Glen-Gery v. Zoning Hearing Bd.

• Decision Date: 28 September 2006
• Citation: 907 A.2d 1033
• Parties: GLEN-GERY CORPORATION, Appellant, v. ZONING HEARING BOARD OF DOVER TOWNSHIP, York County, Pennsylvania and Dover Township, Appellees.
• Court: Pennsylvania Supreme Court

Page 1033

907 A.2d 1033

GLEN-GERY CORPORATION, Appellant, v. ZONING HEARING BOARD OF DOVER TOWNSHIP, York County, Pennsylvania and Dover Township, Appellees.

Supreme Court of Pennsylvania.

Argued December 5, 2005.

Decided September 28, 2006.

Terry L. Parish, Esq., Paul R. Ober, Esq., Reading, for Glen-Gery Corporation.

Stephen B. Harris, Esq., Michael Joseph Titus, Esq., Warrington, for The H & K Group.

Stacey R. MacNeal, Esq., Charles A. Rausch, Esq., York, for Dover Township.

D. Michael Craley, Esq., Red Lion, for Zoning Hearing Board of Dover Township.

Thomas L. Wenger, Esq., Peter Grayson Howland, Harrisburg, for amicus curiae for Pennsylvania State Association of Township Supervisors.

BEFORE: CAPPY, C.J., and CASTILLE, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice NEWMAN.

Today we are asked to decide whether the plain language of Section 909.1(a)(2) of the Municipalities Planning Code (MPC), 53 P.S. § 10909.1(a)(2),¹ or amended Section 5571(c)(5) of the Judicial Code, 42 Pa.C.S. § 5571(c)(5),² controls the instant appeal and bars a procedural challenge to an ordinance as untimely if no challenge is mounted within thirty days of the "intended" effective date or, whether an ordinance is rendered void ab initio by its procedural defect thereby rendering inapplicable the limitations period. The underlying claim regarding the alleged procedural defect in enacting the ordinance is not before us; rather, we are asked only to address whether such a claim may be heard as timely. For the reasons that follow, we reverse the Commonwealth Court and find that a claim alleging a procedural defect affecting notice or due process rights in the enactment of an ordinance may be brought notwithstanding the provisions of Section 909.1(a)(2) and Section 5571(c)(5) because, if proven, the ordinance would be rendered void ab initio.³

Facts and Procedural History

Glen-Gery Corporation (Appellant) desired to use all of its lands for non-coal surface mines with normal associated, related, and accessory uses, including bituminous asphalt plants, concrete batch plants, construction company activities, equipment repair facilities, offices, retail and wholesale of stone, and landscaping and related products. Appellant, therefore, filed a challenge to two of the Dover Township zoning and land use ordinances, alleging invalidity on the grounds of procedural defects that occurred during their adoption.⁴ The effective dates of these ordinances were in 1997 and 1995; however, Appellant did not bring its procedural challenge until 2002. As discussed further infra, Section 909.1(a)(2) and Section 5571(c)(5) both provide for a thirty-day time limit on challenges to an ordinance. As such, litigation of the issue was clearly untimely pursuant to the plain language of both Sections. 42 Pa.C.S. § 5571(c)(5); 53 P.S. § 10909.1(a)(2).

The Dover Township Zoning Hearing Board (Board), which has exclusive jurisdiction pursuant to 53 P.S. § 10909.1(a)(2) to hear matters alleging procedural defects in the enactment or adoption of an ordinance, dismissed Appellant's challenge as untimely filed. The Board relied on the decision of the Commonwealth Court in Schadler v. Zoning Hearing Board of Weisenberg Township, 814 A.2d 1265 (Pa. Cmwlth.2003) (en banc) (Schadler I), rev'd, 578 Pa. 177, 850 A.2d 619 (2004) (Schadler II). In Schadler I, the Commonwealth Court declined to follow the precedent of this Court and of prior Commonwealth Court decisions and held that procedural defects in the enactment of an ordinance did not render an ordinance null and void, and, in such cases, the thirty-day appeal period applied. Compare with Cranberry Park Assocs. v. Cranberry Twp. Zoning Hearing Bd., 561 Pa. 456, 751 A.2d 165 (2000) (holding that an ordinance that was not properly numbered, signed, dated, or recorded never became effective and concluding that an argument that the appeal was untimely because it was brought nearly eight years after the fact was unpersuasive and was not barred by the limitations period); Valianatos v. Zoning Hearing Bd. of Richmond Twp., 766 A.2d 903 (Pa.Cmwlth.2001) (holding that the rule stating that an appeal challenging a zoning ordinance had to be filed within thirty days of the effective date of an ordinance was inapplicable because the ordinance was void ab initio, and thus the ordinance never had an effective date to begin the thirty-day period (citing Section 909.1(a)(2))).

