Cmwlth. of Pa. v. G.E. Moyer and Cmwlth. of Pa. v. R. Moyer - 1034 & (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Commonwealth of Pennsylvania v. Georgette E. Moyer, Appellant Commonwealth of Pennsylvania v. Ryan Moyer, Appellant BEFORE: : : : : : : : : : : : : No. 1034 C.D. 2010 No. 1131 C.D. 2010 SUBMITTED: October 1, 2010 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: January 6, 2011 Georgette E. and Ryan Moyer (the Moyers) appeal from an order of the Court of Common Pleas of Montgomery County which found them guilty of violating Chapter 10, Section 10-5 of the Code of Ordinances of West Pottsgrove Township (Township Code) prohibiting junkyards within the Township and sentenced the Moyers to pay a fine of $500.00 on each citation, plus costs.1 The sole issue presented on appeal is whether the ordinance is unconstitutional because it excludes junkyards throughout the entire Township. After review, we affirm.2 On July 31, 2007, the Moyers purchased two adjacent parcels of land in the R-2 Residential District of West Pottsgrove Township, identified as County Parcel #64-00-00802-00-7, Block 4, Unit 30, Cypress Road and County Parcel #64-00-00229-00-4, Block 4, Unit 31, Hawthorne Avenue. Reproduced Record (R.R. at 6A, 7A). On August 10, 2007, Edward M. Whetstone, the Township Manager, sent a Notice of Violation and Cease and Desist Order to the Moyers indicating that they were operating a junkyard on the property in violation of Section 10-5 of the Township Code prohibiting public dumps and junkyards, which reads as follows: Section 10-5 Public dumps and junkyards prohibited. No public dump or junkyard shall be opened in the future either on private property or upon any ground belonging to the township, or upon any highway, road, 1 In a separate but related matter, the Moyers were cited for violations of the Township s Zoning Ordinance, specifically, Sections 700, 701, and 701.1, by establishing a junkyard in a residential district, by operating an unlawful business on the property and maintaining an unlawful structure on the property. Pursuant to the ordinance, only one use per lot is permitted in the R-2 Residential District, and only single-family detached dwellings are permitted uses. The Moyers pursued appeals to the Zoning Hearing Board, Common Pleas and eventually to our court. We recently affirmed the trial court s decision, holding that the Board did not commit an error of law or abuse its discretion in finding that the Township established by substantial evidence that any non-conforming use had been abandoned and that the Moyers were operating an unlawful business on the property in violation of the zoning ordinance. Moyer v. Zoning Hearing Board of West Pottsgrove Township, Pa. Cmwlth., No. 259 C.D. 2009, filed July 8, 2010. 2 The Moyers initially filed separate appeals with the Superior Court, which transferred them to this court by order dated April 12, 2010. Thereafter, we ordered that the matters be consolidated on August 16, 2010. 2 street or alley, or upon the shore or margin of any of the streams within the township. (Ord. of 7-3-46, §4) Thereafter, the Moyers received two citations each for violations of the Township Code, a summary offense, alleging in particular that they had established a junkyard in violation of the Twp Code and . . . failed to comply with a cease and desist order through 08/10/07 Notice of Violation. R.R. at 6A. At the trial de novo on October 29, 2009, the parties agreed that the sole and dispositive issue was the constitutionality of Section 10-5 of the Township Code, and the trial court requested briefs addressed to this narrow issue. Accordingly, in its brief, as at trial, the Township argued that its Zoning Ordinance, adopted February 7, 1973, provided for junkyards as a permitted use in the HI-Heavy Industrial District as long as they were enclosed within a six foot high solid fence. See Article XIV, 1401.10.3 The trial court, reading the ordinances together, determined that while Section 10-5 of the Township Code prohibited junkyards throughout the Township, Section 1401.10 of the Township s Zoning Ordinance allowed junkyards within the HI-Heavy Industrial District under certain conditions. Accordingly, the trial court concluded that the Moyers constitutional challenge failed as they did not prove that junkyards were prohibited throughout the entire Township and therefore, found the Moyers guilty of the summary offense of operating a junkyard 3 Section 1401 titled Use Regulations, provides that: A building may be erected, altered or used, and a lot may be used or occupied for any one of the following uses and no other: .... 