S. Davis-Haas v. Exeter Twp. ZHB and MetroDev V, LP and Exeter Twp. , 2017 Pa. Commw. LEXIS 478 ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sue Davis-Haas, Richard H. Haas, :
Ida C. Smith, Zildia Perez, Leon :
Perez, Donna Galczynski, Kevin :
Galczynski, Alan Ganas, Renee :
Froelich, Scott Matthews, Patricia :
J. Miravich, John J. Miravich and :
William Ryan, :
Appellants :
: No. 1739 C.D. 2016
v. : Argued: June 5, 2017
:
Exeter Township Zoning Hearing :
Board and MetroDev V, LP and :
Exeter Township :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge (P.)
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION
BY JUDGE SIMPSON FILED: July 12, 2017
In this, the most recent of several related appeals in this land use case,
Objectors1 ask whether the Court of Common Pleas of Berks County2 (trial court)
erred in affirming a decision of the Exeter Township Zoning Hearing Board (ZHB)
that sustained MetroDev V, LP’s (Landowner) procedural validity challenge.
Objectors argue the trial court erred in failing to: (1) enforce a settlement
agreement reached by the parties; (2) find that Landowner’s 2005 procedural
1
Objectors are Sue Davis-Haas, Richard H. Haas, Ida C. Smith, Zildia Perez, Leon Perez,
Donna Galczynski, Kevin Galczynski, Alan Ganas, Renee Froelich, Scott Matthews, Patricia J.
Miravich, John J. Miravich and William Ryan.
2
The Honorable Madelyn S. Fudeman presided.
challenge to and the process Landowner followed was defective and Objectors’
rights were violated; and (3) determine Landowner lacked standing to prosecute its
procedural validity challenge. Upon review, we affirm.
I. Background
This case has an extensive procedural history, most of which was set
forth in this Court’s decision in Metro Dev V, LP v. Exeter Township Zoning
Hearing Board (Pa. Cmwlth., No. 1367 C.D. 2013, filed July 24, 2014), 2014 WL
3697529 (unreported). There, we explained that Objectors own properties adjacent
to Landowner’s proposed residential development. Landowner’s property (subject
property) consists of approximately 46.36 acres3 in an area where the boundary
lines of the Township of Exeter (Township), and two surrounding municipalities,
Lower Alsace Township and Alsace Township, meet.
Prior to July 25, 2005, the Township’s Zoning Ordinance No. 500 (old
ordinance) was in effect. Under the old ordinance, the subject property was zoned
low density residential. On July 25, 2005, the Township enacted Zoning
Ordinance No. 596 (new ordinance), which changed the zoning classification of
the property from low density residential to suburban residential. The changed
classification had the practical effect of reducing the number of residential lots
permitted on the subject property from 30 to 7.
3
As explained more fully below, in 2012, Landowner sold a 0.51-acre portion of its
property, but retained the remainder.
2
In August 2005, Landowner filed a challenge to the validity of the
new ordinance with the ZHB pursuant to former Section 10909.1(a)(2) of the
Pennsylvania Municipalities Planning Code (MPC)4 alleging procedural
irregularities in its adoption.
In September 2005, a preliminary subdivision plan was submitted for
a residential development on the subject property called “Windy Willows,”
comprising 34 residential lots, 26 of which were located within the Township. The
plan was based on a sketch plan that was previously submitted while the old
ordinance was still in effect. Waivers were sought from the Township’s
Subdivision and Land Development Ordinance (SALDO).
On September 26, 2005, the Township and Landowner entered into a
settlement agreement in which Landowner agreed to withdraw its procedural
validity challenge to the new ordinance in exchange for the Township’s agreement
to review and potentially approve the plan under the terms of the old ordinance.
Shortly thereafter, Landowner withdrew its validity challenge.
In July 2008, the Township approved Landowner’s plan, subject to
certain conditions. The Township also granted waivers from certain SALDO
sections but it reserved its determination of other waiver requests until the final
plan approval stage. Pursuant to the terms of the settlement agreement, the
Township reviewed the plan under the old ordinance.
4
Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as
amended, formerly 53 P.S. §10909.1(a)(2), deleted by the Act of July 4, 2008, P.L. 319.
3
Objectors subsequently filed a land use appeal with the trial court.
Landowner intervened. The Township filed a motion to dismiss the appeal,
arguing Objectors lacked standing to appeal because they did not appear in the
proceedings below. The trial court granted the Township’s motion and dismissed
Objectors’ appeal. On appeal, this Court held Objectors, as adjacent landowners,
had substantive standing to object to subdivision plans both before the Township
and in land use appeals, even though they did not appear before the Township or
its Planning Commission. Miravich v. Twp. of Exeter 6 A.3d 1076 (Pa. Cmwlth.
2010) (Miravich I). We reversed and remanded.
On remand, the trial court denied Objectors’ land use appeal. The
trial court determined the Township did not err by reviewing the plan under the old
ordinance based on the terms of the settlement agreement because municipalities
are legally authorized to settle challenges to zoning ordinances. The trial court
also upheld the Township’s grant of waivers to Landowner, and it held Landowner
had standing to submit the plan.
Objectors filed another appeal to this Court, asserting: (1) the proper
procedure to challenge the new ordinance was to have a hearing before the ZHB;
(2) the settlement agreement was an invalid exercise of the Township’s authority to
settle the challenge to the new ordinance; (3) the Township erred by applying the
old ordinance instead of the new ordinance to the plan; (4) the Township’s
approval of the plan was defective; and, (5) Landowner lacked standing to seek
preliminary plan approval. Miravich v. Twp. of Exeter 54 A.3d 106 (Pa. Cmwlth.
2012) (Miravich II).
4
Ultimately, this Court held the Township lacked authority to
determine which zoning ordinance would be applied to the plan for three reasons.
First, Landowner’s procedural challenge fell within the exclusive jurisdiction of
the ZHB, not the Township. Additionally, Landowner filed its challenge with the
ZHB and did not bring the matter before the Township as a substantive validity
challenge. Finally, even if Landowner filed its challenge with the Township, the
Township was required to hold a hearing within 60 days of the request and provide
notice of the hearing, events which did not occur. This Court concluded that, by
entering into the settlement agreement with Landowner and agreeing the old
ordinance would apply to the plan, the Township usurped the ZHB’s role and
violated the MPC’s notice and hearing provisions. Citing the trial court’s opinion,
this Court also noted that the parties did not dispute that the enactment process for
the new ordinance was procedurally defective.
This Court also held that the settlement agreement was an invalid
exercise of the Township’s authority to settle the procedural validity challenge to
the new ordinance. We determined the settlement agreement was akin to contract
zoning, which the Pennsylvania Supreme Court expressly disapproved in Carlino
v. Whitpain Investors, 453 A.2d 1385 (Pa. 1982).
Further, this Court held the Township erred when it considered the
plan under the old ordinance rather than the new ordinance. We concluded
Landowner submitted its plan after passage of the new ordinance; therefore, under
Section 508(4)(i) of the MPC, 53 P.S. §10508(4)(i), which provides that an
application for subdivision approval is governed by the ordinance in effect at the
5
time the application is filed, the new ordinance applied. Additionally, as to
Objectors’ arguments that the Township’s approval of the plan was defective, this
Court rejected some arguments and accepted others.5
Thereafter, both parties filed petitions for allowance of appeal to the
Supreme Court, which were ultimately denied. The plan approval appeal
proceeded on remand. Meanwhile, however, while the petitions for allowance of
appeal were pending, Landowner sent a letter to the ZHB requesting that it conduct
a hearing on the procedural validity challenge Landowner filed in 2005 and
subsequently withdrew pursuant to the settlement agreement.6
The ZHB held a hearing on the validity challenge at which it heard
testimony and received exhibits regarding the legal status of the 2005 challenge
and the relevancy of this Court’s decision in Miravich II declaring the settlement
agreement invalid. The ZHB concluded there was nothing before it to consider
because Landowner unconditionally withdrew its challenge in October 2005. The
5
More particularly, this Court rejected Objectors’ assertion that sewage certification was
required at the initial stage. This Court held that Section 512.1 of the MPC, added by the Act of
December 21, 1988, P.L. 1329, 53 P.S. §10512.1, vests discretion with the Township to grant or
deny any and all waivers sought by Landowner. The Court concluded that, because the
Township did not explain the nature of the hardship for the waivers granted, it did not provide a
proper basis for this Court to review whether it erred or abused its discretion in granting the
waivers. Finally, this Court held Landowner had standing as an equitable owner to seek
preliminary plan approval.
6
Landowner asserted the matter was remanded from this Court and that the validity
challenge was filed before a 2008 statutory change. In 2008, the General Assembly repealed
Section 909.1(a)(2) of the MPC, 53 P.S. §10909.1(a)(2), which provided that procedural validity
challenges were to be heard before a ZHB. Currently, Section 5571.1 of the Judicial Code, 42
Pa. C.S. §5571.1, contains the procedures governing procedural validity challenges and provides
that such challenges are to be initiated in common pleas courts.
6
ZHB also held it could not exercise equity powers to conclude Landowner’s
withdrawal of the challenge was nullified by this Court’s determination that the
settlement agreement was invalid because zoning boards lack equity powers.
