Schadler v. Zoning Hearing Bd.

• Decision Date: 08 January 2003
• Citation: 814 A.2d 1265
• Parties: Timothy J. SCHADLER v. ZONING HEARING BOARD OF WEISENBERG TOWNSHIP, Appeal of Weisenberg Township Board of Supervisors.
• Court: Pennsylvania Commonwealth Court

814 A.2d 1265

Timothy J. SCHADLER v. ZONING HEARING BOARD OF WEISENBERG TOWNSHIP,

Appeal of Weisenberg Township Board of Supervisors.

Commonwealth Court of Pennsylvania.

Argued December 4, 2002.

Decided January 8, 2003.

John E. Roberts, Whitehall, for appellant.

Charles E. Zaleski, Camp Hill, for appellee.

BEFORE: COLINS, President Judge, McGINLEY, Judge, SMITH-RIBNER, Judge, PELLEGRINI, Judge, FRIEDMAN, Judge, COHN, Judge, and SIMPSON, Judge.

OPINION BY Judge PELLEGRINI.

The Weisenberg Township Board of Supervisors (Township Supervisors) appeals from an order of the Court of Common Pleas of Lehigh County (trial court) reversing the decision of the Weisenberg Township Zoning Hearing Board (Zoning Hearing Board).

Timothy J. Schadler (Schadler) is the owner of approximately 41 acres of property in Weisenberg Township (Township). The property is located within the Township's rural-residential zoning district. On August 6, 1997, Schadler filed a curative amendment pursuant to the Pennsylvania Municipalities Planning Code (MPC)¹ alleging that the Township's zoning ordinances were invalid in that they prohibited mobile home parks or imposed unreasonable restrictions for the use of his property. While Schadler's curative amendment was pending, the Township Supervisors, on July 28, 1999, ran an advertisement in the East Penn Press which indicated that at its October 4, 1999 meeting, it would consider "Proposed Ord. 99-4 Mobile Home Parks." Following that meeting and having received comments on the proposed ordinance, the Township Supervisors scheduled a public hearing on the proposed ordinance for its February 7, 2000 meeting and placed an advertisement in the East Penn Press to notify the public of the hearing. At the February 7, 2000 meeting, the Township Supervisors enacted Ordinance No. 99-4 which established uniform standards for the design, construction, alteration, extension and operation of mobile home parks and related utilities and facilities; regulated the issuance of permits for construction, alterations and additions thereto; regulated licensing of those who operated mobile home parks, and authorized the inspection of mobile home parks and penalties for violations of the ordinance. Schadler was aware of the enactment of Ordinance 99-4 when it was passed.

Approximately seven months later, on August 31, 2000, Schadler filed a challenge to the procedural validity of Ordinance No. 99-4 pursuant to Section 909.1(a)(2) of the MPC, alleging that the ordinance was invalid and void ab initio because the Township Supervisors failed to follow the procedural requirements of the MPC, the Second Class Township Code² and the Township's Subdivision and Land Development Ordinance. Following hearings before the Zoning Hearing Board, the Zoning Hearing Board denied Schadler's challenge because, among other reasons, it was not timely filed. Schadler then filed a land use appeal with the trial court which reversed the Zoning Hearing Board, finding that the time limit provisions were not applicable as Ordinance No. 99-4 was void ab initio because it was not properly enacted where the Township Supervisors failed to follow the requirements for publication, advertisement and the availability of ordinances mandated by Section 506(a) of the MPC, 53 P.S. § 10506(a).³ This appeal by the Township Supervisors followed.⁴ Although admitting that there were errors in the advertising and procedure followed by the Township in adopting Ordinance No. 99-4, the Township Supervisors contend that those errors do not permit Schadler to file a procedural challenge to that ordinance more than six months after its adoption. It argues that while a municipal ordinance can be challenged at any time on substantive grounds, it can only be challenged on procedural grounds within 30 days of the effective date of the ordinance pursuant to Section 909.1(a)(2) of the MPC and Section 5571(c)(5) of the Judicial Code, 42 Pa.C.S. § 5571(c)(5). In opposition, Schadler contends that his challenge to Ordinance No. 99-4 was proper because Section 506 of the MPC, 53 P.S. § 10506,⁵ provides that the enactment of an ordinance or amendment thereto must be properly advertised with proper notice given to the public or that ordinance is void ab initio. He argues that Ordinance No. 99-4 was void ab initio because the Township Supervisors failed to properly advertise the public hearing and enactment of the ordinance, and, therefore, the 30-day time limit regarding procedural challenges was not applicable to his challenge.

