T he General Assembly enacted major ordinance. revisions to - - PDF document

BY RAYMOND P . PEPE

Special to the Legal Intelligencer

T

he General Assembly enacted major revisions to Pennsylvania laws gov- erning the timing, manner and scope

• f review of claims that municipal actions

are procedurally invalid. The impetus for this action was the increasingly frequent challenges to the procedural validity of local land use decisions, which have resulted in court decisions invalidating local ordi- nances and local decisions, sometimes years after the actions have been taken. The legislation (Acts 2008-39 and 40) amends the Judicial Code and Municipalities Planning Code (MPC) to establish strict time limits on when procedural challenges to municipal actions can be initiated and to establish an optional procedural mechanism to protect the validity of previously issued

• rdinances and decisions. The new limita-

tions on procedural validity challenges and the new mechanisms to retroactively protect the validity of prior municipal actions create both opportunities and risks for municipali- ties, landowners and developers, and per- sons contesting local land use decisions.

BACKGROUND: PENNSYLVANIA’S STRICT VOID AB INITIO DOCTRINE

The new legislation was adopted to rem- edy threats to the reliability of land use decisions arising out of Pennsylvania’s strict application of the void ab initio doctrine. The void ab initio doctrine initially emerged in Pennsylvania jurisprudence in the 19th century as a result of provisions included in legislation incorporating the city of Philadelphia and Allegheny County explicitly declaring “null and void” any or- dinances not properly advertised or publicly posted as evidenced in Marshall v. Cmwlth. Beginning in 1904, however, the doctrine was expanded to apply to municipal stat- utes which determined the effective date

• f ordinances based on the time of compli-

ance with advertising and posting require- ments but did not expressly declare non- complying ordinances null and void, as seen in Carpenter v. Yeadon

• Boro. Since that time,

an increasingly strin- gent void ab initio doc- trine has emerged. In Fierst v. William Penn Memorial Corp., the Supreme Court upheld the denial of an injunction against the development of a cemetery in violation

• f a zoning ordinance

because a newspaper notice indicated an ordinance was accompa- nied by a zoning map but failed to indicate where the map was fjled. The court held that provisions of a separate municipal or- dinance declaring the township secretary as the offjcial repository of offjcial documents were insuffjcient to provide notice regard- ing where the maps could be inspected and allowed the landowner to challenge the procedural validity of the ordinance regardless of whether the landowner had actual knowledge of the provisions of the

• rdinance.

In Kelly v. City of Philadelphia, the court declared invalid ab initio an ordi- nance adopted following extensive public hearings for which notice was published in three newspapers in compliance with Philadelphia’s Home Rule Charter. The court disregarded provisions of the Home Rule Charter requiring that notices be pub- lished 15 days prior to the public hearings, and instead concluded that the city was required to comply with an earlier law appli- cable to all municipali- ties requiring fjve days’ prior notice. The court dismissed as irrelevant evidence regarding the participation of a sub- stantial number of per- sons at the hearings and the lack of proof of prej- udice to any individuals because of the defective notices. Likewise, Kurren’s Appeal found an ordi- nance invalid because notice of was given of a “public meeting” rather than a “hearing.” The court ruled that, “The fact that over 100 persons, including the Kurrens, did attend the meeting … and that they were permitted to express their views, does not excuse the failure of city council to follow the statutory mandate … [which was] clearly expressed and cannot be relaxed.”

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THE OLDEST LAW JOURNAL IN THE UNITED STATES

New Laws Provide Opportunities, Risks for Land Use Planning Decisions

PHILADELPHIA, THURSDAY, SEPTEMBER 18, 2008

An incisivemedia publication

L I T I G A T I O N

RAYMOND P. PEPE is a partner in the Harrisburg offjce of K&L Gates. He can be reached at 717-231-5988 or raymond.pepe@klgates.com.

Act 2008-39 provides municipalities and landowners important new methods to protect land use ordinance and decisions from challenges to their procedural validity.

Similarly, in Philadelphia v. Shanahan, the Commonwealth Court voided an ordi- nance adopted by the City Council follow- ing its publication in two rather than three newspapers notwithstanding the fact that a labor dispute had shut down the other newspapers of general circulation and made timely compliance with publication require- ments impossible. Comparable principles were articulated by the Supreme Court in the West Conshohocken Borough Appeal when interpreting provi- sions of the borough code which required

• rdinances to be recorded in an ordinance

book within 30 days. The court invalidated an ordinance when the borough attempted to satisfy recording requirements by temporar- ily stapling a new enactment into the ordi- nance for 33 days prior to actually typing the enactment into the ordinance book.