Landowner appealed to the trial court, challenging both the ZHB’s
denial based on jurisdictional grounds and the validity of the new ordinance. The
trial court determined Landowner properly filed an appeal within 30 days after the
adoption of the new ordinance, which was only withdrawn after the parties reached
a settlement agreement. Thus, the trial court remanded to the ZHB for a
determination on the merits. The trial court explained the settlement agreement
was a contract between Landowner and the Township, and when this Court held it
was invalid in Miravich II, Landowner did not receive the benefit of its contractual
bargain. As such, the trial court determined Landowner should be placed back to
its original position, and the ZHB had jurisdiction to hear the 2005 procedural
validity challenge. The trial court also determined that in Miravich II this Court
intended the matter to be remanded to the ZHB because only the ZHB had
jurisdiction over a procedural validity challenge filed in 2005.7
On further appeal by Objectors, this Court affirmed, holding,
“[b]ecause the settlement agreement has been invalidated, unmaking the contract
between [Landowner] and the Township by judicial order, equity requires that
7
The trial court further stated the validity challenge was not barred by laches because the
delay was caused by ongoing litigation and because Landowner properly relied on the
Township’s apparent authority as to its pursuit of its land development application. The trial
court also held unclean hands did not apply as both the Township and the trial court found the
settlement agreement valid.
7
[Landowner] must be returned to its position prior to execution of the settlement
agreement. Therefore, the ZHB is required to decide the merits of the procedural
validity challenge under the statutory procedure in effect in 2005.” Metro Dev V,
Slip Op. at 11, 2014 WL 3697529 at *5.8
Thereafter, the ZHB held hearings on Landowner’s procedural
validity challenge to the new ordinance. Ultimately, the ZHB sustained
Landowner’s procedural validity challenge, and it declared the new ordinance void
ab initio. In so doing, the ZHB made the following relevant determinations.
In 2005, the Township undertook a project to amend its zoning
ordinance. After various meetings, the Township decided to advertise for public
hearing and enact a proposed ordinance to amend and restate the Township zoning
ordinance and the zoning map in their entirety (collectively, the draft ordinance).
The Township advertised a notice in the Reading Eagle, a newspaper
of general circulation in the area, on June 29 and July 6, 2005, which stated:
The Exeter Township Board of Supervisors
[(Supervisors)] will hold a public hearing at 7:00 P.M. on
July 18, 2005 to hear [p]ublic [c]omment on the [draft
ordinance]. The [Supervisors] will consider adoption of
the [draft ordinance] at their July 25, 2005 meeting. Full
text of the [draft ordinance] is available for public
inspection at the Township Office, 4974 DeMoss Road,
8
Additionally, in a separate (but related) decision, this Court remanded to the
Township’s governing body following an appeal relating to Landowner’s preliminary
subdivision plan, and we stayed that proceeding pending the outcome of Landowner’s procedural
validity challenge to the new ordinance. See Miravich v. Twp. of Exeter (Pa. Cmwlth., No. 2066
C.D. 2013, filed July 24, 2014), 2014 WL 3697542 (unreported) (Miravich III).
8
Reading, PA 19606. If you require special
accommodations in order to attend Township meetings,
please call the Township office at 610-779-5660. The
Township will make every reasonable attempt to
accommodate you.
Troy S. Bingaman, Manager/Secretary.
ZHB Op., 9/24/15, Finding of Fact (F.F.) No. 28 (Reading Eagle Notice).
The Reading Eagle Notice did not provide “the time and place” of the
meeting on July 25, 2005 in which the Supervisors would consider enactment of
the draft ordinance. F.F. No. 29. Also, the Reading Eagle Notice did not provide
either “the full text” of the draft ordinance or “a brief summary which lists
provisions [of the draft ordinance] in reasonable detail[.]” F.F. No. 30. Although
the Reading Eagle Notice did indicate that copies of the Draft Ordinance could be
obtained at the Township Building, the Notice did not state “copies of the proposed
ordinance or amendment may be examined without charge or obtained for a charge
not greater than the cost hereof.” F.F. No. 31. Further, the Reading Eagle Notice
was prepared by the Township Manager, not the Township Solicitor. The draft
ordinance provided for changes to the zoning map that did not constitute
comprehensive rezoning as only a few areas of the Township were rezoned.
The ZHB further determined a notice of the public hearing on July 18,
2005 and proposed enactment at the July 25, 2005 meeting were not conspicuously
posted along tracts of land that were the subject of zoning map changes under the
draft ordinance. Also, a notice of the public hearing on July 18, 2005 and
proposed enactment at the July 25, 2005 meeting was not mailed to the owners of
the tracts of land within the Township that were the subject of zoning map changes
9
under the draft ordinance. An attested copy of the draft ordinance or any revised
version was not filed in the County Law Library at any time prior to July 25, 2005.
Additionally, a copy of the full text of the draft ordinance or any revised version
was not filed with the Reading Eagle at any time prior to July 25, 2005.
On July 18, 2005, the Supervisors held a public hearing at which time
the draft ordinance was reviewed. At the hearing, the Supervisors made several
substantial changes to the draft ordinance including changes to uses within zoning
districts, changes to definitions and changes to objective criteria for uses. The
Township Planning Commission reviewed the draft ordinance with the changes
recommended at the July 18 hearing at a workshop meeting on July 20, 2005. At
that time the Township Planning Commission recommended additional changes to
Sections 400 and 500 of the draft ordinance.
On July 25, 2005, the Supervisors held a public meeting at which time
the draft ordinance (with the changes recommended at the July 18 hearing and the
July 20 Planning Commission workshop meeting) was considered for adoption.
As a result of public comment at the July 25 Supervisors’ meeting, the draft
ordinance was revised again. F.F. No. 42.
On July 25, 2005, the Supervisors adopted the new ordinance, which
was in the form and content of the draft ordinance with the changes recommended
at the July 18 public hearing, the July 20 Planning Commission workshop meeting,
as well as the July 25 Supervisors’ meeting, and served to amend and restate the
zoning ordinance in its entirety.
10
Between July 18 and prior to the adoption of the new ordinance on
July 25, neither any of the revised versions of the draft ordinance nor the final
version of the new ordinance were: (a) submitted to the County Planning
Commission for review; (b) submitted to the Township Planning Commission for
review of the changes made at the July 25 meeting; (c) submitted to the County
Law Library to be available for public inspection; (d) submitted to the Reading
Eagle to be available for public inspection; (e) re-advertised in the Reading Eagle
for a public hearing or enactment at a public meeting; (f) posted conspicuously
along tracts in the Township that were the subject of zoning map changes; or, (g)
mailed to the owners of the tracts of land within the Township that were the subject
of zoning map changes. F.F. No. 44.
The new ordinance became effective on August 5, 2005, 10 days after
its passage by the Supervisors. On August 24, 2005, Landowner filed its
procedural validity challenge with the Township, which was within 30 days of the
new ordinance’s effective date.
The ZHB explained that a procedural challenge must be brought
within 30 days of an ordinance’s effective date. 42 Pa. C.S. §5571(c)(5). Where a
challenge is filed within 30 days of the ordinance’s effective date, the party
alleging a defect must prove there was a failure to strictly comply with statutory
procedure. However, where a challenge is filed outside the 30-day period, a party
must prove its right to an exemption from the deadline. This is accomplished by
evidence showing the municipality’s “failure to substantially comply” with
applicable procedures prevented the public from commenting on the ordinance.
11
Hawk v. Eldred Twp. Bd. of Supervisors, 983 A.2d 216 (Pa. Cmwlth. 2009). If the
challenging party meets its burden of proof, the challenged ordinance is void ab
initio. Id.Section 609 of the MPC, 53 P.S. §10609, establishes the procedures to
be followed in the enactment process of zoning ordinance amendments.
Additionally, Section 610 of the MPC, 53 P.S. §10610, establishes the
requirements for publication, advertisement and availability of proposed zoning
ordinances.
Here, the ZHB found Landowner submitted credible evidence to meet
its burden of establishing that its application was filed within 30 days of the
effective date of the new ordinance, and that the Township did not strictly comply
with the required statutory procedure. Specifically, the ZHB determined the
Township did not strictly comply with the required statutory procedure in the
enactment process of the new ordinance based on 11 defects, detailed more fully
below. In light of these determinations, the ZHB sustained Landowner’s
procedural validity challenge, and it declared the new ordinance void ab initio.
Objectors appealed to the trial court raising numerous issues.
Before the trial court, the parties engaged in settlement discussions
and reached a tentative agreement; however, a final settlement agreement was not
reached.
12
Ultimately, without taking additional evidence on Objectors’ land use
appeal, the trial court affirmed. Additionally, the trial court denied Objectors’
motion to enforce the purported settlement agreement reached before the trial
court. This appeal followed.
II. Issues
On appeal,9 Objectors assert the trial court erred in failing to: (1)
enforce a settlement agreement reached by the parties after the trial court
determined Landowner was unable to comply with one of the terms of the
agreement; and, (2) find Landowner’s 2005 procedural challenge to the new
ordinance and the process Landowner followed was defective and Objectors’ rights
were violated where (a) substantial and actual notice of the new ordinance was
provided to all Township residents; (b) substantial reliance was shown by
Objectors that the new ordinance was properly enacted; and, (c) the defective
process undertaken by Landowner denied Objectors due process. Objectors also
argue the trial court erred in failing to conclude Landowner lacked standing to
prosecute its 2005 procedural validity challenge where it sold the subject property.
