Borough Council of the Borough of Gratz v. G. Morris Solar, LLC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Borough Council of the :
Borough of Gratz, :
Appellant :
:
v. : No. 1049 C.D. 2022
:
G. Morris Solar, LLC : Submitted: September 11, 2023
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: October 13, 2023
Appellant Borough Council of the Borough of Gratz (Borough Council)
appeals from the Court of Common Pleas of Dauphin County’s (Common Pleas)
August 31, 2022 order, through which Common Pleas ruled in Appellee G. Morris
Solar, LLC’s (G. Morris Solar) favor regarding an ordinance that had been enacted
by the Council (Proposed Ordinance). Specifically, Common Pleas held that the
Proposed Ordinance was void ab initio, due to Borough Council’s failure to comply
with the notice-related requirements imposed upon it by the Pennsylvania
Municipalities Planning Code (MPC)1 and the Borough of Gratz’s (Gratz Borough)
Zoning Ordinance.2 In addition, Borough Council has filed an “Application for
Relief Seeking an Order Remanding the Instant Matter to the Trial Court for
Consideration of Additional Evidence/Testimony” (Remand Application) with our
Court. It asserts therein that we should return this matter to Common Pleas, so that
the lower court may consider evidence that Borough Council asserts will establish
1
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
2
Gratz Borough Zoning Ordinance, Dauphin County, Pa., as amended (2019).
that it did, in fact, satisfy the applicable notice requirements. After thorough
consideration, we deny Borough Council’s Remand Application and affirm
Common Pleas’ order.
I. Background
As cogently explained by Common Pleas in its December 6, 2022 opinion:
The factual and procedural background in this action is
undisputed. G. Morris Solar is the lessee of properties
located north of West Market Street and east and west of
North Center Street in [Gratz] Borough (the Property) and
intended to develop the Property with a Major Solar
Energy System, as defined in [Gratz] Borough’s Zoning
Ordinance. The Property is located predominantly in the
Borough’s C-1 Conservation District, where Major Solar
Energy Systems are permitted by conditional use. Portions
of the Property are in the Borough’s R-1 Single-Family
Residential District in which Major Solar Energy Systems
are not . . . permitted. To facilitate the comprehensive
development of the Property, G. Morris Solar initially
sought to rezone the R-1 District portions of the Property
to the C-1 District, and on November 16, 2021, submitted
a petition to . . . Borough Council to [] amend the
[Borough’s] Zoning Map. On January 31, 2022, following
a hearing, the proposed rezoning request was denied.
Over the following months, G. Morris Solar explored the
feasibility of developing the Property using only the C-1
District portion of the Property, where Major Solar Energy
Systems are permitted by conditional use. G. Morris Solar
determined such a development was feasible and began
preparing the plans and documents necessary to submit a
conditional use application.
In late 2021 and early 2022, . . . Borough [Council]
commenced the process of drafting an ordinance that
would amend the Zoning Ordinance to modify the
regulation of Major Solar Energy Systems in [Gratz]
Borough by quadrupling the required front yard setback
on each lot and doubling the required side yard and rear
yard setbacks. In addition, the proposal would designate
solar panels as buildings. In the C-1 District, no more than
[20%] of a lot may be covered by buildings. The Proposed
2
Ordinance adopted by . . . Borough [Council] was [14]
pages long.1 If adopted, the Proposed Ordinance, would
adversely impact G. Morris Solar’s development plans.
1
In March of 2022, . . . Borough Council referred the
Proposed Ordinance for review by the Dauphin County
Planning Commission. On April 4, 2022, the County
Planning Commission issued a written report recommending
against adoption of the Proposed Ordinance.
Under the MPC, before voting to enact an amendment to
the Borough’s Zoning Ordinance, . . . Borough [Council]
is required to comply with notice, publication and public
hearing requirements as set forth in [Section 609(b)(1) of
the MPC,] 53 P.S. § 10609(b)(1). [Section 107(a) of the
MPC] addresses this “Public Notice” requirement, as
follows:
. . . notice [must be] published once each week for
two successive weeks in a newspaper of general
circulation in the municipality. Such notice shall
state the time and place of the hearing and the
particular nature of the matter to be considered at
the hearing. The first publication shall not be more
than 30 days and the second publication shall not
be less than seven days from the date of the
hearing.
