GLEN-GERY CORPORATION, Appellant, v. ZONING HEARING BOARD OF DOVER TOWNSHIP, York County, Pennsylvania and Dover Township, Appellees.
907 A.2d 1033
Supreme Court of Pennsylvania.
Argued Dec. 5, 2005. Decided Sept. 28, 2006.
907 A.2d 1033
Thus, respectfully, I find the majority‘s two-prong test for equity jurisdiction inadequate in that it fails to acknowledge specifically the need for and fails to accord sufficient deference to administrative expertise as required by the exhaustion of administrative remedies doctrine. Wholesale resolution of the appeals sub judice without first having each case reviewed by the agency with the most expertise on the subject matter is not only jurisprudentially improper but also ill-advised.
Accordingly, while I agree with the result reached by the majority, I cannot join its reasoning.
Stephen B. Harris, Esq., Michael Joseph Titus, Esq., Warrington, for The H & K Group.
Stacey R. MacNeal, Esq., Charles A. Rausch, Esq., York, for Dover Township.
D. Michael Craley, Esq., Red Lion, for Zoning Hearing Board of Dover Township.
Thomas L. Wenger, Esq., Peter Grayson Howland, Harrisburg, for amicus curiae for Pennsylvania State Association of Township Supervisors.
BEFORE: CAPPY, C.J., and CASTILLE, NEWMAN, SAYLOR, EAKIN and BAER, JJ.
OPINION
Justice NEWMAN.
Today we are asked to decide whether the plain language of
Facts and Procedural History
Glen-Gery Corporation (Appellant) desired to use all of its lands for non-coal surface mines with normal associated, related, and accessory uses, including bituminous asphalt plants, concrete batch plants, construction company activities, equipment repair facilities, offices, retail and wholesale of stone, and landscaping and related products. Appellant, therefore, filed a challenge to two of the Dover Township zoning and land use ordinances, alleging invalidity on the grounds of procedural defects that occurred during their adoption.4 The effective dates of these ordinances were in 1997 and 1995; however, Appellant did not bring its procedural challenge until 2002. As discussed further infra,
The Dover Township Zoning Hearing Board (Board), which has exclusive jurisdiction pursuant to
Pursuant to Schadler I, the Board concluded that the 2002 amendment to
Appellant appealed to the trial court, which affirmed the Board, also relying on Schadler I,
Appellant filed an appeal and asked the Commonwealth Court to reverse. Prior to argument of the case sub judice in the Commonwealth Court, this Court reversed Schadler I, and held that procedural challenges to a municipal ordinance were not time-barred pursuant to either
Thereafter, in a published Opinion in the instant matter, the Commonwealth Court, relying on Taylor affirmed the trial court‘s denial of Appellant‘s appeal, in contravention of our most recent decision. The Commonwealth Court stated:
Our Supreme Court specifically declined to address the impact of the amendment [to
§ 5571(c)(5) ] in Schadler [II] because it was not in effect when the landowner in that case brought his procedural challenge. In this case, though, amendedSection 5571(c)(5) of the Judicial Code governs....
* * *
Because the thirty-day statutory period for challenging alleged defects in the enactment of an ordinance begins on the “intended” effective date “but for the alleged defect in the process of enactment or adoption,”
Section 5571(c)(5) now means that the statutory period forbringing procedural challenges to local ordinances begins to run without regard to alleged procedural defects that potentially would preclude the ordinance from taking effect. Consequently, a determination of whether an ordinance is actually void can only come after a timely procedural challenge to the ordinance under amended Section 5571(c)(5) .
Glen-Gery Corp. v. Zoning Hearing Bd., 856 A.2d 884, 890 (Pa.Cmwlth.2004) (emphasis omitted) (quoting Taylor, 851 A.2d at 1029). The court further held that the clear language of
Discussion
The basic issue before this Court is whether the plain language of either of two statutory provisions,
Prior to addressing the exact language of the statutes and precedent from this Court, it is helpful to understand the genesis and the meaning of the void ab initio doctrine and its roots in due process concerns.