III. Discussion
A. Purported 2016 Settlement Agreement
1. Contentions
Objectors first argue the trial court erred or abused its discretion when
it failed to enforce a 2016 settlement agreement reached by the parties following
9
Where, as here, the trial court did not receive any additional evidence, this Court’s
review is limited to determining whether the ZHB committed an error of law or abuse of
discretion. Oxford Corp. v. Zoning Hearing Bd. of Oxford, 34 A.3d 286 (Pa. Cmwlth. 2011).
13
Objectors’ appeal of the ZHB’s 2015 decision declaring the new ordinance
procedurally invalid. Objectors assert Pennsylvania has a strong judicial policy in
favor of voluntarily settling lawsuits. Mastroni-Mucker v. Allstate Ins. Co., 976
A.2d 510 (Pa. Super. 2009). Objectors contend settlement agreements are enforced
according to principles of contract law. McDonald v. Ford Motor Co., 643 A.2d
1102 (Pa. Super. 1994). Under Pennsylvania law, a contract exists when parties
exhibit mutual assent to the terms of an agreement. Shovel Transfer & Storage,
Inc. v. Pa. Liquor Control Bd., 739 A.2d 133 (Pa. 1999).
If a settlement contains all of the requisites for a valid contract, a court
must enforce the terms of the agreement, even if the terms are not yet formalized in
writing. Mastroni-Mucker. The intent of the parties to a written contract is
contained in the writing itself. Mace v. Atl. Refining & Mktg. Corp., 785 A.2d
491 (Pa. 2001). Moreover, after the parties reach a meeting of the minds as to the
essential terms of their agreement, the existence of gaps in the contract will not
vitiate it. See Commerce Bank/Pa. v. First Union Nat’l Bank, 911 A.2d 133 (Pa.
Super. 2006). Thus, “[t]he law in this Commonwealth makes clear that … [i]f
parties agree upon essential terms and intend them to be binding, a contract is
formed even though they intend to adopt a formal document with additional terms
at a later date.” Shovel Transfer & Storage, 739 A.2d at 136 (internal quotations
omitted); see also Commerce Bank.
Here, Objectors maintain, the parties agreed to the essential terms of a
settlement. The parties did not contemplate any additional terms that needed to be
agreed on as a condition precedent to enforceability. Objectors argue that before
14
the trial court, the parties made no effort to clarify or object to any of the terms of
the proposal upon accepting it.
Objectors contend that, as admitted by Landowner, the parties entered
into a settlement agreement. Reproduced Record (R.R.) at 25a-33a, 1123a-24a.
The terms of that agreement were simple: (1) an entrance road would be moved;
(2) Landowner would receive certifications from the three township engineers that
the township boundary lines depicted on the plan were accurate; (3) Landowner
would pay the immediately adjacent neighbors $60,000; and, (4) the parties would
release each other, thus requiring Objectors not to further challenge Landowner’s
development. R.R. at 70a-77a. Objectors maintain Landowner itself sought
enforcement of the settlement agreement, and it admitted in its motion that there
was a “meeting of the minds.” R.R. at 32a. Therefore, no basis exists to not
enforce the essential terms of the settlement agreement.
Objectors contend Pennsylvania courts frequently enforce agreements
that contemplate the execution of a formal contract with additional terms in the
future. See, e.g., Shovel Transfer & Storage. Indeed, Objectors argue, when
compared to other settlement agreements enforced under Pennsylvania law, the
agreement here is much more definitive and clearly enforceable. See e.g.,
Hatalowich v. Redev. Auth. of Monessen, 312 A.2d 22, 24-25 (Pa. 1973)
(acceptance of proposal created a contract despite the fact that parties intended to
later execute formal document); Compu Forms Control, Inc. v. Altus Grp., 574
A.2d 618 (Pa. Super. 1990) (oral settlement agreement was enforceable even
though the parties were unable to agree on, and execute, formal agreement). Here,
15
Objectors argue there can be no dispute that the parties entered into an agreement
that was simply not yet reduced to a writing signed by the parties, but the parties
agreed on all essential terms. See Commerce Bank, 911 A.2d at 147 (enforcing
terms of draft settlement agreement where parties reached “meeting of the minds”
regarding essential terms of the agreement).
Objectors further contend the term of the agreement relating to
certification of municipal boundary lines was important to Objectors because they
believed Landowner intentionally misrepresented the boundaries between the
municipalities to allow more development in the Township given that it allows for
smaller lots. Although this was not a specific legal issue before the trial court,
Objectors maintain, the trial court agreed this term would be included so Objectors
would provide Landowner a general release not to challenge Landowner’s
development again. Objectors argue Landowner’s failure to comply with this term
constituted a breach of the agreement; therefore, this case should be remanded to
enforce the settlement agreement.
Landowner10 responds that the trial court correctly held that a
settlement agreement that cannot be performed is not enforceable as a matter of
law. As detailed by the trial court, Landowner and the Township could not
perform a material term of the proposed settlement agreement; as such, the contract
could not be enforced. Landowner contends the trial court laid out the term that
Landowner and the Township could not perform and the reasons the parties
10
The Township joins and adopts by reference the briefs filed by Landowner and the
ZHB.
16
rejected the settlement proposal. As such, no meeting of the minds ever occurred;
thus, nothing suggests the ability to enforce a settlement proposal.
Landowner argues it is critical to note that the settlement agreement
Landowner sought to enforce through its motion was substantially different than
the purported agreement Objectors now seek to enforce. In fact, Objectors never
responded to the settlement’s writing and the parties relied on a spoken agreement.
Despite this discussion, Landowner asserts, throughout the entire summer of
2016—again to the delay of Landowner’s development—the terms of the
agreement continually changed. From the loss of lots in April, to the payment of
funds in May, to boundary certifications in June and then to loss of lots again in
July, Objectors repeatedly changed the terms of any agreement.
Moreover, Landowner maintains, as the draft agreements indicate, the
Township always proposed a full release. R.R. at 72a-77a. However, at no time
from April through June did Objectors respond to that requirement, until the
motion to enforce settlement was filed. Essentially, Landowner argues Objectors
want it both ways. They refused to settle in the midst of litigation, R.R. at 2a, and
then they demanded enforcement of a purported settlement agreement after losing
before the trial court.
As noted by the trial court, Landowner contends, the final version of
the settlement agreement could not be satisfied by Landowner and the Township.
As such, the agreement failed as a matter of law. See, e.g., West v. Peoples First
Nat’l Bank & Trust Co., 106 A.2d 427 (Pa. 1954). Importantly, Landowner
17
argues, the cases Objectors cite in support of their position include scenarios
involving a clear meeting of the minds where the only outstanding issue was a
finalized writing. No meeting of the minds occurred here.
Landowner maintains that, as to the purported agreement, the trial
court specifically referenced the boundary issue and made a finding that the parties
could not survey the boundary in the manner demanded by Objectors. Thus, not
all terms were satisfied. Landowner asserts our Supreme Court holds: “As with
any contract, it is essential to the enforceability of a settlement agreement that ‘the
minds of the parties should meet upon all the terms, as well as the subject-matter,
of the [agreement].’” Mazzella v. Koken, 739 A.2d 531, 536 (Pa. 1999) (citing
Onyx Oils & Resins, Inc. v. Moss, 80 A.2d 815, 817 (Pa. 1951)). Moreover,
Landowner argues, the boundary issue was only one of several items upon which
the parties could not agree, thus showing the settlement agreement was not
enforceable as a matter of law.
For its part, the ZHB notes, although present and a party to the matter,
it was not directly involved in negotiations and attempts to resolve the matter
through the proposed settlement agreement before the trial court. Nevertheless, the
ZHB opposes Objectors’ argument that the trial court should have enforced the
proposed settlement agreement. The ZHB joins Landowner’s argument on this
issue in support of the trial court’s finding that the proposed settlement agreement
was not enforceable based on the impossibility of performance of a material term.
18
2. Analysis
In resolving this issue, the trial court here explained (with emphasis
added):
[Objectors] requested that this court enforce a settlement
agreement reached amongst the parties in court in April,
2016, and reduced to writing, but never finalized. The
agreement discussed in court contained financial terms
and several other provisions, but it was never finalized,
and no party performed any of the obligations contained
in the agreement. A material term of that agreement
required [Landowner] and [the Township] to obtain
certification from the engineers of the three
municipalities of each of the municipal boundaries as
depicted on [Landowner’s] preliminarily approved land
development plans. [The Township] and [Landowner]
were unable to obtain the certifications, but proposed in
the alternative, in accordance with the recommendations
of their relative engineers, that determination of the
municipalities’ boundaries be obtained in accordance
with the procedures [set forth in] [S]ection 302 of the
[Second Class Township Code11]. This proposal was
rejected by [Objectors] who insisted that they would not
entertain any agreement absent certification from the
engineers.
