Lower Gwynedd Tp. v. Gwynedd Properties, Inc.
| Decision Date | 01 July 1991 |
| Citation | 527 Pa. 324,591 A.2d 285 |
| Parties | LOWER GWYNEDD TOWNSHIP, Appellee, v. GWYNEDD PROPERTIES, INC., Appellant. |
| Court | Pennsylvania Supreme Court |
James J. Garrity, Joseph M. Bagley, for appellee.
Before LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.
In this case the Commonwealth Court held that "substantial" though incomplete compliance with the statutory publication requirements of the Second Class Township Code validated Lower Gwynedd Township's ordinance authorizing a taking of property from appellant, Gwynedd Properties, Inc., under the power of eminent domain, inasmuch as appellant was unable to establish prejudice stemming from the omissions. We reverse the Commonwealth Court and reiterate this Court's consistent view that the statutory steps for enactment of ordinances are mandatory and nonwaivable.
Appellant owns a 77-acre tract of land in Lower Gwynedd Township. In January, 1987, it submitted a subdivision plan for the land. The township board of supervisors directed the township solicitor to prepare an ordinance authorizing the condemnation of the land for use as a conservation area. The ordinance was prepared, a summary of its provisions was published in a newspaper, and the ordinance was adopted by the board of supervisors on December 22, 1987. No full text of the ordinance was published nor was a copy provided to the newspaper which published the summary, nor was a copy filed in the county law library or other designated county office. Appellant's agent was unable to examine or secure a full copy of the ordinance at the law library, the township office or the office of the solicitor prior to its adoption.
The ordinance was enacted pursuant to section 702 of the Second Class Township Code, 53 P.S. § 65741, which provides:
§ 65741. Ordinances
To adopt ordinances prescribing the manner in which such specific powers of the township shall be carried out. All such proposed ordinances, unless otherwise provided by law, shall be published not more than sixty days nor less than seven days prior to passage at least once in one newspaper circulating generally in the township. Public notices of any proposed ordinances shall include either the full text thereof or the title and a brief summary ... setting forth all the provisions in reasonable detail and a reference to a place within the township where copies of the proposed ordinance may be examined. If the full text is not included a copy thereof shall be supplied to a newspaper of general circulation in the county at the time the public notice is published. If the full text is not included an attested copy thereof shall be filed in the county law library or other county office designated by the county commissioners....
Appellant argues that the publication formalities prescribed in the statute are mandatory, and that any ordinance adopted without full compliance with those formalities is void. It relies on our decision in West Conshohocken Borough Appeal, 405 Pa. 150, 173 A.2d 461 (1961), and other cases of this court. The trial court and the Commonwealth Court held that precise compliance with the statutory procedures was not necessary, so long as there was substantial compliance and appellant was not prejudiced by the errors.
In West Conshohocken Borough Appeal we reviewed an ordinance adopted under the Borough Code, and held that due to relatively minor deviations from the statutory recording procedures, the ordinance was not recorded "in the legislative sense" and was therefore invalid. Id., 405 Pa. at 159, 173 A.2d at 466. The court discussed the legislative purposes underlying the details of recording an ordinance, which were designed essentially to protect public interests, not private ones. The court therefore refused to impose on a challenger any duty to show prejudice in order to invalidate the ordinance.
Similarly, the Commonwealth Court, in City of Philadelphia v. Shanahan, 121 Pa.Cmwlth. 602, 550 A.2d 1388 (1988), appeal denied 522 Pa. 586, 559 A.2d 529 (1989), held that a city ordinance was void due to noncompliance with publication requirements set forth in the home rule charter. Notice of public hearings on the ordinance had been published in two, rather than three, newspapers prior to adoption of the ordinance. Again, the purpose was to protect the interests of the public in the legislative process.
The Commonwealth Court distinguished these cases on the rather facile ground that they dealt with different specific statutory requirements than those at issue in this case. The principle common to West Conshohocken and Shanahan, however, is applicable: the procedures established by the legislature for the enactment of ordinances must be followed strictly in order for an ordinance to be valid.
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