Under this theory, a statute held unconstitutional is considered void in its entirety and inoperative as if it had no existence from the time of its enactment. The origin of this doctrine may lie in the early case of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), in which Chief Justice Marshall wrote that “a law repugnant to the constitution is void.”
Oliver P. Field, the most noted scholar on this issue has suggested that the void ab initio theory is premised on the historical American concern over excessive authority asserted by a tyrannical executive or legislative branch in violation of the rights of individuals protected by the Constitution. Field explains that whereas the Constitution prohibits the legislature and executive from overstepping their limits, the courts came to regard themselves as the ultimate guardians of individual rights. Any act that invaded these rights was to be judged unconstitutional and treated as though it never existed.
Erica Frohman Plave, The Phenomenon of Antique Laws: Can a State Revive Old Abortion Laws in a New Era?, 58 Geo. Wash. L.Rev. 111 (1990). See also Kole v. City of Chesapeake, 247 Va. 51, 439 S.E.2d 405, 408-09 (1994) (“The 30-day period would not bar the Landowners’ claims that the rezoning ordinance is void ab initio upon the several grounds alleged“); People v. Gersch, 135 Ill.2d 384, 142 Ill.Dec. 767, 553 N.E.2d 281 (1990).
Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178 (1886), is the most frequently cited case dealing with the doctrine of void ab initio. In Norton, the Tennessee legislature reorganized the City of Memphis and, through an enactment, transferred the powers of the Quarterly Court to a newly created Board of Commissioners for the purpose of authorizing the Board to purchase bonds in a railroad company. A new Constitution came into force in Tennessee that declared actions such as those taken by the Board to be unconstitutional. The legislation was subsequently held by the Supreme Court of Tennessee to be unconstitutional and invalid, and the Board created by it to have no legal existence.
The suit in Norton was initiated to enforce payment of twenty bonds issued by the Board. The U.S. Supreme Court stated that, “[a]n unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” Norton, 118 U.S. at 442. The Court found that, because the new requirements of the Tennessee Constitution were not followed in the creation of the Board, no subsequent act of the county court could operate to render valid a previous void issue of bonds.
This doctrine has been upheld repeatedly in other jurisdictions as well as this one. See Propst v. Bd. of Ed., 103 F.Supp. 457 (D.Neb.1951) (holding that an unconstitutional statute is an utter nullity, and it is void from the date of its enactment, making it incapable of creating any rights); Atlanta v. Gower, 216 Ga. 368, 116 S.E.2d 738, 742 (1960) (opining that “[t]he time with reference to which the constitutionality of an act of the General Assembly is to be determined is the date of its passage, and if it is unconstitutional then, it is forever void.“) (quoting Jones v. McCaskill, 112 Ga. 453, 37 S.E. 724, 725 (1900)). Perhaps most analogous to the instant matter is Miller v. Jackson, 166 Kan. 141, 199 P.2d 513 (1948). The court in Miller stated that: “Since a void statute is tantamount to no statute we think the plaintiff is entitled to be heard upon the question of the validity of the statute.” Id. at 514. Although Miller did not deal with a statute of limitations issue, as here, it put forth the notion that challenges to the constitutional validity of a statute should be heard because, if successful, the statute is rendered non-existent.
Although some courts have shied away from consistently applying the doctrine of void ab initio, those courts have recognized its validity in certain cases. See Perkins v. Eskridge, 278 Md. 619, 366 A.2d 21, 32 n. 7 (1976), overruled on other grounds by Parrott v. State, 301 Md. 411, 483 A.2d 68 (1984), in which the Court stated, “We do not mean to imply, however, that we totally reject the Norton void ab initio rule. In some cases it may be appropriate to apply the rationale. See, e.g., Barry Properties v. Fick Bros., 277 Md. 15, 353 A.2d 222, 235 (1976); State v. Ingel, 18 Md.App. 514, 308 A.2d 223, 229 (1973), cert. denied, 270 Md. 739, 742 (Md.1973); cf. Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1879). See also Johnson v. State, 271 Md. 189, 315 A.2d 524, 528 (1974).” (citations modified).
