Background:

I own a historic building in a small town in Pennsylvania. My property as well as the house behind it and others were cited as significant historical properties as examples that allowed the downtown area to be registered within the National Historic Register. While my property is younger (97 years old at minimum- the deed states that it was built in 1920, however, it was deeded in 1920 and there is evidence that it was built prior to 1880), it represents a significant example of the architecture within the area.

Around the property, there is a hedge that was planted more than 70 years ago and possibly as long ago as 80 years. I consider the planting of the second owner nearly as significant as the property itself with hedges over 10 feet thick across the front and about 8 feet thick along one side. This is the only property with historic plantings to this scale and magnificent hedges of this age or any age.

Because of the age of the plantings, including the hedges, the yard is difficult to maintain. For example, just the hedges across the front and along the side take 2 full days to trim. All of the hedges take 4 full days never mind the remainder of the plantings which take a full year to address.

The problem:

The yard is getting more difficult to maintain due to my age and health, however, it does get done each year. Due to excessive amounts of rain and taking care of an older and ill Mom, this year I am a bit later than normal. I can no longer spend full days trimming hedges especially in the heat where I seem to get heat stroke easily these days. To make matters worse, I do not sleep any more and often do not fall asleep before 3:30am and sometimes as late as 6:30am. This makes taking care of Mom and my yard more difficult, though not impossible. I simply cannot afford to pay someone to help me.

Today, the Police Chief informed me that the hedges not only needed to be trimmed, I am okay with that, but he states I also need to cut back the hedges to the edge of the sidewalk and street. The sidewalk is 8 feet wide. The hedge hangs over about a foot and has so for decades. As well, there are conical and round flourishes one of which hangs over 2 feet. The hedges hang over the street only about 8 inches. Cutting the hedges back one foot plus the corner would be to cut into the woody part of the hedges and therefore ruin them forever since the hedge would never recover and become green again. He states that if the hedges are not trimmed to his expectations by Friday, I would be fined $600 per day. If I were to trim the hedges back one foot plus feet, the hedges would not only be ruined, but would degrade the property value and have to be removed.

As a note, the Police Chief and I get along rather well, however, he does not always know or understand the law and often fails to recognize violations of laws concerning things such as these. He did not want to talk to me about this. He was tasked to address several issues up and down the street that someone complained about as a public safety issue (obstructing the sidewalk). While the complainant is not known, his direction comes from the town council which does not understand the law at all. There is not one lawyer in town for example. This is a really small town. I rather suspect that there is one person in particular on the town counsel that keeps him busy. Ridiculous complaints are filed yearly when the weather is warm while blighted properties remain as is. He stated that he had better things to do - like chasing criminals which made me feel as if these complaints were not severe in his view.

My Concerns:

One: The hedges would be ruined and the value of the property (historically and not monetarily though that is also a consideration) especially in light of the historic nature of the plantings along with the historical nature of the property. I plan to specifically register the building and cite the architecture, may be only one example in the entire state, as well as the plantings.

Two: The daily fines are illegal, unconstitutional both State and Federal.

Three: The threat of the illegal and unconstitutional fines may also be illegal though I have yet to figure that out yet.

The Law:

Here are some of the legal points I have found.

From: CONSTITUTION of the COMMONWEALTH OF PENNSYLVANIA

Excessive Fines Clause

  1. Bail, fines and punishments. Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted.

From: 1933 Act 69

(2) Enforcement as summary offenses.--For an ordinance regulating building, housing, property maintenance, health, fire, public safety, parking, solicitation, curfew, water, air or noise pollution, the board of supervisors shall provide that its enforcement shall be by action brought before a district justice in the same manner provided for the enforcement of summary offenses under the Pennsylvania Rules of Criminal Procedure. The municipal solicitor may assume charge of the prosecution without the consent of the District Attorney as required under Pa.R.Crim.P. No. 83(c) (relating to trial in summary cases). The board of supervisors may prescribe criminal fines not to exceed one thousand dollars ($1,000) per violation and may prescribe imprisonment to the extent allowed by law for the punishment of summary offenses.

From: www.pacourts.us/assets/opinions/Commonwealth/out/235CD15_11-16-15.pdf

(selected excerpts)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania : : v. : No. 235 C.D. 2015 : Paul Brunk, : Appellant

Commonwealth of Pennsylvania : : v. : No. 236 C.D. 2015 : Submitted: September 18, 2015 Paul Brunk, : Appellant

MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI FILED: November 16, 2015

Paul Brunk (Brunk) appeals from orders of the Court of Common Pleas of Westmoreland County, Criminal Division (trial court), finding him guilty and imposing a fine of over $100,000 plus costs for multiple violations of Salem Township’s (Township) Nuisance and Junk Ordinance (Ordinance). For the reasons that follow, we vacate and remand.