53 P.S. § 10107(a) (emphasis added).
On April 21, 2022, . . . Borough [Council] published its
first notice in The Citizen Standard, a local newspaper of
general circulation but with limited (twice-weekly)
publication. The notice advertised a public hearing on the
Proposed Ordinance for May 2, 2022, as follows:
PUBLIC NOTICE
The Gratz Borough Supervisors will hold a public
hearing on Monday, May 2, 2022, at 7:00 P.M. at
the Gratz Municipal Authority Building, 125 N
Center Street, Gratz, PA to consider Amendments
to the Gratz Borough Zoning Ordinance to redefine
an Electricity Generating Plant and to modify
current regulations regarding the operation of Wind
Farms and Major Solar Energy Systems. The public
hearing will be immediately followed by the regular
meeting of the Board of Supervisors at which time
3
[the Board of Supervisors] intend[s] to consider
adopting the Ordinance. Copies of the Amendment
are available for inspection at the Gratz Borough
Municipal Authority Building during normal
business hours.
Donald G. Karpowich, Esquire
Gratz Borough Solicitor
85 Drasher Road
Drums, PA 18222[]
MPC Section 610(a) sets forth the information required for
inclusion in the Public Notice, as follows:
Proposed zoning ordinances and amendments shall
not be enacted unless notice of the proposed
enactment is given in a 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.
53 P. S. § 10610(a) (emphasis added).
On April 28, 2022, less than seven . . . days before the
Public Hearing on May 2, 2022, . . . Borough [Council]
published the Public Notice cited above for a second time
in The Citizen Standard.
On April 29, 2022, G. Morris Solar submitted its
conditional use application to [Gratz] Borough for the
development of the Property with a Major Solar Energy
System.
On May 2, 2022, Borough Council held the Public Hearing
on the Proposed Ordinance. That same day, . . . Borough
4
Council voted unanimously to adopt the Proposed
Ordinance with an effective date of May 2, 2022.
....
On June 1, 2022, G. Morris Solar filed its land use appeal
in [Common Pleas,] arguing that the Proposed Ordinance
was void ab initio because (1) . . . Borough [Council] had
failed to strictly adhere to the MPC Public Notice timing
requirements by publishing the second notice just four
days prior to the hearing when a minimum of seven days
was specified, and (2) [Borough Council had failed] to
include in the Public Notice either the entire [14]-page,
full text of the Proposed Ordinance or alternatively, “the
title and a brief summary, . . . setting forth all the
provisions in reasonable detail,” as required by the MPC.
G. Morris Solar further argued that these MPC violations
were also in violation of [Gratz] Borough’s own Zoning
Ordinance, which requires that any Zoning Ordinance
amendments be made in accordance with the MPC.
(Borough Zoning Ordinance Section 1009.1)
With regard to the content requirement under MPC
Section 610(a), G. Morris Solar noted that because the
Public Notice did not include the full text of the Proposed
Ordinance, . . . Borough [Council] was required to satisfy
that provision and Borough Zoning Ordinance Section
1009.1, by publishing “the title and a brief summary [of
the Proposed Ordinance], prepared by the municipal
solicitor and setting forth all the provisions in reasonable
detail.” 53 P.S. § 10610(a). As argued by G. Morris Solar,
. . . Borough [Council] failed to set forth all of the
provisions of the Proposed Ordinance in reasonable detail,
noting that the lengthy amendment proposed significant
changes to [Gratz] Borough’s regulation of Wind Farms
and Major Solar Energy Systems; instead, the Public
Notice simply stated that the Proposed Ordinance was
designed “to modify current regulations regarding the
operation of Wind Farms and Major Solar Energy
Systems.”
After . . . Borough [Council] filed an answer to the appeal,
[Common Pleas] held oral argument on August 31, 2022.
