Legal Question in Constitutional Law in Pennsylvania

Re: Are fence setbaks determined a taking?

I don't see how enforcing the setback law could be considered a taking. The township can forbid fences altogether if it wants, so there should be nothing wrong with restricting their placement. Then again, if someone sues the township on such a theory the town may have to spend a lot of money defending itself; a desire to prevent such a lawsuit is a legitimate -- though somewhat cowardly -- reason for a town to make the kind of decision you describe.

Regardless of whether the solicitor gave bad advice (or whether your zoning officer is just making excuses), there probably isn't much you can do to make him enforce the the ordinance. Your best bet is probably to complain to the town managers and/or the zoning officer's boss to see if they will overrule him.

Re: Are fence setbaks determined a taking?

There are setback requirements for buildings, and they're not a taking. How is a setback requirement for a fence a taking?

You can go to court to have the fence removed. It would be an action against the town to force them to enforce their own ordinance. Of course, the town could then respond by repealing the ordinance, so your victory could be an empty one.

Perhaps a letter from an attorney to the town could solve your problem with very little cost to you.

This answer is based on what you've said. Depending on a variety of factors, the answer may be different. You should contact an attorney who does zoning/MPC law to discuss.