DO NOT PUBLISH ________ XXX MAY BE PUBLISHED

Township of West Hempfield v. Heisey – No. CI-11-05822 – Cullen, J. – July 16, 2015 – Appeal

from Decision of Magisterial District Judge – Pennsylvania Municipalities Planning Code

(MPC) – Zoning Ordinance – Attorney’s Fees – Injunctive Relief

Section 10616.1 of the Pennsylvania Municipalities Planning Code (“MPC”), 53 P.S. §§

10101 et. seq., provides, in relevant part:

(a) If it appears to the municipality that a violation of any zoning ordinance enacted under

this act or prior enabling laws has occurred, the municipality shall initiate enforcement

proceedings by sending an enforcement notice as provided in this section.

(b) The enforcement notice shall be sent to the owner of record of the parcel on which the

violation has occurred, to any person who has filed a written request to receive enforcement

notices regarding that parcel, and to any other person requested in writing by the owner of record.

(c) An enforcement notice shall state at least the following:

(1) The name of the owner of record and any other person against

whom the municipality intends to take action.

(2) The location of the property in violation.

(3) The specific violation with a description of the requirements

which have not been met, citing in each instance the applicable

provisions of the ordinance.

(4) The date before which the steps for compliance must be

commenced and the date before which the steps must be

completed.

(5) That the recipient of the notice has the right to appeal to the

zoning hearing board within a prescribed period of time in

accordance with procedures set forth in the ordinance.

(6) That failure to comply with the notice within the time specified,

unless extended by appeal to the zoning hearing board, constitutes

a violation, with possible sanctions clearly described.

. . . .

53 P.S. § 10616.1(a),(b),(c)(1-6).

An enforcement notice shall indicate the specific violation and provide a specific citation,

in accordance with section 10616.1 of the MPC. In the absence of a township or municipality’s

compliance with 10616.1, relief cannot be granted.

The Court may not undertake a de novo review of whether Defendant violated the

ordinances on specific instances described in the enforcement notice.

The MPC provides that where a municipality prevails in a civil zoning enforcement

proceeding, it may collect a reasonable attorney’s fee. It is within the trial judge’s discretion to

reduce an attorney’s fee where a municipality is only partially successful in proving the

allegations of its complaint.

Section 10617 of the MPC empowers municipalities to seek equitable relief to restrain

violations of their zoning ordinances. A municipality may seek an injunction even where other

remedies at law are available, and proof of irreparable harm above and beyond the violation of

the ordinance is not required. A claim for a permanent injunction requires a party to establish

his or her clear right to relief.

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA

CIVIL ACTION

TOWNSHIP OF WEST HEMPFIELD, :

Lancaster County, Pennsylvania, :

Plaintiff :

:

vs. : No. CI-11-05822

:

DANIEL HEISEY, :

Defendant :

MEMORANDUM AND DECISION

BY CULLEN, J.

This matter is an appeal from the decision of a magisterial district judge in favor of Plaintiff, Township of West Hempfield, and

against Defendant, Daniel Heisey, in an action for civil penalties under the Pennsylvania Municipalities Planning Code (“MPC”)1 for

violations of the Township’s zoning ordinance. On May 4, 2011, the magisterial district judge awarded a civil judgment against Defendant

in the amount of $5,000 together with attorney’s fees and costs in the sum of $1,363.74 for a total of $6,363.74.

153 P.S. §§ 10101 et seq.

On June 3, 2011, Defendant filed a notice of appeal and ruled Plaintiff to file a complaint. On June 10, 2011, Plaintiff filed its

complaint seeking civil penalties for Defendant’s violation of the Township’s zoning ordinance. On July 12, 2011, Defendant filed an

answer with new matter and on July 25, 2011, Plaintiff replied to Defendant’s new matter.

A non-jury trial was held on December 16, 2014, and January 26, 2015. At the conclusion of the trial, the Court ordered the

notes of testimony transcribed and afforded counsel the opportunity to submit proposed findings of fact and conclusions of law as well as post

trial briefs. Both parties have complied, and the issues presented are ready for disposition.

Based on the evidence presented, and having resolved all issues of credibility, the Court finds the following facts.

Findings of Fact

1. Plaintiff, the Township of West Hempfield (“Township”), Lancaster County, is a municipal corporation organized and

existing under the laws of the Commonwealth of Pennsylvania with its municipal address located at 3401 Marietta Avenue, Lancaster,

Pennsylvania 17601. (Compl., ¶ 1; Ans., ¶ 1).

2. Defendant, Daniel Heisey, is an adult individual residing at a mailing address of

271-273 Prospect Road, Mount Joy, Pennsylvania (“the property”) in the Township. (N.T. 1/26/2015, p. 58).

