Valianatos v. ZONING BD. OF RICHMOND TP.
| Decision Date | 30 January 2001 |
| Citation | 766 A.2d 903 |
| Parties | Menelaos VALIANATOS v. ZONING HEARING BOARD OF RICHMOND TOWNSHIP and Richmond Township. Appeal of Richmond Township. |
| Court | Pennsylvania Commonwealth Court |
Robert P. Grim, Kutztown, for appellant.
Joan E. London, Wyomissing, for appellee.
Before COLINS, Judge, PELLEGRINI, Judge and NARICK, Senior Judge.
The issue presented is whether the Court of Common Pleas of Berks County (trial court) erred by sustaining the zoning appeal of Menelaos Valianatos (Landowner) and declaring the Richmond Township Zoning Ordinance No. 78-1998 invalid for failing to comply with the provisions of the Municipalities Planning Code (MPC).1 We hold that Richmond Township (Township) failed to give adequate public notice pursuant to Section 610 of the MPC, 53 P.S. § 10610, with regard to Zoning Ordinance No. 78-1998. Thus, we affirm the decision of the trial court.
The relevant facts of this case are as follows. On December 27, 1989, Landowner, his wife Katherine Valianatos, his son Christopher Valianatos and his daughter-in-law Kim Valianatos purchased 10.537 acres located on the south side of U.S. Route 222 in Richmond Township. This property was the former site of the Glockenspiel Restaurant, which burned to the ground in 1986. Landowner intended to rebuild and reopen the Glockenspiel Restaurant using the same "footprint" where the former restaurant stood. In furtherance of his plan, Landowner purchased the use of the Glockenspiel name and the restaurant's liquor license. Landowner also intended to build a new 150 room motel/hotel on the site. Due to personal problems, Landowner did not begin commencement of the project until July 1997.
At the time of the above purchase in 1989, the property was zoned C-2, Highway Commercial, pursuant to Township Zoning Ordinance No. 41-1986, adopted October 17, 1986, which was then in effect. Restaurants, hotels and motels were uses permitted by right in the C-2 District.2
On December 14, 1998, a Township representative posted copies of a Notice of Public Hearing on Proposed Amendments to Ordinance No. 41-1986 along the affected tracks of land. On November 20 and 27, 1998, the Township published in a newspaper of general circulation a "Notice of Public Hearing on Proposed Amendments to Ordinance No. 41 of Richmond Township, known as the Richmond Township Zoning Ordinance of 1986, as amended, and the Richmond Township Zoning Map."
On December 14, 1998, at its regular monthly meeting, the Township held a "Zoning Ordinance Changes Hearing." There being no questions from the public, the hearing was closed, a motion to approve Ordinance No. 78-1998 as written was made and passed unanimously. Pursuant to Ordinance No. 78-1998, Landowner's property was rezoned from C-2 to R-A, Rural Agricultural, which prohibits restaurants and hotels. The effective date of Ordinance No. 78-1998 was to be December 19, 1998. Landowner did not attend the December 14, 1998 meeting.
On February 15, 1999, Landowner filed appeals before the Richmond Township Zoning Hearing Board (Board) seeking a use variance to construct the restaurant and motel. Landowner also challenged the validity of Ordinance No. 78-1998. The appeal was bifurcated by agreement of the parties. In a decision dated May 26, 1999, the Board granted Landowner a use variance to operate a restaurant but denied the variance request for a motel. In a decision dated October 19, 1999, the Board, with one dissenter, denied Landowner's challenge to the validity of Ordinance No. 78-1998. The Board concluded that the challenge was fatally defective pursuant to Section 909.1(a)(2) of the MPC, 53 P.S. § 10909.1(a)(2), because it was filed more than thirty (30) days after the alleged effective date of Ordinance No. 78-1998.
On November 12, 1999, Landowner filed an appeal with the trial court from both decisions of the Board. In an Order dated May 3, 2000, the trial court sustained Landowner's appeal and declared Ordinance No. 78-1998 invalid for failure to comply with Section 610 of the MPC, 53 P.S. § 10610. Thus, Landowner's appeal from the use variance became moot. On May 31, 2000, the Township appealed the trial court's order to this Court.
On appeal,3 the Township argues that the trial court erred by holding that the Township did not comply with the statutory notice requirements in enacting Ordinance No. 78-1998. We disagree.
The threshold requirements for enacting a zoning ordinance are set forth in Section 609(b) of the MPC, which provides:
(b) Before voting on the enactment of an amendment, the governing body shall hold a public hearing thereon, pursuant to public notice. In addition, if the proposed amendment involves a zoning map change, notice of said public hearing shall be conspicuously posted by the municipality at points deemed sufficient by the municipality along the tract to notify potentially interested citizens. The affected tract or area shall be posted at least one week prior to the date of the hearing.
53 P.S. 10609(b).
Section 610 of the MPC sets forth the requirements for publication, advertisement, and availability of proposed zoning ordinances and amendments. This section provides, inter alia:
53 P.S. § 10610.
The above notice provisions contained in the MPC mandatorily obligate a township to comply with the requirements of such provisions and if a township fails to meet the notice requirements then the appropriate zoning enactment is made null and void. Mid-County Manor, Inc. v. Haverford Township Board of Commissioners, 22 Pa.Cmwlth. 149, 348 A.2d 472 (1975); Cranberry Park Associates v. Cranberry Township Zoning Hearing Board, 561 Pa. 456, 751 A.2d 165 (2000). These requirements are strictly applied and mere substantial compliance of the publication and notice provisions is not sufficient. Lower Gwynedd Township v. Gwynedd Properties, Inc., 527 Pa. 324, 591 A.2d 285 (1991).
In the case at bar, the Township published the following notice in a newspaper of general circulation:
NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENTS TO ORDINANCE NO. 41 OF THE RICHMOND TOWNSHIP ZONING ORDINANCE OF 1986, AS AMENDED, AND THE RICHMOND TOWNSHIP ZONING MAP
NOTICE IS HEREBY GIVEN that a public hearing will be held by the Board of Supervisors of the Township of Richmond on Monday, December 14, 1998, at 8:00 p.m., at the Richmond Township Municipal Building, along Route 662,1/4 mile northeast of the Moselem Springs intersection, in Richmond Township, Berks County, Pennsylvania, to consider proposed amendments to Ordinance No. 41, known as the Richmond Township Zoning Ordinance of 1986, as amended, and to the Richmond Township Zoning Map, a summary of which proposed amendments...
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