J. Yannaccone v. Lewis Twp. Bd. of Supers. ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James Yannaccone, :
Appellant :
:
v. :
:
Lewis Township Board : No. 887 C.D. 2018
of Supervisors : Submitted: May 24, 2019
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE COVEY FILED: August 9, 2019
James Yannaccone (Yannaccone) appeals, pro se, from the
Northumberland County Common Pleas Court’s (trial court) May 30, 2018 order
declaring the Lewis Township (Township) Board of Supervisors’ (Board) Ordinance
No. 2014-7 (Ordinance) valid and in full force and effect. Yannaccone presents four
issues for this Court’s review: whether the trial court erred (1) by recognizing the
Township’s Zoning Ordinance Committee (ZOC) as a valid planning agency; (2) by
holding that the Board’s monthly meetings fulfilled the Pennsylvania Municipalities
Planning Code’s (MPC)1 requirement that at least one public meeting is held after
public notice; (3) by applying Section 5571.1(e)(2) of the Judicial Code2 to conclude
that the Board’s procedures in enacting the Ordinance substantially complied with the
MPC; and (4) by applying Section 1002.1-A of the MPC.3 Upon review, we reverse.
1
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
2
42 Pa.C.S. § 5571.1(e)(2).
3
Added by Section 5 of the Act of July 4, 2008, P.L. 319, 53 P.S. § 11002.1-A.
Background
Since approximately 2005, the Township4 and Turbotville Borough
(Turbotville) participated as a joint planning commission (Joint Commission) for
zoning and land use planning. At that time, the Township did not have a separate
planning commission.5 By October 7, 2013 letter, the Board notified Turbotville that
it would withdraw from the Joint Commission effective January 1, 2015. The Board
subsequently hired consultant KPI Engineering (KPI) to draft a new zoning ordinance
exclusively for the Township. Correspondingly, the Township formed ZOC,
consisting of Board members, Joint Commission members and Township residents, to
provide KPI input during the proposed ordinance drafting process. ZOC met several
times in early-to mid-2014 to review KPI’s proposed ordinance, which KPI
eventually presented to the Board.
The Board sent copies of the proposed ordinance to the Joint
Commission and the Northumberland County Planning Commission (County
Planning Commission), both of which provided comments to the Board. The Board
published notice of a public hearing scheduled on the proposed ordinance for August
14, 2014 in the Milton Standard Journal. Township property owners, including
Yannaccone, attended the August 14, 2014 hearing. The Board adopted the
Ordinance at its regular November 5, 2014 meeting. The Ordinance was effective
January 1, 2015. The Board forwarded a copy of the Ordinance to the County
Planning Commission on January 19, 2015.
4
The Township is a second class township. A board of supervisors is a second class
township’s governing body. See Section 107 of the MPC, 53 P.S. § 10107; see also Section 601 of
The Second Class Township Code, 53 P.S. § 65601. Section 601 of The Second Class Township
Code specifies that, generally, “[b]oards of supervisors shall consist of three members[.]” Act of
May 1, 1933, P.L. 103, as amended, 53 P.S. § 65601; see also Section 402(a) of The Second Class
Township Code, 53 P.S. § 65402(a). The Township’s three-member Board consisted of: Willard F.
Murray, Jay Douglas Bomberger and Duane M. Blakeney. See Original Record, Notes of
Testimony, May 23, 2018, Board Exs. 19-20.
5
The Township’s current planning commission was appointed in 2015.
2
On January 29, 2015, Yannaccone filed a complaint in the trial court
against the Board pursuant to Section 5571.1 of the Judicial Code and Section 1002-
A(b) of the MPC6 (relating to ordinance validity challenges),7 requesting that the
Ordinance “be declared void since inception.” Reproduced Record (R.R.) at 6a; see
also R.R. at 7a-8a. Therein, Yannaccone alleged, inter alia, that the Ordinance was
invalid because ZOC was not the Township’s authorized planning agency. See R.R.
at 6a-7a.
