GRB Law. Goehring Rutter & Boehm. Straightforward Thinking.

Zoning Violations: The Danger Associated with the Failure to Appeal

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Local governments have been granted the authority to enact regulations affecting land use and other property characteristics, such as building height, the location of a building on a lot, the amount of space a structure may occupy, and other similar characteristics, which comprehensively are referred to as zoning regulations.  If property is found to be in violation of such a regulation, the local government may issue a notice of the zoning violation to the property owner.  
 
Upon finding oneself in such a predicament, the property owner should carefully consider whether the property is indeed in violation of the local zoning ordinance.  If so, appropriate corrective action should be taken to bring the property into compliance with the zoning regulation.  However, if the property owner believes that a violation does not exist, the property owner should appeal the zoning violation notice to the local zoning hearing board within the time period set forth in the notice.  Failure to do so will operate to conclusively establish that a zoning violation did in fact occur, which will have the effect of exposing the property owner to being fined for the violation. 
 
If the property owner fails to correct the zoning violation and does not file an appeal within the requisite period of time, the local government may initiate a proceeding before the magisterial district judge to impose a fine on the property owner for violating the zoning ordinance.  At this stage in the enforcement proceedings, the fact that a zoning violation did occur becomes binding on the magisterial district judge, and the magisterial district judge’s sole role in the proceedings is limited to imposing the fine.  Even if the property owner provides evidence that he or she believed in good faith that a zoning violation did not occur, the magisterial district judge is still bound by the fact that a violation did occur and may impose a fine upon the property owner.
 
Another option available to a property owner facing this situation is to request a variance from the local zoning hearing board while the appeal of the violation is pending.  If the variance is granted, the property owner will be permitted to maintain the property as is.  However, the zoning hearing board is permitted to attach reasonable conditions to the variance if it deems such conditions are necessary to implement the purposes of the zoning ordinance.
 
Therefore, upon receipt of a zoning violation notice, property owners should carefully consider all of the options available to them and be aware of the fact that there are alternatives to simply correcting the zoning violation.  However, property owners should be mindful that if a zoning violation notice is ignored and not appealed, it may result in the imposition of fines, and any evidence presented to negate the existence of a zoning violation will be of no importance.  

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