Ness v. York Twp. Bd. of Comm'rs

• Decision Date: 04 December 2013
• Citation: 81 A.3d 1073
• Parties: Dennis L. NESS and John E. Bowders, Appellants v. YORK TOWNSHIP BOARD OF COMMISSIONERS.
• Court: Pennsylvania Commonwealth Court

81 A.3d 1073

Dennis L. NESS and John E. Bowders, Appellants

v.YORK TOWNSHIP BOARD OF COMMISSIONERS.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Sept. 13, 2013.

Decided Dec. 4, 2013.

John E. Bowders, pro se.

Steven M. Hovis, York, for appellee.

BEFORE: PELLEGRINI, President Judge, and SIMPSON, Judge, and McCULLOUGH, Judge.

OPINION BY Judge SIMPSON.

Dennis L. Ness and John E. Bowders (Appellants), representing themselves, appeal from an order of the Court of Common Pleas of York County (trial court) that dismissed their petition for review challenging the York Township Board of Commissioners' (Board) adoption of the Township's 2012 Zoning Ordinance and Map (Zoning Ordinance) and 2012 Subdivision and Land Development Ordinance (SALDO) (collectively, Ordinances). Appellants' petition sought a declaration that the newly adopted Ordinances were void due to procedural defects in their enactment. The trial court dismissed Appellants' petition as an untimely filed appeal under Section 108 of the Pennsylvania Municipalities Planning Code (MPC) ¹ (relating to optional notice of ordinance or decision; procedural validity challenges). For the reasons that follow, we affirm, although we employ a different rationale.²

I. Background

A. Enactment of Ordinances

In July 2010, the Board advertised a public notice in the local newspapers of a Board workshop meeting to be held on Monday, July 12, 2010 to discuss updating the Zoning Ordinance. See Board's Motion to Dismiss (MTD),³ 2/21/13, at Ex. H. Next, in January 2011, the Township advertised notice of a Planning Commission workshop meeting to be held on January 6, 2011 to review a draft of the proposed SAL DO. MTD at Ex. I. In February 2012, the Township advertised notice of another Planning Commission workshop meeting to be held on February 22 and 23, 2012, to review the drafts of both proposed Ordinances. MTD at Ex. J.

Thereafter, in April 2012, the Township twice advertised notice of a public hearing of the Planning Commission on April 17, 2012 to review the proposed Ordinances. MTD at Ex. K. Next, in July and August 2012, the Board twice advertised a public hearing before the Board to be held on August 13, 2012 to consider and receive comment on the proposed Ordinances. MTD at Ex. A.

At the August 13 hearing, the Board voted to adopt the Ordinances. Appellants were present at the August 13 hearing. In an e-mail message dated August 21, 2012, Appellant Bowders advised the Board that he intended to file suit in common pleas court to invalidate the newly adopted Ordinances. MTD at Ex. B. However, Appellant Bowders further advised:

Upon written assurances that the [Board] will re-advertise promptly (and properly), serve [the full text of the Ordinances upon] the law library and newspaper, and conduct a new Public Hearing and a “do-over vote”, I will withhold legal action. Perhaps a third Public Hearing will convince the [Board] to vote consistent with the wishes of the citizens.

MTD at Ex. B (bolding and italics in original).

In late August 2012, the Board advertised notice of a public meeting to be held on September 11, 2012, for consideration of the Ordinances, and an amendment to the Zoning Map realigning the Urban Growth Boundary. MTD at Ex. C. The notice provided (with emphasis added):

A copy of the full proposed text of the Ordinances summarized above may be purchased ... or examined by any citizen in the office of the Township Manager, 190 Oak Road, Dallastown, Pennsylvania, on business days between the hours of 8:00 o'clock am and 4:30 o'clock pm.

Id. Appellant Bowders attended the September 11 meeting and spoke in opposition to the Ordinances. However, the Board ultimately voted to adopt the Ordinances, which stated they would become effective in five calendar days (September 16, 2012). See MTD at Exs. D, E.

Thereafter, pursuant to Section 108(b) of the MPC, 53 P.S. § 10108(b), the Township published post-enactment notice of adoption of the Ordinances in the local newspapers during consecutive weeks on September 19 and 27, 2012. MTD at Ex. F. The post-enactment notice provided in part:

In accordance with 53 P.S. § 10108, this publication is intended to provide notification to any person claiming a right to challenge the validity of the ordinances described below that they may bring a legal action within thirty (30) days from September 27, 2012.

Id.