Section 909.1(a)(2) of the MPC and Section 5571(c)(5) of the Judicial Code provide that a challenge on procedural grounds to a municipal ordinance may only be taken within 30 days of the effective date of the ordinance. Section 909.1(a)(2) of the MPC provides:

(a) The zoning hearing board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:

* * *

(2) Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption which challenges shall be raised by an appeal taken within 30 days after the effective date of said ordinance. Where the ordinance appealed from is the initial zoning ordinance of the municipality and a zoning hearing board has not been previously established, the appeal raising procedural questions shall be taken directly to court.

Likewise, Section 5571(c)(5) of the Judicial Code provides:

Ordinances, resolutions, maps, etc. 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 shall be raised by appeal commenced within 30 days after the effective date of the ordinance, resolution, map or similar action.

(Emphasis in the original.)

Whether a person could challenge the validity of a municipal ordinance, albeit an ordinance not enacted pursuant to the MPC more than 30 days after its adoption, was addressed by our Supreme Court in Cranberry Park Associates v. Cranberry Township Zoning Hearing Board, 561 Pa. 456, 751 A.2d 165 (2000). In that case, Cranberry Park Associates (CPA) filed an application for a grading permit pursuant to Cranberry Township's Grading Ordinance. While the application was pending, CPA began grading operations without a permit. Finding that CPA failed to provide required data, Cranberry Township denied its application and also issued a notice of violation and stop work order finding that CPA willfully violated the Grading Ordinance. CPA then filed an appeal from the permit denial, notice of violation and stop work order. Subsequently, CPA also filed an appeal challenging the validity of the Grading Ordinance because it was never numbered, dated, signed or recorded. Finding that CPA's challenge to the validity of the Grading Ordinance was procedural in nature and was not filed until eight years after the effective date of the ordinance, well after the 30-day time limit of 42 Pa.C.S. § 5571(c)(5), the zoning hearing board denied CPA's challenge as untimely. Concluding that CPA's validity challenge was untimely because it was not filed within 30 days of the effective date of the ordinance, the trial court and this Court affirmed the zoning hearing board's decision.

On appeal, CPA argued that because the Grading Ordinance was never signed, dated, numbered or recorded, it never became effective. It argued that it did not even know that the Grading Ordinance existed and characterized the ordinance as void ab initio. Relying on Section 741 of the Second Class Township Code, Act of May 1, 1933, P.L. 103, repealed by Act of November 9, 1995, P.L. 350, formerly 53 P.S. § 65741,⁶ the Court concluded that because the procedures for enacting the ordinance were not followed, the ordinance was invalid stating:

As of 1995, eight years after the Ordinance was passed, the Ordinance was still not numbered, dated, signed or recorded in the ordinance book of the township, thus it never became effective. [Citations omitted.] Since the Ordinance never became effective, Appellee's reliance on § 5571 of the Judicial Code to argue that CPA's challenge is untimely is unpersuasive.

561 Pa. at 462, 751 A.2d at 168.⁷

However, since the inception of the Cranberry Park case, as acknowledged by our Supreme Court in its decision, the General Assembly repealed Section 741, formerly 53 P.S. § 65741 and recodified the subject matter in Section 1601, 53 P.S. § 66601,⁸ which provides, in relevant part:

The board of supervisors may adopt ordinances in which general or specific powers of the township may be exercised, and, by the enactment of subsequent ordinances, the board of supervisors may amend, repeal or revise existing ordinances. All proposed ordinances, whether original, amended, repealed, revised, consolidated or codified, shall be published not more than sixty days nor less than seven days before passage at least once in one newspaper circulating generally in the township. Public notices shall include either the full text or a brief summary of the proposed ordinance which lists 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 shall be supplied to the publishing newspaper when the notice is published, and an attested copy shall be filed within thirty days after enactment in the county law library or other county office designated by the county commissioners, who may impose a fee no greater than that necessary to cover the actual costs of storing the ordinances. The date of such filing shall not affect the effective date of the ordinance, the validity of the process of the enactment or adoption of the ordinance; nor shall a failure to record within the time provided be deemed a defect in the process of the enactment or adoption of such ordinance. If substantial amendments are made in

...