On or about February 16, 2015, the Board filed preliminary objections to
the complaint asserting, inter alia, that Yannaccone did not have standing. On March
3, 2015, Yannaccone replied to the preliminary objections. The trial court heard
argument on July 1, 2015 and, on July 9, 2015, the trial court sustained the Board’s
objection to standing, but overruled the remaining objections.
On July 21, 2015, Yannaccone filed an amended complaint, wherein he
represented that he was a Township landowner. On August 11, 2015, the Board filed
its reply and new matter to Yannaccone’s amended complaint. On August 25, 2015,
Yannaccone filed a reply to the Board’s new matter. On November 23, 2015,
Yannaccone filed a motion for summary judgment. On December 23, 2015, the
Board responded to the summary judgment motion. The trial court held argument on
the summary judgment motion on April 6, 2016.
On June 23, 2016, the trial court denied Yannaccone’s summary
judgment motion. The trial court further ruled that the Board complied with the
MPC’s procedural requirements for enacting the Ordinance. See Yannaccone Br.
App. at A-9 – A-10. The trial court also concluded that there was no authority to
6
Added by Section 101 of the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §
11002-A(b).
7
Appeals challenging procedural defects in ordinance enactment or adoption shall be taken
to the court of common pleas of the judicial district of the enacting municipality. See Section
5571.1(a)(2) of the Judicial Code, 42 Pa.C.S. § 5571.1(a)(2), and Section 1002-A(b) of the MPC.
3
support Yannaccone’s claim that the Ordinance is void ab initio simply by virtue of
the Board’s delay in forwarding the adopted Ordinance to the County Planning
Commission. See Yannaccone Br. App. at A-10.
After discovery was completed, the trial court held a non-jury trial on
May 23, 2018. On May 30, 2018, the trial court ruled in the Board’s favor, holding
that the Ordinance was valid and in full force and effect for the reasons set forth in
the trial court’s June 23, 2016 order.8 See Yannaccone Br. App. at A-6. Yannaccone
appealed to this Court.9
Discussion
Initially, Section 5571.1(d) of the Judicial Code states, in pertinent part:
[A]ppeals pursuant to this section shall be subject to and in
accordance with the following:
8
Yannaccone filed a motion for reconsideration, which the trial court denied on June 13,
2018.
9
“Our review of a land use appeal when the original action is filed with the trial court is
limited to a determination of whether the trial court abused its discretion, committed an error of law,
or made findings not supported by substantial evidence.” Kohr v. Lower Windsor Twp. Bd. of
Supervisors, 867 A.2d 755, 757 n.3 (Pa. Cmwlth. 2005). When reviewing mixed questions of fact
and law,
to the extent that factual findings and credibility
determinations are at issue, we will accept the trial court’s
conclusions insofar as they are supported by the record. To
the extent that a legal question is at issue, a determination by
the trial court will be given no deference and will instead be
reviewed de novo.
In re Condemnation by Urban Redevelopment Auth. of Pittsburgh, . . .
913 A.2d 178, 183 ([Pa.] 2006) (citation omitted).
Messina v. E. Penn Twp., 62 A.3d 363, 366 (Pa. 2012). “The validity of the zoning ordinance is a
question of law subject to our plenary review.” Gladstone Partners, LP v. E. Union Twp., 26 A.3d
542, 550 (Pa. Cmwlth. 2011).
The trial court filed its opinion on February 14, 2019.
4
(1) An ordinance shall be presumed to be valid and
to have been enacted or adopted in strict compliance
with statutory procedure.
....
(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).
42 Pa.C.S. § 5571.1(d). With respect to validity challenges brought within 30 days of
the ordinance’s effective date, Section 5571.1(e)(1) of the Judicial Code requires that
“the party alleging the defect must meet the burden of proving that there was a failure
to strictly comply with statutory procedure.” 42 Pa.C.S. § 5571.1(e)(1). This Court
has ruled that, in light of the validity presumption, the burden to invalidate an
ordinance is “extremely heavy.” McClimans v. Bd. of Supervisors of Shenango Twp.,
529 A.2d 562, 564 (Pa. Cmwlth. 1987).
Section 607 of the MPC requires:
(a) The text and map of the proposed zoning ordinance, as
well as all necessary studies and surveys preliminary
thereto, shall be prepared by the planning agency of each
municipality upon request by the governing body.