B. Appeal to Zoning Hearing Board

On September 17, 2012, Appellant Bowders filed an “Appeal of the Adoption of the Zoning Ordinance and Zoning Map” with the Township's Zoning Hearing Board (ZHB). See MTD at Ex. G. The appeal cited former Section 909.1(a)(2) ⁴ of the MPC, which vested a zoning hearing board with jurisdiction over challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption.

C. 2008 Legislation

However, the General Assembly, by the Act of July 4, 2008, P.L. 319, repealed former Section 909.1(a)(2) and replaced it with 1002–A(b) of the MPC, 53 P.S. § 11002–A(b), which now governs appeals raising validity challenges to land use ordinances. Section 1002–A(b) specifically provides (with emphasis added):

(b) Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption shall be raised by appeal taken directly to the court of common pleas of the judicial district in which the municipality adopting the ordinance is located in accordance with 42 Pa.C.S. § 5571.1 (relating to appeals from ordinances, resolutions, maps, etc.)

53 P.S. § 11002–A(b).

In July 2008, the General Assembly also added Section 5571.1 of the Judicial Code (relating to appeals from ordinances, resolutions, maps, etc.) which provides:

(a) Applicability; court of common pleas.—

(1) This section shall apply to any appeal raising questions relating to an alleged defect in the process of or procedure for enactment or adoption of any ordinance, resolution, map or similar action of a political subdivision.

(2) An appeal pursuant to this section shall be to the court of common pleas.

(b) Appeals of defects in statutory procedure.—

(1) Any appeal raising questions relating to an alleged defect in statutory procedure shall be brought within 30 days of the intended effective date of the ordinance.

(2) except as provided in subsection (c), it is the express intent of the General Assembly that this 30–day limitation shall apply regardless of the ultimate validity of the challenged ordinance.

(c) Exemption from limitation.—An appeal shall be exempt from the time limitation in subsection (b) if the party bringing the appeal establishes that, because of the particular nature of the alleged defect in statutory procedure, the application of the time limitation under subsection (b) would result in an impermissible deprivation of constitutional rights.

(d) Presumptions.—Notwithstanding any other provision of law, appeals pursuant to this section shall be subject to and in accordance with the following:

(1) An ordinance shall be presumed to be valid and to have been enacted or adopted in strict compliance with statutory procedure.

(2) In all cases in which an appeal is filed more than two years after the intended effective date of the ordinance is allowed to proceed in accordance with subsection (c), the political subdivision involved and residents and landowners within the political subdivision shall be presumed to have substantially relied upon the validity and effectiveness of the ordinance.

(3) An ordinance shall not be found void from inception unless the party alleging the defect in statutory procedure meets the burden of proving the elements in set forth in subsection (e).

(e) Burden of proof.—Notwithstanding any other provision of law, an ordinance shall not be found void from inception except as follows:

(1) In the case of an appeal brought within the 30–day time limitation of subsection (b), the party alleging the defect must meet the burden of proving that there was a failure to strictly comply with statutory procedure.

(2) In the case of an appeal which is exempt from the 30–day time limitation in accordance with subsection (c), the party alleging the defect must meet the burden of proving each of the following:

(i) That there was a failure to strictly comply with statutory procedure.

(ii) That there was a failure to substantially comply with statutory procedure which resulted in insufficient notification to the public of impending changes in or the existence of the ordinance, so that the public would be prevented from commenting on those changes and intervening, if necessary, or having knowledge of the existence of the ordinance.

(iii) That there exist facts sufficient to rebut any presumption that may exist pursuant to subsection (d)(2) that would, unless rebutted, result in a determination that the ordinance is not void from inception.

* * *

(g) Definitions.—As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

“Intended effective date.” Notwithstanding the validity of the challenged ordinance, the effective date specified in the challenged ordinance....

“Ordinance.” An ordinance, resolution, map or similar action of a political subdivision.

“Statutory procedure.” The preenactment and post-enactment procedures prescribed by statute or ordinance in adopting an ordinance.

42 Pa.C.S. §§ 5571.1(a), (b), (c), (d), (e) and (g).

As noted above, the 2008 legislation added Section 108 of the MPC, 53 P.S. § 10108, which provides for post-enactment notice of the adoption of a land use ordinance or entry of a land use decision. In the case of an ordinance, either the governing body of the municipality, a municipal landowner or a resident may publish notice. 53 P.S. § 10108(b). The purpose of publishing optional post-enactment notice under Section 108 is to reaffirm the procedural validity of the land use ordinance or decision....