1401.10 Warehouse or storage, open or enclosed, excluding storage of explosives, petroleum or gas (except for Township use) and junkyard, except when enclosed within a solid fence, not less than six feet in height. (emphasis in original). 3 on two parcels of land in the R-2 Residential District in violation of Section 10-5 of the Township Code.4 On appeal, the sole issue raised by the Moyers is whether the trial court erred by failing to find Section 10-5 of the Township Code unconstitutional because it excludes junkyards, a legitimate use, throughout the entire Township.5 The Moyers argue that the only fair and reasonable interpretation of Section 10-5 is that all junkyards are excluded within the entire Township. The Moyers further assert that it is well established by the courts that: 1) a junkyard is a legitimate use; and 2) a township may not exclude a legitimate use by way of its ordinance. Therefore, they assert that because Section 10-5 impermissibly excludes a legitimate use, the ordinance is unconstitutional and cannot be enforced. The Moyers assert that Section 1401.10 of the zoning ordinance which allowed junk yards as a permitted use in the HI-Heavy Industrial District at the time the citations were issued is irrelevant and does not change the fact that the plain and ordinary language of Section 10-5 prohibits all junkyards.6 The Township counters that Section 10-5 of the Township Code is not a zoning ordinance, but a nuisance ordinance enacted in 1946 under the general 4 The Moyers were also cited under the International Property Maintenance Code for various violations related to unsafe structures, sanitation, electrical, plumbing and utilities. The trial court dismissed these citations and ruled that the Township failed to provide the proper notice to the Moyers that they had a right to appeal to an appeal board. Summary Appeal Hearing, November 10, 2008, R.R. at 50A-51A. These citations are not at issue in this appeal. 5 The issue of whether an ordinance is exclusionary is a question of law subject to plenary review by this court. Caln Nether Co. v. Board of Supervisors of Thornbury Township, 840 A.2d 484 (Pa. Cmwlth. 2004). 6 The Moyers also challenged the Township s 2009 zoning ordinance as ex post facto, arguing that it could not operate to save the constitutionality of Section 10-5 of the Township Code. See Appellants Brief, at 10. The trial court ruled that because this issue was not presented at trial or raised in the briefs, appellants did not preserve this issue for review. 4 health, safety and welfare powers of the Township to regulate garbage, refuse and other waste materials in the Township. The Township asserts that Section 10-5 of the Township Code was in place long before the Township enacted any zoning ordinance. In any event, the Township argues that Section 10-5 was not the only ordinance which addressed the subject of junkyards within the Township at the time the citations were issued in 2007, and states that Section 1401.10 of the Township s zoning ordinance enacted in 1973 allowed junkyards within the H-I Heavy Industrial district. The Township points out that Section 105 of the zoning ordinance,7 which addresses conflicts, would allow Section 10-5 of the Township Code to remain in effect, modified by provisions of the zoning code. Moreover, the Township argues that when two or more ordinances attempt to regulate the same subject matter, the ordinances must be read in pari materia if possible, citing Section 1932 of the Statutory Construction Act of 1972.8 The Township argues that applying Section 1932 (b) to the two ordinances at issue herein, Section 10-5 would then read, ¦ [u]nless otherwise permitted by zoning, 7 Section 105, entitled, Conflict reads as follows: It is not intended for this Ordinance to repeal, abrogate, annul or interfere with any existing ordinance or enactment, or with any rule, regulation or permit adopted or issued thereunder, except insofar as the same may be inconsistent or in conflict with any of the provisions of this Ordinance, provided that where this Ordinance imposes greater restrictions upon the use of buildings or land, or upon the height and bulk of buildings, or prescribes larger open spaces than are required by the provisions of such ordinance, enactment, rule, regulation or permit, then the provisions of this Ordinance shall control. 8 1 Pa. C.S. § 1932. Statutes in pari materia: (a) Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things. (b) Statutes in pari materia shall be construed together, if possible, as one statute. 