(b) In preparing a proposed zoning ordinance, the planning
agency shall hold at least one public meeting pursuant to
public notice and may hold additional public meetings
upon such notice as it shall determine to be advisable.
(c) Upon the completion of its work, the planning agency
shall present to the governing body the proposed zoning
ordinance, together with recommendations and explanatory
materials.
(d) The procedure set forth in this section shall be a
condition precedent to the validity of a zoning ordinance
adopted pursuant to this act.
(e) If a county planning agency shall have been created for
the county in which the municipality adopting the ordinance
5
is located, then at least 45 days prior to the public hearing
by the local governing body as provided in [S]ection 608
[of the MPC, 53 P.S. § 10608 (relating to ordinance
enactment)], the municipality shall submit the proposed
ordinance to said county planning agency for
recommendations.
53 P.S. § 10607 (emphasis added). “Section 607 of the MPC requires that the
planning agency present to the governing body completed work in the form of a
proposed zoning ordinance.” Kohr v. Lower Windsor Twp. Bd. of Supervisors, 867
A.2d 755, 757 (Pa. Cmwlth. 2005).
Section 608 of the MPC specifies that, thereafter,
[b]efore voting on the enactment of a zoning ordinance, the
governing body shall hold a public hearing thereon,
pursuant to public notice, and pursuant to mailed notice
and electronic notice to any owner of a tract or parcel of
land located within a municipality . . . . The vote on the
enactment by the governing body shall be within 90 days
after the last public hearing. Within 30 days after
enactment, a copy of the zoning ordinance shall be
forwarded to the county planning agency or, in counties
where no planning agency exists, to the governing body of
the county in which the municipality is located.
53 P.S. § 10608 (emphasis added).
Planning Agency
Yannaccone first argues that the trial court erred by recognizing ZOC as
a valid planning agency. He specifically claims that ZOC did not properly exist,
since it “sprang out of the void,” see Original Record, Notes of Testimony, May 23,
2018 (N.T.) at 63, it was not limited to Board members, and its membership exceeded
the MPC’s limit.
6
Section 607 of the MPC and Section 209.1(b)(2) of the MPC10 expressly
authorize a municipality’s governing body to request its planning agency to prepare
and present a zoning ordinance. 53 P.S. §§ 10209.1(b)(2), 10607. Section 107 of the
MPC defines “planning agency” to include “a planning commission, planning
department, or a planning committee of the governing body.” 53 P.S. § 10107
(emphasis added). Section 201 of the MPC further specifies, in relevant part:
In lieu of a planning commission or planning department,
the governing body may elect to assign the powers and
duties conferred by [the MPC] upon a planning
committee comprised of members appointed from the
governing body. The engineer for the municipality, or an
engineer appointed by the governing body, shall serve the
planning agency as engineering advisor.
53 P.S. § 10201 (emphasis added).
Regarding ZOC’s creation, at the May 23, 2018 trial, Yannaccone
presented the Board’s answers to his interrogatories, wherein the Board admitted that
ZOC was appointed by the Board, rather than created by ordinance. See Yannaccone
Ex. 1 at 2; see also N.T. at 50, 58. Although Section 201 of the MPC specifies that
planning commissions and/or planning departments shall be created “by ordinance,”
53 P.S. § 10201, it is silent with respect to planning committees. Section 201 of the
MPC merely states that the Board shall enlist a planning committee to prepare a
proposed ordinance for the Board’s review and adoption. 53 P.S. § 10201.
Yannaccone does not cite to and this Court’s research did not disclose any authority
requiring the Board to create ZOC by ordinance.
Board-appointed Township secretary/treasurer Lucinda R. Bomberger
(Bomberger) testified at the hearing that ZOC’s formation was discussed at regular
Board meetings before the Board decided to separate from the Joint Commission.
10
Added by Section 3 of the Act of June 1, 1972, P.L. 333.