3. The property is zoned Rural Agricultural. (N.T. 12/16/2014, p. 6).

4. Mr. Heisey has operated landscaping, excavating, roofing, home improvement and heating oil and diesel fuel delivery

businesses. (N.T. 1/26/2015, p. 6).

5. On October 8, 2002, the Zoning Hearing Board of West Hempfield Township issued a decision on Mr. Heisey’s application

for a variance denying his request to operate a fuel delivery business on the property or to locate vehicles related to a fuel delivery business on

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the property. (N.T. 12/16/2014, p. 9-10; Pl. Ex. 1). However, the decision did allow for the parking of a dump truck, tag-along equipment

trailer and a truck tractor on the property for Mr. Heisey’s landscaping/excavating businesses. (N.T. 12/16/2014, p. 9; Pl. Ex. 1).

6. Mr. Heisey appealed the October 8, 2002, West Hempfield Township Zoning Hearing Board decision to the Court of

Common Pleas where it was dismissed with prejudice on February 10, 2003. (N.T. 12/16/2014, p. 10; Pl. Ex. 2).

7. On October 5, 2004, the Township and Mr. Heisey entered into an agreement regarding zoning violations occasioned by Mr.

Heisey parking fuel trucks on the property in violation of the October 8, 2002, decision. The agreement permits the parking of fuel

trucks on the property only when the fuel trucks are in the process of delivering fuel to the structures on the property.2 (N.T. 12/16/2014,

p. 6; N.T. 1/26/2015, pp. 60-61; Pl. Ex. 8). Paragraph 6 of this agreement states in part, “Heisey acknowledges that if a fuel oil truck is

parked on the property for a period in excess of 30 minutes, Heisey will be in violation of the Decision, the Zoning Ordinance, and this

Consent Agreement.” (Pl. Ex. 8, ¶ 6).

8. Ron Youtz has been the Township’s Manager since 2008. He is also the records custodian for the Township and an

assistant zoning officer, a position to which he was appointed in May, 2012, and still held on December 16, 2014. (N.T. 12/16/2014, pp.

4-5).

2The October, 2004, agreement appears to have been executed by the parties in order to settle an equity action in the Court of Common Pleas docketed to

CI-04-03997. (Pl. Ex. 8, pp. 1-2). This equity action was an appeal by Mr. Heisey from the judgment of a magisterial district court judge against Mr. Heisey in the

amount of $2,842.25 for zoning violations covering the parking of fuel trucks on the property. (Id.).

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9. On October 14, 2014, the Township mailed Mr. Heisey, via certified mail and regular mail, a notice of violation cease and

desist order enforcement notice and a list of specific zoning violations at the property. (N.T. 12/16/2014, p. 13-15; Pl. Exs. 3, 4). These

violations included unlicensed and uninspected and/or inoperable vehicles (section 701.23), outdoor stockpiling and accumulations (section

701.19) and recreational vehicles (section 701.15). (Pl. Ex. 4).3

10. No testimony was offered at trial that Mr. Heisey appealed the October 14, 2010, enforcement notice to the Zoning Hearing

Board, and Mr. Heisey conceded that he did not appeal. (N.T. 12/16/2014, pp. 13-14; Def. post trial mem. prop. find. of fact, ¶ 9).

11. The Township incurred legal fees with respect to the enforcement proceedings in connection with Defendant’s zoning

violations. (N.T. 12/16/14, pp. 18-19).

Discussion

3In his answer to the Township’s complaint, Mr. Heisey claimed that he never received the notice. However, he conceded he lives at 271-273 Prospect

Road, Mount Joy. (N.T. 12/16/14, p. 68). He also admits that he, as equitable owner, applied to operate a fuel oil business at 271-273 Prospect Road, Mount Joy.

(N.T. 1/26/2015, pp. 51, 52).

6

The Township alleges that Mr. Heisey violated the October 8, 2002, decision of the Township’s Zoning Hearing Board by parking

fuel trucks on the property and failing to garage other commercial vehicles on the property. (See Pl. post trial mem. proposed concl. of law,

¶ 7-9; Pl. Ex. 1). The Township alleges that Mr. Heisey breached the October 5, 2004, agreement between Mr. Heisey and the Township by

parking fuel trucks on the property.4 (See Pl. post trial mem. proposed concl. of law, ¶ 9; Pl. Ex. 8). The Township also alleges that Mr.

Heisey has violated sections 701.23, 701.19, and 701.15 of the West Hempfield Township Zoning Ordinance. (See Pl. post trial mem.

proposed concl. of law, ¶¶ 7-8, proposed findings of fact, ¶ 10; Pl. Exs. 3, 4).