5 no public dump or junkyard shall be opened . . . . Township s Brief, at 6. According to the Township, while a junkyard is a legitimate business use of property, the operation of which was permitted in the Township in the H-I Heavy Industrial District, it was not permitted on the Moyers property, which is zoned R2 Residential. Therefore, because the Moyers cannot show that the ordinance excluded a legitimate use, they cannot prevail on their constitutional challenge. Initially, we must keep in mind that while all ordinances must bear a substantial relationship to the public health, safety and general welfare, one challenging such an ordinance bears a heavy burden of establishing the absence of any such relationship. National Land and Investment Co. v. Easttown Township Bd. of Adjustment, 419 Pa. 504, 215 A.2d 597 (1965). We recognize further that an ordinance which purports to be an exercise of a municipality s police power must not be unreasonable, unnecessary or unduly oppressive and the means by which it is affected must bear a real and substantial relationship to the objectives it seeks to attain. Gambone v. Commonwealth, 375 Pa. 547, 101 A.2d 634 (1954). The Township argues that it enacted Section 10-5 pursuant to its police powers to regulate dumps and the disposal of debris, garbage, refuse and other waste material within the Township. Under Section 1502 of the First Class Township Code (Code), Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. § 56526, the Township certainly has the power to prohibit and remove any obstruction or nuisance in the streets and highways of the township . . . or any other nuisance whatsoever, on public or private grounds . . . . The Township is also authorized under Section 1502 of the Code to make regulations prohibiting the accumulation of ashes, garbage, rubbish and other refuse materials upon private properties . . . . 53 P.S. § 56527; and to enact ordinances to regulate and license 6 the establishment and maintenance of junk yards . . . . Section 1502 of the Code, 53 P.S. § 56543. Finally, the Township is empowered [t]o make such regulations as may be deemed necessary for the health, safety, morals, general welfare, cleanliness, beauty, convenience and comfort of the township and the inhabitants thereof. Section 1502 of the Code, 53 P.S. § 56544. In the matter sub judice, both Section 10-5 of the Township Code and Section 1401.10 of the Township s zoning ordinance in effect in 2007 both relate to the same thing, junk yards. Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things, and they must be construed together as one statute if possible. Fetty v. Dep t. of Transp., Bureau of Driver Licensing, 784 A.2d 236 (Pa. Cmwlth. 2001). Thus, guided by the rules of statutory construction, in particular, Section 1932 (b) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1932 (b), our duty is to reconcile the two ordinances and, if possible, construe them together as one statute.9 We agree with the trial court that Section 10-5 of the Code cannot be construed in a vacuum, but must be read in conjunction with Section 1401.10 of the Township s zoning ordinance. Thus, construing both of these ordinances together, we conclude that the Township prohibits the creation and operation of a junk yard except as permitted under the zoning ordinance. Thus, at the time the Moyers were cited in 2007 for violating Section 10-5 of the Township Code for operating a junkyard on property zoned R-2 Residential, this use was permitted under certain conditions in the H-I Heavy Industrial district of the Township. Because the two 9 Although [this Act] applies specifically to the construction of state statutes, the principles enumerated therein are equally helpful in the interpretation of municipal ordinances. Bradley v. Township of South Londonderry, 440 A.2d 665, 670 (Pa. Cmwlth. 1982) (citing Francis v. Corleto, 418 Pa. 417, 211 A.2d 503 (1965)). 7 ordinances, read in pari materia, did not totally exclude a legitimate use, e.g. a junk yard, within the Township, the Moyers have failed to carry their burden. See Ficco v. Board of Supervisors of Hempfield Township, 677 A.2d 897, 899 (Pa. Cmwlth. 1996) (unless the challenger demonstrates the ordinance in question completely or effectively excludes a legitimate use the challenger fails to carry its burden). Accordingly, we affirm the verdict and sentence of the trial court. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Commonwealth of Pennsylvania v. Georgette E. Moyer, Appellant Commonwealth of Pennsylvania v. Ryan Moyer, Appellant : : : : : : : : : : : : No. 1034 C.D. 2010 No. 1131 C.D. 2010 ORDER AND NOW, this 6th day of January 2011, the order of the Court of Common Pleas of Montgomery County in the above captioned matters finding the Appellants, Georgette E. Moyer and Ryan Moyer, guilty and sentencing them to pay a fine of $500.00 on each citation, plus costs, is hereby AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge

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