7
See N.T. at 36. Township Supervisor Willard F. Murray (Murray) recalled at the
hearing that the Board assigned ZOC its proposed ordinance drafting task sometime
between November 2013 and January 2014, and ZOC met for the first time in
January 2014. See N.T. at 44, 50, 58. Bomberger confirmed that ZOC’s meetings
were open to the public, and that the Board’s April 3, 2014 meeting minutes reflect
that the public was expressly informed of that fact. See N.T. at 18, 40; see also Board
Ex. 5.
Murray also recalled that there were regular ZOC reports at the February
to November 2014 Board meetings, and that the March 5, 2014 Board minutes
specifically reflected the date and time of the next ZOC session. See N.T. at 56-57,
59; see also Board Ex. 4. Bomberger explained that she kept the Board’s meeting
minutes, which reflect that, on February 5, March 5, and April 3, 2014, one of the
Board members offered ZOC progress reports. See Board Ex. 3 at 2, Board Ex. 4 at
1, Board Ex. 5 at 1, 3; see also N.T. at 14-18. She recalled, and the Board’s May 7,
2014 meeting minutes recorded, that Township solicitor Benjamin Landon (Landon)
reported on ZOC’s status and the Board’s next steps. See Board Ex. 6 at 2; see also
N.T. at 18-19. Bomberger declared that the Board’s June 4, 2014 meeting minutes
denote that Landon’s declaration that the public hearing on the proposed ordinance
would take place on August 14, 2014. See Board Ex. 7 at 1; see also N.T. at 20-21.
Bomberger represented that, at the Board’s July 2, 2014 meeting, Landon explained
that the Board would advertise the August 14, 2014 hearing 30 days in advance. See
Board Ex. 12 at 1; see also N.T. at 24. Murray testified that the Board’s meeting
minutes are posted online for public access and review. See N.T. at 56-57.
Yannaccone admitted that he did not attend or participate in Board
meetings until he saw the Board’s public hearing notice relative to the proposed
ordinance, which would have been in approximately mid-July 2014. See N.T. at 65;
see also Board Exs. 9, 12; N.T. at 17, 20, 22-24, 57, 60. Because the Board
8
established that ZOC was discussed in 2013, it was created some time in late 2013 or
early 2014, and its progress was reported for the better part of 2014, it appears that
Yannaccone’s claim that ZOC “sprang out of the void,” N.T. at 63, stems from his
failure to attend the Board’s public meetings or keep himself apprised of its activities.
Yannaccone claims in his brief that “[t]he Board has not offered any
evidence that [] ZOC [] even existed – [there are] no Board minutes noting the
creation of [] ZOC . . . , [and] no Board minutes noting the appointment of its
members . . . .” Yannaccone Br. at 17. However, Yannaccone had the burden of
proving that the Board failed to strictly comply with the MPC. 42 Pa.C.S. §
5571.1(d), (e). Because he offered no proof that ZOC was improperly created,
Yannaccone failed to meet his burden.
Concerning planning committee membership, Murray explained at the
hearing that ZOC was made up of 10 people: the three Board members, Joint
Commission members, and Township residents who had attended Board meetings
and were interested in serving. N.T. at 43, 51, 58. Although Section 202 of the MPC
states that planning commissions “shall have not . . . more than nine members,” the
MPC does not similarly limit planning committees. 53 P.S. § 10202.
Moreover, Section 201 of the MPC mandates that a planning committee
be “comprised of” Board members. 53 P.S. § 10201. “In interpreting a statute, our
primary goal is ‘to ascertain and effectuate the intention of the General Assembly.’ 1
Pa.C.S. § 1921(a).” Chamberlain v. Unemployment Comp. Bd. of Review, 114 A.3d
385, 394 (Pa. 2015). Because the phrase “comprised of” is not specifically defined in
the MPC, it “must be construed in accordance with its common and ordinary
meaning. See 1 Pa.C.S. § 1903(a). The law is well-established that the common and
approved meaning of a word may be ascertained from an examination of its
dictionary definition.” Chamberlain, 114 A.3d at 394.
