, and erosion and sedimentation
ordinances, as are necessary to regulate development within the
municipality in a manner consistent with the applicable
watershed storm water plan and the provisions of this act.
of zoning and subdivision and land development ordinances by municipalities is the
Pennsylvania Municipalities Planning Code.~4
Jurisdiction of the zoning hearing board in the present case to hear a violation of the
township's storm water management ordinance was predicated upon Section 909.1 (a) (9) of
the Municipalities Planning Code. This provision reads as follows:
The zoning hearing board shall have exclusive
jurisdiction to hear and render final adjudications in the
following matters: ... [a]ppeals from the determination of the
zoning officer or municipal engineer in the administration of
any land use ordinance or provision thereof with reference to
sedimentation and erosion control and storm water management
15
A "land-use ordinance" is defined in the Municipalities Planning Code as "any
ordinance or map adopted pursuant to the authority granted in Articles IV, V, VI and VII [of
the Code].''~6 The articles mentioned relate to official maps, subdivision and land
development, zoning, and planned residential development; none of these articles was
implicated in the notice of violation sent by the township's zoning officer and code
enforcement officer in the present case.
It appearing that the notice which was appealed to the zoning hearing board herein did
not involve the administration of a land use ordinance or a provision thereof, it follows that
the board did not have jurisdiction under Section 909.1 (a)(9) of the Municipalities Planning
Id., 9 1 l(b), 32 P.S. 9 680.1 l(b).
14 Act of July 31, 1968, P.L. 805, §9 101 etseq., as amended, 53 P.S. 9§ 10101 etseq.
See specifically Sections 501 (subdivision and development ordinances) and 601 (zoning
ordinances) of the Code. Id., 99 501,601, as amended, 53 P.S. 9§ 10501, 10601.
~s Act of July 31, P.L. 805, 9 909.1(a)(9), as added, 53 P.S. 9 10909.1(a)(9) (emphasis
added).
16 Id.,: § '107(b), 53 P.S. 9 10107(b).
6
Code to resolve the dispute between the parties. Although it is understandable that the
Blacks followed the advice as to appeals contained in the notice of violation, and that the
board acted in response to the appeal which was presented to it, the absence of jurisdiction
requires that the board's decision be vacated.
Township of Silver Spring v. Black
No. 98-6101 Equi .ty Term
With respect to the preliminary objections filed by the Blacks to the township's
complaint at No. 98-6101 Equity Term, it may be noted preliminarily that, in addition to
authorizing the adoption of storm water management ordinances,17 the Storm Water
Management Act expressly permits municipal enforcement of such ordinances by actions in
equity:
(a) Any activity conducted in violation of this act ... or
ordinances adopted hereunder ... is hereby declared to be a
public nuisance.
(b) Suits to restrain, prevent or abate violation of this act
or of any ... ordinances adopted hereunder, may be instituted in
equity or at law by ... any affected ... municipality .... The
expense of such proceedings shall be recoverable from the
violator in such manner as may now or hereafter be provided by
law?
The Blacks' preliminary objections challenging the township's complaint on the basis
of the existence of an adequate remedy at law, state agency jurisdiction, and failure to state
a 'cognizable claim seem to the court to be inconsistent with the statutory provisions
authorizing the adoption of storm water management ordinances by municipalities and
providing for their enforcement in equity. Where possible, statutory provisions are to be
See note 13 supra and accompanying text.
Act of October 4, 1978, P.L. 864, § 15(a), (b), 32 P.S. § 680.15(a), (b).
7
given effect rather than regarded as inconsequential.19 For this reason, the preliminary
objections so based can not be sustained.
The Blacks' preliminary objection premised upon the pendency of a prior action has
been mooted by the court's vacation of the zoning hearing board's decision at No. 98-5951
Civil Term. Accordingly, the motion to dismiss pursuant to Pennsylvania Rule of Civil
Procedure 1028(6) will also be denied.
With regard to the Blacks' preliminary objection in the form of a motion to dismiss
the township's request for attorney's fees, Pennsylvania adheres to the "American rule" as
the recovery of counsel fees:
The customarily applied "American rule" provides that
there can be no recovery of counsel fees from an adverse party
in the absence of express statutory allowance of attorney's fees,
a clear contractual agreement between the parties, or some other
established exception permitting attorney's fees in a given
situation?