Mr. Heisey contends that the alleged zoning violations regarding the parking of

fuel trucks are not properly before the Court because the enforcement notice sent to

him in this case did not state or mention that the parking of fuel trucks was a zoning

violation. (Def. post trial mem., pp. 7-9). Additionally, Mr. Heisey claims that the

Township’s complaint does not allege that the Township is seeking relief for the alleged

violation of parking fuel trucks on the property. (Id. at pp. 7-8).

The Township concedes that the enforcement notice in this matter did not

mention that the parking of fuel trucks or other commercial vehicles was a zoning

violation. (See Pl. post trial mem., pp. 11-12; Pl. Exs. 3-4). The Township argues that

Mr. Heisey was served with an enforcement notice in a separate proceeding, in 2003,

which claimed that the parking of fuel trucks was a zoning violation. (See Pl. post trial

4While the Township offered evidence to show that Mr. Heisey has breached this agreement by parking fuel trucks on the property, the Township’s

complaint does not make any mention of the October 5, 2004, agreement or the parking of fuel trucks or allege a cause of action for breach of this agreement. (N.T.

12/16/2014, pp. 11-13).

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mem., p. 12). The Township argues that this is sufficient to bring the current alleged

violations for parking fuel trucks before the Court. (Id.).

For the reasons set forth below, the Court finds that any zoning violations for

parking fuel trucks on the property are not properly before the Court, and the Court will

not consider photographs or testimony purporting to show such violations.

Section 10616.1 of the Pennsylvania Municipalities Planning Code (“MPC”), 53

P.S. §§ 10101 et. seq., provides, in relevant part:

(a) If it appears to the municipality that a violation of any zoning ordinance enacted under this act or prior enabling laws has occurred, the municipality shall initiate enforcement proceedings by sending an enforcement notice as provided in this section.

(b) The enforcement notice shall be sent to the owner of record of the parcel on which the violation has occurred, to any person who has filed a written request to receive enforcement notices regarding that parcel, and to any other person requested in writing by the owner of record.

(c) An enforcement notice shall state at least the following:

(1) The name of the owner of record and any other person against whom the municipality intends to take action.

(2) The location of the property in violation.

(3) The specific violation with a description of the requirements which have not been met, citing in each instance the applicable provisions of the ordinance.

(4) The date before which the steps for compliance must be commenced and the date before which the steps must be completed.

(5) That the recipient of the notice has the right to appeal to the zoning hearing board within a prescribed period of time in accordance with procedures set forth in the ordinance.

8

(6) That failure to comply with the notice within the time specified, unless extended by appeal to the zoning hearing board, constitutes a violation, with possible sanctions clearly described.

. . . .

53 P.S. § 10616.1(a),(b),(c)(1-6).

The elements of an enforcement notice required by Section 10616.1(c)(1)-(6) of

the MPC are strictly construed. See Township of Maiden Creek v. Stutzman, 642 A.2d

600, 602 (Pa. Cmwlth. 1994). If a township fails to comply with 10616.1(c)(1)-(6), it

may not recover sanctions for a zoning violation. See Id., at 602-603. In Maiden

Creek, the landowner lived in area zoned “R-2 Medium Density Residential Zone”. Id.

at 600. The landowner applied for a zoning and building permit to sell handmade dolls

from an outdoor shed of a fixed size. Id. at 601. The township learned that the

landowner had begun to enlarge the shed beyond the fixed size, and the landowner

was selling items such as gazebos and lawn furniture from the shed. Id. The

township sent an enforcement notice to the landowner that claimed that the use of the

shed and the size of the shed were violations of the zoning ordinance. Id. at 601-02.

However, the enforcement notice incorrectly described the zoning district of the

landowner’s property as “Residential Agricultural Zone”, and did not name nor provide a

citation to the specific sections of the zoning ordinance that was allegedly violated by

the shed’s use and new size. Id. at 602. The trial court found that the landowner’s

use of the shed was a violation of the applicable zoning ordinance, and entered a

preliminary injunction directing, inter alia, that the landowner pay the township’s costs

and fees incurred in bringing the enforcement proceedings. Id. at 600-01. The

9

Commonwealth Court reversed, finding that the township did not comply with section

10616.1 of the MPC as the enforcement notice did not name the specific violations and

include citations to the applicable ordinance sections. Id. at 602. The Court found that

the language of 53 P.S. §10616.1(c)(3), directing that the enforcement notice shall

indicate the specific violation, was a strict requirement and the trial court erred by

entering the preliminary injunction where the township had not complied. See Id. at 602.