9
Merriam-Webster’s Collegiate Dictionary (11th ed. 2004) (Merriam-
Webster’s) defines “comprise” as “to include . . .” Id. at 256. Thus, this Court
concludes that the use of the phrase “comprised of” in Section 201 of the MPC does
not require ZOC to consist solely of Board members, but that ZOC had to include
Board members, which it did.11 Accordingly, Yannaccone’s claim that ZOC was not
valid because its membership exceeded nine members and included non-Board
members is without merit.
Based on the foregoing, this Court holds that the trial court properly
concluded that ZOC was a valid planning agency.
Planning Agency Public Meeting After Public Notice
Yannaccone also asserts that the trial court erred by holding that the
Board’s monthly meetings strictly complied with the requirement in Section 607(b)
of the MPC that “the planning agency shall hold at least one public meeting pursuant
to public notice . . . .” 53 P.S. § 10607(b).
Bomberger declared that ZOC’s meetings were not officially published
or posted. See N.T. at 36. Bomberger and Murray testified that they did not believe
such notice was necessary since ZOC assemblages were work sessions at which no
decisions were made but, instead, ZOC formulated recommendations on KPI’s
proposed ordinance drafts for the Board. See N.T. at 37-39, 44-45, 50-51, 57-58.
Moreover, the Board’s March 5, 2014 public meeting minutes specified that ZOC’s
next meeting would take place on March 20, 2014 from 6:00 to 8:00 p.m. See N.T. at
56-57; see also N.T. Board Ex. 4.
11
This interpretation is consistent with Section 607(c) of the MPC, which directs that ZOC
present the proposed ordinance to the Board. If ZOC consisted solely of the Board’s members, that
step would be superfluous. See Commonwealth v. McCoy, 962 A.2d 1160, 1168 (Pa. 2009) (“We
are not permitted to ignore the language of a statute, nor may we deem any language to be
superfluous. 1 Pa.C.S. § 1921(a).”).
10
The trial court concluded that the Board substantially complied with the
statutory requirements and the public was given the opportunity to participate since
the Board advertised and conducted its monthly public meetings at which ZOC was
discussed, at least one ZOC meeting was announced at an open Board meeting, and
the Board’s meeting minutes were available to the public.
However, despite that the Board clearly complied with the notice and
hearing requirements of Section 608 of the MPC, Section 607(b) of the MPC
expressly states that “the planning agency” (ZOC, in this instance) is the entity
mandated by Section 607(b) of the MPC to hold at least one public meeting after
public notice. 53 P.S. § 10607(b). Therefore, neither the notices published or posted
regarding Board meetings or the Board’s August 14, 2014 hearing on the proposed
ordinance satisfied the strictures of Section 607(b) of the MPC.
Moreover, Section 107 of the MPC defines “public meeting,” as that
term is used in Section 607(b) of the MPC, as “a forum held pursuant to notice under
[Chapter 7 of the Sunshine Act] (relating to open meetings).”12 53 P.S. § 10107.
Section 703 of the Sunshine Act defines “public notice” as follows:13
(1) For a meeting:[14]
12
65 Pa.C.S. §§ 701-716.
13
Section 107 of the MPC defines “public notice” of Board hearings, rather than meetings
and, thus, is not applicable in this context. 53 P.S. § 10107.
14
Section 703 of the Sunshine Act defines “meeting” as “[a]ny prearranged gathering of an
agency which is attended or participated in by a quorum of the members of an agency held for the
purpose of deliberating agency business or taking official action.” 65 Pa.C.S. § 703.
“Deliberation” is defined as “[t]he discussion of agency business held for the purpose of making a
decision.” Id. An “official action” consists of:
(1) Recommendations made by an agency pursuant to statute,
ordinance or executive order.
(2) The establishment of policy by an agency.
(3) The decisions on agency business made by an agency.
11
(i) Publication of notice of the place, date and time of a
meeting in a newspaper of general circulation, as defined
by [Section 101 of the act pertaining to Legal Notices,] 45
Pa.C.S. § 101 (relating to definitions),[15] which is published
and circulated in the political subdivision where the meeting
will be held, or in a newspaper of general circulation which
has a bona fide paid circulation in the political subdivision
equal to or greater than any newspaper published in the
political subdivision.