The hesitation to apply the void ab initio doctrine has stemmed from the reliance on the part of one party but only where the due process rights of the citizenry will
As previously recited,
(a) The zoning hearing board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
* * *
(2) Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption which challenges shall be raised by an appeal taken within 30 days after the effective date of said ordinance....
(5) Ordinances, resolutions, maps, etc.—Notwithstanding section 909.1(a)(2) of
the act of July 31, 1968 (P.L. 805, No. 247), known as the Pennsylvania Municipalities Planning Code, questions relating to an alleged defect in the process of enactment or adoption of any ordinance, resolution, map or similar action of a political subdivision, including appeals and challenges to the validity of land use ordinances adopted pursuant to the Pennsylvania Municipalities Planning Code, shall be raised by appeal or challenge commenced within 30 days after the intended effective date of the ordinance, resolution, map or similar action. As used in this paragraph, the term “intended effective date” means the effective date specified in the ordinance, resolution, map or similar action or, if no effective date is specified, the date 60 days after the date the ordinance, resolution, map or similar action was finally adopted but for the alleged defect in the process of enactment or adoption.
A strict reading of the statute demonstrates that the challenge is clearly time-barred as Appellant waited between five and seven years to contest the allegedly defective procedure during the enactment of the ordinances. However, the effect of a finding that the ordinance is void ab initio means that it essentially never became law because of its procedural defects; thus, any component of the challenge that contains a time bar, or intended effective date, is deemed void for having never been properly passed. As such, Appellant urges us to consider that the current statute, if the underlying procedural defect were proven, would not be in existence and, therefore, the claim cannot be time-barred. Appellant argues that the instant matter is similar to the Opinions of this Court in both Schadler II, supra, and Cranberry Park, supra, in which procedural challenges were allowed more than thirty days after the effective date of the statute.
In Cranberry Park, the appellant, a limited partnership, filed an application for a grading permit pursuant to Cranberry Township‘s Grading Ordinance. However, the appellant began work without the permit, which was ultimately denied because it did not include all of the information required by the ordinance. An appeal was filed challenging the validity of the ordinance because it was never numbered, dated, signed, or recorded. This Court stated that:
[T]he procedures for enacting the ordinance were not followed and thus the ordinance is invalid. The Board found, based on its review of its minutes, that the Ordinance was passed on July 16, 1987. As of 1995, eight years after the Ordinance was passed, the Ordinance was still not numbered, dated, signed or recorded. The Ordinance was never recorded in the ordinance book of the township, thus it never became effective.
53 P.S. 65741 ; see also Lower Gwynedd Twp. v. [Gwynedd Props., Inc., 527 Pa. 324, 591 A.2d 285,] 287 [(1991)]. Since the Ordinance never became effective,Appellee‘s reliance on 5571 of the Judicial Code to argue that the [partnership]‘s challenge is untimely is unpersuasive.
Id. at 168 (citations omitted). In so holding, this Court relied extensively on our prior decision in Lower Gwynedd.
In Lower Gwynedd, the appellant owned a large plot of land in Lower Gwynedd Township. After the appellant filed a subdivision plan, the township solicitor prepared an ordinance authorizing the condemnation of the land for use as a conservation area. Although the ordinance was prepared and a summary of its provisions published in a newspaper, the full text of the ordinance was not published or filed in any location. As a result, the appellant could not examine the entire ordinance prior to its adoption. This Court then relied on our prior ruling in West Conshohocken Borough Appeal, 405 Pa. 150, 173 A.2d 461 (1961), as well as that of the Commonwealth Court in City of Philadelphia v. Shanahan, 121 Pa.Cmwlth. 602, 550 A.2d 1388 (Pa.Cmwlth.1988), allowance of appeal denied, 522 Pa. 586, 559 A.2d 529 (1989), in stating that “[t]he precedents of this Court have been consistent in holding that statutory publication requirements are mandatory and that ordinances adopted without strict compliance are void.” Lower Gwynedd, 591 A.2d at 288. We stated again that it is our “consistent view that the statutory steps for enactment of ordinances are mandatory and nonwaivable,” id. at 286, and that “the procedures established by the legislature for the enactment of ordinances must be followed strictly in order for an ordinance to be valid,” id. at 287.