[The] Township and [Landowner] could not
perform a material term of the settlement agreement. ‘If
performance on one side or another of a contract
becomes excusably impossible while the transaction is
wholly executory on both sides, not only is the contract
discharged, but neither party is subject to obligation of
any kind.’ [West, 106 A.2d at 433] citing Williston on
Contracts, vol. 6 (Rev. Ed.). See also, Ellwood City
Forge Corp. v. Fort Worth Heat Treating Co., Inc., [636
A.2d 219 (Pa. Super. 1994)]. Accordingly, impossibility
of performance of the material term rendered the
agreement, if indeed any was reached, terminated.
11
Act of May 1, 1933, P.L. 103, as reenacted and amended, 53 P.S. §65302.
19
Tr. Ct., Slip Op., 9/15/16, at 9.
Despite Objectors’ claims that the parties reached a settlement
agreement after Objectors’ appeal of the ZHB’s decision invalidating the new
ordinance, Objectors point to no record evidence to support their claim that an
enforceable agreement actually existed. Objectors note that, in June 2016,
Landowner filed a motion to enforce the purported settlement agreement between
the parties in which Landowner indicated there was a “meeting of the minds.” See
R.R. at 32a. Shortly thereafter, the trial court issued an order marking the case
settled and discontinued. See Certified Record (C.R.), Item #23.
However, in response to Objectors’ motion for reconsideration, C.R.,
Item #24, the trial court vacated its order marking the case settled and
discontinued, and it ordered the parties to finalize settlement within 30 days. C.R.,
Item #28. Around the same time, the trial court issued orders scheduling
settlement conferences for July 2016. C.R., Item #s 25-27. The trial court
subsequently scheduled a hearing for July 25, 2016 on Landowner’s petition to
post bond, and it ordered the parties to file briefs on Objectors’ land use appeal.
C.R., Item #s 29, 30. The trial court then issued its decision denying Objectors’
land use appeal and rejecting Objectors’ assertion that the trial court should
enforce the purported settlement agreement reached by the parties based on the
above-quoted rationale.
Unfortunately, the record does not contain any transcripts from the
proceedings before the trial court. Thus, it is unclear whether adequate support
exists for the trial court’s factual determination that it was impossible for the
20
parties to perform an essential term, i.e., obtaining engineer certifications from the
municipal engineers of each of the municipal boundaries depicted on Landowner’s
preliminarily approved land development plans.
Nevertheless, in their brief to this Court, Objectors do not directly
dispute the underlying basis for the trial court’s factual determination on this point.
Rather, they assert the parties’ failure to comply with that term of the agreement
rendered the agreement “breached not voided.” Appellants’ Br. at 20. Thus,
Objectors challenge the result when a material term of an agreement is deemed
impossible to perform.
Section 261 of the Restatement (Second) of Contracts defines “legal
impossibility” as follows:
Where, after a contract is made, a party’s performance is
made impracticable without his fault by the occurrence of
an event the non-occurrence of which was a basic
assumption on which the contract was made, his duty to
render that performance is discharged, unless the
language or the circumstances indicate to the contrary.
RESTATEMENT (SECOND) OF CONTRACTS §261 (1981).
Thus, “[u]nder the doctrine of impossibility of performance[12]
applicable to the construction of contracts, if, after a contract is made, a party’s
12
“Impossibility of performance” means “not only strict impossibility but
impracticability because of extreme and unreasonable difficulty, expense, or loss involved.” In
re Busik, 759 A.2d 417, 423 n.9 (Pa. Cmwlth. 2000) (quoting West v. Peoples First Nat’l Bank
& Trust Co., 106 A.2d 427, 432 (Pa. 1954)). “Impossibility of performance,” however, does not
include mere inconvenience even though it may work a hardship. Id. (citing Int’l Brotherhood of
(Footnote continued on next page…)
21
performance is made impracticable through no fault of his or her own, the parties
may waive the difficulties or terminate the agreement, ending all contractual
obligations.” In re Busik, 759 A.2d 417, 423 (Pa. Cmwlth. 2000) (citing West).
Further, “when impracticability excuses a party’s duty to perform, it ends all
contractual obligations under the contract.” Lichtenfels v. Bridgeview Coal Co.,
531 A.2d 22, 26 (Pa. Super. 1987) (citing West; RESTATEMENT (SECOND) OF
CONTRACTS § 377 cmt. a (1981) (“in cases of impracticability or frustration the
other party is also ordinarily relieved of any obligation of rendering the return
performance that he has promised on the ground of failure of performance (§
267)”)).
Here, the trial court determined the performance of a material term of
the purported settlement agreement was impracticable. Further, Objectors refused
an alternative proposed procedure to satisfy this term, instead insisting they would
not entertain any agreement absent certification from the municipal engineers. Tr.
Ct., Slip Op., at 9. Under these circumstances, the trial court correctly determined
that “impossibility of performance of [this] material term rendered the agreement,
if indeed any was reached, terminated.” Id.; see West. Objectors offer no
persuasive reason to disturb the trial court’s determination on this point.
(continued…)
Firemen & Oilers, Local 1201, AFL-CIO v. Bd. of Educ. of Sch. Dist. of Phila., 457 A.2d 1269(Pa. 1983)). Nor does it include a party’s financial inability to perform. Id.22
B. Procedural Validity Challenge to New Ordinance
1. Contentions
Objectors next argue Landowner’s 2005 procedural challenge and the
process it followed was defective and shows Objectors’ rights were violated. They
assert the purpose of a notice provision under the MPC is to prevent municipalities
from enacting zoning ordinances that affect specific tracts of land without
providing notice of their intention to act. Northampton Residents Assoc. v.
Northampton Twp. Bd. of Supervisors, 322 A.2d 787 (Pa. Cmwlth. 1974).
Further, where the ordinance adopted is different from the ordinance
included in the notice, it shall not be declared invalid if the changes in the
ordinance finally adopted were largely inconsequential. Id. Also, the advertising
of an ordinance complies with the MPC even if the full text of the ordinance is not
included. Instead, only a brief summary of the principal provisions must be
included. Graack v. Bd. of Supervisors of L. Nazareth Twp., 330 A.2d 578 (Pa.
Cmwlth. 1975). Thus, where insignificant changes or amendments are made to a
proposed ordinance after advertisement and public hearing, a re-advertisement and
second public hearing are not required. Id. In other words, Objectors contend, a
zoning ordinance is not invalid because certain amendments to the advertised
ordinance were made at the public meeting without re-advertising. This is
particularly true where the changes are de minimis. Id.Objectors maintain that in Nockamixon Township v. Nockamixon
Township Zoning Board, 8 A.3d 434 (Pa. Cmwlth. 2010), this Court upheld a trial
court’s reversal of a zoning board’s decision to sustain a procedural challenge to a
zoning ordinance based in part on a claim of improper notice. There, this Court
23
recognized it was undisputed that the township violated the MPC because it did not
provide timely notice of the meeting in which the ordinance was considered.
However, this Court reasoned that in recent years courts softened the result of
failure to strictly comply with notice requirements and instead relied on the
concept of appropriate due process and likewise whether the due process right of
others would be denied when they relied on and were bound by what appeared to
be a valid ordinance. Id.; see also Bartkowski Inv. Grp., Inc. v. Bd. of Comm’rs of
Marple Twp., 18 A.3d 1259 (Pa. Cmwlth. 2011) (failure to strictly comply with
MPC’s notice provision would not result in invalidation of zoning ordinance).
In addition, Objectors contend, to bring a procedural challenge to the
adoption of an ordinance, the challenger must present evidence of demonstrable
prejudice to succeed on its challenge. Oxford Corp. v. Zoning Hearing Bd. of
Borough of Oxford, 34 A.3d 286 (Pa. Cmwlth. 2011). Further, a party bringing a
procedural challenge must carry the additional burden of showing the ordinance
was not reasonably relied on by other parties. Messina v. E. Penn Twp., 62 A.3d
363 (Pa. 2012).
Here, Objectors argue, evidence was presented that a summary of the
ordinance was published in the Reading Eagle Newspaper notifying all landowners
that the Township was considering a township-wide zoning ordinance. R.R. at
1215a-16a. Moreover, Objector John Miravich testified the affected landowners
received mailed notice reflecting the proposed zoning change. R.R. at 422a. In
fact, there was testimony that over at least a six-month period, the Township held
public forums that landowners could attend and comment on the zoning changes.
24
R.R. 422a-23a; see also R.R. 423a-25a. Further, maps were displayed allowing
landowners to identify how their properties may be affected by the zoning change.
Objectors point out Landowner claimed the new ordinance was not
delivered to the County Law Library. However, Landowner did not present
testimony by the law librarian working at the time the new ordinance was
considered. Instead, it produced a witness who only began working there five
years after the Township considered the new ordinance. Moreover, Landowner’s
representative acknowledged he did not know where the law library was and never
went there to review an ordinance even though he was Landowner’s representative
working on the land development plan.
In addition to the claim that the new ordinance was not provided to
the law library, Objectors maintain, Landowner claimed the new ordinance was not
provided to the County Planning Commission. However, the County Planning
Commission representative testified the new ordinance was provided for review.