Section 10909.1 of the MPC gives a zoning hearing board exclusive jurisdiction

over zoning ordinance violation determinations. Johnston v. Upper Macungie Tp., 638

A.2d 408, 412 (Pa. Cmwlth. 1994). A landowner’s failure to appeal an enforcement

notice results in a final adjudication, or conclusive determination, that the landowner

violated the zoning ordinance. Woll v. Monaghan Township, 948 A.2d 933, 937 (Pa.

Cmwlth. 2008). A final adjudication or conclusive determination of a zoning violation

occasioned by the landowner’s failure to appeal is binding on a trial court, which may

not conduct a de novo review of whether the landowner violated the ordinance as

described in the notice. See Township of Penn v. Seymour, 708 A.2d 861, 864-65

(Pa. Cmwlth. 1998)(citations omitted). A trial court may, however, review the

appropriateness of the fine imposed by the magisterial district court in connection with

the final adjudication of a zoning violation occasioned by the landowner’s failure to

appeal. Seymour, 708 A.2d at 864-865.

If a landowner receives a zoning enforcement notice and continues to violate the

zoning ordinance without appealing the enforcement notice to the zoning hearing board,

the municipality may file a complaint with a magisterial district court for sanctions or

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initiate a complaint in equity to enjoin the landowner from further violations. Woll, 948

A.2d at 937 (citations omitted).

A magisterial district court’s role in zoning enforcement proceedings is limited to

hearing evidence that a landowner did not appeal a zoning enforcement notice and

thereby finding a conclusive determination of violation, and assessing fines where a

conclusive determination of violation exists or the zoning hearing board determines that

a violation has occurred. Johnston, 638 A.2d at 412; Woll, 948 A.2d at 938. A

magisterial district court can not undertake a de novo review of whether a landowner

has violated a zoning ordinance. See Johnston, 638 A.2d at 412; see also Woll, 948

A.2d at 937. However, a magisterial district court may hear evidence from the

landowner that the landowner had a good faith belief that he was not violating the

zoning ordinance, but this evidence can only be considered in determining the amount

of the fine to be assessed. Johnston, 638 A.2d at 412.

The Township claims that Mr. Heisey was served with an enforcement notice, in

a separate zoning enforcement proceeding in 2003, which alleged that the parking of

fuel trucks on the property was a zoning violation. (Pl. post trial mem., pp. 11-12).

The Township alleges that Mr. Heisey did not appeal the 2003 enforcement notice and,

therefore, a conclusive determination of a violation was made by the magisterial district

court that Mr. Heisey violated the zoning ordinance relating to the parking fuel trucks.

(Id. at p. 12). The Township argues that “once a final adjudication of a violation has

been made, the Township is entitled to seek sanctions for continuing violations of the

activity that is already conclusively determined to be a violation.” (Id. at 12). Neither

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party offered a 2003 enforcement notice as evidence, and the Court will not speculate

as to its existence and content.

The Township suggests that it may initiate zoning enforcement proceedings at a

magisterial district court without first serving Mr. Heisey with an enforcement notice.

(Id.) In support of this argument, the Township cites Woll v. Monaghan Township, 948

A.2d 933 (Pa. Cmwlth. 2008). This argument lacks merit.

Woll noted that where a landowner continues to violate an ordinance without

appealing an enforcement notice, the Township may file a complaint at the magisterial

district court for sanctions. Woll, 948 A.2d at 937. These sanctions are for the

specific instances of zoning violations contained in the enforcement notice. See

Johnston, 638 A.2d at 412; Woll, 948 A.2d at 937.

Plaintiff has not cited, and the Court has not located, any authority to suggest

that a magisterial district court has the power to find that a landowner has violated a

zoning ordinance on a specific date which is not contained within an enforcement notice

or which has not been found by a zoning hearing board and then to impose additional

sanctions.

The Commonwealth Court has left little doubt that a magisterial district court

does not have jurisdiction to determine whether a landowner violated a zoning

ordinance outside of finding a conclusive determination of violation based solely on the

landowner’s failure to appeal an enforcement notice. Johnston, 638 A.2d at 412

(“section 909.1 of the MPC gives zoning hearing boards exclusive jurisdiction over

ordinance violation determinations.”); Woll, 948 A.2d at 937 (“The MPC does not confer

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upon the magisterial district justice jurisdiction to hear appeals from notices of violations

. . . ”). If a magisterial district court hears credible evidence that a landowner has failed

to appeal a zoning enforcement notice, this failure to appeal creates a conclusive

determination of a violation which is binding on the magisterial district court. Johnston,

638 A.2d at 412 (“The language of sections 616 and 617 can be interpreted to mean

that a district justice's role in the enforcement proceeding is (1) to accept evidence that

a landowner violated the ordinance, based on the decision not to appeal a notice of

zoning ordinance violation--a fact then binding on the district justice . . . ”).

