Glen-Gery Corp. v. ZONING HEARING BD. OF DOVER TOWNSHIP
| Decision Date | 28 July 2004 |
| Citation | 856 A.2d 884 |
| Parties | GLEN-GERY CORPORATION, Appellant v. ZONING HEARING BOARD OF DOVER TOWNSHIP, York County, Pennsylvania and Dover Township. |
| Court | Pennsylvania Commonwealth Court |
Terry L. Parish, Reading, for appellant.
Charles A. Rausch, York, for appellees.
BEFORE: PELLEGRINI, Judge, LEADBETTER, Judge, and JIULIANTE, Senior Judge.
OPINION BY Senior Judge JIULIANTE.
Glen-Gery Corporation (Glen-Gery) appeals from the December 22, 2003 order of the Court of Common Pleas of York County (trial court) that denied Glen-Gery's appeal from an order of the Zoning Hearing Board (ZHB) of Dover Township dismissing Glen-Gery's procedural challenge to the validity of the Township's Zoning Ordinance and Subdivision and Land Development (Subdivision) Ordinance. The ZHB had denied Glen-Gery's procedural challenge on jurisdictional grounds because Glen-Gery's challenge was untimely filed. Also before the Court for disposition is a motion to dismiss filed on behalf of Intervenor Dover Township on the ground that Glen-Gery's May 22, 2002 procedural challenge has been rendered moot by the May 24, 2004 re-enactment of the Township's Zoning Ordinance and Subdivision Ordinance. We deny the Township's motion to dismiss and affirm the order of the trial court.
The ZHB found the following facts. Glen-Gery owns several tracts of land in the Township which it already uses or desires to use for the quarrying of material to produce construction brick. On May 17, 2002, Glen-Gery filed a procedural challenge to the validity of both the Township's Zoning Ordinance and Subdivision Ordinance. At the time Glen-Gery's challenge was filed, the latest enactment of the Zoning Ordinance was September 8, 1997 and the latest enactment of the Subdivision Ordinance was February 13, 1995.1 Glen-Gery's procedural challenge did not contain any allegations of fraud or bad faith on the Township's part in enacting either the Zoning Ordinance or the Subdivision Ordinance.
Pursuant to an agreement between the parties, a hearing on Glen-Gery's procedural challenge was continued until March 19, 2003. At that hearing, the Township raised the issue of lack of subject matter jurisdiction due to untimeliness and submitted a brief in support of its position. The hearing was then continued until April 16, 2003. On April 7, 2003, Glen-Gery submitted a brief in opposition, which was followed by a reply brief from the Township.
Glen-Gery's counsel was not present at the April 16, 2003 hearing at which time the Zoning Ordinance and Subdivision Ordinance were entered as evidence. On April 25, 2003, the ZHB issued a written decision dismissing Glen-Gery's procedural challenge due to a lack of subject matter jurisdiction. In its decision, the ZHB noted that Section 909.1(a)(2) of the Pennsylvania Municipalities Planning Code (MPC)2 gives the ZHB exclusive jurisdiction to hear procedural challenges to the validity of a land use ordinance. Section 909.1(a)(2) provides:
53 P.S. § 10909.1(a)(2) (emphasis added).
Noting that the timeliness of Glen-Gery's procedural challenge was a threshold issue that must be determined for jurisdictional purposes, the ZHB initially inquired into the timeliness of Glen-Gery's challenge. Relying on this Court's decision in Schadler v. Zoning Hearing Board of Weisenberg Tp., 814 A.2d 1265 (Pa.Cmwlth.2003),rev'd,___ Pa. ___, 850 A.2d 619 (2004), which held that a municipal ordinance may only be challenged on procedural grounds within 30 days of its effective date, the ZHB determined that Glen-Gery's procedural challenges to the Zoning and Subdivision Ordinances were untimely.
In support of its decision, the ZHB also relied on Section 5571(c)(5) of the Judicial Code, 42 Pa.C.S. § 5571(c)(5), which was most recently amended by the Act of December 9, 2002 (Act 2002-215), P.L. 1705. Section 5571(c)(5) provides:
(5) Ordinances, resolutions, maps, etc.—Notwithstanding section 909.1(a)(2) of the [MPC], questions relating to an alleged defect in the process of enactment or adoption of any ordinance, resolution, map or similar action of a political subdivision, including appeals and challenges to the validity of land use ordinances adopted pursuant to the [MPC], shall be raised by appeal or challenge commenced within 30 days after the intended effective date of the ordinance, resolution, map or similar action. As used in this paragraph, the term "intended effective date" means the effective date specified in the ordinance, resolution, map or similar action or, if no effective date is specified, the date 60 days after the date the ordinance, resolution, map or similar action was finally adopted but for the alleged defect in the process of enactment or adoption.