The County Planning Commission’s records showed the new ordinance was
received and the Planning Commission specifically commented on the new
ordinance and returned its comments to the Township. Objectors point out that
Landowner appears to claim that because some minor changes to the new
ordinance were made after the comments were received that the Township was
required to resubmit the new ordinance to the Planning Commission. However,
Objectors maintain, Landowner cites no authority that suggests these rounds of
comments were required when the changes were minor and made at the Planning
Commission’s request.
25
Further, Objectors argue, Landowner received substantial notice of the
ordinance change. Landowner’s representative testified he knew where the
Township building was, previously attended Township meetings and reviewed the
Township documents. R.R. at 138a-48a.
Also, Objectors contend the new ordinance was available at the
Township building. Objectors argue further testimony was offered and was
unrefuted that the Township provided prior notice and set up workshops and
notified each landowner in writing. R.R. at 1147a. Again, none of this testimony
was refuted. Additionally, Objectors assert, Landowner offered no testimony that
it was prejudiced by not receiving more detailed notice.
Objectors further maintain they offered significant testimony that they
relied on the new ordinance. R.R. at 425a-27a. Additionally, testimony was
offered that Objectors now cannot develop their property under the old ordinance
that Landowner seeks to apply only to it. R.R. at 426a-27a. As set forth in
Messina, Objectors maintain, a challenger, like Landowner here, must show there
was no reasonable reliance by others that the new ordinance was valid. Here,
Objectors argue, Landowner presented no evidence to refute the fact that after 10
years it was reasonable for other landowners to believe the new ordinance was
valid and could no longer be challenged.
Objectors further contend, in addition to the fact that they could
reasonably rely on the new ordinance as it was on the books for over 10 years,
Objectors never received notice that Landowner filed an application challenging
26
the new ordinance. Although the Township attempted to show a memorandum
was prepared internally to schedule a hearing and notify Objectors, no hearing was
scheduled and no evidence that a hearing was scheduled was ever presented.
Moreover, Objectors assert, no evidence was presented that Objectors
ever received any notice. Instead, the parties conspired to hide Landowner’s
special treatment from Objectors. In fact, Objectors contend, the only testimony
on this issue was the testimony that no hearing occurred. R.R. at 419a-20a.
Objectors assert they had a due process right that, to the extent an ordinance was
going to be challenged, it would be done timely, see Messina, rather than 5 or 10
years after the initial application was filed and placed on hold by Landowner. As
the evidence showed, Objectors assert, through the minutes of the Township
meeting, it was Landowner who prepared and presented the settlement agreement
to the Township, which placed the procedural challenge on hold without notice to
Objectors. Objectors maintain it was not the Township’s fault that Landowner
chose to proceed in a way that would allow only the Township and Landowner to
know Landowner intended to overturn the new ordinance as it applied only to the
subject property.
Objectors argue the MPC requires timely prosecution of a zoning
application. Here, Landowner placed its validity challenge in limbo thus
prejudicing Objectors who were never notified the application was filed. Objectors
assert it would deny them due process to allow Landowner not to prosecute its
challenge in a timely manner.
27
In response, Landowner argues the trial court correctly agreed that the
enactment of the new ordinance in 2005 was procedurally defective. Landowner
contends that, based on the history and voluminous record, the new ordinance was
adopted with significant procedural flaws. Landowner asserts Objectors’ argument
concerning the ZHB’s ability to hear the case is improper as a matter of law, as the
procedural validity challenge hearing was correctly advertised and all parties
attended the 2015 hearings consistent with this Court’s directive in Metro Dev V.
Landowner maintains the trial court properly recognized the procedural flaws and
sustained the ZHB’s decision. Importantly, it contends, the trial court agreed that
the phantom procedural requirements suggested by Objectors in the zoning appeal
process are not binding on any of the parties.
To that end, Landowner argues, Objectors’ arguments regarding
notice of an application are not grounded in any legal requirement in the MPC, the
Second Class Township Code, the zoning ordinance or this Court’s directive in
Metro-Dev V. As such, no legal basis exists to adopt the novel argument that the
case should be dismissed because in 2005 no parties knew an application was filed.
Objectors’ failure to cite supporting authority reveals the frivolous nature of their
notice argument.
Landowner further maintains the procedural flaws in the 2005
adoption of the new ordinance are undisputed. During the 2015 ZHB hearings,
Objectors did not present evidence to suggest the new ordinance’s adoption
procedure was not flawed. Further, the Township admitted the new ordinance was
28
flawed, and this Court recognized the procedural defects inherent in the ordinance
adoption in Metro Dev V.
In addition to the various admissions of invalidity, Landowner
contends, the ZHB record is filled with procedural flaws including, but not limited
to: (1) failure to properly summarize the ordinance in the advertisement; (2) failure
to have the proper municipal official advertise the ordinance; (3) making
substantial changes without additional comment by the County or Township
Planning Commissions; (4) failure to file a copy with the County Law Library
prior to adoption; and, (5) failure to advertise the time and place of the meeting in
which the new ordinance would be considered.
Landowner further maintains the trial court properly found that strict
compliance with each MPC provision was the proper standard here. Thus, one
flaw was enough to sustain Landowner’s burden. As noted, Landowner argues,
countless errors occurred here. As the trial court properly concluded, based on this
Court’s directive, the law in place in 2005 was to be applied to the new ordinance’s
adoption process. See Metro Dev V. At that time, Glen-Gery Corp. v. Zoning
Hearing Board of Dover Township, 907 A.2d 1033 (Pa. 2006), and its progeny
controlled, mandating the strictest of all standards in ordinance adoption, requiring
satisfaction of every statutory provision or an ordinance was void.
Landowner argues this appeal is simply one more roadblock in a
series of legal objections that were filed without a valid legal basis, but rather in an
effort to halt Landowner’s development.
29
Landowner further contends the hearing protocol for the procedural
validity challenge satisfied the MPC. It asserts the crux of Objectors’ argument is
that no advertisement occurred when the procedural validity challenge was filed
with the ZHB. Landowner argues nothing in any statute suggests that
advertisement of a procedural validity challenge application must occur. Further,
Objectors cite no such authority. Rather, the only advertisement requirement for a
ZHB is prior to a hearing. See Section 908 of the MPC, 53 P.S. §10908.
Here, Landowner argues, the issue of the procedural hearing process
was already decided. See Metro Dev V. Further, in Miravich v. Township of
Exeter (Pa. Cmwlth., No. 2066 C.D. 2013, filed July 24, 2014), 2014 WL 3697542(unreported) (Miravich III), the same Objectors requested the matter proceed
before the ZHB and raised no issue with that hearing process through extensive
briefing. Landowner asserts Objectors’ procedural complaints are only intended to
confuse and complicate a 10-year-old legal dispute.
Landowner further argues that, in 2005, as with today, Section 908 of
the MPC governs hearing procedures before the ZHB. It provides a specific notice
provision:
The board shall conduct hearings and make decisions in
accordance with the following requirements:
(1) Public notice shall be given and written notice shall
be given to the applicant, the zoning officer, such other
persons as the governing body shall designate by
ordinance and to any person who has made timely
request for the same. Written notices shall be given at
such time and in such manner as shall be prescribed by
ordinance or, in the absence of ordinance provisions, by
30
the rules of the board. In addition to the written notice
provided herein, written notice of said hearing shall be
conspicuously posted on the affected tract of land at least
one week prior to the hearing.
53 P.S. §10908(1) (emphasis added). Landowner argues Section 908(1.2) of the
MPC discusses receipt of the application, but only states the timing of the hearing
after the application is received. See 53 P.S. §10908(1.2). Nothing in Section 908
suggests any special handling or notice of the application itself upon receipt.
Landowner further asserts all parties agree that no hearing on its
procedural validity challenge occurred in 2005. All parties agree that until 2016
the ZHB did not rule on its validity challenge. Before the ZHB, Objector Miravich
admitted the zoning ordinance in place before the 2005 application had no
procedure for notifying anyone of the mere receipt of an application on a
procedural validity challenge. R.R. at 436a. Rather, the MPC and the ordinance
simply required notice of the hearing. In any event, Landowner contends, during
the 2015 ZHB hearings, the Township’s solicitor specifically asked if there were
any objections to the hearing and Objectors’ counsel did not raise any. R.R. at
131a.
Landowner also argues that in Metro Dev V, this Court directed the
ZHB to hear the merits of the procedural challenge, not to debate whether there
was a flaw in the underlying application, as that issue was long since withdrawn.
Id. Since this Court’s decision in Metro Dev V, hearings were scheduled and
property owners were notified, two attorneys represented Objectors’ interests,
31
subpoenas were issued for several witnesses and the property was posted as
evidenced by the exhibits entered into evidence, without objection.
Finally, Landowner notes, Objectors assert their due process rights
were violated. Landowner argues this contention lacks merit based on this Court’s
decision in Metro Dev V, which cured any irregularity based on the 2005
settlement agreement. Landowner contends due process assertions would only
have merit if the 2015 ZHB hearing was not advertised, posted or the mandates of
the MPC violated. Here, all parties admit the 2015 process was satisfied. As such,
as a matter of law the process was proper and no due process violation occurred.
