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HomeMy WebLinkAbout2004-5198 Civil DEREK HATHAWAY, MARGARET HATHAWAY, MARTIN SINGER, MALlNI SINGER, DAVID BECKER, PETER KHOURI and SONIA KHOURI, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. J.W. MUMPER CONSTRUCTION, INC., HEMPT REALTY, LTD, JAMES W. MUMPER, JR., JAY E. SIMONS, KATHLEEN C. SIMONS AND SILVER SPRING TOWNSHIP, DEFENDANTS 04-5198 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF ALL DEFENDANTS TO PLAINTIFFS' COMPLAINT BEFORE BAYLEY. J. AND HESS. J. OPINION AND ORDER OF COURT Bayley, J., February 17, 2005:-- On October 15, 2004, plaintiffs, Derek Hathaway, Margaret Hathaway, Martin Singer, Malini Singer, David Becker, Peter Khouri and Sonia Khouri, filed a complaint, pursuant to the Municipalities Planning Code (MPC), 53 P.S. Section 10617, seeking a permanent injunction against J.W. Mumper Construction, Inc., Hempt Realty, L TD, James W. Mumper, Jr., Jay E. Simons and Kathleen C. Simons: [r]estraining the Defendants from maintaining the Storm Water Structures within the thirty-five (35) foot rear yard area of Lot 62, requiring the removal of said Storm Water Structures from the rear yard area of Lot 62, awarding costs and reasonable attorneys' fees to Plaintiffs, and for such other relief as may be just and equitable in the circumstances. 04-5198 CIVIL TERM In their complaint, plaintiffs also seek an order against defendant, Silver Spring Township requiring the Township to enforce its zoning ordinance. All defendants filed preliminary objections which were briefed and argued on February 2,2005. Plaintiffs aver in their complaint that they are the owners of real properties where they live in homes on Northwatch Lane in Silver Spring Township, Cumberland County. The properties are adjacent to Lot 62 in Phase IV of the Hillside Farms Development. Lot 62 is owned by defendants, Jay E. Simons and Kathleen C. Simons, on which they live in a home. In 2003, Detention Basin B, a storm water structure, was constructed on Lot 62 by defendants J.W. Mumper Construction, Inc., Hempt Realty, L TD, James W. Mumper, Jr., (Developers), immediately adjacent to the plaintiffs' properties. It consists, in part, of a filled earthen embankment, four concrete outlet headwalls, four thirty feet long 35" x 24" elliptical steel pipes and a riplrap outlet apron. The storm water structure is within thirty-five feet of the rear property line and within the rear yard of Lot 62. Lot 62 is in an R-3 zoning district. The Silver Spring Township Zoning Ordinance prohibits the construction or maintenance of any "structures" within the thirty-five foot rear yard areas of lots in the R-3 residential zone. Neither the Developers nor the Simons ever applied for or received any permits or variances from Silver Spring Township authorizing the construction or maintenance of the storm water structure within the thirty-five foot rear yard area of Lot 62. Plaintiffs allege, that as a result of the placement of the storm water structure on -2- 04-5198 CIVIL TERM Lot 62 in violation of the Zoning Ordinance, they have suffered substantial injury as follows: (1) The construction and maintenance of the Storm Water Structures within the thirty-five (35) foot rear yard area of Lot 62 has resulted in the collection, concentration and release of increased amounts of storm water at increased rates of flow from the Defendants' properties across the Plaintiffs' properties and has resulted in severe and frequent releases of storm water, flooding, silting, erosion, sinkage, standing water, possible damage to Plaintiff's on-lot septic systems and resulting health hazards on the Plaintiffs' properties, thereby constituting continued trespasses and nuisances reducing the Plaintiffs' use and enjoyment of their Properties and reducing the value(s) of the Plaintiffs' properties. (2) The construction and maintenance of the Storm Water Structures within the rear yard area of Lot 62 in close proximity to and in full view of the Plaintiffs' properties reduces the Plaintiffs' use and enjoyment of the Plaintiffs' properties and has impaired the value(s) of the Plaintiffs' properties. Plaintiffs aver that pursuant to Section 1 001.4A of the Silver Spring Township Zoning Ordinance, and the MPC at 53 P.S. Section 10614, they requested that the Township Zoning Officer enforce the Zoning Ordinance with respect to the alleged violation. On May 11,2004, the Zoning Officer issued a Determination