42 Pa.C.S. § 5571(c)(5).
As the ZHB further noted, Section 6 of Act 2002-215 provides that the amendment to Section 5571(c)(5) "shall apply to an appeal or challenge relating to an alleged defect in the process of the enactment or adoption of any ordinance, resolution, map or similar action commenced after December 31, 2000." See Act of December 9, 2002, P.L. 1705. Thus, the ZHB stated in its decision that "[a]t this time, both Schadler and Section 5571(c)(5) of the Judicial Code are controlling on the disposition of this matter and give jurisdiction to the [ZHB] to hear only those procedural validity challenges which are filed in a timely manner, which is within 30 days of the intended effective date of the ordinance." ZHB's Decision at 6-7.3
Glen-Gery appealed to the trial court on the ground that the ZHB had no authority to dismiss the procedural challenge without conducting an evidentiary hearing on the merits and rendering a full adjudication supported by the record. Glen-Gery argued that it was deprived of an opportunity to challenge either this Court's decision in Schadler or the retroactive application of Section 5571(c)(5) of the Judicial Code.
The trial court, nevertheless, affirmed the ZHB based on both Schadler and Section 5571(c)(5) of the Judicial Code. The trial court concluded that the ZHB properly disposed of this case on a motion to determine whether the ZHB had jurisdiction. The trial court further noted that arguments were presented and evidence entered at both the March 19 and April 16, 2003 hearings before the ZHB and that Glen-Gery did not even appear at the April 16, 2003 hearing.
Glen-Gery's appeal to this Court followed. In zoning cases where the trial court takes no additional evidence, our review is limited to determining whether the ZHB erred as a matter of law or abused its discretion. Hager v. West Rockhill Tp. Zoning Hearing Board, 795 A.2d 1104 (Pa.Cmwlth.2002). An abuse of discretion will be found only when the ZHB's findings are not supported by substantial evidence. Id.
On May 24, 2004, prior to the June 10, 2004 oral argument in this case, the Supreme Court reversed this Court's decision in Schadler. Specifically, the Court determined that procedural challenges to a municipal ordinance were not time barred under either Section 909.1(a)(2) of the MPC, 53 P.S. § 10909.1(a)(2), or pre-amendment Section 5571(c)(5) of the Judicial Code because certain defects in enacting the ordinance rendered it void ab initio.4 As this Court recently noted in Taylor v. Harmony Tp. Board of Comm'rs, 851 A.2d 1020 (Pa.Cmwlth.2004), the Supreme Court ruled in Schadler that the procedural defects in enacting the ordinance "essentially eliminated the `effective date' of the challenged ordinance from which the thirty-day statutory period for taking an appeal was calculated." Taylor, 851 A.2d at 1028. "Because there was no `effective' date, challenges to an ordinance on procedural grounds could be brought well past the thirty-day statutory period for challenging procedural irregularities in the enactment of the ordinance." Id.
In addition, as noted above, on May 24, 2004 the Township readopted both the Zoning Ordinance and the Subdivision Ordinance. Pursuant to Section 1601(a) of the Second Class Township Code, 53 P.S. § 66601(a), both ordinances became effective five days after they were adopted.
I.
Following the Township's reenactment of both the Zoning Ordinance and the Subdivision Ordinance, the Township filed a motion to dismiss Glen-Gery's appeal as moot under Pa. R.A.P.1972(4). The Township maintains that inasmuch as Glen-Gery has not submitted any plans for approval or challenged the substantive validity of the Zoning Ordinance regarding the use of non-coal surface mining, Glen-Gery has no vested rights under either the Zoning Ordinance or Subdivision Ordinance and, therefore, its procedural challenge was rendered moot by the reenactment of the two ordinances.
In opposition to the motion to dismiss, Glen-Gery claims that under Section 1006-A of the MPC,5 a court may declare any ordinance invalid and set it aside regardless of whether the applicant has submitted plans or other material in the form required for final approval. Section 1006-A provides in relevant part:
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