For its part, the ZHB reiterates the reasoning set forth in its decision
sustaining Landowner’s procedural validity challenge and declaring the new
ordinance void ab initio. The ZHB argues that, despite Objectors’ attempts to
confuse and complicate the matter by rearguing and raising issues previously
addressed or ruled on in the years of protracted litigation in this case, the scope of
the issue here is straightforward.
To that end, in Metro Dev V, this Court was clear in its remand and
directive that the ZHB should: (1) hear the procedural validity challenge to the new
ordinance as contained in Landowner’s application; and, (2) decide the merits of
the validity challenge under the statutory procedure in effect in 2005.
Based on the law in effect in 2005 and upon review of the credible
evidence, the ZHB contends it did not err in finding Landowner’s application was
32
filed within 30 days of the effective date of the new ordinance, and the Township
did not strictly comply with the statutory procedures required to enact a zoning
ordinance amendment; therefore, the new ordinance is void ab initio.
The ZHB maintains the 11 procedural defects that it found existed are
supported by the credible testimony and substantial evidence it received at the
hearings. The Township neither challenged nor disputed any of the evidence
submitted at the hearings to support these procedural defects. Additionally, the
Township Manager’s testimony can be fairly construed as an admission that the
procedural defects occurred. R.R. at 227a-244a.
The ZHB contends Objectors did not submit any credible evidence to
overcome the ZHB’s finding that Landowner met its burden in establishing these
procedural defects. Rather, Objectors appear to assert these defects are waivable.
The ZHB asserts this is not a valid statement of the law in effect in 2005. Rather,
because Landowner’s application was filed within 30 days of the effective date of
the new ordinance, the enactment process had to strictly comply with the MPC.
The ZHB asserts that, if Landowner filed its application more than 30 days from
the date of enactment, Objectors’ argument that the defects may be waivable could
have merit. Here, however, Landowner filed its application within 30 days of
enactment; thus, Objectors’ position is misplaced and the cases they cite are
distinguishable.
The ZHB further points out that Objectors argue that because
Landowner may have known the new ordinance was being considered in 2005, it
33
was not prejudiced by the procedural defects and, as a result, Landowner should
now be barred from prosecuting its challenge. The ZHB argues this contention
lacks merit as this Court’s decision in Metro Dev V required the ZHB to hear the
challenge and, based on applicable legal standards, the ZHB and the trial court
were required to determine if the Township strictly complied with the statutory
procedure for enactment.
The ZHB further contends, although Objectors argue their rights were
violated through application of the strict compliance standard, they cite no
precedential or persuasive authority other than Messina to support their theory.
And, the ZHB argues, Messina is distinguishable. In Messina, the challengers
waited 12 years to challenge a zoning ordinance. Here, the challenge was made
less than 30 days from enactment. Additionally, Objectors did not rely on the new
ordinance without knowledge of Landowner’s challenge to its procedural validity.
Instead, as evidenced by the history of this case and related cases, Objectors were
fully aware of the issues involved and the potential for invalidation of the new
ordinance. In fact, Objectors previously sought to prevent invalidation of the new
ordinance in Miravich I. Thus, Objectors’ reliance on Messina is misplaced and is
insufficient to overcome this Court’s directive to the ZHB in Metro Dev V.
2. Analysis
Initially, we note, this Court may not substitute its interpretation of the
evidence for that of the ZHB. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873
A.2d 807 (Pa. Cmwlth. 2005). It is the function of a ZHB to weigh the evidence
before it. Id. The ZHB is the sole judge of the credibility of witnesses and the
weight afforded their testimony. Id. Assuming the record contains substantial
34
evidence, we are bound by the ZHB’s findings that result from resolutions of
credibility and conflicting testimony rather than a capricious disregard of evidence.
Id. A ZHB is free to reject even uncontradicted testimony it finds lacking in
credibility. Id.In Metro Dev V, this Court required the ZHB to “decide the merits of
[Landowner’s] procedural validity challenge under the statutory procedure in effect
in 2005.” Slip Op. at 11, 2014 WL 3697529 at *5.
In 2005, Section 909.1(a)(2) of the MPC stated, in relevant part:
(a) The [ZHB] shall have exclusive jurisdiction to hear
and render final adjudications in the following matters:
(2) Challenges to the validity of a land use ordinance
raising procedural questions or alleged defects in the
process of enactment or adoption which challenges shall
be raised by an appeal taken within 30 days after the
effective date of said ordinance. …
Further, in 2005, Section 5571(c)(5) of the Judicial Code (“Appeals
generally”) stated:
(c) Exceptions.—
****
(5) Ordinances, resolutions, maps, etc.-- Notwithstanding
section 909.1(a)(2) of the … [MPC], questions relating to
an alleged defect in the process of enactment or adoption
of any ordinance, resolution, map or similar action of a
political subdivision, including appeals and challenges to
the validity of land use ordinances adopted pursuant to
the [MPC], shall be raised by appeal or challenge
35
commenced within 30 days after the intended effective
date of the ordinance, resolution, map or similar action.
As used in this paragraph, the term ‘intended effective
date’ means the effective date specified in the ordinance,
resolution, map or similar action or, if no effective date is
specified, the date 60 days after the date the ordinance,
resolution, map or similar action was finally adopted but
for the alleged defect in the process of enactment or
adoption.
Although not in effect at the time Landowner filed its procedural
validity challenge in 2005, it is helpful to acknowledge the current statutory
framework, including the applicable burdens of proof for procedural validity
challenges (adopted in 2008), which states, as relevant:
(b) Appeals of defects in statutory procedure.--
(1) Any appeal raising questions relating to an alleged
defect in statutory procedure shall be brought within 30
days of the intended effective date of the ordinance.
(2) 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.
(c) Exemption from limitation.--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.
(d) Presumptions.--Notwithstanding any other provision
of law, appeals pursuant to this section shall be subject to
and in accordance with the following:
36
(1) An ordinance shall be presumed to be valid and to
have been enacted or adopted in strict compliance with
statutory procedure.
(2) In all cases in which an appeal filed in court more
than two years after the intended effective date of the
ordinance is allowed to proceed in accordance with
subsection (c), the political subdivision involved and
residents and landowners within the political subdivision
shall be presumed to have substantially relied upon the
validity and effectiveness of the ordinance.
(3) An ordinance shall not be found void from inception
unless the party alleging the defect in statutory procedure
meets the burden of proving the elements set forth in
subsection (e).
(e) Burden of proof.--Notwithstanding any other
provision of law, an ordinance shall not be found void
from inception except as follows:
(1) In the case of an appeal brought within the 30-day
time limitation of subsection (b), the party alleging the
defect must meet the burden of proving that there was a
failure to strictly comply with statutory procedure.
(2) In the case of an appeal which is exempt from the 30-
day time limitation in accordance with subsection (c), the
party alleging the defect must meet the burden of proving
each of the following:
(i) That there was a failure to strictly comply with
statutory procedure.
(ii) That there was a failure to substantially comply with
statutory procedure which resulted in insufficient
notification to the public of impending changes in or the
existence of the ordinance, so that the public would be
prevented from commenting on those changes and
intervening, if necessary, or from having knowledge of
the existence of the ordinance.
37
(iii) That there exist facts sufficient to rebut any
presumption that may exist pursuant to subsection (d)(2)
that would, unless rebutted, result in a determination that
the ordinance is not void from inception.
(f) Void ordinances.--A determination that an ordinance
is void from inception shall not affect any previously
acquired rights of property owners who have exercised
good faith reliance on the validity of the ordinance prior
to the determination.
42 Pa. C.S. §5571.1(b)-(f) (emphasis added).
Further, as of 2005, “[t]he precedents of [the Supreme] Court [were]
consistent in holding that statutory publication requirements [were] mandatory and
that ordinances adopted without strict compliance [were] void.” Glen-Gery, 907
A.2d at 1041 (quoting L. Gwynedd Twp. v. Gwynedd Props., Inc., 591 A.2d 285,
288 (Pa. 1991)). Thus, the Supreme Court’s “‘consistent view [was] that the
statutory steps for enactment of ordinances [were] mandatory and nonwaivable,”
and “the procedures established by the legislature for the enactment of ordinances
must be followed strictly in order for an ordinance to be valid[.]” Id. (quoting L.
Gwynedd Twp., 591 A.2d at 286, 287).
Here, Landowner filed its procedural validity challenge within 30
days of the effective date of the new ordinance. F.F. No. 46. Where, as here, a
challenge is filed within 30 days of the ordinance’s effective date, a challenger
must only prove the municipality failed to strictly comply with statutory
procedures. Hawk v. Eldred Twp. Bd. of Supervisors, 983 A.2d 216 (Pa. Cmwlth.
2009). As set forth above, this remains the law currently in Pennsylvania. See 42
Pa. C.S. §5571.1(e)(1).
38
The ZHB here determined Landowner proved that the enactment of
the new ordinance did not strictly comply with numerous procedural requirements
in Sections 609 and 610 of the MPC. As of 2005, Section 609 of the MPC
(“Enactment of zoning ordinance amendments”) stated, as relevant (with emphasis
added):
(a) For the preparation of amendments to zoning
ordinances, the procedure set forth in section 607 for the
preparation of a proposed zoning ordinance shall be
optional.
