Agenda - Planning Commission - 11/01/2018

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Zoning Bulletin September 10, 2018 I Volume 12 I Issue 17 Based on the inspector's report, in April 2014, the Township issued two Enforcement Notices to the DiPaolos. The first Enforcement Notice cited the DiPaolos for failing to obtain peiuuits for the sheds on their Property. The second Enforcement Notice asserted violations of the Township's Zoning Ordinance, noting the deck, sheds, paving/stone, and a screened gazebo that were all constructed within the floodway without permits or the approval of the ZHB. The Township instructed the DiPaolos that to abate these violations, the DiPaolos had to remove the structures within the floodplain and floodway and obtain approval from the ZHB for construction/improvements within the floodplain and floodway. The DiPaolos appealed form the Enforcement Notices. The ZHB voted to deny the DiPaolos' appeals and uphold the Enforcement Notices. The DiPaolos then appealed from the ZHB decision to the trial court. The trial court denied their appeal and affirmed the ZHB's decision. The DiPaolos again appealed. On appeal, among other things, the DiPaolos argued that, due to the Township's delay in enforcing the Code and the Zoning Ordinance, the Enforcement Notices were barred by "laches, estoppel, vested rights and justifiable reliance doctrines." Specifically, the DiPaolos argued that: "the Township did not issue violation notices for nearly a decade despite its full knowledge of the DiPaolos' additions to their Property; allowed the DiPaolos to pay for, erect and furnish the deck with the Township's knowl- edge; and knew. or should have known that the DiPaolos would rely on the Township's acquiescence." DECISION: Judgment of Common Pleas Court affirmed. The Commonwealth Court of Pennsylvania held that the Township's Enforcement Notices against the DiPaolos were not barred by laches, estop- pel, vested rights or justifiable reliance doctrines. The court explained that, under Pennsylvania law, for the DiPaolos to prevail on the defenses of laches, they must "prove both inordinate delay and prejudice from that delay." In other words, they would need to show that the Township "stood by and permitted large expenditures to be made upon the faith of municipal consent informally or tacitly given." To obtain the equitable remedy of a variance by estoppel, the DiPaolos would have to show "munici- pal inaction amounting to active acquiescence in an illegal use." For equitable estoppel, they'd have to show that "the municipality intentionally or negli- gently misrepresented its position with reason to know that the landowner would rely upon that misrepresentation." For a vested right, they'd have to show "the municipality has taken some affirmative action such as the issuance of a peanut." `Except for the characterization of the municipal act that induces reliance," the court explained that, "all three theories share common elements of good faith action on the part of the landowner: 1) that he relies to his detri- ment, such as making substantial expenditures, 2) based upon an innocent belief that the use is permitted, and 3) that enforcement of the ordinance would result in hardship, ordinarily that the value of the expenditures would be lost." The court further explained that "[t]here are five factors relevant to whether a ZHB should grant a variance by estoppel" —all of which must be proven by "clear, precise and unequivocal evidence." The court said "[s]uch variances © 2018 Thomson Reuters 9