14 Pa. Commw. 515 | Pa. Commw. Ct. | 1974
Lead Opinion
Opinion by
On September 20, 1972, the Board of Supervisors of Northampton Township (Township), enacted an ordinance amending the Township Zoning Code and permitting planned residential developments (Ordinance 129). On September 27, 1972, the Township enacted another ordinance (Ordinance 130), this one rezoning a tract of 319 acres owned by Yerree Welsh Homes, Inc. (Yerree Welsh) so as to permit the use of this property as a planned residential development.
No permits having been issued pursuant to the ordinances in question at the time of the commencement of this action, only issues pertaining to the procedural, rather than the substantive, validity of the ordinances could properly have been raised. Gerstley v. Cheltenham Township Commissioners, 7 Pa. Commonwealth Ct. 409, 299 A. 2d 657 (1973). See Sections 915 and 1005 of the MPC, 53 P.S. §§10915 and 11005. The lower court, therefore, properly considered only these issues of procedure.
The first issue raised here by the Association relates to the propriety of the lower court’s grant of summary
The lower court held that the Association lacked standing to challenge the validity of the ordinances in this action because it did not appear before the Board of Supervisors (Board) at the hearings held to consider the ordinances in question. The affidavits filed by
The Township and Verree Welsh also contend that the Association failed to comply with Section 1008(3) of the MPC, 53 P.S. §11008(3), because notice of the appeal from Ordinance 130 was not served upon Verree Welsh within seven days of the appeal. Notice was clearly required, and the Association admittedly did not serve such notice. Where, however, the delay in serving notice is not of unreasonable length or where there is no prejudice shown to the property owner, we believe that failure to serve such notice within seven days should not, standing alone, be the basis for dismissing an appeal. Here, Yerree Welsh did petition to intervene thirty days after the commencement of the action, and there is no allegation that the delay of the Association in giving notice has resulted in any prejudice. In such a situation, we do not believe this delay alone would justify dismissal of the action.
As to the petition to intervene filed by the intervenors, we must affirm its dismissal by the court below. As noted above, the Association had no standing to institute this action and, therefore, such action was a nullity from its institution. The intervenors, although they might have had standing on their own to appeal in the first place, were seeking now to substitute themselves for the Association and thus breathe life into this proceeding by attempting to intervene well over thirty days after the effective dates of the ordinances in question, and this is clearly impossible. Frank v. Zoning Hearing Board, 6 Pa. Commonwealth Ct. 462, 296 A. 2d 300 (1972).
The lower court also ruled on some of the allegations raised by the Association as to defects in the process of enactment of the ordinances and, because the Association has again raised these issues before this Court,
Clearly the above section is intended to prevent municipalities from enacting zoning amendments which affect specific tracts of land without first having published notice of intention so to act. Ordinance 129 merely authorized the location of planned residential developments in the Township and the requirements for their approval, and was not concerned with any particular tract of land. The fact that another public hearing was not held on this ordinance did not violate the above portions of Section 609. The Association also contends that Ordinance 129 as adopted was substantially different from the ordinance included in the notice given prior to the last public hearing thereon. But, as the lower court correctly stated: “An examination of the changes alluded to in the finally adopted ordinance reveals that they are largely inconsequential and are not substantial in nature.” The Association further alleges that both ordinances were improperly advertised because such advertisement was placed in a weekly newspaper. Sections 608 and 609 of the MPC, 53 P.S. §§10608 and 10609 require public notice of public hearings to be held to enact or amend a zoning ordinance, and Section 107(18), 53 P.S. §10107(18), provides that such public notice shall consist of publica
We have reviewed the other minor arguments raised by the Association, and find them likewise to be without merit.
For the above reasons, therefore, we affirm the order of the court below.
The Association’s complaint stated that it was filed, in part, pursuant to Section 702 of The Second Class Township Code, Act of May 1, 1933, P. L. 103, as amended, 53 P.S. §65741, and certainly the procedures followed by the Associates were consistent with that section. Because not raised by the parties, we need not decide the issue, but we question whether such procedures were proper in view of Sections 1001 and 1003 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P. L. 805, as amended, 53 P.S. §§11001 and 11003.
There would, of course, be an exception to such a requirement where the defect alleged is the failure to hold a hearing pursuant to Sections 608 and 609 of the MPC, 53 P.S. §§10608 and 10609, or to provide sufficient notice thereof.
As we noted in footnote 1, supra, the addition of Section 1003 to the MPC by the Act of June 1, 1972, P. L. , No. 93, may well mean that this section provides the sole means for appealing from alleged defects in the process of enacting a zoning ordinance.
Section 908(3) of the MPC, 53 P.S. §10908(3), permits civic or community organizations to be parties before a zoning hearing board. We do not believe, however, that this affects direct appeals to the court under Section 1003.
Concurrence in Part
Concurring and Dissenting Opinion by
I concur in the affirmance of the order below; and I have no quarrel with the majority’s opinion except for the conclusion that the Northampton Residents Association lacked standing to complain of the enactment of the zoning amendments because the Association failed to “appear before the Board of Supervisors (Board) at the hearings held to consider the ordinance in question.”
Under the law, citizens of political subdivisions desiring to challenge the procedures employed in the adoption of ordinances, including amendments to zoning ordinances, are not required to appear at the hearings of governing bodies conducted for the purpose of considering such legislation. Certainly there was no such
Dethlefson Appeal, 434 Pa. 431, 254 A. 2d 6 (1969), cited as authority by the majority, was concerned with former Section 1003 which applied to all zoning appeals and which provided simply “[zjoning appeals may be taken to court by any party before the board, or any officer or agency of the municipality” (emphasis supplied). Dethlefson, moreover, was concerned with an appeal from a zoning hearing board’s grant of a variance, not with a complaint of procedural irregularity in the adoption of an ordinance. Blade Mulla, Inc. v. Carlson, 7 Pa. Commonwealth Ct. 381, 298 A. 2d 920 (1972), also cited by the majority, was an appeal from a governing body’s action in disapproving a particular development plan, not a complaint that an ordinance
In short, the MPC does not now require that a citizen desiring to challenge a zoning amendment on procedural grounds must have appeared at the hearing at which the governing body considered whether it should adopt the proposed new legislation.
The majority recognizes that exceptions would have to be made for challenges to the failure to conduct a hearing or give notice as provided by Section 609, 53 P.S. §10609. After concluding that the Association had no standing because of failure to appear at the supervisors’ hearing, the majority inconsistently notes and discusses the Association’s challenge based on the alleged insufficiency of the notice, one of the exceptions.
The continued effectiveness of Section 702 of The Second Class Township Code to zoning challenges was questioned but not decided by the majority.
Section 1003 is in full: “Questions of an alleged defect in the process of enactment or adoption of any ordinance or map shall be raised by an appeal taken directly from the action of the governing body to the court filed not later than thirty days from the effective date of the ordinance or map.”