We most recently addressed the void ab initio doctrine in Schadler II. In Schadler II, the developer of a proposed mobile home park claimed that the township‘s mobile home park ordinance was invalid because of irregularities in the way in which it had been enacted. Weisenberg Township stipulated that it had failed to publish required notices regarding the ordinance.
Taylor involved a company engaged in a logging venture that began operations without the requisite permits. Following litigation involving the validity of its permit denial, Taylor challenged the procedure in enacting an ordinance that no timber harvesting shall take place in areas determined to be landslide-prone. The Commonwealth Court in Taylor ultimately relied on the amended
Although Taylor predicted the Supreme Court‘s treatment of our decision in Schadler [I], it does not necessarily follow that he now prevails on this issue because
Section 5571(c)(5) of the Judicial Code has been amended.... Our Supreme Court specifically declined to address the impact of the amendment in Schadler [II] because it was not in effect when the landowner in that case brought his procedural challenge. In this case, though, amendedSection 5571(c)(5) of the Judicial Code governs, and we must address it because it took effect before Taylor raised his procedural challenge to Ordinance 335.Under amended
Section 5571(c)(5) , the “intended effective date” of an ordinance is either (1) the date specified in the ordinance or (2) 60 days after the township otherwise finally adopts the ordinance, if no date is specified. Because the thirty-day statutory period for challenging alleged defects in the enactment of an ordinance begins on the “intended” effective date “but for the alleged defect in the process of enactment or adoption,”Section 5571(c)(5) now means that the statutory period for bringing procedural challenges to local ordinances begins to run without regard to alleged procedural defects that potentially would preclude the ordinance from taking effect. Consequently, a determination of whether an ordinance is actually void can only come after a timely procedural challenge to the ordinance under amendedSection 5571(c)(5) .In this case, Ordinance 335 has as its intended effective date November 19, 2001. Taylor first challenged procedural problems with Ordinance 335 on June 18, 2003, nearly 18 months beyond the statutory deadline, making Taylor‘s challenge to any alleged defect in the enactment process time-barred under the amendment to
Section 5571(c)(5) .
Glen-Gery, 856 A.2d at 890-91 (quoting Taylor, 851 A.2d at 1028-30 (omission in original)).7
The Commonwealth Court distinguished Schadler II reasoning that the addition of the word “intended” means that the effective date now runs without regard to an alleged procedural defect. However, this analysis by the Commonwealth Court is seriously flawed because the underlying reasoning of Schadler II is still present and the Commonwealth Court simply restated its error from Taylor. Regardless of the intended effective date, this Court‘s reasoning in Schadler II clearly held that, if the ordinance or statute is procedurally defective, it is as if it had never been enacted. Schadler II, 850 A.2d at 626-27 (“Therefore, under this Court‘s prior decisions in Lower Gwynedd and Cranberry Park, as well as under
In Schadler II, this Court stated that:
[T]he statute merely provides that a township‘s failure to file a copy of an ordinance with the county law library or other designated county office within thirty days of enactment or its failure to record the ordinance within the time provided will not render the ordinance void ab initio, without addressing in any way the effect of other procedural deficiencies. As such, pursuant to Lower Gwynedd and Cranberry Park, a township‘s failure to comply with other statutory procedural requirements continues to render the resultant ordinance void.