(ii) Posting a notice of the place, date and time of a meeting
prominently at the principal office of the agency[16]
holding the meeting or at the public building in which the
meeting is to be held.
(iii) Giving notice to parties under [S]ection 709(c) [of the
Sunshine Act] (relating to public notice).[17]
(4) The vote taken by any agency on any motion, proposal, resolution,
rule, regulation, ordinance, report or order.
Id. Notably, “merely learning about the salient issues so as to reach an informed resolution at some
later time does not in itself constitute deliberation.” Smith v. Twp. of Richmond, 82 A.3d 407, 416
(Pa. 2013).
15
The term ‘newspaper of general circulation’ is defined as ‘[a]
newspaper issued daily, or not less than once a week, intended for
general distribution and circulation, and sold at fixed prices per copy,
per week, per month, or per annum, to subscribers and readers
without regard to business, trade, profession or class.’ 45 Pa.C.S. §
101(a).
Pacella v. Washington Cty. Tax Claim Bureau, 10 A.3d 422, 426 (Pa. Cmwlth. 2010).
16
Since the Township is a political subdivision of the Commonwealth, its governing body
(the Board) and committees thereof (ZOC) are agencies governed by the Sunshine Act. The term
“agency” is defined in Section 703 of the Sunshine Act as “[t]he body, and all committees thereof
authorized by the body to take official action or render advice on matters of agency business, of all
the following: . . . any board . . . of any political subdivision of the Commonwealth . . . .” 65
Pa.C.S. § 703. “Political subdivision” is defined therein to include “[a]ny . . . township . . . .” Id.
17
Section 709(c) of the Sunshine Act states:
In addition to the public notice required by this section, the agency
holding a meeting shall supply, upon request, copies of the public
notice thereof to any newspaper of general circulation in the political
subdivision in which the meeting will be held, to any radio or
television station which regularly broadcasts into the political
subdivision and to any interested parties if the newspaper, station or
12
65 Pa.C.S. § 703.18
The record evidence before the trial court established that ZOC meetings
were public, but they were neither published in a newspaper of general circulation nor
posted as Section 703 of the Sunshine Act mandates. Merely referencing a ZOC
meeting during one Board session and notating the Board’s minutes with ZOC
updates does not rise to the level of the required public notice. Because none of
ZOC’s meetings took place after “public notice,” the Board did not substantially
comply with Section 607(b) of the MPC, and the trial court erred by concluding
otherwise.
Application of Section 5571.1(e)(2) of the Judicial Code
Yannaccone further contends that the trial court erred by applying
Section 5571.1(e)(2) of the Judicial Code to conclude that the Board’s procedures in
enacting the Ordinance substantially complied with Section 607(b) of the MPC.
Section 5571.1(b)(1) of the Judicial Code directs that “[a]ny appeal
raising questions relating to an alleged defect in statutory procedure [for ordinance
enactment] shall be brought within 30 days of the intended effective date of the
ordinance.” 42 Pa.C.S. § 5571.1(b)(1). Yannaccone filed his complaint in the trial
court within 30 days of the Ordinance’s effective date in accordance with Section
5571.1(b)(1) of the Judicial Code.
Section 5571.1(e) of the Judicial Code provides that
party provides the agency with a stamped, self-addressed envelope
prior to the meeting.
65 Pa.C.S. § 709(c).
18
In his brief, Yannaccone interprets the Sunshine Act to demonstrate that ZOC is a Board
committee and, thus, subject to the same public notice requirements. See Yannaccone Br. at 20.
However, since Section 607(b) of the MPC specifies that “the planning agency [ZOC] shall hold at
least one public meeting pursuant to public notice,” 53 P.S. § 10607(b), a Sunshine Act analysis to
reach the same result is unnecessary.
13
[n]otwithstanding 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.
(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.
42 Pa.C.S. § 5571.1(e) (emphasis added).
This Court has expounded: “Section 5571.1 [of the Judicial Code] . . .
employs a multi-tiered system in which the standards for challenging an ordinance
vary depending on the amount of time that has passed since its adoption.” Hawk v.
