In re McGlynn

• Decision Date: 21 May 2009
• Docket Number: No. 1257 C.D. 2008.,1257 C.D. 2008.
• Parties: In re Appeal of Shawn F. McGLYNN,: Martin Boksenbaum, Jann Dillman, Donald L. Ryan, Jr., Marylou E. Walck, and Trevor S. Jones From the Decision of The Board of Supervisors of Lehigh Township Granting Conditional Use Approval to L.U.R.R.S. Appeal of Shawn F. McGlynn, Martin Boksenbaum, Jann Dillman, Donald L. Ryan, Jr., Marylou E. Walck, and Trevor S. Jones.
• Court: Pennsylvania Commonwealth Court

974 A.2d 525

In re Appeal of Shawn F. McGLYNN,: Martin Boksenbaum, Jann Dillman, Donald L. Ryan, Jr., Marylou E. Walck, and Trevor S. Jones From the Decision of The Board of Supervisors of Lehigh Township Granting Conditional Use Approval to L.U.R.R.S. Appeal of Shawn F. McGlynn, Martin Boksenbaum, Jann Dillman, Donald L. Ryan, Jr., Marylou E. Walck, and Trevor S. Jones.

No. 1257 C.D. 2008.

Commonwealth Court of Pennsylvania.

Argued April 2, 2009.

Decided May 21, 2009.

H. Peter Nelson, Perkasie, for appellants.

Matthew J. Goodrich, Bangor, for appellee, L.U.R.R.S.

BEFORE: COHN JUBELIRER, Judge, and SIMPSON, Judge (P), and FRIEDMAN, Senior Judge.

OPINION BY Judge SIMPSON.

An important issue in this appeal is whether the failure to strictly comply with the public notice provisions of the Pennsylvania Municipalities Planning Code (Code)¹ resulted in a denial of procedural due process so as to render a decision on a conditional use application void ab initio.

The Board of Supervisors (Board) of Lehigh Township (Township) granted a conditional use application (Use Application) filed by L.U.R.R.S. (Applicant). The Use Application sought approval for development of a mobile/manufactured home park. Objectors,² who actively participated in multiple hearings on the Use Application appealed the Board's decision to the Court of Common Pleas of Northampton County (trial court). In addition to challenging the Township's notice procedures, Objectors asserted Applicant does not own all the property subject to the Use Application, the Application is moot, and the Application failed to meet the standards of the Lehigh Township Zoning Ordinance (Ordinance) for the grant of a conditional use application and for a mobile/manufactured home park. The trial court affirmed the Board's decision, and Objectors appeal. We affirm.

I. History

In June 2004, Applicant filed the Use Application with the Township seeking to construct a mobile/manufactured home park on property located along Mountainview Drive (Property). The 103-acre Property is located in a Village Residential District (VR), which permits a mobile/manufactured home park as a conditional use. Applicant proposed to construct 245 single-family homes designated as North Woods Manufactured Home Community.

The Township Planning Commission recommended approval of the Use Application. Accordingly, the Township advertised that the Board would hold a public hearing on the Use Application at its January 31, 2006 meeting. The public notice appeared in the January 19, 2006 edition of a local newspaper of general circulation. The Township also published a second notice of the public hearing in the January 23, 2006 edition of the same newspaper. These publications occurred four days apart.

The Board held the conditional use hearing as scheduled. Applicant submitted evidence in support of its Use Application and Objectors, representing themselves, cross-examined Applicant's witnesses. The Board's hearing did not conclude on January 31; rather, the Board held additional hearings on February 28 and March 27, 2006. Objectors again actively participated in the hearings by cross-examining Applicant's witnesses and offering evidence.

In a comprehensive decision, the Board set forth findings of fact and conclusions of law, and examined each conditional use requirement of the Ordinance as well as the specific requirements of a mobile/manufactured home park. It concluded Applicant showed compliance with all zoning requirements and, therefore, granted the Use Application with conditions.³

Retaining counsel, Objectors appealed the Board's decision to the trial court. Among a variety of motions, Objectors sought to reopen the record. Certified Record (C.R.) Item 9. Objectors also asserted Applicant engaged in unauthorized tree clearing on the Property. The trial court ordered that "the entire matter will be remanded to the [Board] for purposes of presentation of any additional testimony and evidence." Id. (emphasis added).

