P HILADELPHIA , T HURSDAY , S EPTEMBER 18, 2008 T HE O LDEST L AW J OURNAL IN THE U NITED S TATES An incisive media publication L I T I G A T I O N New Laws Provide Opportunities, Risks for Land Use Planning Decisions BY RAYMOND P . PEPE the procedural validity of the ordinance RAYMOND P. PEPE is a partner in the Special to the Legal Intelligencer regardless of whether the landowner had Harrisburg offjce of K&L Gates. He can be reached actual knowledge of the provisions of the at 717-231-5988 or raymond.pepe@klgates.com. T he General Assembly enacted major ordinance. revisions to Pennsylvania laws gov- city of Philadelphia and Allegheny County In Kelly v. City of Philadelphia , the erning the timing, manner and scope explicitly declaring “null and void” any or- court declared invalid ab initio an ordi- of review of claims that municipal actions dinances not properly advertised or publicly nance adopted following extensive public are procedurally invalid. The impetus for posted as evidenced in Marshall v. Cmwlth . hearings for which notice was published this action was the increasingly frequent Beginning in 1904, however, the doctrine in three newspapers in compliance with challenges to the procedural validity of local was expanded to apply to municipal stat- Philadelphia’s Home Rule Charter. The land use decisions, which have resulted utes which determined the effective date court disregarded provisions of the Home in court decisions invalidating local ordi- of ordinances based on the time of compli- Rule Charter requiring that notices be pub- nances and local decisions, sometimes years ance with advertising and posting require- lished 15 days prior to the public hearings, after the actions have been taken. ments but did not expressly declare non- and instead concluded that the city was The legislation (Acts 2008-39 and 40) complying ordinances required to comply with amends the Judicial Code and Municipalities null and void, as seen an earlier law appli- Act 2008-39 provides Planning Code (MPC) to establish strict time in Carpenter v. Yeadon cable to all municipali- limits on when procedural challenges to Boro. Since that time, ties requiring fjve days’ municipalities and municipal actions can be initiated and to an increasingly strin- prior notice. The court landowners important establish an optional procedural mechanism gent void ab initio doc- dismissed as irrelevant to protect the validity of previously issued trine has emerged. evidence regarding the new methods to protect ordinances and decisions. The new limita- In Fierst v. William participation of a sub- tions on procedural validity challenges and Penn Memorial Corp ., stantial number of per- land use ordinance and the new mechanisms to retroactively protect the Supreme Court sons at the hearings and decisions from challenges the validity of prior municipal actions create upheld the denial of the lack of proof of prej- both opportunities and risks for municipali- an injunction against udice to any individuals to their procedural ties, landowners and developers, and per- the development of a because of the defective validity. sons contesting local land use decisions. cemetery in violation notices. of a zoning ordinance Likewise, Kurren’s BACKGROUND: PENNSYLVANIA’S because a newspaper Appeal found an ordi- STRICT VOID AB INITIO DOCTRINE notice indicated an ordinance was accompa- nance invalid because notice of was given of The new legislation was adopted to rem- nied by a zoning map but failed to indicate a “public meeting” rather than a “hearing.” edy threats to the reliability of land use where the map was fjled. The court held The court ruled that, “The fact that over 100 decisions arising out of Pennsylvania’s strict that provisions of a separate municipal or- persons, including the Kurrens, did attend application of the void ab initio doctrine. dinance declaring the township secretary as the meeting … and that they were permitted The void ab initio doctrine initially the offjcial repository of offjcial documents to express their views, does not excuse the emerged in Pennsylvania jurisprudence in were insuffjcient to provide notice regard- failure of city council to follow the statutory the 19th century as a result of provisions ing where the maps could be inspected mandate … [which was] clearly expressed included in legislation incorporating the and allowed the landowner to challenge and cannot be relaxed.” REPRINTED WITH PERMISSION OF THE LEGAL INTELLIGENCER
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