The Commonwealth Court has also held that an enforcement notice shall

indicate the specific violation and provide a specific citation, in accordance with section

10616.1 of the MPC. Maiden Creek, 642 A.2d at 602. In the absence of a township

or municipality’s compliance with 10616.1, relief cannot be granted. Id. In this case,

the Township never provided Mr. Heisey with an enforcement notice that claimed the

parking of fuel trucks was a violation of the Township’s Zoning Ordinance. Thus, the

Court is bound by the Commonwealth Court’s ruling in Maiden Creek, and it cannot

afford relief with respect to any ordinance violation regarding the parking of fuel trucks.

The Township also claims that Mr. Heisey violated sections 701.19, 701.23 and 701.15 of the West Hempfield Township Zoning

Ordinance. These sections provide, in relevant part:

OUTDOOR STOCKPILING AND ACCUMULATIONS

The following regulations shall apply in all zoning districts:

A. No outdoor stockpiling of any material or outdoor storage of trash is permitted in the front yard. In any

13

residential district, the outdoor stockpiling of materials (except firewood) for more than thirty (30) days is prohibited.

B. The outdoor accumulation of trash, garbage, refuse, or junk for a period exceeding fifteen (15) days is prohibited.

West Hempfield Township Zoning Ordinance § 701.19.

UNLICENSED AND UNINSPECTED AND/OR INOPERABLE VEHICLES

Automotive vehicles, including inoperable motor vehicles and/or trailers of any kind or type, without a current license

plate and current inspection shall not be parked or stored on any property in excess of thirty (30) days unless such

vehicle shall be located within a completely enclosed building.

West Hempfield Township Zoning Ordinance § 701.23.

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RECREATION VEHICLES

Recreation vehicles, trailers and boats (including boat trailers) may be parked or stored in any zoning district subject to

the following regulations:

A. Parking or storage is permitted at any time inside an enclosed structure,

which structure conforms to the zoning requirements of the particular

district.

B. Parking or storage is permitted outside only in the side yard, the rear yard, or partially in both, provided:

1. Inside parking or storage is not possible.

2. The unit is not located nearer than three (3) feet to the side or rear lot line.

3. The unit can be parked or stored in a safe and secure manner so as not to be a hazard to either persons

or property.

4. The unit shall be located behind the building line of the dwelling.

C. While parked or stored, a recreation vehicle, trailer or boat shall not be:

1. Used or occupied for dwelling purposes, except for sleeping by visitors of the owner or occupant of the

lot for a period not exceeding

14 days in any one calendar year.

2. Permanently or temporarily connected to sewer lines, or permanently connected to water or electrical

lines. A unit may be temporarily connected to water and electric lines while used during the times specified in

paragraph (1) of this subsection or while being loaded, unloaded or serviced as provided in subsection D hereof.

3. Used for storage of goods, materials, or equipment other than those items considered to be part of the

unit or essential for its immediate use.

D. Notwithstanding the provisions of subsections A and B, hereof, a unit may be parked anywhere on the lot during

active loading, unloading, or servicing of the unit for a period of time not in excess of thirty-six (36) hours.

E. A maximum of one unit may be stored on any lot of ten thousand (10,000) square feet or less. In no instance

shall any lot contain more than two units stored outdoors, unless it is a Township approved storage facility.

West Hempfield Township Zoning Ordinance § 701.15.

15

In support of these alleged violations, the Township offered the enforcement notice dated October 14, 2010, which includes

specific citations to and full descriptions of sections 701.19, 701.23 and 701.15, as well as specific dates of violations and the manner in which

Mr. Heisey violated the ordinance. (See Pl. Exs. 3-4). Mr. Heisey concedes that he did not appeal this enforcement notice to the Zoning

Hearing Board. (Def. prop. find. of fact, ¶ 9). The Township argues that Mr. Heisey’s failure to appeal the enforcement notice conclusively

determines that he violated sections 701.19, 701.23 and 701.15, as described in the enforcement notice. (Pl. post trial mem. prop. find. of

fact, ¶ 9). The Court finds that Mr. Heisey’s failure to appeal the zoning enforcement notice makes the specific violations contained therein

conclusively established. Woll, 948 A.2d at 937. The Court may not undertake a de novo review of whether Mr. Heisey violated the

ordinances on the specific instances described in the enforcement notice. See Woll v. Monaghan Township, 948

A.2d 933, 937 (Pa. Cmwlth. 2008); see also Township of Penn v. Seymour, 708 A.2d

861, 864-65 (Pa. Cmwlth. 1998).

