Northampton Residents Ass'n v. Northampton Township Board of Supervisors

Concurring and Dissenting Opinion by

Judge Rogers :

I concur in the affirmance of the order below; and I have no quarrel with the majority’s opinion except for the conclusion that the Northampton Residents Association lacked standing to complain of the enactment of the zoning amendments because the Association failed to “appear before the Board of Supervisors (Board) at the hearings held to consider the ordinance in question.”

Under the law, citizens of political subdivisions desiring to challenge the procedures employed in the adoption of ordinances, including amendments to zoning ordinances, are not required to appear at the hearings of governing bodies conducted for the purpose of considering such legislation. Certainly there was no such *525requirement under Section 702, cl. XLI of The Second Class Township Code, Act of May 1, 1933, P. L. 103, 53 P.S. §65741, pursuant to which the complaint in this case was filed.1 See Griffith v. McCandless Township, 366 Pa. 309, 77 A. 2d 430 (1951). Also certainly, Section 1003 of the Municipalities Planning Code, Act of July 31, 1968, P. L. 805, as amended, 53 P.S. §11003, does not require appearance at the governing body’s hearing as a prerequisite to standing to appeal on procedural grounds.2 Other provisions of the MPC plainly suggest the contrary. Sections 1005, 1006 and 1007, 53 P.S. §§11005, 11006, 11007, which deal with substantive challenges, all provide for appeals by “any pa/rty aggrieved” (emphasis supplied), language notably absent from present Section 1003.

Dethlefson Appeal, 434 Pa. 431, 254 A. 2d 6 (1969), cited as authority by the majority, was concerned with former Section 1003 which applied to all zoning appeals and which provided simply “[zjoning appeals may be taken to court by any party before the board, or any officer or agency of the municipality” (emphasis supplied). Dethlefson, moreover, was concerned with an appeal from a zoning hearing board’s grant of a variance, not with a complaint of procedural irregularity in the adoption of an ordinance. Blade Mulla, Inc. v. Carlson, 7 Pa. Commonwealth Ct. 381, 298 A. 2d 920 (1972), also cited by the majority, was an appeal from a governing body’s action in disapproving a particular development plan, not a complaint that an ordinance *526was defectively adopted. In Blade Mulla we simply followed Dethlefson.

In short, the MPC does not now require that a citizen desiring to challenge a zoning amendment on procedural grounds must have appeared at the hearing at which the governing body considered whether it should adopt the proposed new legislation.

The majority recognizes that exceptions would have to be made for challenges to the failure to conduct a hearing or give notice as provided by Section 609, 53 P.S. §10609. After concluding that the Association had no standing because of failure to appear at the supervisors’ hearing, the majority inconsistently notes and discusses the Association’s challenge based on the alleged insufficiency of the notice, one of the exceptions.

Judge Kramer joins in this Concurring and Dissenting Opinion.

The continued effectiveness of Section 702 of The Second Class Township Code to zoning challenges was questioned but not decided by the majority.

Section 1003 is in full: “Questions of an alleged defect in the process of enactment or adoption of any ordinance or map shall be raised by an appeal taken directly from the action of the governing body to the court filed not later than thirty days from the effective date of the ordinance or map.”