Stuckley v. Zoning Hearing Board

79 A.3d 510, 621 Pa. 509, 2013 WL 5825059, 2013 Pa. LEXIS 2576
CourtSupreme Court of Pennsylvania
DecidedOctober 30, 2013
StatusPublished
Cited by24 cases

This text of 79 A.3d 510 (Stuckley v. Zoning Hearing Board) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stuckley v. Zoning Hearing Board, 79 A.3d 510, 621 Pa. 509, 2013 WL 5825059, 2013 Pa. LEXIS 2576 (Pa. 2013).

Opinions

OPINION

Justice EAKIN.

We granted allowance of appeal to determine whether the repeal of an ordinance moots any challenges to that ordinance, whether the Commonwealth Court may issue an opinion on the merits of certain issues where it subsequently remands the case for a determination of mootness on another issue, and whether parties to a hearing can continue a challenge to a zoning ordinance once the original challenger has withdrawn.

Because “parties to a hearing” are distinct from “party appellants,” unless the former have taken steps to become party appellants, we find they cannot continue the challenge. Accordingly, we reverse the decision of the Commonwealth Court permitting parties to the hearing to continue the challenge brought by the original party appellant, and we dismiss the attempted challenge.

On October 25, 2006, Upper Makefield, Wrightstown, and Newtown Townships amended their jointly enacted Joint Municipal Zoning Ordinance No. 1983. Leo Holt, a property owner affected by this amendment, properly appealed to the Zoning Hearing Board of Newtown Township, alleging substantive and procedural de[512]*512fects in the enactment. As a result, Holt became a “party appellant” pursuant to 53 P.S. § 10913.3.1

At the first hearing on Holt’s appeal, some neighboring property owners appeared and were designated “parties to the hearing” pursuant to 53 P.S. § 10908(3).2 See Newtown Township Zoning Hearing Board Findings In re Application of Holt, 3/5/09, at 2. The neighbors called several witnesses to testify at that and subsequent hearings.

On June 6, 2007, before final action on the appeal was taken, Holt withdrew his challenge. Holt being the only party who had filed an appeal, the Board terminated the proceedings. Following Holt’s withdrawal, the Townships repealed Ordinance No. 1983 in its entirety and enacted a new ordinance to cure any prior procedural defects. Ordinance No. 2007 was enacted June 18, 2007.

The ordinance Holt had challenged was reenacted verbatim in Ordinance No. 2007,3 and the neighbors sought to continue Holt’s challenge, filing a writ of mandamus with the trial court, asking it to compel the Board to either continue hearings or render findings on Holt’s appeal. On December 11, 2008, the trial court declined to compel the Board to continue the hearings, but ordered it to make written findings on Holt’s challenge.

On March 5, 2009, the Board issued findings. Determining the MPC distinguishes party appellants from parties to the hearing, and that the only “party appellant” had withdrawn, the Board found the neighbors did not have the right to continue the challenge. Id., at 2-8. The Board noted none of the individuals attempting to continue the challenge had filed an application as required by the MPC — in order to pursue the action, a party must “[be] aggrieved ... and ... file the required written application with reasons[.]” Id., at 3 (emphasis omitted).

The neighbors appealed to the trial court, and Toll Brothers, developing land in the impacted district, intervened. The court reversed the findings of the Board, finding no distinction between party appellants and parties to the hearing, and instructed the Board to permit the neighbors to continue Holt’s challenge. Trial Court Opinion, 3/25/10, at 9. Toll Brothers appealed the trial court’s order, but subsequently filed an application to dismiss the appeal and vacate the order as moot on the grounds the ordinance challenged by Holt had been repealed and Ordinance No. 2007 had never been specifically challenged. The Commonwealth Court accepted the application but did not vacate the lower [513]*513court’s order. Rather, it opted to address the issue of mootness along with the merits.4

The Commonwealth Court affirmed the trial court’s decision, finding the MPC does not specifically state the rights of parties to the hearing are contingent on the existence of the party appellant remaining in the action. The court also found the repeal and reenactment of the subsequent ordinance, which was substantially the same as the original ordinance, did not render the challenge moot. However, the court remanded to the Board to determine whether the matter was moot in light of a third ordinance, Ordinance No. 2010, enacted June 23, 2010, after Toll Brothers’ appeal was filed, which Toll Brothers argued cured the substantive defects originally challenged by Holt. Here, Toll Brothers appeals the decision of the Commonwealth Court.

Toll Brothers argues there was no justi-ciable case or controversy before the trial court or the Commonwealth Court because Ordinance No. 1983, the subject of the original challenge, had already been repealed. Toll Brothers also argues, because the case was potentially moot pending the remand, the Commonwealth Court’s opinion was an improper advisory opinion. In the alternative, Toll Brothers argues, even if we are to find this case was justiciable, it should prevail because the neighbors never filed their own application to challenge any ordinance.

The Statutory Construction Act provides:

Whenever a statute is repealed and its provisions are at the same time reenacted in the same or substantially the same terms by the repealing statute, the earlier statute shall be construed as continued in active operation. All rights and liabilities incurred under such earlier statute are preserved and may be enforced.

1 Pa.C.S. § 1962. This Court has applied the same principle:

It is true that pending proceedings not fully consummated would normally fall with the repeal of the laws under which they were begun; but this result is not brought to pass where, as here, those laws are substantially re-enacted by the repealing act itself. In such cases the proceedings may be continued and concluded under the new law, subject, of course, to such modifications as it provides.

Kraus v. City of Philadelphia, 265 Pa. 425, 109 A. 226, 230 (1919); see also In re Earned Income Tax Ordinance of Wilkes-Barre, 208 Pa.Super. 424, 222 A.2d 499, 502 (1966). Thus, the repeal of an ordinance does not necessarily moot any challenges to that ordinance where it has been reenacted in substantially the same form.

Holt challenged §§ 401.1(A)-(D) and 401.1(G)(l)(c)-(d) of Ordinance No. 1983. These sections were reenacted verbatim in Ordinance No. 2007 with the same section numbers. Furthermore, the Board stated in the preamble to Ordinance No. 2007 the purpose of the reenactment was “to cure any possible procedural or other errors that may have occurred in the enactment” of the original ordinance. Ordinance No. 2007, at 2. Thus, the reenactment did not alter the substance of the ordinance, and Holt’s rights and privileges regarding his challenge to the initial ordinance continued despite the reenactment. Thus, had Holt [514]*514wanted to continue his challenge after Ordinance No. 1988 was repealed and replaced with Ordinance No. 2007, he could have done so. The question becomes whether the neighbors, as parties to the hearing rather than party appellants, could also do so following Holt’s withdrawal.

The MPC governs challenges to zoning ordinances and creates at least two categories of participants that may be involved when an ordinance is challenged.

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Cite This Page — Counsel Stack

Bluebook (online)
79 A.3d 510, 621 Pa. 509, 2013 WL 5825059, 2013 Pa. LEXIS 2576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stuckley-v-zoning-hearing-board-pa-2013.