The magisterial district court awarded the Township $5,000 in the form of a fine and an additional $1,363.74 in attorney’s fees and

costs. The parties have not offered evidence that shows which portion of that judgment is attributable to the violations of sections 701.19,

701.23 and 701.15, and it is not apparent from the magisterial district court docket.

With respect to section 701.19, the enforcement notice states, “On 10/08/10 there were piles of materials accumulated on the

property that have been there for at least two weeks.” (Pl. Ex. 4). There is no description of how many piles were present. The Court

will not speculate as to how many separate zoning violations are represented by a description of “piles” on the property. Instead, the Court

will impose a fine5 for a single violation of section 701.19.

5Pursuant to section 10617.2 (a), a Court may enter judgment of not more than $500 dollars plus all court costs, including reasonable attorney’s fees, for each

zoning violation. See Loganville Borough v. Godfrey, 59 A.3d 1149, 1151 (Pa. Cmwlth. 2012).

16

With respect to section 701.23, the enforcement notice states, “On 10/08/10 there were two commercial vehicles on the property

that were stored outside of a building and were not licensed or inspected. On 10/08/10 there was a vehicle up on jacks with many parts

removed that was stored outside a building.” (Pl. Ex. 4). The Court notes that there are three separate violations listed under section

701.23 of the zoning ordinance.

With respect to section 701.15, the enforcement notice states, “On 10/08/10 there were four boats and a travel trailer located on the

property that have been there at least four weeks.” Since there was no testimony on whether the lot where the property is located is greater

than 10,000 square feet, it is unclear whether Mr. Heisey may park one or two recreational vehicles outside his property, without violating the

zoning ordinance. (See West Hempfield Township Zoning Ordinance § 701.15, (E)). The Court finds that the enforcement notice lists

three violations.

The Township seeks to prove additional zoning violations of sections 701.19 and 701.23 (Pl. post trial mem. prop. concl. of law

¶¶ 7-8). In support of this position, the Township offered several photographs, collectively marked as Exhibit 7. These photographs

purport to show violations committed by Mr. Heisey on various dates after October 14, 2010. Neither party introduced evidence that

another enforcement notice was served on Mr. Heisey with respect to the violations after October 14, 2010. Therefore, the Township may

not seek sanctions for these alleged violations and the Court may not usurp the power of the zoning authorities and determine whether Mr.

Heisey has committed zoning violations outside of those contained in the October 14, 2010 enforcement notice.6 Maiden Creek, supra,

Johnston, supra.

6The Court has determined that it may not consider evidence of zoning violations committed after October 14, 2010; therefore, there is no need to consider

whether certain photographs offered in evidence are hearsay.

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The Township also alleges that Mr. Heisey has violated the October 8, 2002, decision of the West Hempfield Township Zoning

Hearing Board by failing to garage at least one of the commercial vehicles used in Mr. Heisey’s landscaping business at all times. (Pl. post

trial mem., p. 8, ¶ 9-12). In support of this position, the Township offered photograph A12.7 (See N.T. 12/16/2014, pp. 28-29; N.T.

1/26/15, pp. 26-27).

The 2002 Zoning Hearing Board decision was in response to Daniel Heisey and Lisa Shannon’s application to conduct

landscaping/excavating and fuel oil delivery businesses at the property. (See Pl. Ex. 1, pp. 3-4). Operation of these businesses are

non-conforming uses of the property, as it is located within the Rural Agricultural District. (Pl. Ex. 1, p.3). The Zoning Hearing Board

decision granted Mr. Heisey permission to operate a landscaping/excavating business and possess a dump truck, tag-along equipment trailer

and truck tractor in connection with this business, provided that one of these vehicles was “garaged on the property at all times.” (Pl. Ex. 1,

§ C).

7Plaintiff marked all of the photographs of the Heisey property collectively as Exhibit 7. At trial, the photographs were described by the Court and counsel

in an attempt to differentiate them. The Court has assigned a letter and number and attached a copy of photograph A12 for the sake of clarity.

It appears from the record that the October, 2010, enforcement notice did not allege that the failure to garage one of these vehicles

at all times was a zoning violation, nor did it cite any applicable section of the zoning ordinance or the 2002 Zoning Hearing Board decision

itself. (See Pl. Exs. 3, 4). There is also no record of any other enforcement notice that alleged a violation of this “garaging” requirement.