Pursuant to Schadler I, the Board concluded that the 2002 amendment to Section 5571(c)(5) of the Judicial Code also applied, requiring that challenges to the validity of an ordinance alleging a defect in its enactment be raised within thirty days "after the intended effective date of the ordinance." 42 Pa.C.S. § 5571(c)(5) (emphasis added). This amendment retroactively applies to all procedural challenges commenced after December 31, 2000. Act of Dec. 9, 2002, P.L. 1705, No. 215, § 6 (Act 215). Hence, the Board concluded that Section 5571(c)(5) applied retroactively to this appeal, rendering it untimely. Although the Board acknowledged Appellant's contention that retroactive application of Section 5571(c)(5) violated its right to due process, the Board noted that it lacked the authority to declare a statute unconstitutional. (Zoning Hearing Board Decision, 4/25/03, at 7-8.)

Appellant appealed to the trial court, which affirmed the Board, also relying on Schadler I, Section 909.1(a)(2), and Section 5571(c)(5). The trial court noted that, at the time its Opinion was issued, this Court had granted review of Schadler I, heard argument, and our decision was pending. (Trial Court Opinion, 12/22/03, at 3 n. 1.). The trial court did not comment on the constitutionality of the statute or the void ab initio doctrine beyond referring to Schadler I and noting that we had granted allowance of appeal in the case but had not yet decided it.

Appellant filed an appeal and asked the Commonwealth Court to reverse. Prior to argument of the case sub judice in the Commonwealth Court, this Court reversed Schadler I, and held that procedural challenges to a municipal ordinance were not time-barred pursuant to either Section 909.1(a)(2) or the pre-2002 version of Section 5571(c)(5), because certain defects in enacting the ordinance rendered it void ab initio. Schadler II, 850 A.2d at 626-27. Moreover, before issuing an Opinion in the present case, the Commonwealth Court heard and decided Taylor v. Harmony Township Board of Commissioners, 851 A.2d 1020, 1028 (Pa.Cmwlth.), allowance of appeal denied, 581 Pa. 686, 863 A.2d 1151 (2004), and noted that the procedural defects in the ordinance in Schadler II essentially eliminated its effective date and allowed for procedural challenges to be brought well past the thirty-day appeal period.

Thereafter, in a published Opinion in the instant matter, the Commonwealth Court, relying on Taylor affirmed the trial court's denial of Appellant's appeal, in contravention of our most recent decision. The Commonwealth Court stated:

Our Supreme Court specifically declined to address the impact of the amendment [to § 5571(c)(5)] in Schadler [II] because it was not in effect when the landowner in that case brought his procedural challenge. In this case, though, amended Section 5571(c)(5) of the Judicial Code governs. . . .

* * *

Because the thirty-day statutory period for challenging alleged defects in the enactment of an ordinance begins on the "intended" effective date "but for the alleged defect in the process of enactment or adoption," Section 5571(c)(5) now means that the statutory period for bringing procedural challenges to local ordinances begins to run without regard to alleged procedural defects that potentially would preclude the ordinance from taking effect. Consequently, a determination of whether an ordinance is actually void can only come after a timely procedural challenge to the ordinance under amended Section 5571(c)(5).

Glen-Gery Corp. v. Zoning Hearing Bd., 856 A.2d 884, 890 (Pa.Cmwlth.2004) (emphasis omitted) (quoting Taylor, 851 A.2d at 1029). The court further held that the clear language of Section 5571(c)(5) evidenced the legislature's intent that it apply to land use ordinances adopted pursuant to the MPC, and that the amendment to this Section apply retroactively to any procedural appeals filed after December 31, 2000. Also, the court noted that a grace period is not required when the General Assembly enacts a retroactive statute that affects substantive rights. Glen-Gery, 856 A.2d at 892 (citing 1 Pa.C.S. § 1926 ("No statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly"); Morabito's Auto Sales v. PennDOT, 552 Pa. 291, 715 A.2d 384 (1998)). Accordingly, the Commonwealth Court affirmed the dismissal of the challenge as untimely.

Discussion

The basic issue before this Court is whether the plain language of either of two statutory provisions, Section 909.1(a)(2) or amended Section 5571(c)(5), controls this appeal or whether the challenged statute is rendered void ab initio, thereby circumventing the deadline for filing an appeal. The underlying claim regarding the alleged procedural defect in enacting the ordinance is not before us; rather, we are asked to decide whether such a challenge may be heard as timely.⁵ We conclude that it can be heard.

Prior to addressing the exact language of the statutes and precedent from this Court, it is helpful to understand the genesis and the meaning of the void ab initio doctrine and its roots in due process concerns.

Under this theory, a statute held unconstitutional is considered void in its entirety and inoperative as if it had no existence from the time of its enactment. The origin of this doctrine may lie in the early case of Marbury v. Madison[, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803)], in which Chief Justice Marshall wrote that "a law repugnant to the constitution is void."

Oliver P. Field, the most...