Ness v. York Township Board of Commissioners

DISSENTING OPINION BY

Judge McCullough.

I respectfully dissent. The York Township Board of Commissioners (Board) adopted a zoning ordinance and a subdivision and land development ordinance. Appellants filed an appeal, alleging that the ordinances were void due to procedural defects occurring before or during the en*1085actment process, specifically that the Board failed to conduct the necessary public meetings and hearings, failed to provide sufficient notice to the public, and failed to publish or advertise the full text of the proposed ordinances. (Maj. op. at 1080 n. 5, citing O.R. at Item #11.) However, Appellants’ appeal was filed untimely, approximately four months beyond the 30 day-limitation set forth in section 5571.1(b)(2) of the Judicial Code, 42 Pa.C.S. § 5571.1(b)(2),1 and section 108(d) of the Municipalities Planning Code (MPC).2

The Majority holds that because the Board advertised an optional post-enactment notice under section 108(f) of the MPC, the ordinances were “reaffirmed” or “reissued” and, as a result, “any pre-exist-ing procedural issues which might have arisen during initial enactment” are rendered “moot.” (Maj. op. at 1083.) At the end of its opinion, the Majority concludes: “Because the Board elected to employ the [sjection 108 optional post-enactment notice, and no appeal was filed within 30 days of the second advertisement, the [o]rdi-nances were deemed reissued as a matter of law. Consequently, procedures related to the initial adoption of the [ordinances are no longer material.” Id. at 1084. According to the Majority’s rationale, a municipality could seek to implement and pass an ordinance without taking any official action whatsoever, but so long as the municipality provides a section 108 post-enactment notice and no appeal is filed within 30 days, that ordinance is valid and immune from attack, even though it was never lawfully passed in the first place.

I believe that the Majority places too much legal significance on the post-enactment notice procedure and interprets section 108 of the MPC in a manner that disregards the exemptions to the 30-day time limit in section 5571.1(c) of the Judicial Code and section 108(g) of the MPC. These provisions permit an appeal after the 30-day time limit if the party can establish an unconstitutional deprivation of due process. 42 Pa.C.S. § 5571.1(c); 53 P.S. § 10108(d).

More importantly, I believe that the Majority employs reasoning that is in direct contravention to binding precedent from our Supreme Court. In Glertr-Gery Corporation v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 907 A.2d 1033 (2006), our Supreme Court held that as a matter of constitutional principle, the void *1086ab initio doctrine will supersede any statutory time-limit for challenging a procedural defect affecting notice or due process rights in the enactment of an ordinance. As the Court explained:

A strict reading of the statute demonstrates that the challenge is clearly time-barred as [a]ppellant waited between five and seven years to contest the allegedly defective procedure during the enactment of the ordinances. However, the effect of a finding that the ordinance is void ab initio means that it essentially never became law because of its procedural defects; thus, any component of the challenge that contains a time bar ... is deemed void for having never been properly passed.
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[W]e have consistently held that a defect in the enactment renders any time bar null and void as the statute is, in its entirety, void ab initio.

Id. at 147-48 & 152, 907 A.2d at 1040 & 1042 (emphasis added). To date, under the void ab initio doctrine and pertinent statutory law, an appellant’s challenge to the procedural validity of an ordinance will not be deemed untimely if the appellant can establish that the municipality failed to substantially comply with statutory procedure, which results in lack of notice or deprivation of due process rights. Messi-na v. East Penn Township, — Pa. -, -, 62 A.3d 363, 369 & 372 (2012).

Unlike the Majority, I do not believe that the trial court’s order can be affirmed on the alternative theory that the section 108 post-enactment notice “cured” or rendered “moot” any procedural invalidity regarding the ordinances as a matter of law. While a section 108 notice may aid a municipality in proving substantial compliance with statutory procedure, Streck v. Lower Macungie Township Board of Commissioners, 58 A.3d 865, 872 (Pa.Cmwlth.2012) (“Section 108 of the MPC ... provides a method by which a municipality or an individual can reduce the likelihood that a land use ordinance or a land use permit will be held void ab initio on procedural grounds”), a section 108 notice cannot completely shield a defective ordinance from attack if an appeal is not filed within 30 days. Rather, pursuant to section 5571.1(c) of the Judicial Code, section 108(g) of the MPC, Glen-Gery Corporation) and Messina, a sufficient infringement of due process rights trumps any statutory time-bar for challenging the procedural validity of an ordinance, even when a municipality publishes post-enactment notice. Streck, 58 A.3d at 874 (“[I]f no challenge is brought within 30 days of the date of the municipality’s second post-enactment Section 108 notice, the procedural validity of the ordinance is ‘reaffirmed.’ There is no deadline, however, where it would result in a deprivation of constitutional rights[.]”) (emphasis added).

Here, the trial court restricted its due process analysis to Appellants’ individual situations, concluding that Appellants themselves received notice and participated in the proceedings. (Trial court op. at 3-4.) However, the trial court failed to consider the due process rights of the public at large, and did not address Appellants’ contentions that the public did not receive proper notice and sufficient opportunity to be heard at the meetings. (Trial court op. at 3) (“Whether or not the notice or hearings complied with the requirements of the MPC is not at issue. In addition, whether the due process rights of other citizens of the Township were violated by the alleged failure to properly publish notice of and hold public meetings is not at issue.”). Pursuant to Messina, the trial court was obligated to consider the shared public interest and right to participate in municipal actions, and should have *1087determined whether the Board complied with the MPC’s statutory procedures regarding public notice that are relevant to Appellants’ claims. Messina, — Pa. at -, 62 A.3d at 370; accord Maj. op. at 1083.3 Accordingly, I would vacate and remand for the trial court to apply this legal standard and decide whether Appellants established that the Board failed to substantially comply with statutory procedure when enacting the ordinances.

. This provision states: ‘‘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.” In turn, subsection (c) of section 5571.1 provides: "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.” 42 Pa.C.S. § 5571.1(c) (emphasis added).

. Act of July 31, 1968, P.L. 805, as amended, added by the Act of July 4, 2008, P.L. 319, 53 P.S. § 10108(d). This provision states: "Notwithstanding this or any other act, in order to provide certainty of the validity of an ordinance or decision, any appeal or action contesting the validity of an ordinance based on a procedural defect in the process of enactment or the validity of a decision based on a procedural or substantíve defect shall be dismissed, with prejudice, as untimely if not filed within the 30th day following the second publication of the notice authorized in this section.” Id. However, similar to section 5571.1(c) of the Judicial Code, section 108(g) of the MPC contains an exception: "An appeal shall be exempt from the time limitation in subsection (d) only if the party bringing the appeal establishes that the application of the time limitation in subsection (d) would result in an unconstitutional deprivation of due process.” 53 P.S. § 10108(d) (emphasis added).

. See Schadler v. Zoning Hearing Board of Weisenberg Township, 578 Pa. 177, 185 n. 12, 850 A.2d 619, 627 n. 12 (2004) ("The Township also seems to insinuate that Schadler’s procedural challenge should be barred because, even if the public at large had no notice of the Ordinance’s enactment in February 2000, Schadler himself did have actual notice. However, the procedural requirements for the enactment of a law are non-waivable, and when the lawfulness of the enactment is in question, the law is either void or not void, without regard to the identity of the challenger. Meanwhile, finding the notice of an individual litigant to have any bearing on the litigant’s ability to challenge the law ... would lead to the absurd result of a single township ordinance being valid with respect to some citizens and simultaneously invalid with respect to others.”).