Schadler II, 850 A.2d at 626. Consequently, this Court in Schadler II noted the reasoning of prior caselaw with approval and stated that the void ab initio doctrine applies where a township fails to comply with statutory procedural requirements. “[T]he statute is more closely aligned with the general principle set forth in Lower Gwynedd and Cranberry Park that procedurally defective ordinances are void ab inito. See Cranberry Park, 751 A.2d at 167-68 (quoting Lower Gwynedd, 591 A.2d at 285-87).” Schadler II, 850 A.2d at 626 n. 8.8
We further noted that the enactment of
Accordingly, our holding in Schadler II is no less true today:
[U]nder this Court‘s prior decisions in Lower Gwynedd and Cranberry Park ... the Ordinance is void ab initio and had no effective date, and the thirty-day limitations period in
53 P.S. § 10909.1(a)(2) and42 Pa.C.S. § 5571(c)(5) never began to run. As a result, the Commonwealth Court‘s conclusions [in Schadler I] that Cranberry Park was no longer controlling and that53 P.S. § 66601 excused the Township‘s procedural deficiencies were in error.
Schadler II, 850 A.2d at 626-27.
We recognize that
The mere add-on of “intended” does not vitiate the due process rights of a Pennsylvania citizen that are protected by the void ab initio doctrine. As in Schadler II and Cranberry Park, this Court cannot enforce an ordinance that is procedurally defective and results in a landowner not being afforded his or her constitutionally guaranteed opportunity to challenge that ordinance‘s validity. In the case of a procedural defect involving notice or other defects lessening or eliminating constitutional rights, it would be nonsensical to allow the Legislature to pass a law or ordinance without notification and then attempt to skirt its own defective act by creating an artificial and arbitrary statute of limitations when a potential party has no ability to know of or contest the statute. Such a scheme would obliterate the check and balance available to citizens via the court system by creating an essentially unchallengeable statute or ordinance.
Conclusion
Consistent with prior precedent, we hold that a challenge to the procedure in
Justice CASTILLE, EAKIN and BAER join the opinion.
Former Justice NIGRO did not participate in the consideration or decision of this case.
Justice SAYLOR files a dissenting opinion in which Chief Justice CAPPY joins.
Justice SAYLOR, dissenting.
As I read its opinion, the majority finds the amendment to
On the first of these points, it is my position that, by prescribing that the thirty-day period runs from the intended effective date of the ordinance, rather than the actual effective date, the Legislature has effectively displaced the Schadler line of decisions. In this regard, the amended statutory language seems to me to be plain on its face, with its intended effect, as well as the salutary purpose of establishing some reasonable limitation on procedural validity challenges, also being very clear. Therefore, I respectfully differ with the majority‘s criticisms of the Commonwealth Court‘s reading of amended
I also do not believe that the Commonwealth Court should be faulted for failing to consider the limited question on which appeal was allowed, namely, whether the amendment to
In this landscape, I believe that the Commonwealth Court‘s approach to the case in merely applying the plain language of amended
Since the majority elects to reach the merits of the due process question, my position is as follows. I agree with the majority to the extent that it holds that the government cannot materially alter existing property interests of citizens in the absence of adequate notice and an opportunity to respond.5 I also do not believe that the Legislature, consistent with the due process norms, can restrict the ability of landowners who have not been afforded reasonable notice to obtain redress in the courts of law to a thirty-day period after the passage of an unnoticed ordinance. Therefore, in circumstances in which a landowner can establish such a lack of timely notice and reasonable diligence in the aftermath, I believe that
As to the ultimate result in this case, I believe that the common pleas court should have addressed whether Appellant met its burden of establishing that the government failed to provide adequate notice and an opportunity to respond in connection with the passage of the ordinance, and correspondingly, that
Chief Justice CAPPY joins this dissenting opinion.