RECENT MODIFICATIONS OF VOID AB INITIO DOCTRINE

The General Assembly previously at- tempted on several occasions to modify procedural requirements to avoid the in- validation of ordinances. For example, the MPC and the Judicial Code were amended to prohibit procedural challenges to the validity of ordinances more than 30 days following the actual or intended effective date of ordinances and various municipal codes were amended to eliminate recorda- tion as a precondition to the validity of ordi-

• nances. Although the initial judicial reaction

to such legislation was to strictly construe exceptions to procedural requirements, more recently courts have also begun to limit the doctrine to cases involving constitutional due process issues. This emerging trend may be affected by Acts 2008-39 and 40 in a manner diffjcult to predict. In Cranberry Park Assc. v. Cranberry

• Twp. Zoning Hearing Bd., the court con-

sidered the applicability of amendments to the MPC restricting procedural challenges to those fjled within 30 days of the effective date of an ordinance. Notwithstanding the passage of eight years after the procedural defects occurred, the Supreme Court in- validated the ordinance based on the failure

• f the township to number, date, sign and

record the ordinance in the municipal or- dinance book. It did so based on the theory that procedural defects kept the ordinance from having a valid effective date from which the 30-day limitation period could run. When the MPC was further amended to bar procedural challenges based on the intended rather than actual effective date of

• rdinances, the court in Schadler v. Zoning

Hearing Bd. refused to apply the amend- ments to the MPC because the ordinance was adopted before the MPC amendments took effect. Based on principles of statu- tory construction, the court also limited the application of amendments only to defects in the fjling and recording of ordinances and not to defects in advertising. In doing so, however, the court predicated its ruling upon “egregious procedural defects” that made it “diffjcult to see how the public could have possibly been on notice regard- ing the changes in the zoning laws.” In interpreting amendments to MPC lim- iting procedural challenges to those fjled within 30 days of the intended effective date of ordinances, Glen-Gery Corp. v. Dover Twp., refused to summarily dismiss a claim as time barred, but noted that the challenges would ultimately be permissible

• nly if constitutional due process concerns

were implicated. Likewise, Luke v. Cataldi permitted claims fjled challenging the pro- cedural validity of ordinances more than 30 days after their intended effective date to proceed only where “the supervisors’ alleged failure to comply with applicable notice requirements may have left appel- lants without any practical opportunity to contest the effects of the supervisors’ ac- tion on their property rights.” The cumulative effects of the Cranberry Park, Schadler, Glen-Gery and Cataldi decisions have been both to increase the de- gree of scrutiny paid to procedural require- ments for local decision making, while at the same time focusing greater attention on the constitutional underpinnings of the void ab initio doctrine. Acts 2008-39 and 40 are consistent with this changing case law, but in some circumstances reinvigorate the focus on strict compliance with procedural mandates.

THE JUDICIAL CODE AMENDMENTS

Act 2008-40 provides that appeals and challenges to any “alleged defect in the process of enactment or adoption of any

• rdinance, resolution, map or similar action
• f a political subdivision” must be raised

“within 30 days after the intended effective date” of the ordinance, resolution, map or similar action, unless “the party bringing the appeal establishes that, because of the particular nature of the alleged defect in statutory procedure,” application of the 30-day time limit “would result in an im- permissible deprivation of constitutional rights.” In all challenges to the procedural validity, Act 2008-40 provides that local actions “shall be presumed to be valid and to have been enacted or adopted in strict compliance with statutory procedure.” In addition, for appeals fjled more than two years after an intended effective date, the legislation provides that the political subdivisions, residents and landown- ers “shall be presumed to have substantially relied upon the validity and effectiveness” of the challenged actions. If appeals or challenges are fjled with 30 days of an intended effective date, Act 2008-40 provides that a local action shall not be found void from inception unless a challenger meets the burden of proving “there was a failure to strictly follow required procedure.” For ap- peals and challenges allowed to proceed at a later date, a party must demonstrate that a failure to “substantially comply” with pre- and post-enactment procedural requirements “re- sulted in insuffjcient notifjcation” which pre- vented the public “from commenting on those changes” and intervening in proceedings. Notwithstanding any other law, Act 2008-40 requires challenges to the procedural validity

• f local ordinances, resolutions, maps and

similar actions to be taken directly to a court

• f common pleas. When appeals or challenges

result in any determination that local actions were void from inception, the legislation pro- vides that any such determination “shall not af- fect any previously acquired rights of property

• wners who have exercised good faith reliance
• n the validity of the [local action] prior to the

determination.”

