OPINION BY JUDGE FIZZANO CANNON.
James M. Esposito (Esposito) appeals from the September 18, 2018 order of the Court of Common Pleas of Allegheny County (Common Pleas) dismissing Esposito's appeal of a February 15, 2018 Magisterial District Court's verdict finding Esposito guilty of a criminal summary offense for alleged violations of the Township of Robinson's (Township) Zoning Ordinance (Zoning Ordinance). Upon review, we reverse Common Pleas' order.
Esposito is President of Capital Builders, Inc. (Capital Builders) and is a limited partner of E & R Partners, LP (E & R), Capital Builders' general partner. See Notes of Testimony, June 26, 2018 (N.T. 6/26/2018) at 5-6; Reproduced Record (R.R.) at 34a-35a. E & R is the record owner of an office building located at 5852 Steubenville Pike in McKees Rocks, Robinson Township, Pennsylvania (the Property). Id. On March 25, 2002, Township issued the Property a Certificate of Occupancy that listed the permitted occupancy as "OFFICE" within a C-2 zoning district within the Township. See Certificate of Occupancy; R.R. at 107a. Per the Zoning Ordinance, Township zoning districts designated as "C-2 Community Commercial District" allow the use of properties therein as, inter alia, a "[b]ank, professional or medical office." See R.R. at 28a, 107a & 112a-113a. The Property houses both Capital Builders and Capital Realty & Funding Corporation (Capital Realty), a professional real estate business. See R.R. at 112a.
On October 31, 2017, Township's Solicitor (Solicitor) mailed a letter to Esposito (the October 31, 2017 Letter) explaining that the Township had learned that a business called The Counseling Initiative — Pittsburgh (TCI) was operating out of the Property's basement. See October 31, 2017 Letter; R.R. at 108a. The October 31, 2017 Letter explained that TCI's operation, without an occupancy permit, violated "the Ordinances of the Township of Robinson," and demanded that TCI cease and desist operation in the Property within 48 hours of Esposito's receipt of the October 31, 2017 Letter. Id. The October 31, 2017 Letter further cautioned Esposito that, if TCI's operation did not cease within the allotted 48 hours, "the Township [would] have no other recourse than to enforce the laws of the Township of Robinson[.]" Id.
Esposito's counsel responded to the October 31, 2017 Letter by letter dated November 2, 2017 (November 2, 2017 Letter). See November 2, 2017 Letter; R.R. at 110a-111a. The November 2, 2017 Letter characterized the alleged violations referenced in the October 31, 2017 Letter as "vague and unspecified ordinance violations" and accused Township of failing to comply with the enforcement procedures established and required by Pennsylvania law and Township's ordinances upon the discovery of an alleged ordinance violation. Id. at 110a.
Esposito's counsel spoke with Solicitor the following day, November 3, 2017, and thereafter sent to Township's Planning Director a letter (November 3, 2017 Letter) by which counsel intended to comply with Solicitor's suggestion that Esposito supply Township with a "Zoning Compliance Letter." See November 3, 2017 Letter; R.R. at
On November 7, 2017, Solicitor sent another letter to Esposito's counsel (November 7, 2017 Letter), this time explaining that Township intended to immediately file citations against Esposito, E & R, and TCI under Article III — Administration and Enforcement — of Township's Code of Ordinances, Sections 300-16, 300-17, and 300-18.
On November 10, 2017, Township's Code Enforcement Officer filed a non-traffic criminal citation against Esposito for violation of Township "Municipal Code Violations, Chapter 300 Zoning Art. III" (Citation). See Citation; R.R. at 8a. On February 15, 2018, a Magisterial District Judge found Esposito guilty of the summary offense and imposed a $500.00 fine. See R.R. at 9a-11a.
On March 9, 2018, Solicitor sent a letter addressed directly to Capital Realty as "record owner" of the Property (March 9, 2018 Letter) demanding that Capital Realty vacate the Property based on separate reasons concerning fire inspections and occupancy permits, and threatening the imposition of daily $500.00 fines based on the February 15, 2018 summary conviction. See March 9, 2018 Letter; R.R. at 146a-49a. The March 9, 2018 Letter stated that Capital Realty had the right to appeal to Township's Zoning Hearing Board (ZHB) if it believed it was not in violation of the Zoning Ordinance. Id.