Notes
(a) The zoning hearing board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
* * *
(2) Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption which challenges shall be raised by an appeal taken within 30 days after the effective date of said ordinance. Where the ordinance appealed from is the initial zoning ordinance of the municipality and a zoning hearing board has not been previously established, the appeal raising procedural questions shall be taken directly to court.
(5) Ordinances, resolutions, maps, etc.—Notwithstanding section 909.1(a)(2) of the act of July 31, 1968 (P.L. 805, No. 247), known as the Pennsylvania Municipalities Planning Code, questions relating to an alleged defect in the process of enactment or adoption of any ordinance, resolution, map or similar action of a political subdivision, including appeals and challenges to the validity of land use ordinances adopted pursuant to the Pennsylvania Municipalities Planning Code, shall be raised by appeal or challenge commenced within 30 days after the intended effective date of the ordinance, resolution, map or similar action. As used in this paragraph, the term “intended effective date” means the effective date specified in the ordinance, resolution, map or similar action or, if no effective date is specified, the date 60 days after the date the ordinance, resolution, map or similar action was finally adopted but for the alleged defect in the process of enactment or adoption.
Schadler II, 850 A.2d at 627. As in Schadler II, reliance is not at issue in the present matter and has not been raised or shown by the Board; accordingly, we are left with only the substantial interest in upholding the procedural requirements designed to ensure the citizenry may challenge an ordinance. I have some difficulty, however, with the majority‘s suggestion that the approach of courts in deeming unconstitutional statutes (or ordinances) void ab initio is rooted in due process. See Majority Opinion, slip op. at 7. While certainly enactments that violate due process interests may implicate the doctrine (as is now asserted to be the case here), I believe that the void ab initio conception has been applied to a considerably broader range of unconstitutional legislation. See generally 1 SUTHERLAND STATUTORY CONSTRUCTION § 2:7 (6th ed.2005) (citing cases). I also think that it is helpful in this arena to maintain a distinction between substantive and procedural invalidity in terms of the application of the doctrine, which, in my view, is particularly relevant to the applicability of potential exceptions.The Township argues in the alternative that applying the holding of Cranberry Park to this case would engender unsound policy by creating an unreasonable situation in which any ordinance enacted with any sort of technical deficiency would then be forever subject to challenge. We disagree. While it is true that an overly aggressive application of the principles behind Cranberry Park could inject excessive uncertainty into a township‘s zoning laws, there is no such threat here. The purpose of requiring compliance with the procedural requirements for enacting township ordinances is premised on the importance of notifying the public of impending changes in the law so that members of the public may comment on those changes and intervene when necessary. While we may someday be presented with a case in which a procedurally defective ordinance has been ‘on the books’ and obeyed in practice for such a long time that public notice and acquiescence can be presumed, this is not such a case.
[Indiana Environmental Management Bd. v. Bremen, 458 N.E.2d 672 (Ind.App.1984),] involved construction and operation permits for a sanitary landfill granted by the Indiana Environmental Management Board (EMB). The town and several private citizens sought to obtain judicial review of the permit issuance and to enjoin its effectiveness pending review. The trial court eventually ordered that the EMB actions be set aside and vacated. The Indiana Court of Appeals found that the town and the citizens were entitled to pursue administrative remedies under the AAA, including the opportunity for settlement and for an adjudicatory hearing. The court further found that the AAA required the agency to notify all ‘affected persons’ by registered (or certified) mail or in person of its initial determination. Failure to provide the appellees with their due process rights under the AAA rendered the permits void ab initio.
Honorable Lori Kyle Endris and Honorable Wayne E. Penrod, Judicial Independence in Administrative Adjudication; Indiana‘s Environmental Solution, 12 St. John‘s J.L. Comm. 125, 130 n. 20 (1996). In Bremen, the court determined that the AAA afforded due process rights that had been denied to the plaintiffs and concluded that a failure to comply with due process resulted in the permits in question being rendered void ab initio. Bremen, 458 N.E.2d at 675. Thus, a lack of due process protection renders a government act ineffective from its inception.