W.J. Carr v. Horsham Twp. v. Horsham-Blair, L.P.
W.J. Carr v. Horsham Twp. v. Horsham-Blair, L.P. - 1536 C.D. 2016
| Pa. Commw. Ct. | Jul 10, 2017Background
- Horsham Township enacted Ordinance No. 2015-8 on December 9, 2015 (effective December 14, 2015) amending zoning to allow a developer’s mixed-use project and rezoning certain developer-owned parcels to GC-2.
- Objectors (the Carrs) attended the Council meetings, raised procedural challenges (Sunshine Act and public hearing claims) and substantive challenges (spot zoning; arbitrary/capricious disregard of zoning protections).
- Township published Section 108 notices; the second notice ran December 28, 2015 and stated a 30-day challenge period measured from that publication.
- Objectors filed a land use appeal in the trial court on January 26, 2016 (more than 30 days after the ordinance’s effective date but before the later date stated in the published notice).
- Trial court dismissed the appeal as untimely and held it lacked jurisdiction over substantive challenges (which, it concluded, belonged to the zoning hearing board).
- Commonwealth Court: reversed dismissal of procedural claims (Sunshine Act/public hearing) as entitled to nunc pro tunc relief; affirmed dismissal of substantive claims for lack of jurisdiction and remanded for trial-court consideration of the procedural claims on the merits.
Issues
| Issue | Plaintiff's Argument (Carr) | Defendant's Argument (Horsham/Developer) | Held |
|---|---|---|---|
| Timeliness of procedural challenge | Appeal timely because published notice set 30-day clock from Dec. 28 notice | Appeal untimely — statutory 30-day clock runs from ordinance effective date (Dec. 14) | Appeal untimely from effective date; statutory deadline controls for those with prior notice |
| Entitlement to nunc pro tunc relief | Published Section 108 notice stating a later deadline caused confusion; appeal filed before that later date | No breakdown in administrative process; appellants knew of ordinance and deadlines | Nunc pro tunc relief granted due to administrative breakdown created by the published notice (appeal filed before the later published deadline) |
| Jurisdiction over substantive validity claims (spot zoning; arbitrary/capricious) | County court may hear ordinance validity claims | Substantive challenges must go to zoning hearing board under MPC | Substantive challenges belong to zoning hearing board; trial court lacked jurisdiction and dismissal affirmed |
| Timing for Sunshine Act claim | 30-day clock should run from published notice or amended permit filing | Sunshine Act challenges must be filed within 30 days of discovery of violation (here Dec. 9, 2015) | Sunshine Act claim’s 30-day period expired before filing, but procedural Sunshine Act claim otherwise preserved for nunc pro tunc relief because published notice caused confusion |
Key Cases Cited
- Streck v. Lower Macungie Township Board of Commissioners, 58 A.3d 865 (Pa. Cmwlth. 2012) (Section 108 notice published during appeal period stating a later deadline can create administrative breakdown warranting nunc pro tunc relief)
- Ness v. York Township Board of Commissioners, 81 A.3d 1073 (Pa. Cmwlth. 2013) (reaffirming Streck: nunc pro tunc relief only if appeal filed before the later date stated in Section 108 notice)
- Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130 (Pa. 1996) (standards for nunc pro tunc relief when administrative breakdown or extraordinary circumstances exist)
- Penn Street, L.P. v. East Lampeter Township Zoning Hearing Board, 84 A.3d 1114 (Pa. Cmwlth. 2014) (spot zoning challenge is a substantive validity claim for zoning hearing board)
- Atherton Development Co. v. Township of Ferguson, 29 A.3d 1197 (Pa. Cmwlth. 2011) (substantive zoning challenges—e.g., arbitrary/capricious or spot zoning—must be submitted to the zoning hearing board)