...

Brunk owned property in the Township and over the years had been charged with and found guilty and fined for various violations of the aforementioned sections of the Ordinance. In June 2014, a Magisterial District Judge (MDJ) found Brunk guilty on three counts of violating the Ordinance and imposed a penalty of $1,000 plus fees on each count. In September 2014, the MDJ again found Brunk guilty on nine counts of violating the Ordinance, finding the violations to have existed on an “ongoing” and “continuing” basis and imposing a penalty of $1,000 plus fees on each count for a total penalty of $138,000. Brunk took a summary appeal of both decisions to the trial court and the actions were consolidated for disposition.

...

On appeal, Brunk does not contest (a) the determinations that he is in violation of the Township’s Ordinance; (b) the three $1,000 fines imposed at No. 235 C.D. 2015; or (c) the Court’s award of counsel fees of up to $3,000 at No. 236 C.D. 2015. Brunk likewise does not question the statutory authority under which the Court’s sentence is imposed, and his appeal only contests the amount of daily fines imposed at No. 236 C.D. 2015, arguing the aggregate amount imposed is excessive and not proportionate to the violation committed and in violation of Article 1, Section 13 of the Pennsylvania Constitution and the Eighth Amendment of the United States Constitution made applicable to the Commonwealth by the Fourteenth Amendment.

...

The Commonwealth, however, argues that the fines imposed are not excessive because the Township is statutorily permitted by the Second Class Township Code9 to impose penalties for violations of property maintenance and/or public safety related to ordinances of up to $1,000 per day. Moreover, it contends that the fines are not excessive because, in imposing the fines, the trial court considered Brunk’s prior violations, his failure to bring his property into compliance with the Ordinance, and the fact that prior judicial action has not deterred his conduct.

...

The Eighth Amendment of the United States Constitution provides that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. A fine is considered excessive under the Eighth Amendment “if it is grossly disproportional to the gravity of a defendant’s offense.” United States v. Bajakajian, 524 U.S. 321, 334 (1998). The Pennsylvania Constitution similarly maintains that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted.” Pa. Const. art. 1, §13. Moreover, the Pennsylvania Constitution’s prohibition against excessive fines requires the fine to be “reasonably proportionate to the crimes which occasion them.” Commonwealth v. Eisenberg, 98 A.3d 1268, 1287 (Pa. 2014).

...

Even if a fine is in line with the terms of an ordinance, if said ordinance has a punitive effect, “without relation to the individual’s ability to pay and the severity of the violation, it does not meet the standard required by the constitution.” Commonwealth v. Heggenstaller, 699 A.2d 767, 769 (Pa. Super. 1997). That is, an appropriate fine is one that is sufficient enough to discourage the conduct without being excessive and punitive in nature. Id. In formulating a sentence for a summary offense:

As our Supreme Court recently reiterated: [T]he primary purpose of a fine or a penalty is twofold[:] to punish violators and to deter future or continued violations. Since it serves not only as a punishment but also as a deterrent, the amount of the fine can be raised to whatever sum is necessary to discourage future or continued violations, subject, of course, to any restriction imposed on the amount of the fine by the enabling statute or the Constitution.

...

Eisenberg, 98 A.2d at 1283 (quoting Commonwealth v. Church, 522 A.2d 30, 34 (Pa. 1987)).

[T]he trial court should weigh all mitigating and aggravating factors and arrive at an appropriate sentence that is consistent with the protection of the public and the gravity of the offense. Considerations should include the history and character of the defendant, the nature and circumstances of the crime ... and the defendant’s attitude, including a lack of contrition for his criminal conduct. Finally, if a sentence is imposed within the statutory limits, there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment.

...

In his 1925(b) Statement, Brunk set forth its complaint as follows: The Honorable Trial Court erred and abused its discretion-as well as denied [Brunk] due process by assessing fines and penalties in excess of those permitted by law.

This citation centers around my exact point.

[T]he trial court should weigh all mitigating and aggravating factors and arrive at an appropriate sentence that is consistent with the protection of the public and the gravity of the offense. Considerations should include the history and character of the defendant, the nature and circumstances of the crime ... and the defendant’s attitude, including a lack of contrition for his criminal conduct. Finally, if a sentence is imposed within the statutory limits, there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment.

Clearly, the daily fine of $600 per day is in violation of the Pennsylvania State Constitution, Pennsylvania State Law, and the US Constitution.

The Question:

What immediate recourse is available to not only head off the situation, but also address the concerns I have? Obviously I will be trimming the hedges as normal, however, I want to put a nail in this threat and end the situation before it begins and be absolute in stopping the overly aggressive town council which has a history of such things. Clearly, with the law, the way it has become, what is a civil offense becomes penal in that fines turn into jail time as noted in the link to the full Commonwealth of Pennsylvania v. Paul Brunk decision. Obviously something I want to avoid.

