Citizens for Responsible Development-Windsor Township Inc. v. Windsor Township Zoning Hearing Board

70 Pa. D. & C.4th 427, 2004 Pa. Dist. & Cnty. Dec. LEXIS 278
Pennsylvania Court of Common Pleas, York County·Decided November 30, 2004·No. no. 2004-SU-02121-Y08·Published

Opinion

KENNEDY, J,

Presently before this court is appellant’s appeal from an order of the Windsor Township Zoning Hearing Board dated June 28,2004. For the reasons set forth below, the appeal is denied.

PROCEDURAL HISTORY AND FACTS

On January 5, 2004, the Windsor Township Board of Supervisors passed ordinance no. 04-01-02, which [429]*429amended the township zoning ordinance. On May 14, 2004, appellant filed a procedural challenge to ordinance no. 04-01-02, alleging various procedural defects in the enactment of the ordinance. A hearing was held before the Windsor Township Zoning Hearing Board on June 15, 2004. The ZHB issued a decision dismissing appellant’s procedural challenge as untimely on June 28, 2004. On July 13, 2004, appellant appealed the ZHB’s decision to this court.

DISCUSSION

The standard of review by a trial court of an initial decision of a zoning hearing board is limited to whether the board abused its discretion or committed an error of law and whether its necessary findings are supported by substantial evidence. Rushford v. Zoning Board of Adjustment of Pittsburgh, 81 Pa. Commw. 274, 278, 473 A.2d 719, 722 (1984). Further, the trial court must give great weight and deference to the board’s determination. Smith v. Zoning Hearing Board of Huntingdon Borough, 734 A.2d 55 (Pa. Commw. 1999).

Pursuant to the Pennsylvania Municipalities Planning Code (MPC), the ZHB has exclusive jurisdiction to hear challenges to the validity of any land use ordinance when the challenge raises procedural questions or alleged defects in the process of enactment or adoption of the ordinance. 53 P.S. §10909.1(a)(2). Such challenges must be commenced within 30 days after the intended effective date of the ordinance. 42 Pa.C.S. §5571(c)(5). The timeliness of an appeal relates to the jurisdiction of the board and its competency to act. Snyder v. Zoning Hearing [430]*430Board of Warminster Township, 782 A.2d 1088 (Pa. Commw. 2001). Consequently, the ZHB properly noted that the timeliness of appellant’s procedural challenge is a threshold issue that must be determined for jurisdictional purposes.

The intended effective date of ordinance no. 04-01-02 was January 10, 2004. Appellant did not file its procedural challenge to the ordinance until May 14,2004,125 days after the intended effective date. As a result, the ZHB determined that it lacked jurisdiction to hear the challenge. We affirm the board’s decision.

Appellant argues that the ordinance is void ab initio and that, as a result, the 30-day appeal period does not apply. In making this argument, appellant relies on Cranberry Park Associates v. Cranberry Township Zoning Hearing Board, 561 Pa. 456, 751 A.2d 165 (2000); Valianatos v. Zoning Hearing Board of Richmond Township, 766 A.2d 903 (Pa. Commw. 2001); and Schadler v. Zoning Hearing Board of Weisenberg Township, 578 Pa. 177, 850 A.2d 619 (2004). In each of these cases the court held that procedural defects in the enactment of a local ordinance render the ordinance void ab initio, making the 30-day time limit for procedural challenges inapplicable. The reason being that an ordinance that is void ab initio never has an effective date to begin the 30-day period.

All of the cases cited by appellant in support of its position were decided under pre-amendment section 5571(c)(5), which provided:

“Questions relating to an alleged defect in the process of enactment or adoption of any ordinance, resolution, [431]*431map 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 added)

Section 5571(c)(5) now reads as follows:

“Notwithstanding section 909.1(a)(2) of the Act of July 31,1968 (P.L. 805, no. 247), known as the Pennsylvania Municipalities Planning Code, questions relating to an alleged defect in the process of enactment or adoption of any ordinance shall be raised by appeal or challenge commenced within 30 days after the intended effective date of the ordinance. As used in this paragraph, the term ‘intended effective date’ means the effective date specified in the ordinance or, if no effective date is specified, the date 60 days after the date the ordinance was finally adopted but for the alleged defect in the process of enactment or adoption.” 42 Pa.C.S. §5571(c)(5) (rewritten by Act of December 9, 2002, P.L. 1705, no. 215, §3). (emphasis added)

A recent case interpreting amended section 5571(c) (5) is Taylor v. Harmony Township Board of Commissioners, 851 A.2d 1020 (Pa. Commw. 2004).1 Taylor involved a procedural challenge to a township ordinance that was commenced 18 months after the ordinance’s intended effective date. Taylor argued that the ordinance was void ab initio because the township failed to prop[432]*432erly advertise the ordinance prior to its passage, and that, as a result, the 30-day statutory appeal period did not apply to his challenge. In making this argument, Taylor relied on the same cases relied on by the appellant in the instant matter. However, the Commonwealth Court held that Taylor’s challenge was time-barred pursuant to section 5571(c)(5). Noting that amended section 5571(c)(5) governed Taylor’s challenge, the court concluded:

“Because the 30-day statutory period for challenging alleged defects in the enactment of an ordinance begins on the ‘intended’ effective date ‘but for the alleged defect in the process of enactment or adoption,’ section 5571 (c)(5) now means that the statutory period for bringing procedural challenges to local ordinances begins to run without regard to alleged procedural defects that potentially would preclude the ordinance from taking effect. Consequently, a determination of whether an ordinance is actually void can only come after a timely procedural challenge to the ordinance under amended section 5571(c)(5).” Taylor at 1029. (emphasis in original)

In Glen-Gery Corp. v. Zoning Hearing Board of Dover Township, 856 A.2d 884 (Pa. Commw. 2004), the Commonwealth Court relied on its holding in Taylor to affirm the dismissal of a procedural challenge to a local zoning ordinance as untimely under section 5571(c)(5). The court held that section 5571(c)(5) applies to land use ordinances adopted pursuant to the MPC. It reasoned that not only was the statute adopted later in time than the MPC, but it also unequivocally states that it was in[433]*433tended to apply to land use ordinances enacted under the MPC. Id. at 892.

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Citizens for Responsible Development-Windsor Township Inc. v. Windsor Township Zoning Hearing Board, 70 Pa. D. & C.4th 427, 2004 Pa. Dist. & Cnty. Dec. LEXIS 278 (Pa. Super. Ct. 2004).

70 Pa. D. & C.4th 427 (Citizens for Responsible Development-Windsor Township Inc. v. Windsor Township Zoning Hearing Board) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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