At argument, [Borough Council’s] attorney admitted that
. . . Borough [Council had] failed to strictly comply with
the MPC requirement for publication of the second notice
not less than seven days from the hearing date.
5
[Reproduced Record (R.R.) at 119a-20a.] He explained
that . . . Borough [Council] had requested The Citizen
Standard to publish the Public Notice on April 18 and
April 25, but that because it only publishes twice per week,
the notices were published on April 21 and April 28
instead. [Id. at 119a. The attorney] suggested to [Common
Pleas] that . . . Borough [Council] was not required to
strictly adhere to the MPC’s timeliness and content
requirements, but that it was only required to be in
“substantial compliance” with the MPC, which standard
he argued . . . Borough [Council] had met as to both the
timing of the second notice and as to the content of the
Public Notice.
Common Pleas Op., 12/6/22, at 1-4.
At the close of the hearing, Common Pleas found that the Proposed Ordinance
was void ab initio, due to Borough Council’s failure to strictly comply with the
notice-related requirements imposed upon it by the MPC and Gratz Borough’s
Zoning Ordinance, as well as because the published Public Notice did not adequately
summarize the substance of the Proposed Ordinance. R.R. at 124a-25a. Common
Pleas then memorialized this ruling through an order issued that same day. Borough
Council’s appeal to our Court then followed shortly thereafter.
II. Discussion
Borough Council presents two arguments on appeal,3 which we summarize as
follows. First, Borough Council asserts that it discovered evidence after it filed this
appeal that purportedly establishes that the Public Notice was published on or before
3
Since Common Pleas considered no additional evidence, our standard of review is limited
to determining whether Borough Council abused its discretion, committed an error of law, or
violated G. Morris Solar’s constitutional rights. 2 Pa. C.S. § 754(b). “An abuse of discretion will
be found only if [a local agency’s] findings are not supported by substantial evidence, that is, such
relevant evidence that a reasonable mind might accept as adequate to support a conclusion.”
Zoning Hearing Bd. of Sadsbury Twp. v. Bd. of Supervisors of Sadsbury Twp., 804 A.2d 1274,
1278 (Pa. Cmwlth. 2002). With regard to questions of law, our review is de novo in standard and
plenary in scope. Upper Southampton Twp. v. Upper Southampton Twp. Zoning Hearing Bd., 934
A.2d 1162, 1167 (Pa. 2007).
6
April 26, 2022. Borough Council’s Br. at 10-12. Borough Council expands upon this
argument in its related Remand Application, claiming therein that it has learned that
newsstands receive new issues of The Citizen Standard each week on Tuesday, as
well as that those new issues are delivered to home subscribers’ mailboxes each
week no later than Thursday. See Remand Appl. at 3-5.4 Accordingly, Borough
Council requests that we remand this matter to Common Pleas, so that the lower
court can consider this additional evidence and revisit the question of whether the
timing of the Public Notice’s publication was legally sufficient. Borough Council’s
Br. at 12; Remand Appl. at 4-5. Second, Borough Council maintains that Common
Pleas abused its discretion when it determined that the Public Notice did not
adequately recapitulate the Proposed Ordinance, because, in Borough Council’s
view, the Public Notice’s summary was reasonably detailed and informed readers as
to where they could locate the Proposed Ordinance’s full text. Borough Council’s
Br. at 12-14.
We need only address Borough Council’s first argument to resolve this
appeal. By law, “[a]n ordinance shall be presumed to be valid and to have been
enacted or adopted in strict compliance with statutory procedure.” 42 Pa. C.S. §
5571.1(d)(1). Where, as here, a party challenges an ordinance within 30 days of its
enactment, and does so on the basis that the enacting municipality allegedly did not
comply with the applicable statutory procedural requirements, it is the challenger’s
burden to prove that the municipality did not strictly comply with those
requirements. Id. § 5571.1(e)(1). Only in the event that the challenger satisfies this
4
Borough Council claims in its brief that it believes the Public Notice “was actually
published on (or before) Tuesday April 25, 2022.” Borough Council’s Br. at 12. However, this
date is undoubtedly a typo, as April 25, 2022, was a Monday, and Borough Council states in its
Remand Application that “[s]ince the filing of the appeal[, it] has been attempting to retrieve
evidence to show that the advertisement was actually published [in The Public Citizen] as early as
April 26, 2022.” Remand Appl. at 3.
