Agenda - Planning Commission - 05/05/1998

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Page 4--April 10, 1998 Z.B. allowing him to run a kennel on his property. The board denied his request. Seymour continued to operate the kennel, and the zoning officer issued him a second violation notice. The notice stated that the failure to comply with the notice within the time specified constituted a zoning violation, and that each day of continuing violation would be a separate violation. The notice stated Seymour had theright to appeal to the Zoning Hearing Board by a specified date. Seymour neither corrected the violation nor, appealed the notice to the board. The township filed an enforcement complaint against Seymour. A district justice fined Seymour $750 plus costs. The justice ordered that if the zoning violation continued after March 2, 1997, Seymour would be fined $250 per day. The township sued Seymour, seeking to enforce the fines and a court order directing Seymour to stop operating a kennel on his property. Seymour claimed the township's zoning ordinance was unconstitutional. The township argued Seymour lost any right he had to challenge the ordinance by failing to appeal the violation aotice to the board. The court determined that the violation notice didn't fully inform Seymour of his right to appeal to the board. The court vacated the district justice's order. The state penal code required a municipality to include in a violation notice a statement that "the recipient of the notice has the right to appeal to the zoning hearing board within a prescribed period of time." According to the court, the violation notice wasn't sufficient because it didn't inform Seymour that the failure to appeal to the board would result in a binding determination that he had commit- ted a zoning violation. The court said that because the township's notice was defective, the justice had no authority over the township's enforcement action. The township appealed. It claimed the violation notice sufficiently informed Seymour of his right to appeal, and by failing to appeal to the board Seymour waived his right to challenge the ordinance's enforceability. DECISION: Reversed. .- The violation notice sent to Seymour was appropriate. Seymour had no right to challenge the zoning ordinance because he never appealed the zoning violation notice to the board. The township's zoning violation notice had to inform Seymour of his right to appeal to the board. Nothing required a municipality to explain to a landowner the consequences of failing to appeal or to outline the procedures for appealing. The township's notice informed Seymour that he had a right to appeal to the board, and no further explanation of his appeal rights was required. Although addi- tional information would have been valuable, the court couldn't graft onto a statute additional provisions that the state Legislature didn't see fit to include. By failing to appeal the violation notice, Seymour made the notice unassail- able, so the only question before the court was whether the penalty imposed for the violation was proper. see also: Johnston v. Upper Macungie Township, 638 A.2d 408 (1994). see also: City of Erie v. Freitus, 681 A.2d 840 (1996).