Eldred Twp. Bd. of Supervisors, 983 A.2d 216, 221 (Pa. Cmwlth. 2009). Specifically,
[w]here[, as here,] 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
14
with applicable procedures prevented the public from
commenting on the ordinance. Hawk . . . . If the
challenging party meets its burden of proof, the challenged
ordinance is void ab initio. Id.
Davis-Haas v. Exeter Twp. Zoning Hearing Bd., 166 A.3d 527, 534 (Pa. Cmwlth.
2017) (quotation marks omitted).19
The trial court in this case cited to Bartkowski Investment Group, Inc. v.
Board of Commissioners of Marple Township, 18 A.3d 1259 (Pa. Cmwlth. 2011), to
support its conclusion that, even if ZOC’s meetings were not properly advertised in
strict compliance with the statute, Yannaccone was not harmed since he had ample
opportunity to make his concerns about the proposed ordinance known before it was
enacted. However, in Bartkowski, since the procedural challenge was not filed within
30 days of the ordinance’s effective date, Section 5571.1(e)(2) of the Judicial Code’s
substantial compliance standard applied. “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.” Davis-Haas, 166
A.3d at 547.
Because substantial compliance is not an applicable standard in the
instant case, Bartkowski is inapposite. See Davis-Haas (wherein this Court similarly
concluded that Bartkowski is distinguishable because the challenge was not filed
within 30 days of the ordinance’s enactment). Accordingly, the trial court erred by
applying Section 5571.1(e)(2) of the Judicial Code to conclude that the Board’s
procedures in enacting the Ordinance substantially complied with Section 607(b) of
the MPC.
19
Although Davis-Haas involved challenges brought under Sections 609 and 610 of the
MPC, 53 P.S. §§ 10609, 10610 (relating to validity challenges to zoning ordinance amendments,
rather than new ordinances), and the subject challenge pre-dated the enactment of Section 5571.1(e)
of the Judicial Code, the Court conducted an analysis of that provision applicable here.
15
Application of Section 1002.1-A of the MPC
Yannaccone finally avers that the trial court erred by relying on Section
1002.1-A of the MPC to decide this matter.
The trial court held that Yannaccone was not harmed because the
Ordinance did not affect his property.20 The trial court specifically concluded:
[T]he [Ordinance] cannot be rendered void ab initio
because [Yannaccone] has not met his burden under the
statutory requirements under [Section 1002.1-A(d)(2) of the
MPC,] 53 P.S. § 11002.1-A(d)(2). McLaughlin v. Forty
Fort Borough, 64 F. Supp. 3d 631, 641 (M.D. Pa. 2014).
....
The procedural challenges being made by [Yannaccone] are
not cognizable where his substantive property rights were
not affected at all. There was no change to the agricultural
zone in which his land was located.
Yannaccone Br. App. A-4 – A-5; Trial Ct. Op. at 4-5.
Yannaccone timely filed his complaint in the trial court within 30 days
of the Ordinance’s effective date, in accordance with Section 5571.1(e)(1) of the
Judicial Code and Section 1002-A(b) of the MPC. Section 1002-A(b) of the MPC
states:
Challenges to the validity of a land use ordinance raising
procedural questions or alleged defects in the process of
enactment or adoption shall be raised by appeal taken
directly to the court of common pleas of the judicial district
in which the municipality adopting the ordinance is located
in accordance with [Section] 5571.1 [of the Judicial Code]
(relating to appeals from ordinances, resolutions, maps,
etc.).
53 P.S. § 11002-A(b) (emphasis added).
Murray reported that Yannaccone’s property zoning did not change with the Ordinance’s
20
adoption. See N.T. at 60-61.
