Commonwealth, Office of Attorney General Ex Rel. Corbett v. Lower Oxford Township

OPINION BY

Before this court are the preliminary objections filed by Lower Oxford Township and the Lower Oxford Township Board of Supervisors (Lower Oxford) in response to the Petition for Review (Petition) filed in this court’s original jurisdiction by the Commonwealth of Pennsylvania, Office of Attorney General By Thomas W. Corbett, Jr., Attorney General (Attorney General). We sustain Lower Oxford’s preliminary objections and dismiss the Petition without prejudice.

Chapter three of the Agricultural Code (ACRE), 3 Pa.C.S. §§ 311-318, which took effect July 6, 2005, deals with local regulation of normal agricultural operations so that such operations are consistent with *686 state policies and statutes. 1 To that end, section 313 of ACRE, in relevant part, provides:

(a) Adoption and enforcement of unauthorized local ordinances — A local government unit shall not adopt nor enforce an unauthorized local ordinance.[ 2 ]

(b) Existing local ordinances — This chapter [ACRE] shall apply to the enforcement of local, ordinances existing on the effective date of this section and to the enactment or enforcement of local ordinances enacted on or after the effective date of this section.

3 Pa.C.S. § 313 (emphasis added).

On or about November 2, 2005, pursuant to section 314(a) of ACRE, 3 Pa.C.S. § 314(a), 3 the operator of a mushroom composting facility located in Lower Oxford requested the Attorney General to review the Zoning Ordinance of Lower Oxford Township (Ordinance), enacted on March 24, 2004, and to determine whether to bring legal action against Lower Oxford. Following his review, the Attorney General filed the Petition, pursuant to section 315 of ACRE, 3 Pa. C.S. § 315, which authorizes the Attorney General to bring an action against a local government unit in Commonwealth Court to invalidate an unauthorized local ordinance or enjoin the enforcement of an unauthorized local ordinance. In the Petition, the Attorney General asserts that certain sections of the Ordinance violate ACRE, 4 (Petition ¶ 17; Exh. B.), and seeks declaratory and in- *687 junctive relief. Specifically, the Attorney General asks this court to invalidate these provisions of the Ordinance and to enjoin Lower Oxford from attempting to enforce the challenged provisions. The Petition does not indicate that Lower Oxford has attempted to enforce any of the challenged sections of the Ordinance.

Lower Oxford filed preliminary objections in the nature of a demurrer challenging the legal sufficiency of the Petition and requesting that the court dismiss the Petition. 5 Relying on section 313(b) of ACRE, 3 Pa.C.S. § 313(b), Lower Oxford asserts that the Attorney General lacks the authority to bring the instant action under ACRE because the Attorney General failed to plead facts averring that Lower Oxford has acted to enforce the challenged provisions of the Ordinance, all of which pre-existed ACRE.

The Attorney General counters that sections 313(a) and 315(a) of ACRE provide him with the requisite authority. The Attorney General points out that section 313(a), specifically prohibits local government units, like Lower Oxford, from adopting or enforcing unauthorized local ordinances, 3 Pa.C.S. § 313(a), and section 315(a) expressly authorizes the Attorney General to bring an action to invalidate or enjoin the enforcement of an unauthorized ordinance without regard to whether the ordinance was enacted before or after ACRE’S effective date. 6 3 Pa.C.S. *688 § 315(a). However, we agree with Lower Oxford.

Although the Attorney General is correct that section 315(a) authorizes him to bring an action to invalidate or enjoin the enforcement of unauthorized local ordinances under section 313(a), the Attorney General fails to consider section 313(b) of ACRE. This section specifically addresses ACRE’S application to ordinances that existed prior to the effective date of section 313, such as the Ordinance challenged in the Petition here, and states that with regard to such ordinances, ACRE applies only to their enforcement. 3 Pa.C.S. § 313(b). Thus, we agree with Lower Oxford that in order for the Attorney General to state a cause of action under ACRE, he must aver facts in the Petition to indicate that Lower Oxford has attempted to enforce the challenged provisions of the Ordinance.

The Attorney General contends that he has pleaded sufficient facts in the Petition because Lower Oxford’s action of enacting the Ordinance and maintaining the Ordinance’s provisions “on the books” constitutes all the “enforcement” necessary to support a claim under ACRE. We cannot agree.

ACRE does not define the terms “enforce” or “enforcement;” however, the “enforcement” of local ordinances is addressed in the MPC and in section 1601 of the Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 66601, both of which provide guidance in the present matter. The MPC, which authorizes local municipalities to enact and enforce zoning regulations, see sections 601 and 616.1 of the MPC, 53 P.S. §§ 10601, 10616.1, 7 provides that a municipality shall initiate enforcement proceedings against a party by sending an “enforcement notice” to the alleged violating party. The MPC further authorizes a municipality to take any appropriate action to prevent, restrain, correct or abate a violation including the commencement of civil enforcement proceedings that may result in the violating party paying a civil judgment or fine. See sections 616.1, 617 and 617.2 of the MPC, 53 P.S. §§ 10616.1, 10617-10617.2. 8 Sections 1601(c.1)(1), (2) and (4) of the Second Class Township Code authorize a township to enforce an ordinance through civil enforcement (civil penalties), equitable enforcement or enforcement by initiating summary offense proceedings before a district justice. 53 P.S. §§ 66601(d)(1), (2), (4). As these provisions clearly illustrate, in order to enforce an ordinance, a municipality must go beyond merely maintaining the enacted ordinance “on the books;” the municipality must take affirmative action to compel compliance with the ordinance or penalize noncompliance.

After reviewing the Attorney General’s pleadings, we agree with Lower Oxford that the Petition fails to aver facts that state a cause of action under ACRE; specifically, the Petition fails to aver that Lower Oxford has attempted to enforce *689 the alleged invalid provisions of the Ordinance. Accordingly, we sustain Lower Oxford’s demurrer and dismiss the Attorney General’s Petition without prejudice.

ORDER

AND NOW, this I2th day of December, 2006, the preliminary objections filed by Lower Oxford Township and the Lower Oxford Township Board of Supervisors are hereby sustained, and the Petition for Review filed by the Commonwealth of Pennsylvania, Office of Attorney General By Thomas W. Corbett, Jr., Attorney General seeking declaratory judgment and injunc-tive relief is hereby dismissed without prejudice.