7
burden may a court deem the challenged ordinance to be void ab initio. Id.
§5571.1(d)(3).
Borough Council does not dispute that the record, as constituted before
Common Pleas, shows that it failed to comply with the notice requirements imposed
upon it by Section 610(a) of the MPC. See Borough Council’s Br. at 10, 12; Remand
Appl. at 2. Furthermore, its attorney admitted during Common Pleas’ August 31,
2022 hearing that Borough Council “did not hit the bullseye in terms of strict
compliance” with Section 610(a), in that the Public Notice was not published in The
Citizen Standard at least seven days before Borough Council’s May 2, 2022 Public
Hearing. See R.R. at 120a. Borough Council thus effectively concedes that Common
Pleas’ ruling was factually and legally sound at the time it was issued.
Nevertheless, Borough Council now asserts that remand to Common Pleas is
warranted, based upon its belief “that [T]he Citizen Standard is actually ‘published’
on a date before the date provided on [each issue’s] proof of publication.” Remand
Appl. at 4. We disagree, as Borough’s Council’s argument is markedly deficient for
multiple reasons. First, Borough Council offers scant legal authority to support its
request, relying exclusively upon Section 706 of the Judicial Code, which vests our
Commonwealth’s appellate courts with the ability to “affirm, modify, vacate, set
aside or reverse any order brought before it for review,” and also permits these courts
to “remand the matter and direct the entry of such appropriate order, or require such
further proceedings to be had as may be just under the circumstances.” 42 Pa. C.S.
§ 706; see Remand Appl. at 4. In doing so, Borough Council has simply deposited
the entirety of Section 706 into its own section of the Remand Application, and
appears to assume that this unadorned statutory language, shorn of any
complementary citations to case law or detailed legal analysis, has some sort of
talismanic power. See Remand App. at 4. Second, Borough Council does not provide
8
an adequately precise explanation for why it could not have secured the publication
information at an earlier point in time; instead, it vaguely asserts that this information
“was unknown to [Borough Council] at the time of the filing of the appeal and oral
argument on the appeal at the [Common Pleas level,]” as well as that it had been
seeking it since shortly after G. Morris Solar filed its appeal with Common Pleas.
Id. Finally, Borough Council’s remand request is wholly predicated upon its belief
that the Public Notice was published for the second time “as early as April 26, 2022.”
See id. at 5. This date is six days before when Borough Council held its hearing
regarding the Proposed Ordinance, i.e. May 2, 2022. See Common Pleas Op.,
12/6/22, at 3. Therefore, even if Borough Council is correct about the actual date of
the Public Notice’s second publication, it would still be out of compliance with
Section 610(a) of the MPC’s statutory mandate that the second publication occur no
fewer than seven days before the hearing on the Proposed Ordinance. Accordingly,
we conclude that that it would not be just to remand this matter to Common Pleas,
as doing so is not warranted under the circumstances.
III. Conclusion
In accordance with the foregoing, we deny Borough Council’s Remand
Application and affirm Common Pleas’ August 31, 2022 order.5
__________________________________
ELLEN CEISLER, Judge
Due to our disposition of this matter, we need not address Borough Council’s remaining
5
argument regarding the sufficiency of the summary provided through the Public Notice.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Borough Council of the :
Borough of Gratz, :
Appellant :
:
v. : No. 1049 C.D. 2022
:
G. Morris Solar, LLC :
ORDER
AND NOW, this 13th day of October, 2023, it is hereby ORDERED that
Appellant Borough Council of the Borough of Gratz’s “Application for Relief
Seeking an Order Remanding the Instant Matter to the Trial Court for Consideration
of Additional Evidence/Testimony” is DENIED. It is FURTHER ORDERED that
the Court of Common Pleas of Dauphin County’s August 31, 2022 order is
AFFIRMED.
__________________________________
ELLEN CEISLER, Judge