declining to do so. On June 9, 2004, plaintiffs filed an appeal from the Determination of the Silver Spring Township Zoning Hearing Board. At a hearing, the defendants moved to dismiss the appeal, asserting lack of subject matter jurisdiction under Section 10914.1 of the MPC, because it was filed untimely. On August 9, 2004, the Zoning Hearing Board dismissed the appeal for lack of subject matter jurisdiction. On September 7, 2004, plaintiffs filed a "Notice of Land Use Appeal" in this court from the decision of the Zoning Hearing Board. The appeal is pending at No. 04-4497. -3- 04-5198 CIVIL TERM I. Silver Spring Township maintains that it should be dismissed as a defendant because Section 617 of the MPC does not authorize a private cause of action against a municipality for the enforcement of a zoning ordinance. Section 617 provides: Causes of Action. 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 an 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. When any such action is instituted by a landowner or tenant, notice of that action shall be served upon the municipality at least 30 days prior to the time the action is begun by serving a copy of the complaint on the governing body of the municipality. No such action may be maintained until such notice has been given. (Emphasis added.) In Hanson v. Lower Frederick Township Board of Supervisors, 667 A.2d 1221 (Pa. Commw. 1995), Hanson filed a complaint in mandamus seeking to order the supervisors of Lower Frederick Township to enforce the Township zoning ordinance against an adjoining property owner. Hanson alleged eight specific instances whereby the adjoining property owner's commercial activities and structures violated the zoning ordinance which the Township refused to enforce. The trial court sustained preliminary objections of the Township to the mandamus action. The Commonwealth Court affirmed, stating: We cannot entirely accept the Township's argument. Exclusive jurisdiction of the zoning board may exist, but the action for mandamus, if -4- 04-5198 CIVIL TERM proper, is specifically excluded from that jurisdiction by Section 910.1 of the MPC, and this Court has so held in Stoner v. Township of Lower Merion, 138 Pa.Cmwlth, 257, 587 A.2d 879 (1991). However, we nevertheless affirm the decision of the trial court because the MPC specifically provides the procedure by which an adjoining landowner can seek relief from a violation of the zoning laws by his neighbor, Section 617 of the MPC, 53 P.S. S 10617, provides. . . for a more direct and orderly procedure than an action in mandamus, which would at most order the Township to enforce ordinances and probably precipitate more litigation directly involving [the adjoining landowner]. Indeed, Hanson's own brief points out the desirability of a procedure other than mandamus. Hanson quotes Frye Construction, Inc. v. City of Monongahela, 526 Pa. 170, 175, 584 A.2d 946, 948 (1991): Appellant could not, in the instant case, achieve the desired enforcement remedy, i.e., the removal of the offending structures, before the City Zoning Board or other authorities. At best, it could mandamus city officials to take enforcement action. Since section 617 provides Hanson with a remedy, mandamus under such circumstances is not appropriate. Hellertown Manufacturing Company v. Scheiner, 96 Pa. Cmwlth. 156, 506 A.2d 487 (1986) (mandamus will issue to compel performance of a mandatory act, where the right to relief is clear and no other adequate and appropriate remedy exists). In the case sub judice, plaintiffs' complaint seeks an order requiring the Township to enforce its Zoning Ordinance. That is the equivalent of an action in mandamus. Section 617 of the MPC only requires that notice of an action brought under the Section be given to the municipality. It allows an aggrieved landowner to seek an order of court enforcing a zoning ordinance. There is no legal basis for joining the municipality as a defendant. Accordingly, the complaint against Silver Spring Township will be dismissed. II. The Simons maintain that the complaint fails to state a claim for which relief may be granted against them. Plaintiffs argue that the Simons are indispensable parties. -5- 04-5198 CIVIL TERM An indispensable party is one whose rights are so directly connected with and affected by litigation that he must be a party of record to protect such rights, and his absence renders any order or decree of court null and void for want of jurisdiction. Columbia Gas Transmission Corporation v. Diamond Fuel Company, 464 Pa. 377 (1975). The Simons, noting that plaintiffs fail to aver any facts alleging that they committed any act which violated the Silver Spring Township Zoning Ordinance, argue that this is not a claim where plaintiffs seek to determine the scope or location of a particular easement which requires that the owner of a servient tenement be joined. See Nelson by Nelson v. Dibble, 353 Pa. Super. 