  • The case you cite does not prove your point. That is just judge's opinions. The actual outcome was that jurisdiction was relinquished and it was sent back to a lower court for review to determine if the fines were excessive. Even if the fines were determined to be excessive, the lower court would just lower the overall total fine, not eliminate the fine altogether. He still broke the law, and fining him for breaking the law is not unconstitutional. He was only arguing that a sum of over $100,000 for breaking the law was excessive. – animuson Aug 15 '17 at 5:10
  • Yes I realize that. However, the legal points are still solid. I agree with the decent as well being that the cleanup covered more than 4 years. What is clear is that $600 per day is in violation of the Excessive Fines Clause, and not in the spirit of the 1933 Act 69 and changes a civil case to a penal case. We have to be careful in that we are talking about an Ordinance which is to enforce issues of safety. While the case I quoted from does have issues, the other cases referred to within the decision are much clearer. I just felt that question was getting rather long. My point being the same. – closetnoc Aug 15 '17 at 5:47
  • I cannot attest to historical nature of things and how that might affect relevant laws, but your second and third concerns are just wrong. Daily fines are not uncontitutional and threatening fines for not obeying laws is not illegal. A law itself, in its existence, is a threat. If you do this, you will be fined or jailed. That's how laws work. You threaten punishments to dissuade people from doing them. – animuson Aug 15 '17 at 5:59
  • I will update the question later that further defines how the application of the 1933 Act 69 is to be applied. Daily fines clearly violate this. My second concern stands in that "the punishment must fit the crime" and that act of enforcement of a civil offense is not meant to harm but to correct. You may have noted that the original fines were 138,000. This is excessive. $600 is fine for a single violation, however, in order to assess a fine daily, that would mean a violation per day. Also excessive. Anything I could do would exceed the time allowed making it an impossible situation. – closetnoc Aug 15 '17 at 6:19
  • You should probably check the usage of counsel, because you say there are no lawyers around and that this "town counsel" does not know the law. I believe you mean council, a group of people usually elected, who represent and manage interests of others in their behalf. – Nij Aug 15 '17 at 7:18

Regarding concern one:

I don't know much of anything about historical landmarks and how they get exempted from certain laws. However, I can tell you that the law generally prefers safety over preserving historical value. It is highly unlikely that a court would ever consider a plant that has existed for any number of years to be of more value than a pedestrian's or driver's safety, and thus requiring that the hedge be trimmed or removed to allow for that safety would be far more important.

As well, your argument that cutting or removing the hedges would decrease the value of the property isn't the strongest argument. Currently, you have hedges that violate a local law. That immediately decreases the value of your property because a part of your property is in violation of ordinances that would have to be corrected in order for the sale of the property to go through, because most homeowners do not want to buy a property with a burden attached to it. Thus, a potential buyer would likely stipulate that the hedges be removed before they consider buying, or they might also stipulate a lower price so they can use the difference between buying and list price to remove the hedges themselves after the sale. Sure, if you only include the part of "this property has beautiful hedges" then the property value goes up, but once you tack on "which are also in violation of law" that value you just gained is immediately negated.

Now in your specific case you mentioned that it hangs a foot over an eight-foot wide sidewalk. That is an abnormally wide sidewalk (a standard sidewalk in most places is only around three feet wide, with some extending up to five feet). I've only personally seen eight-foot or more wide sidewalks in very heavily trafficked areas, which from your "small town" description doesn't sound like the case there. You might be able to argue that in your particular case, due to the size of the sidewalk, that the hedges do not actually inhibit the safety of pedestrians and thus the ordinance shouldn't apply, but there's no guarantee that would work (it sounds like the city council already decided that they want it enforced there). However, if it is hanging over into the street in any capacity, you are pretty much out of luck. It's unlikely you would ever get an exception for that kind of violation.

Regarding concern two:

You're widely conflating "daily" and "excessive" to mean the same thing. Daily fines are not automatically excessive fines, and it is not in any way unconstitutional for a fine to be assessed on a daily basis. The laws you cite about excessive fines refer to the cumulative total of the fine.

At a certain point of assessing a fine on a daily basis, the amount reaches a point where it is an excessive amount to pay. In a situation like that, it makes far more sense to stop increasing the fine and instead jail the person as they have shown a clear disregard for the law and a willingness not to comply with the law. Continuing to fine them has proven not to deter them any further from breaking the law, and that a massive fine does not justly punish them for the actions they have taken. A different punishment is warranted.