(b) (1) 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.
(2) (i) In addition to the requirement that notice be posted
under clause (1), where the proposed amendment
involves a zoning map change, notice of the public
hearing shall be mailed by the municipality at least 30
days prior to the date of the hearing by first class mail to
the addressees to which real estate tax bills are sent for
all real property located within the area being rezoned, as
evidenced by tax records within the possession of the
municipality. The notice shall include the location, date
and time of the public hearing. A good faith effort and
substantial compliance shall satisfy the requirements of
this subsection.
(ii) This clause shall not apply when the rezoning
constitutes a comprehensive rezoning.
(c) In the case of an amendment other than that prepared
by the planning agency, the governing body shall submit
39
each such amendment to the planning agency at least 30
days prior to the hearing on such proposed amendment to
provide the planning agency an opportunity to submit
recommendations.
(d) If, after any public hearing held upon an amendment,
the proposed amendment is changed substantially, or is
revised, to include land previously not affected by it, the
governing body shall hold another public hearing,
pursuant to public notice ….
(e) If a county planning agency shall have been created
for the county in which the municipality proposing the
amendment is located, then at least 30 days prior to the
public hearing on the amendment by the local governing
body, the municipality shall submit the proposed
amendment to the county planning agency for
recommendations. …
53 P.S. §10609(a)-(e).
In addition, Section 610(a) and (b) of the MPC stated (with emphasis
added):
(a) Proposed zoning ordinances and amendments shall
not be enacted unless notice of proposed enactment is
given in the manner set forth in this section, and shall
include the time and place of the meeting at which
passage will be considered, a reference to a place within
the municipality where copies of the proposed ordinance
or amendment may be examined without charge or
obtained for a charge not greater than the cost thereof.
The governing body shall publish the proposed ordinance
or amendment once in one newspaper of general
circulation in the municipality not more than 60 days nor
less than 7 days prior to passage. Publication of the
proposed ordinance or amendment shall include either
the full text thereof or the title and a brief summary,
prepared by the municipal solicitor and setting forth all
the provisions in reasonable detail. If the full text is not
included:
40
(1) A copy thereof shall be supplied to a
newspaper of general circulation in the
municipality at the time the public notice is
published.
(2) An attested copy of the proposed ordinance
shall be filed in the county law library or other
county office designated by the county
commissioners, who may impose a fee no greater
than that necessary to cover the actual costs of
storing said ordinances.
(b) In the event substantial amendments are made in the
proposed ordinance or amendment, before voting upon
enactment, the governing body shall, at least ten days
prior to enactment, readvertise, in one newspaper of
general circulation in the municipality, a brief summary
setting forth all the provisions in reasonable detail
together with a summary of the amendments. …
53 P.S. §10610(a), (b).
Here, the ZHB determined the following 11 procedural deficiencies
occurred in the enactment of the new ordinance:
 The Reading Eagle Notice does not provide ‘the
time and place’ of the meeting on July 25, 2005
that the [Supervisors] would consider the
enactment/passage of the Draft Ordinance as
required by 53 P.S. §10609(b)(1) and 53 P.S.
§10610(a);
 The Reading Eagle Notice does not provide either
‘the full text’ of the Draft Ordinance or ‘a brief
summary which lists provisions in reasonable
detail’ or even any details of the Draft Ordinance
as required by 53 P.S. §10609(b)(1) and 53 P.S.
§10610(a);
 Although the Reading Eagle Notice does indicate
that copies of the Draft Ordinance may be obtained
41
at the Township Building, the Reading Eagle
Notice does not state that ‘copies of the proposed
ordinance or amendment may be examined without
charge or obtained for a charge not greater than the
cost hereof’ as required by 53 P.S. §10610(a);
 The Reading Eagle Notice was prepared by the
[Township] Manager and not the [Township]
Solicitor as required by 53 P.S. §10610(a);
 A notice of the public hearing on July 18, 2005
and proposed enactment at the July 25, 2005
meeting was not conspicuously posted along tracts
of land within [the] Township that were the subject
of zoning map changes under the Draft Ordinance
as required by 53 P.S. §10609(b)(1);
 A notice of the public hearing on July 18, 2005
and proposed enactment at the July 25, 2005
meeting was not mailed to the owners of the tracts
of land within [the] Township that were the subject
of zoning map changes under the Draft Ordinance
as required by 53 P.S. §10609(b)(2);
 An attested copy of the Draft Ordinance or any
revised version thereof was not filed in the
[County Law Library] at any time prior to July 25,
2005 as required by 53 P.S. §10610(b)(2);
 A copy of the full text of the Draft Ordinance or
any revised version thereof was not filed in the
Reading Eagle at any time prior to July 25, 2005 as
required by 53 P.S. §10610(b)(1);
 Prior to adoption on July 25, 2005, Ordinance 596,
which contained substantial amendments from the
Draft Ordinance, was not submitted to the [County
Planning Commission] for review as required by
53 P.S. §10609(e);
 Prior to adoption on July 25, 2005, Ordinance 596,
which contained substantial amendments from the
Draft Ordinance, was not submitted to the
42
[Township Planning Commission] for review of all
of the changes made at the July 25, 2005 meeting
as required by 53 P.S. §10609(c); and
 Prior to adoption on July 25, 2005, Ordinance 596,
which contained substantial amendments from the
Draft Ordinance, was not re-advertised for public
notice in the Reading Eagle for a public hearing or
enactment at a public meeting as required by 53
P.S. §10610(b).
ZHB Op., Concls. of Law No. 3(a)-(k). The record supports the ZHB’s
determinations that the Township did not strictly comply with several requirements
set forth in Sections 609 and 610 of the MPC in enacting the new ordinance.
More specifically, among other things, the notice published in the
Reading Eagle: (1) did not provide the time and place of the meeting at which the
Supervisors would consider passage of the new ordinance; (2) did not provide
either the full text of the new ordinance or the title and a brief summary setting
forth all provisions in reasonable detail; and, (3) was not prepared by the Township
Solicitor. C.R., Item #9, Ex. 12; R.R. at 1216a; see also 145a-47a.
In addition, the Township Manager, who prepared the advertisement
of the new ordinance, acknowledged he had no proof that a copy of the full text of
the new ordinance was provided to the Reading Eagle or the County Law Library.
R.R. at 231a-32a; see also R.R. at 148a, 210a-11a. The Township Manager also
testified he could not recall whether notices were sent to those property owners
whose properties were being rezoned as a result of the enactment of the new
ordinance. R.R. at 263a. In light of these obvious procedural defects, it is not
necessary to address the remaining deficiencies found by the ZHB.
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Further, based on these defects, no error is apparent in the ZHB’s
conclusion that Landowner, which filed its challenge within 30 days of the
effective date of the new ordinance, proved the Township did not strictly comply
with the MPC’s procedural requirements when enacting the new ordinance. As
such, the ZHB properly deemed the new ordinance void ab initio.
Nevertheless, citing Messina, Objectors argue Landowner was
required to show there was no reasonable reliance on the new ordinance by other
landowners in the Township. Contrary to this assertion, the challenge at issue in
Messina was filed 12 years after the enactment of the ordinance at issue (and more
than 30 days after the effective date of the 2008 amendment to Section 5571.1 of
the Judicial Code). Where, as in Messina, a procedural validity challenge is filed
more than two years after an ordinance’s intended effective date, a challenger must
rebut the presumption that the municipality and its residents substantially relied on
the validity and effectiveness of the ordinance. See 42 Pa. C.S. §5571.1(e)(2).
The same is not true for challenges filed within 30 days of an ordinance’s effective
date, such as Landowner’s challenge here.
To that end, unlike in Messina, Landowner filed its procedural
validity challenge within 30 days of the effective date of the new ordinance. Thus,
Landowner was only required to show the Township failed to strictly comply with
statutory procedures, a burden which, as set forth above, it carried here.
Further, in Nockamixon, Bartowski, and Oxford, cited by Objectors
for the proposition that strict compliance was not required here, the challengers did
44
not file their procedural validity challenges within 30 days of the enactment of the
ordinances. Thus, those cases are distinguishable.
In addition, while Objectors claim they did not receive notice of
Landowner’s procedural validity challenge when it was filed in 2005, as the trial
court explained:
[T]here is no dispute that [Objectors] were notified of
and participated in the hearings held in 2015 on
[Landowner’s] procedural challenge to the [n]ew
[o]rdinance. At that time, [Objectors] were given the
opportunity to be heard regarding … their argument for
improper notice in 2005 …. Further, MPC Section 908(1)
provides that public notice [of a ZHB hearing] be given
‘to the applicant, the zoning officer, such other persons as
the governing body shall designate by ordinance and to
any person who has made a timely request of the same.’