The Board held remand hearings in April, May and June 2007. Objectors through Counsel actively participated in the remand hearings. In October 2007, the Board issued a second decision confirming its May 2006 decision as modified by an interim stipulation between the Township and Applicant. Addressing the matters subject to remand, the Board noted the wetlands issue arose during the first round of conditional use hearings and, as a result, it imposed Conditions 7, 8 and 10, noted below. Concerning the utility easement, the Board observed that relocation of homes, roads, and water retention basins impacted by the easement would be addressed in the subdivision and land development process. Finally, the Board explained the Township previously issued and withdrew a violation notice regarding tree removal on the Property. In short, the Board found the testimony on remand did not affect its decision on the Use Application.

Objectors filed a second appeal to common pleas court. A different trial judge heard Objectors' appeal. The trial court affirmed.⁴

II. Present Appeal

Objectors assign five errors in the Board's determination granting the Use Application. Objectors first assert the Township failed to strictly comply with the notice provisions of the MPC. Contrary to statute, the Township published two notices of the Board's first conditional use hearing only four days apart. Statutory law requires publication five days apart.

Objectors also assert Applicant does not own all the land on which it seeks to construct the mobile/manufactured home park and failed to provide authorization to include the unowned land in its Use Application. Objectors' third issue is whether the modifications to the site plan render the Use Application moot.

In their final two issues, Objectors maintain the Use Application does not comply with the Ordinance's general requirements, as well as the specific requirements for mobile/manufactured home parks. We address each argument in turn.

III. Discussion

a. Notice

The first issue Objectors raise involves the concept of procedural due process. The fundamental components of procedural due process are notice and opportunity to be heard. Pessolano v. Zoning Bd. of Adjustment of City of Pittsburgh, 159 Pa.Cmwlth. 313, 632 A.2d 1090 (1993).

Regarding only the conditional use hearing held January 31, 2006, the Township advertised the Board's hearing on January 19 and then again on January 23. The publications occurred four days apart and, according to Objectors, constituted insufficient public notice under the MPC. There are no assertions that the Board failed to publish notice of the remaining five conditional use hearings held in 2006 and 2007. It is also important to note Objectors do not assert any harm resulting from the Township's failure to twice advertise the first conditional use hearing at least five days apart.

Section 908(1) of the MPC requires public notice of Board hearings. 53 P.S. § 10908(1). Section 107 of the MPC defines "public notice" as

notice published once each week for two successive weeks in a newspaper of general circulation in the municipality. Such notice shall state the time and place of the hearing and the particular nature of the matter to be considered at the hearing. The first publication shall not be more than 30 days and the second publication shall not be less than seven days from the date of the hearing.

53 P.S. § 10107.

The MPC does not define the term "successive weeks." We therefore look to the Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1501-1991, to construe the term's meaning. It provides that whenever any statute uses the phrase "successive weeks" in reference to publishing of notices, the weeks "shall be construed as calendar weeks [and the] publication upon any day of such weeks shall be sufficient publication for that week, but at least five days shall elapse between each publication." 1 Pa.C.S. § 1909.

At this juncture, the parties agree the Township's two notices of the Board's January 31 hearing were published four days apart instead of five days, as required by Section 1909.⁵ The question then is the result of the defect on the Use Application.

At the outset, we observe Objectors failed to raise their public notice concerns at anytime before the Board and, therefore, deprived it of an opportunity to discontinue the proceedings and start anew. Nevertheless, Objectors cite several appellate decisions for the proposition that strict compliance with the MPC's notice provisions is mandatory and any deviation renders the local agency's decision void ab initio. See Luke v. Cataldi, 593 Pa. 461 932 A.2d 45 (2007) (alleged failure to provide public notice or public hearing before granting conditional use application would render board's decision void ab initio; remanded for further proceedings); Glen-Gery Corp. v. Zoning Hearing Bd. of Dover Twp., 589 Pa. 135, 907 A.2d 1033 (2006) (a claim alleging a procedural defect affecting notice or due process rights in the enactment of an ordinance may be brought beyond statutory appeal period because, if proven, ordinance is void ab initio); Schadler v. Zoning Hearing Bd. of Weisenberg Twp., 578 Pa. 177, 850 A.2d 619 (2004) (failure to make full text of proposed amendment to zoning ordinance available for public comment rendered subsequent enactment of the amendment void ab initio); Lower Gwynedd Twp. v. Gwynedd Props., Inc., 527 Pa. 324, 591 A.2d 285 (1991) (failure to publish entire text of ordinance as required by The Second Class Township Code⁶ rendered ordinance void).

After careful consideration, we do not believe reversal of the Board's decision is compelled here where Objectors received all process due and asserted no claim of prejudice or harm.

The statutory notice and publication requirements are to ensure the public's right to participate in the consideration and enactment of municipal land use decisions. Lower Gwynedd Twp. In other words,...