537 (1986). Nor do plaintiffs claim that they have interfered with the owners of the dominant tenant's use of the easement over their property. See Columbia Gas Transmission Corporation, supra. Notwithstanding that plaintiffs have not alleged that the Simons are violating the Silver Spring Township Zoning Ordinance, the relief they seek is not only to enjoin the owner of the dominant tenant's use of the easement over the Simons' property, but also the removal of the alleged "structure" constituting the easement from their backyard. The Simons are the owner in fee simple of the land which is involved in this lawsuit. This litigation can directly affect their property. That makes them indispensable parties whose rights must be protected. See Scherbick v. Community College of Allegheny County, 479 Pa. 216 (1978). III. Defendants seek to strike plaintiffs' claim for attorney fees. Plaintiffs' complaint is based on a statutory remedy in Section 617 of the MPC which does not provide for -6- 04-5198 CIVIL TERM an award of attorney fees. Nor have plaintiffs made any claim for attorney fees pursuant to the Judicial Code at 42 Pa.C.S. Section 2503. There can be no recovery for attorney fees absence an express statutory authorization, a clear agreement by the parties, or some other established exception. Merlino v. Delaware County, 728 A.2d 949 (Pa. 1999). Accordingly, plaintiffs' claim for attorney fees will be stricken. See Hudock v. Donegal Mutual Insurance Company, 438 Pa. 272 (1970). IV. Pursuant to Pa. Rule of Civil Procedure 1028(a)(6), defendants' object to plaintiffs' complaint based on the pendency of a prior action which they claim is the land use appeal that is now in this court. The pendency of a prior action exists where the prior case is the same, the parties are the same, and the relief requested is the same. Crutch Field v. Eaton Corporation, 806 A.2d 1259 (Pa. Super. 2002). Defendants' position is not consistent with Section 617 of the MPC which specifically provides that a party may institute a private action to prevent a use constituting a violation of a zoning ordinance "in addition to other remedies." Thus, a Section 617 claim may be pursued concurrently with other remedies. This resolution makes it unnecessary to analyze plaintiffs' argument that the relief requested in this case is not the same as in the land use appeal, the nature of the actions are different, and the parties to the actions are different. V. The Developers' demurrer to plaintiffs' complaint maintaining that it should be dismissed because Detention Basin B on the easement on Lot 62 is an "ancillary structure" allowed by the Silver Spring Township Zoning Ordinance. The Simons' -7- 04-5198 CIVIL TERM similarly demur and, in addition, maintain that Detention Basin B constitutes an "accessory structure" allowed on Lot 62 by the Zoning Ordinance. As set forth in McMahon v. Shea, 688 A.2d 1179 (Pa. 1997), in a demurrer: [alII material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true. . . [and the] question presented by the demurrer is whether, on the facts averred, the law states with certainty that no recovery is possible. While the parties have briefed these issues we are not prepared to conclude at this initial pleading stage that it appears with certainty that there cannot be a remedy based on the averments in the complaint. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of February, 2005, IT IS ORDERED: (1) Plaintiffs' complaint against defendant, Silver Spring Township, IS DISMISSED. (2) The claim in plaintiffs' complaint for attorney fees, IS STRICKEN. (3) All other preliminary objections of all defendants to plaintiffs' complaint, ARE DISMISSED. By the Court, Edgar B. Bayley, J. -8- 04-5198 CIVIL TERM Dean F. Piermattei, Esquire For Plaintiffs Alexandra C. Chiaruttini, Esquire For J.W. Mumper Construction, Inc., Hempt Realty, L TD, James W. Mumper, Jr. Charles O. Beckley, II, Esquire For Jay E. Simons and Kathleen C. Simons :sal -9-