For the reasons explained previously, the Court cannot consider any photograph that purports to show a violation of a zoning

ordinance where the Township has not complied with the strict requirements contained in 53 P.S. § 10616.1 with respect to that violation.

Maiden Creek, supra.

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The parties also dispute the reasonable amount of attorney’s’ fees. The Township introduced evidence at trial that it incurred

$5,762.50 in legal fees with respect to enforcement proceedings for Defendant’s zoning violations. (N.T. 12/16/14, pp. 18-19; see Pl. Ex. 6).

The Township claims that this amount does not include the time spent attending trial or preparing its post trial memorandum. (Pl. post

trial mem., p. 14). Mr. Heisey responds by arguing that if attorney’s fees are awarded to the Township, the amount awarded should be

one-third to one-half of $5,762.50, as the Township has only proven a small portion of its case. (Def. post trial mem., p. 13).

The MPC provides that where a municipality prevails in a civil zoning enforcement proceeding, it may collect a reasonable

attorney’s fee. See 53 P.S. § 10617.2 (a). An award of attorney’s fees is proper commencing with the enforcement notice. Township of

South Whitehall v. Karoly, 891 A.2d 780, 784 (Pa. Cmwlth. 2006), appeal denied, 588 Pa. 787 (Pa. 2006) (citing Borough of Bradford Woods

v. Platt, 799 A.2d 984, 991 (Pa. Cmwlth. 2002)). It is within the trial judge’s discretion to reduce an attorney’s fee where a municipality is

only partially successful in proving the allegations of its complaint. See The Ridings at Whitpan Homeowners Ass’n v. Schiller, 811 A.2d

1111, 1116 (Pa. Cmwlth. 2002). The Commonwealth Court follows federal law on awarding attorney’s fees in circumstances where the

prevailing party is only partially successful. See Township of South Whitehall, 891 A.2d at 786 (citing Hensley v. Eckerhart, 461 U.S. 424,

103 S. Ct 1933 (1983); Okot v. Conicelli, 180 F.Supp.2d 238, 243 (D. Me. 2002)). A trial court may reduce the amount of attorney’s fees

that is reasonable in relation to results obtained. Township of South Whitehall, 891 A.2d at 786 (citations omitted). Where a prevailing

party has established the relatedness of the successful and unsuccessful claims, it is the opposing party’s burden to establish a basis for

segregating the attorney’s fees spent on the successful and unsuccessful claims. See Id. (citations omitted).

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The Township has not offered evidence to show the amount of attorney’s fees earned for specific claims in its complaint or the

relatedness in preparing all of its claims. Mr. Heisey offers no basis to segregate or eliminate specific portions of the attorney’s fees, besides

arguing the Township did not prevail on all of its claims.

The magisterial district court awarded the Township $1,190 in attorney’s fees on May 4, 2011. The Court agrees with the

finding of the magisterial district court that a reasonable attorney’s fee for work performed from January 17, 2011, through May 4, 2011, is

$1,190.

Plaintiff’s Exhibit 6 shows that the Township incurred $4,555.50 in attorney’s fees from May 5, 2011, through December 9, 2014.

The Township has prevailed on only some of its claims for zoning violations. Therefore, the Court finds it proper to reduce the attorney’s

fee for work performed from May 5, 2011, through December 9, 2014, to the amount of $3,000.

The Township also seeks injunctive relief to prevent Mr. Heisey from committing violations of sections 701.15, 701.19 and 701.23

of the West Hempfield Township Zoning Ordinance. (Compl., ¶¶ 32-33).

Section 10617 of the MPC empowers municipalities to seek equitable relief to restrain violations of their zoning ordinances.

Board of Sup’rs of West Brandywine Tp. v. Matlack, 394 A.2d 639, 641 (Pa. Cmwlth. 1978) (citations omitted). A municipality may seek an

injunction even where other remedies at law are available, and proof of irreparable harm above and beyond the violation of the ordinance is

not required. Gateway Motels, Inc. v. Municipality of Monroeville, 525 A.2d 478, 482 (Pa. Cmwlth. 1987) (citations omitted). A claim for

a permanent injunction requires a party to establish his or her clear right to relief. Buffalo Tp. v. Jones, 571 Pa. 637, 644, 813 A.2d 659, 663

(2002).

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The Township has proven that Mr. Heisey violated sections 701.15, 701.19 and 701.23 of the Township’s Zoning Ordinance

through the failure to appeal the October 14, 2010, enforcement notice. Therefore, an award of injunctive relief in the Township’s favor is

proper.