THE MPC AMENDMENTS

Act 2008-39 allows municipalities and land-

• wners to retroactively publish offjcial notices

that establish deadlines for the initiation of procedural challenges. Notice that munici- pal action has been taken may be given by publishing a notice once each week for two weeks in a newspaper of general circulation distributed within the affected municipality. Following such publication, notwithstanding any other requirements of law, procedural appeals and challenges may be dismissed as

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untimely if not fjled within 30 days unless a party the time limit “would result in an uncon- stitutional deprivation of due process.” Following the publication of a retroactive notice of municipal action, challenges must be taken directly to a court of common pleas, rather than zoning hearing boards or municipal governing bodies. Where no timely validity challenge is initiated, “the ordinance or deci- sion shall be deemed to be reaffjrmed and reissued on the date of the second publication.” Where a timely challenge is fjled following the publication, the challenge may be considered

• nly if “the public was denied notice suffjcient

to permit participation in [municipal] proceed- ings prior to the entry of the decision to the extent participation was authorized by statute

• r ordinance” and “substantive property rights

were or could be directly affected.” Act 2008-39 also extends the current 30-day time limit applicable to procedural claims to also apply to substantive validity challenges and transfers jurisdiction over procedural claims to the common pleas court. As is the case with the publication of optional notices to confjrm prior municipal actions, the 30-day time limit applies prospectively “except in cases in which an unconstitutional deprivation

• f due process would result.” To qualify for an

exception, a party is required to demonstrate “insuffjcient actual or constructive notice” to fjle a timely appeal; and that the municipal action “resulted or could result in a use of property that directly affects such party’s sub- stantive property rights.” Act 2008-39 bifurcates the standards for determining when appeals may result in a de- termination that municipal action is void from

• inception. For challenges fjled within 30 days
• f municipal action, ordinances or decisions

must “strictly comply with procedure.” After 30 days, a party must demonstrate that “the public was denied notice suffjcient to permit participation in [municipal] proceedings prior to the entry of the decision” and that “substan- tive property rights were or could be directly affected.” With respect to challenges to the validity of actions taken by zoning hearing boards, municipal actions may also be upheld based upon “substantial compliance” with notice requirements.

THE IMPACT OF THE MPC AND JUDICIAL CODE AMENDMENTS

As is typical with many legislative enact- ments, the full implications of the Judicial Code and MPC amendments are unclear in several areas and seem likely to generate fur- ther litigation. One perverse consequence of the legislation may be to reinvigorate some aspects of the strict void ab initio doctrine recently quali- fjed by the Schadler, Glen-Gery and Cataldi

• decisions. Where challenges are fjled within

30 days of municipal actions, the legislation requires “strict compliance with procedure” and requires no demonstration that a party’s due process rights were impaired. While it is uncertain how this standard will be applied, at the very least this change should lead land developers and those engaged in land transac- tions to very carefully review the procedural validity of municipal actions. While Act 2008-39 provides a potentially useful mechanism for shielding prior proce- dural errors from further review, municipalities, landowners and developers should also care- fully consider the risks and benefjts associated with using these new optional procedures. If no challenges are timely fjled following the publication of the newly authorized optional notices, claims may only be considered if they involve procedural errors that affect the constitutional due process violations affecting the rights of an appellant. On the other hand, if challenges are fjled within 30 days, notwith- standing the principles articulated in Schadler, Glen-Gery and Cataldi, the appellant may not need to demonstrate that its due process rights have been impaired. Instead, the legislation appears to allow a challenge to proceed based

• n an impairment of the due process rights of

any members of the public. Perhaps most signifjcant, however, is the legislation’s application of the time limits now imposed only on procedural challenges to local actions, to also apply to substantive challenges to the validity of ordinances. Heretofore, ex- cept for certain multiple fjlings of requests for curative amendments, challenges to the substantive validity of land use ordinances were not subject to a statute of limitations. The amendments in Act 2008-39, however, now limit substantive challenges to those fjled within 30 days of a municipal action unless the action impairs due process rights. As a result, developers and landowners need to carefully monitor changes to local ordinances and not assume that unreasonably restrictive ordi- nances may be challenged in the future to the extent the changes do not affect current land development plans.

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This publication is for informational purposes only and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with a lawyer.