In this zoning enforcement action out of Northampton County, the Commonwealth Court was presented with a property owner’s appeal of a judgment entered against them for constructing a retaining wall and backfill within the Delaware River floodplain without necessary permits.  In affirming the Court of Common Pleas of Northampton County’s (the “trial court”) decision to award attorney fees, a fine, and grant a permanent injunction, the court found that failure to appeal a zoning violation notice to the zoning hearing board (“ZHB”) resulted in a conclusive determination of violation that could not be contested on appeal.


The Gackis (“Property Owners”) owned property that fronted on the Delaware River. Within the River’s floodplain, Property Owners constructed a concrete retaining wall and backfilled the Property without obtaining any required permits or approvals from the Township. The Floodplain Administrator issued a Violation Notice to Property Owners advising them that they had 30 days to either submit a permit application or appeal the Notice to the ZHB. Property Owners never submitted an application or appealed the Violation Notice.  The Township then filed an enforcement action in magisterial district court. Following an entry of judgment, Property Owners appealed to the trial court, causing the Township to file an amended complaint seeking fines, attorney fees, and a permanent injunction of the ongoing zoning violation.  The trial court granted the Township’s motion for judgment on the pleadings and ordered Property Owners to pay a $1,200 fine, pay attorney fees of $20,430.82, and to remove the retaining wall and backfill.  Property Owners appealed, arguing lack of jurisdiction because the disputed improvements were within the jurisdiction of the federal government, not the Township, because they were located in the riverbed. They further asserted the fine and fees were unreasonable and it was error to grant judgment on the pleadings.

On appeal, the Commonwealth Court affirmed the trial court’s decision. It found that authority over the land beneath navigable waters within state boundaries had been delegated to the stated by the federal government, and that the Commonwealth had delegated this authority to the Township. Thus the Township had authority over the riverbed out to the middle of the River. The Court then held that Property Owners’ failure to appeal to the ZHB had resulted in a conclusive determination that they had violated the ordinance. Thus it was proper for the court to grant judgment on the pleadings as no facts remained in dispute. The court next found that the reasonableness of the attorney fees had been stipulated to by Property Owners’ attorney before the trial court and thus could not be disputed on appeal. Finally, the Court found the $1,200 fine to be within the Court’s discretion, as it could have imposed a much larger fine of $400 per day for the 687 days the violation had continued after the magisterial district court’s judgment.

Click here to read: Lower Mount Bethel Twp. v. Gacki, 1782 C.D. 2015 (Pa. Commw. Ct. Nov. 30, 2016).

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