53 P.S. § 10908(1). Accordingly, not only was notice to
[Objectors] not necessarily required of the 2005
proceedings, but due to the settlement agreement, and the
several appeals by [Objectors] contributing to the delay,
the 2005 proceedings were never held. For [Objectors]
to suggest that they are harmed by the delay in the
issuance of a final unappealable resolution of the
challenge to the ordinance is somewhat disingenuous
since much of the delay was occasioned by [Objectors’]
own appeals. Needless to say, every party has the right
to file reasonable good faith appeals, however, in the face
of an adverse ruling, to suggest that the delay occasioned
by the appeal prejudiced [Objectors] is, at the very least,
somewhat circular. …
Tr. Ct., Slip Op., at 6. Additionally, as explained above, in Metro Dev V, this
Court directed the ZHB to decide the merits of Landowner’s procedural validity
challenge, originally filed in 2005. In light of this and the fact that Objectors fully
45
participated in the ZHB proceedings on Landowner’s procedural validity challenge
with the aid of counsel, Objectors received all process due.
Finally, while Objectors argue Landowner had actual notice of the
enactment of the new ordinance, as the Supreme Court stated in Schadler v. Zoning
Hearing Board of Weisenberg Township, 850 A.2d 619, 627 n.12 (Pa. 2004):
[T]he procedural requirements for the enactment of a law
are nonwaivable, 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 in the circumstances of this case 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.
See also L. Gwynedd, 591 A.2d at 287 (citing Fierst v. William Penn Mem. Corp.,
166 A. 761, 763 (Pa. 1933)) (“If a published notice fails to satisfy the statutory
requirements, the fact that members of the public, or even the appellants
themselves, appeared at the hearing does not breathe life into an otherwise void
ordinance”).
The flaw in Objectors’ logic stems from their failure to distinguish
between the deprivation of an individual’s right to due process (notice), and the
deprivation of a shared public right to participate in the proceedings involving
adoption of ordinances. See Messina, 62 A.3d at 370; see also Ness v. York Twp.
Bd. of Comm’rs, 81 A.3d 1073, 1083 (Pa. Cmwlth. 2013). The parameters of the
shared public right to participate in the enactment proceedings are set forth in the
46
MPC’s notice requirements. See id. While actual notice of the enactment of the
new ordinance would impact an analysis of deprivation of Landowner’s individual
right to procedural due process, Landowner also may advance the shared public
right to participate in the proceedings involving the adoption of the new ordinance.
The strict compliance test is applied to prompt assertions of the shared public right
to participate in the adoption of the new ordinance. Id.Thus, while Objectors contend Landowner did not prove prejudice
stemming from its purported lack of notice, the fact remains that Landowner filed
its procedural validity challenge within 30 days of the new ordinance’s effective
date. As a result, it only had to prove the Township failed to strictly comply with
the required procedures set forth in the MPC, which, as explained above, it did.
C. Standing
1. Contentions
As a final issue, Objectors argue Landowner lacked standing to bring
its 2005 procedural validity challenge where it later sold the subject property.
Specifically, Objectors assert, when Landowner filed its application, it identified
the subject property as 112 Old Friedensburg Road. However, Landowner
continued to prosecute its challenge without amending its application. In fact, its
failure to amend its application caused the ZHB to post the property of another
neighbor, who later purchased the property at that address. Objectors contend
Landowner sold the original 112 Old Friedensburg Road, and the new owner
objected to the posting of his property. Moreover, that owner informed the ZHB’s
solicitor that he had no intention of prosecuting the application. As such, the
application belongs to that property owner, and he abandoned it. Objectors argue
47
Landowner did not receive an assignment of the application from the new property
owner. Thus, Landowner must file a new application to challenge the new
ordinance.
Landowner responds that the ZHB’s findings make clear that
Landowner had a property interest in the same property as the underlying 2005
validity challenge. F.F. Nos. 1-10. Further, Landowner argues at no point at the
outset of the ZHB hearings did Objectors raise any standing issue or issue that the
matter could not proceed before the ZHB for resolution of the procedural validity
challenge. As properly noted by the trial court, Landowner contends, failure to
raise this issue before the ZHB results in waiver. See Sojtori v. Douglass Twp. Bd.
of Supervisors, 296 A.2d 532 (Pa. Cmwlth. 1972).
Landowner further argues, even if not waived, Objectors’ argument
fails. To that end, in 2005, Landowner filed its challenge. Any landowner could
properly raise a procedural defect. In 2005, Landowner was such a landowner, and
it maintained possession of the subject property as set forth in the 2005 challenge.
More specifically, as referenced by the ZHB at the outset of the
hearing and in the advertisement, the subject property consists of approximately
19.2 acres in the Township at Tax Parcel Number 5337-01-19-1692. The
advertisement for the ZHB hearing used the same Tax Parcel Number and the same
property description. No one disagreed that Landowner maintained ownership of
the subject property as advertised in 2015 and as the application stated in 2005.
Landowner argues that, while a small lot was excised, it maintained ownership of
48
the remainder of the property. It asserts the MPC and case law on the definition of
“landowner” make clear that standing remains on an original application as long as
any property interest exists. See Section 107 of the MPC, 53 P.S. §10107. Indeed,
in interpreting Section 107, this Court determined a landowner must only possess
an interest in the property. See, e.g., Bradley v. Zoning Hearing Bd. of Borough of
Milford, 63 A.3d 488 (Pa. Cmwlth. 2013).
In sum, Landowner argues the record makes clear that it owns the
subject property and that has not changed. In fact, the entire settlement discussion
regarding the design of Landowner’s residential development confirms that the
underlying property is still owned by Landowner.
Similarly, the ZHB argues, Landowner had standing to bring and
prosecute its challenge both in 2005 and in 2015. Landowner’s application states
that the subject property is located along Old Friedensburg Road in the Township,
at 112 Old Friedensburg Road and bearing Tax Parcel Number 5337-01-19-1629.
The ZHB notes Landowner sold a portion of the subject property (referred to as the
“Bercek Parcel”) after it filed its challenge. As a result, Landowner owned the
remainder of the subject property and maintained the original Tax Parcel Number,
despite the fact that the numerical postal address of 112 Old Friedensburg Road
was assigned to the Bercek Parcel. Thus, the ZHB asserts, Landowner was in 2005
and still was in 2015 at the time of the ZHB hearings, the owner of the subject
property as identified in its application. Thus, Landowner meets the definition of a
“landowner” in Section 107 of the MPC. As a result, it had standing to file the
challenge.
49
In addition, the ZHB argues, Objectors did not raise Landowner’s
alleged lack of standing at all during the ZHB hearings. To the contrary, Objectors
did not object to any of the notices, advertisements or postings completed for the
2015 hearings and acquiesced to their admission into the record at the hearings. As
stated in the trial court’s opinion, Objectors argue, this issue was not properly
before the trial court because Objectors did not raise it before the ZHB.
2. Analysis
Our review of the record here reveals no indication that Objectors
raised any issue regarding Landowner’s standing to challenge the procedural
validity of the new ordinance before the ZHB. Therefore, as the trial court
determined, because no party raised this issue before the ZHB, it is waived. See
THW Grp., LLC v. Zoning Bd. of Adjustment, 86 A.3d 330 (Pa. Cmwlth. 2014).
Indeed, failure to raise the issue of an applicant’s standing to seek zoning relief
during the proceedings before the fact-finder results in waiver. Id.; Friedlander v.
Zoning Hearing Bd. of Sayre Borough, 546 A.2d 755 (Pa. Cmwlth. 1988).
Nevertheless, even if not waived, Objectors’ argument fails. To that
end, at the time Landowner filed its procedural validity challenge, the applicable
MPC provision permitted the filing of such challenges with the ZHB “by the
landowner affected, any officer or agency of the municipality, or any person
aggrieved.” Section 913.3 of the MPC, added by the Act of December 21, 1988,
P.L. 1329, 53 P.S. §10913.3. Section 107 of the MPC defines “Landowner” as
“the legal or beneficial owner … of land … or other person having a proprietary
interest in land.”
50
Here, when Landowner filed its procedural validity challenge in 2005,
it owned the subject property, which had an address of 112 Old Friedensburg
Road. ZHB Op. at 1 n.1. In 2012, Landowner sold a small portion of the subject
property comprised of 0.51 acres, referred to as the Bercek Parcel. Id. After the
sale, the Bercek Parcel was assigned the numerical address of 112 Old
Friedensburg Road, id.; however, the Tax Map Identification Number for the
subject property remained the same. R.R. at 510a; F.F. No. 2. More importantly,
Landowner retained ownership of the remainder of the subject property, a sizeable
portion of which lies within the Township. Because Landowner maintained an
ownership interest in the subject property, it had standing to pursue its procedural
validity challenge.
IV. Conclusion
For all the foregoing reasons, we affirm the order of the trial court,
which affirmed the ZHB’s order sustaining Landowner’s procedural validity
challenge to the new ordinance.
ROBERT SIMPSON, Judge
51
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sue Davis-Haas, Richard H. Haas, :
Ida C. Smith, Zildia Perez, Leon :
Perez, Donna Galczynski, Kevin :
Galczynski, Alan Ganas, Renee :
Froelich, Scott Matthews, Patricia :
J. Miravich, John J. Miravich and :
William Ryan, :
Appellants :
: No. 1739 C.D. 2016
v. :
:
Exeter Township Zoning Hearing :
Board and MetroDev V, LP and :
Exeter Township :
ORDER
AND NOW, this 12th day of July, 2017, the order of the Court of
Common Pleas of Berks County is AFFIRMED.
ROBERT SIMPSON, Judge