"Statutory provisions ... which depart from the general 'American Rule' that each
party is responsible for his or her own attorney's fees, are generally enacted where the
legislature wishes to encourage potential plaintiffs to seek vindication of important rights and
to deter defendants from conduct violating those rights.''2~ Normally, a statutory exception
to the general rule will specifically identify counsel fees as a collectible item. See, e.g., Act
of December 19, 1990, P.L. 1240, 52, as amended, 23 Pa. C.S. 6108(a)(8) (1998 Supp.)
("reasonable attorney fees" recoverable in action under Protection from Abuse Act).
In the absence of more specific statutory authorization for recovery of attorney's fees
~9 See Act of December 6, 1972, P.L. 1339, § 3, 1 Pa. C.S. § 1921(a).
20 Pennsylvania State Police v. Benny Enterprises, Inc., 669 A.2d 1018, 1022 (Pa.
Commw. Ct. 1995); see Act of July 9, 1976, P.L. 586, § 2, as amended, 42 Pa. C.S.
§1726(a)(1) (1998 Supp.).
2~ KrassnOski v. Rosey, 454 Pa. Super. 78, 83, 684 A.2d 635,637-38 (1996).
8
than language allowing collection of "[t]he expense of such proceedings ... in such manner
as may now or hereal2er be provided by law," the court is constrained to conclude that
attorney's fees are not recoverable as a matter of course in a civil action brought by a
municipality under Section 15 of the Stormwater Management Act. For this reason, the
Blacks' preliminary objection in the form of a motion to dismiss the township's claim for
attorney's fees will be sustained.
With regard to the preliminary objection requesting that the complaint be stricken for
contravening the rule that separate causes of action should be pled in separate counts,22 a
review of the complaint does not indicate such a breach. The complaint, in the court's view,
sets forth a single cause of action, for violation of the municipality's storm water
management ordinance -- a claim authorized by the state's Storm Water Management Act.
The request that the complaint be stricken for lack of conformity with Pennsylvania Rule of
Civil Procedure 1020(a), therefore, can not be sustained.
Finally, with regard to the Blacks' preliminary objection to the township's complaint
in the form of a motion for a more specific pleading, it has been said that
[t]he question to be decided when a preliminary objection in the
form of a motion for a more specific pleading is interposed.., is
whether [the] pleading is sufficiently clear to enable an opposing
party to prepare a response .... ,,23
"In general, when a party states a case in a manner that fully advises an opponent of
the nature of the case and of the matters with which the opponent will be confronted at trial,
there is no need for a motion for a more specific pleading; the opponent should seek
discovery if he or she needs more information.''24 In the present case, the court is of the view
22 See Pa. R.C.P. 1020(a).
23 2 Goodrich-Amram 2d § 1017(b): 21, at 265 (1991).
24 Id..§ 10i7(b):24, at 268.
9
that the contention of the township is sufficiently clear from the complaint to enable the
Blacks to prepare a response, and that further detail as to the claim against them can be
properly relegated to the discovery process. The motion for a more specific complaint will,
therefore, also be denied.
ORDER OF COURT
AND NOW, this 10th day of March, 1999, after careful consideration of the land use
appeal docketed at No. 98-5951 Civil Term, and of the preliminary objections to the
complaint filed at No. 98-6101 Equity Term, and for the reasons stated in the accompanying
opinion, it is ordered and directed as follows:
1. At No. 98-5951 Civil Term, the decision of Appellee
at Application No. A-98-2, dated September 22, 1998, is
vacated.
2. At No. 98-6101 Equity Term, Defendants' preliminary
objection in the form of a motion to dismiss Plaintiff's claim for
attorney's fees is sustained; Defendants' remaining preliminary
objections are denied.
BY THE COURT,
Andrew C. Sheely, Esq.
127 South Market St.
P.O. Box 95
Mechanicsburg, PA 17055
Attorney for Jeffrey L. Black
and Laurie A. Black
/s/J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
10
Steven J. Weingarten, Esq.
Carol A. Steinour, Esq.
McNees, Wallace & Nurick
100 Pine St.
P.O. Box 1166
Harrisburg, PA 17108-1166
Attorneys for the Zoning Hearing Board
of Silver Spring Township
Richard C. Snelbaker, Esq.
Philip H. Spare, Esq.
Snelbaker, Brenneman & Spare, P.C.
44 West Main St.
P.O. Box 318
Mechanicsburg, PA 17055
Attorneys for the Township
of Silver Spring
11