Conclusions of Law

1. The property with a mailing address of 271-273 Prospect Road, Mount Joy, Pennsylvania, is located within the Rural

Agricultural District of the Township of West Hempfield and is subject to zoning regulations for the Township’s Rural Agricultural Zoning

District.

2. Mr. Heisey’s failure to appeal the zoning enforcement notice dated October 14, 2010, acts as a conclusive determination that

he violated sections 701.19, 701.23 and 701.15 of the West Hempfield Township Zoning Ordinance on the dates listed in the enforcement

notice.

3. There is a conclusive determination that on October 8, 2010, Mr. Heisey committed one violation of section 701.19, three

violations of section 701.23 and three violations of section 701.15.

4. The fine for the violation of section 701.19 shall be $500.

5. The fine for the violations of section 701.23 shall be $500 each.

6. The fine for the violations of section 701.15 shall be $500 each.

7. The total fine awarded to the Township for Defendant’s zoning violations is $3,500.

8. The total reasonable attorney’s fee awarded to the Township shall be in the amount of $4,190.

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9. Plaintiff, Township of West Hempfield, is entitled to injunctive relief against Defendant, Daniel Heisey, to prevent Mr. Heisey

from committing violations of sections 701.15, 701.19 and 701.23 of the West Hempfield Township Zoning Ordinance.

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA

CIVIL ACTION

TOWNSHIP OF WEST HEMPFIELD, :

Lancaster County, Pennsylvania :

Plaintiff :

:

vs. : No. CI-11-05822

:

DANIEL HEISEY, :

Defendant :

D E C I S I O N

AND NOW, this 16th day of July, 2015, after a non-jury trial and consideration of all post trial submissions, the Court finds in

favor of Plaintiff, Township of West Hempfield, Lancaster County, Pennsylvania and against Defendant, Daniel Heisey, as follows:

Fines $ 3,500.00

Attorney’s fees 4,190.00

TOTAL $7,690.00

Defendant, Daniel Heisey, is permanently enjoined from committing violations of sections 701.15, 701.19 and 701.23 of the West

Hempfield Township Zoning Ordinance, as provided below:

701.15 RECREATION VEHICLES

Recreation vehicles, trailers and boats (including boat trailers) may be parked or stored in any zoning district subject to

the following regulations:

A. Parking or storage is permitted at any time inside an enclosed structure, which structure conforms to the zoning

requirements of the particular district.

B. Parking or storage is permitted outside only in the side yard, the rear yard, or partially in both, provided:

1. Inside parking or storage is not possible.

2. The unit is not located nearer than three (3) feet to the side or rear lot line.

3. The unit can be parked or stored in a safe and secure manner so as not to be a hazard to either persons

or property.

4. The unit shall be located behind the building line of the dwelling.

C. While parked or stored, a recreation vehicle, trailer or boat shall not be:

1. Used or occupied for dwelling purposes, except for sleeping by visitors of the owner or occupant of the

lot for a period not exceeding 14 days in any one calendar year.

2. Permanently or temporarily connected to sewer lines, or permanently connected to water or electrical

lines. A unit may be temporarily connected to water and electric lines while used during the times specified in

paragraph (1) of this subsection or while being loaded, unloaded or serviced as provided in subsection D hereof.

3. Used for storage of goods, materials, or equipment other than those items considered to be part of the

unit or essential for its immediate use.

D. Notwithstanding the provisions of subsections A and B, hereof, a unit may be parked anywhere on the lot during

active loading, unloading, or servicing of the unit for a period of time not in excess of thirty-six (36) hours.

E. A maximum of one unit may be stored on any lot of ten thousand (10,000) square feet or less. In no instance shall

any lot contain more than two units stored outdoors, unless it is a Township approved storage facility.

701.19 OUTDOOR STOCKPILING AND ACCUMULATIONS

The following regulations shall apply in all zoning districts:

A. No outdoor stockpiling of any material or outdoor storage of trash is permitted in the front yard. In any residential

district, the outdoor stockpiling of materials (except firewood) for more than thirty (30) days is prohibited.

B. The outdoor accumulation of trash, garbage, refuse, or junk for a period exceeding fifteen (15) days is

prohibited.

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701.23 UNLICENSED AND UNINSPECTED AND/OR INOPERABLE VEHICLES

Automotive vehicles, including inoperable motor vehicles and/or trailers of any kind or type, without a current license

plate and current inspection shall not be parked or stored on any property in excess of thirty (30) days unless such

vehicle shall be located within a completely enclosed building.

BY THE COURT:

JAMES P. CULLEN, JUDGE

Attest:

Copies to:

Christopher S. Underhill, Esquire

Anthony P. Schimaneck, Esquire

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