On March 15, 2018, Esposito timely filed a Notice of Appeal from the February 15, 2018 summary conviction in Common Pleas. See Notice of Summary Appeal, R.R. at 5a-12a. Common Pleas conducted a hearing on Esposito's appeal on June 26, 2018. See N.T. 6/26/2018; R.R. at 30a-71a. Esposito moved to dismiss the Citation on the bases that (1) the Pennsylvania Municipalities Planning Code (MPC)
The MPC controls municipal zoning ordinance enforcement in Pennsylvania and notice requirements therefor. See Section 616.1 of the MPC, 53 P.S. § 10616.1, added by Act of December 21, 1988, P.L. 1329. Where a municipality alleges a zoning ordinance violation, the municipality must commence enforcement proceedings by sending a notice as specified in the MPC. See 53 P.S. § 10616.1(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."). Section 616.1(c) of the MPC provides that an enforcement notice must include at least the following six (6) items:
53 P.S. § 10616.1(c). This Court has determined that the Section 616.1(c) requirements are mandatory and that notices without all required information do not satisfy the Section 616.1(c) requirements. Twp. of Maidencreek v. Stutzman, 164 Pa. Cmwlth. 207, 642 A.2d 600, 602 (1994) (finding that a failure to include citation to specific ordinance alleged to be violated rendered enforcement notice invalid). "Once a landowner has been given notice of a zoning violation pursuant to Section 616.1, that landowner can contest the asserted violations only by way of appeal to the municipality's zoning hearing board and cannot merely defend the charge when the municipality seeks ordinance violation fines before a district justice." City of Erie v. Freitus, 681 A.2d 840, 842 (Pa. Cmwlth. 1996). However, "[a] municipality's failure to comply with Section 616.1 precludes it from seeking penalties under Section 617.2 of the MPC[
Here, neither of Township's alleged enforcement notices complied with the requirements of MPC Section 616.1(c). Initially, the October 31, 2017 Letter failed to comply with the Section 616.1 notice requirements for multiple reasons. First, the October 31, 2017 Letter is addressed to Esposito personally. See October 31, 2017 Letter; R.R. at 108a. To the extent Esposito would need to be notified as "any other person against whom the municipality intends to take action[,]" Township still would need to address the letter to E & R as the Property's owner of record. See 53 P.S. § 10616.1(c)(1). It did not.
Next, regarding specific alleged violations, the October 31, 2017 Letter merely asserts that Township had learned of TCI's operation in Property's basement and that, without an occupancy permit, such operation constituted "a violation of the Ordinances of the Township of Robinson." October 31, 2017 Letter; R.R. at 108a. This general assertion fails to adequately state any specific violation with a citation to the applicable provision of the local ordinance allegedly violated, as required by the MPC. See 53 P.S. § 10616.1(c)(3); Maidencreek, 642 A.2d at 602 (stating that, "as used in [S]ection 616.1(3)," the term "cite" "means a specific numerical reference to the ordinance section which the township asserts the landowners have violated").
Additionally, the October 31, 2017 Letter provides neither a date before which steps for compliance must be commenced nor the date before which such steps must be completed. See October 31, 2017 Letter; R.R. at 108a. Instead, the October 31, 2017 Letter simply instructs Esposito to cease and desist TCI's operation within 48 hours,
Further, the October 31, 2017 Letter fails to inform Esposito of his right to appeal to the ZHB within a prescribed
Finally, to the extent it refers to possible sanctions for failure to comply with the enforcement notice within a specified time, the October 31, 2017 Letter states only:
October 31, 2017 Letter; R.R. at 108a. In addition to arguably indefinitely informing Esposito about whether a failure to comply actually constitutes a violation of unidentified sections of the Township Zoning Ordinance, and even assuming it adequately describes the possible sanctions, this statement fails to notify Esposito that an appeal to the ZHB extends the compliance time period. See 53 P.S. § 10616.1(c)(6).
For these reasons, the October 31, 2017 Letter does not satisfy the mandatory enforcement notice requirements of Section 616.1.
The November 7, 2017 Letter likewise fails to comply with all Section 616.1(c) requirements for notice of an enforcement action. Initially, as with the October 31, 2017 Letter, the November 7, 2017 letter fails to identify a date by which Esposito must commence steps for compliance with the allegedly violated ordinance sections or a date by which such steps must be completed. See November 7, 2017 Letter; R.R. at 115a-16a. Additionally, the November 7, 2017 Letter fails to advise Esposito of any right to appeal to the ZHB and that a failure to comply with the alleged enforcement notice within a specified time period constitutes a violation, with the possible sanctions clearly described. See id. Instead, the November 7, 2017 Letter discusses only the zoning permit application process and the alleged existence of a site plan approval from 2011. See id.
For these reasons, the November 7, 2017 Letter also fails to satisfy the mandatory enforcement notice requirements of Section 616.1.
Because the Township did not comply with the mandatory enforcement notification requirements of MPC Section 616.1 before issuing the Citation based on the Zoning Ordinance and seeking penalties under Section 617.2 of the MPC, Common Pleas erred by dismissing Esposito's appeal instead of granting the same. See Freitus. Accordingly, we reverse Common Pleas' order.
AND NOW, this 31st day of May, 2019, the September 18, 2018 order of the Court
Section 617.2 of the MPC, added by Act of December 21, 1988, P.L. 1329, 53 P.S. § 10617.2(a).