16
Notwithstanding, the trial court applied Section 1002.1-A of the MPC in
analyzing Yannaccone’s appeal. In doing so, it committed two errors. First, Section
1002.1-A(a) of the MPC clearly declares: “This section shall apply to all appeals
challenging the validity of a land use decision on the basis of a defect in procedures
prescribed by statute or ordinance.” 53 P.S. § 11002.1-A(a) (bold and italics
emphasis added). Second, Section 1002.1-A(d) of the MPC provides:
No decision challenged in an appeal pursuant to this section
shall be deemed void from inception except as follows:
(1) In the case of an appeal brought within the time
period provided in [S]ection 1002-A(a) [of the MPC21
(requiring that appeals from land use appeals be filed
within 30 days after a zoning hearing board renders its
decision)], the party alleging the defect must meet the
burden of proving that there was a failure to strictly comply
with procedure.
(2) In the case of an appeal exempt from the time period
provided in [S]ection 1002-A(a) [of the MPC] or brought
pursuant to [S]ection 108 [of the MPC, 53 P.S. § 10108
(relating to optional notice of municipal action)], the party
alleging the defect must meet the burden of proving that
because of the alleged defect in procedure alone:
21
Section 1002-A(a) of the MPC states:
All appeals from all land use decisions rendered pursuant to Article
IX [(relating to zoning hearing board proceedings)] shall be taken to
the court of common pleas of the judicial district wherein the land is
located and shall be filed within 30 days after entry of the decision as
provided in [Section 5572 of the Judicial Code,] 42 Pa.C.S. § 5572
(relating to time of entry of order) or, in the case of a deemed
decision, within 30 days after the date upon which notice of said
deemed decision is given as set forth in [S]ection 908(9) of [the MPC,
53 P.S. § 10908(9)]. It is the express intent of the General Assembly
that, except in cases in which an unconstitutional deprivation of due
process would result from its application, the 30-day limitation in this
section should be applied in all appeals from decisions.
53 P.S. § 11002-A(a).
17
(i) the public was denied notice sufficient to permit
participation in the proceedings prior to the entry of
the decision to the extent such participation was
authorized by statute or ordinance; or
(ii) those whose substantive property rights were or
could be directly affected by the entry of the
decision were denied an opportunity to participate in
proceedings prior to the entry of the decision.
53 P.S. § 11002.1-A(d) (bold and italics emphasis added).
Because the instant case involves an ordinance validity challenge
brought in accordance with Section 1002-A(b) of the MPC, rather than a land use
appeal filed pursuant to Section 1002-A(a) of the MPC, Section 1002.1-A of the
MPC is inapplicable here. Moreover, even if this matter involved a land use appeal,
since Yannaccone filed his validity challenge within 30 days, the strict compliance
standards in Section 1002.1-A(d)(1) of the MPC would apply, not the sufficient
notice and direct affect provisions in Section 1002.1-A(d)(1) of the MPC.
Accordingly, the trial court erred by relying on Section 1002.1-A of the MPC to
decide this matter.
Conclusion
Based upon the foregoing, although we agree with the trial court’s
conclusion that ZOC is a valid planning committee subject to the requirements of
Section 607 of the MPC, in the process of preparing the proposed ordinance, ZOC
failed to hold at least one public meeting pursuant to public notice, as required by
Section 607(b) of the MPC. Therefore, the trial court’s ruling that the Board
substantially complied with Section 607(b) of the MPC in enacting the Ordinance is
reversed.
Section 607(d) of the MPC states that “[t]he procedure set forth in
[Section 607 of the MPC] shall be a condition precedent to the validity of a zoning
ordinance adopted pursuant to [the MPC].” 53 P.S. § 10607(d). This Court has also
18
specifically ruled that an “ordinance will be invalidated for failure to follow the
procedures set forth in [Section 607 of] the MPC regarding notice . . . .” Kohr, 867
A.2d at 758. Accordingly, the Board’s failure to issue the prescribed public notice of
at least one of ZOC’s public meetings is a fatal flaw that invalidates the Ordinance’s
enactment and renders the Ordinance void from inception.22
___________________________
ANNE E. COVEY, Judge
22
“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(f).
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James Yannaccone, :
Appellant :
:
v. :
:
Lewis Township Board : No. 887 C.D. 2018
of Supervisors :
ORDER
AND NOW, this 9th day of August, 2019, the Northumberland County
Common Pleas Court’s May 30, 2018 order is reversed.
___________________________
ANNE E. COVEY, Judge