Ness v. York Township Board of Commissioners
2013 Pa. Commw. LEXIS 503
Pa. Commw. Ct.2013Background
- York Township Board adopted a new Zoning Ordinance and SALDO in August/September 2012 after multiple hearings and advertisements; Appellants attended hearings and spoke in opposition.
- Board published optional post-enactment notice under Section 108 of the MPC with two consecutive weekly publications, the second on September 27, 2012, stating a 30-day window to challenge procedural validity.
- Bowders initially appealed to the Township Zoning Hearing Board (ZHB) on September 17, 2012; the ZHB dismissed for lack of jurisdiction after 2008 statutory changes vesting such challenges in common pleas court.
- Appellants filed a petition in common pleas court on February 4, 2013, alleging procedural defects in enactment and asserting a constitutional due-process deprivation to excuse untimeliness.
- Trial court dismissed the petition as untimely under the MPC/Judicial Code scheme because Appellants failed to show an unconstitutional deprivation of due process; the Superior/Commonwealth court affirmed on alternate grounds (waiver and failure to plead/substantiate Section 108 defects).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under Section 5571.1 and MPC §108(d) | Bowders: appeal to court was timely or excusable because Board’s Section 108 notice issued during the 30-day period created confusion and waived the earlier 30-day deadline | Board: appeal deadlines ran (30 days from intended effective date and 30 days from second §108 notice); Appellants filed too late | Court: appeal untimely; Appellants also failed to seek nunc pro tunc relief promptly, so no excusal for delay |
| Validity/effect of §108 post-enactment notice | Appellants: §108 notice was defective (omitted municipal building address) and could not validate or reissue an ordinance that was procedurally flawed | Board: §108 optional notice was properly used and, absent a timely challenge, reissued the ordinances, curing prior procedural defects | Court: because Appellants never raised §108 notice defect below, argument waived; absent timely challenge, §108 reissuance controls and initial procedural defects become immaterial |
| Exception for unconstitutional deprivation of due process | Appellants: delayed challenge should be allowed because procedural defects caused unconstitutional deprivation of due process (public and individual) | Board: Appellants had actual notice and participation; they cannot show a deprivation of due process justifying tolling/late filing | Court: Appellants failed to allege/prove unconstitutional deprivation below; trial court correctly required showing of substantial (not just strict) noncompliance for delayed claims and Appellants waived that argument |
| Applicability of void-ab-initio doctrine and Glen-Gery | Appellants/Dissent: void-ab-initio can overcome statutory time bars where enactment was fatally defective | Board/Majority: §108 statutory scheme and reissuance rebut that automatic rule absent a timely or properly pleaded §108 challenge | Court: Majority declined to apply void-ab-initio here because Appellants did not properly raise §108 defects or §108(g) showing below; dissent would remand for consideration under Glen-Gery/Messina standards |
Key Cases Cited
- Streck v. Lower Macungie Twp. Bd. of Comm’rs, 58 A.3d 865 (Pa. Cmwlth. 2012) (post-enactment §108 notice can create confusion that justifies nunc pro tunc relief when issued during another statutory appeal period)
- Messina v. East Penn Twp., 62 A.3d 363 (Pa. 2012) (delayed procedural challenges require showing lack of substantial compliance with statutory procedure and potential deprivation of shared public participatory rights)
- Glen-Gery Corp. v. Zoning Hearing Bd. of Dover Twp., 907 A.2d 1033 (Pa. 2006) (void-ab initio doctrine can render statutory time bars inapplicable where enactment defects render an ordinance never lawfully enacted)