This is the premise of the case you cite in your question. Brunk argued that a cumulative fine of over $100,000 for his violations was quite excessive and appealed on that argument. I don't know what the final outcome of his appeal was, because that particular court did not make a decision (rather they vacated the amount and sent it back to a lower court for reconsideration to determine if that amount was fair). It's entirely possible he still ended up with the same fine in the end.

Regarding concern three:

There is nothing remotely illegal about this. So long as there is a city ordinance that allows the officer to write such a citation, the officer is perfectly within his authority to write such fine and threaten such fine for noncompliance.

A law in its natural form is a threat. The government body that created that law is issuing a threat to all of its citizens that if they do this thing, then this fine or amount of jail time will be applied to them. We just don't think of laws as threats in that regard when we talk about them. An officer reiterating that to you does not constitute anything other than them telling you what the law is and what can happen if you disobey it.

Now if the officer threatened something against you that is not mandated by law, that would be a more serious concern that potentially could have some legal consequences for them. But there's no evidence that occurred here.

Your situation in general:

If you're hoping for some constitutional argument that you can throw in the officer's face to get him to back off, you're not going to find one. Generally that part of the constitution is only reviewed after fines have been handed down. You would first need to be fined and have a judge review the case to determine a total amount of how much you will be fined for all the cumulative violations. At that point if you believe it is excessive and in violation of the constitution, you would challenge the decision in court or appeal the decision if the case has already been closed.

But even then, the fine would not be dropped. It would just be reduced to a value that some other judge reviewing the appeal thinks is a fair, non-excessive amount for a fine given the specific details of your case. Your case details do matter. For example, if you just argue with the officer the entire time and do nothing to resolve the problem identified, a judge might consider a much higher value vs if you actively worked to resolve the problem but just weren't capable of doing it fast enough.

"Excessive" here is a completely subjective term that is different for every single case. No one can tell you whether something is excessive until the final number has been totaled and given out. Consider the two alternatives I just mentioned above. If both of those cases were in trial at the same time, they would both likely end up with different amounts for fines and, on appeal, one might succeed in convincing a judge that the fine was excessive and one might not.

Better options:

You could talk to the officer and explain to him that you are not capable of doing the work that quickly without hiring additional help, which you cannot afford. But that may only work once. If the issue arises again in the future (say next year), the officer likely won't be as forgiving since you've been warned about the hedges hanging over the sidewalks and streets before. If anything at all, it will show a court that you attempted to work out an arrangement of some sort to fix the problem, and were trying to cooperate. If it ended up in court for some reason, that interaction would be immensely helpful to you.

As well, you'll want to consult an attorney for exact interpretations of the city's ordinances to make sure that this is actually against the law and how the law punishes its violation. Many cities have ordinances forbidding trees and other plants from obstructing sidewalks and roadways for safety concerns, but not all. As well, I've found it is much more common for a city to impose a single fine for a violation like that if the warning is ignored. The city would then send out its own crew to rectify the problem and then charge the resident for labor, materials, and removal costs. However, if the city does not have their own Public Works department, that may not be an option for them.

If you do find more specifics about how the law is to be enforced, politely tell the officer that. It won't get you out of trouble, and he may still have the legal authority to fine you in some way according to the actual law, but knowing the exact details of your township may give you more peace of mind in knowing the actual limitations of how much you can be fined.

  • I do appreciate the answer. I am not looking to throw something back in the officers face, as you put it, he is actually a friend of mine. The township is doing this sort of thing to several properties with out notice, due process, a reasonable time frame to rectify the problem, etc. No ordinance or enforcement of an ordinance can go outside of what the existing state and federal laws allow. At minimum, proper written notice is required and a reasonable amount of time given to rectify any problem. This is a civil matter and requires due process to be legal. That is the problem. – closetnoc Aug 15 '17 at 23:32
  • That is still something that you would argue in court. I suggested talking to the officer to see if expressing that you need more time would help, but if he's insistent on issuing fines instead, then your only real recourse here is waiting for a court date and setting forth your arguments for why you believe the fines are unreasonable (e.g. you weren't given reasonable notice). The officer believes he is acting within what the law allows, and you have to argue that he is not in court. There is no pre-emptive action here. – animuson Aug 15 '17 at 23:40
  • I actually believe that there is something I can do. Require a legal notice of intent to enforce an ordinance of a violation which they would have to specify. This is required by law. Waiting to go to court is passive and will require a defensive posture. – closetnoc Aug 15 '17 at 23:52
  • 1
    The officer told you, and you acknowledge he told you. That's notice. Unless the specific ordinance requires a written notice of some sort to be delivered x days before a fine is incurred, then no such requirement exists. By that logic an officer would not be allowed to write a parking ticket without tracking down the owner and asking them to move it first. That's just not how the law works. – animuson Aug 15 '17 at 23:56

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