624 A.2d 232 | Pa. Commw. Ct. | 1993
Tinicum Township (Township) appeals from an order of the Court of Common Pleas of Bucks County (common pleas court) that affirmed an order of the Tinicum Township Zoning Hearing Board (ZHB) that held an amendment to the Town
Mark Hankin (landowner), whose land is partially affected by the ordinance, filed a challenge pursuant to Section 909.1(a)(2) of the MPC,
The issues raised by the Township are (1) whether a landowner has standing merely because he has land subject to
On the question of standing, the Township avers that the changes brought about by the amendment, especially the provision now permitting limited development on flood plain soils, will actually increase the ability of the landowner to use his property. It cites a recent statement of the strict standing requirement to bring a challenge to government action in general:
[ 0]ne must generally have a substantial, direct and immediate interest in the claim sought to be litigated. A substantial interest is one in which there is ‘some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law.’ William Penn [Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 195, 346 A.2d 269, 282 (1975)]. A ‘direct’ interest requires a showing that the matter complained of causes harm to the party’s interest. Upper Bucks County Vocational-Technical School Education Association v. Upper Bucks County Vocational-Technical School Joint Committee, 504 Pa. 418, 474 A.2d 1120 (1984).
Pittsburgh Trust for Cultural Resources v. Zoning Board of Adjustment of the City of Pittsburgh, 145 Pa.Commonwealth Ct. 503, 514, 604 A.2d 298, 303 (1992). Because the Township perceives no harm to any interest of the landowner, and in fact a benefit, it contends that he does not meet this test.
The ZHB noted that the landowner’s property was affected by the ordinance and concluded that he therefore had standing to bring the appeal. The current provision of the
The legal sufficiency of the publication of zoning ordinances is governed by Section 610(a) of the MPC:
(a) Proposed zoning ordinances and amendments shall not be enacted unless notice of proposed enactment is given in the manner set forth in this section, and shall include the time and place of the meeting at which passage will be considered, a reference to a place within the municipality where copies of the proposed ordinance or amendment may be examined without charge or obtained for a charge not greater than the cost thereof. The governing body shall publish the proposed ordinance or amendment once in one newspaper of general circulation in the municipality not more than 60 days nor less than 7 days prior to passage. Publication of the proposed ordinance or amendment shall include either the full text thereof or the title and a brief summary, prepared by the municipal solicitor and setting forth all the provisions in reasonable detail. If the full text is not included:
(1) A copy thereof shall be supplied to a newspaper of general circulation in the municipality at the time the public notice is published.
*482 (2) An attested copy of the proposed ordinance shall be filed in the county law library or other county office designated by the commissioners, who may impose a fee no greater than that necessary to cover the actual cost of storing said ordinance.
The ZHB considered the case to be controlled by Lower Gwynedd Township v. Gwynedd Properties, Inc., 527 Pa. 324, 591 A.2d 285 (1991). There the Supreme Court reversed this court and sustained a procedural validity challenge to a property-condemning ordinance for failure to comply with requirements of Section 702 of The Second Class Township Code,
The Supreme Court expressly rejected the argument that substantial compliance with the publication notice provisions was sufficient. The Court cited West Conshohocken Borough Appeal, 405 Pa. 150, 173 A.2d 461 (1961), for the proposition that statutory requirements relating to recording of ordinances are designed to protect public interests, not private ones, hence there is no duty on one raising a challenge on this basis to show prejudice. The Court referred to Fierst v. William Penn Memorial Corp., 311 Pa. 263, 166 A. 761 (1933), where the statutory notice provision in effect at the time required publication of the full text of ordinances, except that it was sufficient to refer to a place where maps, plans and drawings could be examined. The statement that the map accompanied the ordinance was held insufficient to meet the requirement, as was the fact that the name of the township secretary was published along with a statement that the secretary was the keeper of the records. The Court also cited Kurren Appeal, 417 Pa. 623, 208 A.2d 853 (1965), where the publication was deficient only in omitting that a “public hearing” would be held, although it stated that the council “will consider the adoption of a proposed zoning ordinance.” Al
The right of the public to participate in the enactment of municipal ordinances required that municipalities strictly follow the prescribed notice procedures in order to validate any ensuing legislation.
The 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 Township, 527 Pa. at 329, 591 A.2d at 287-88.
Here the Township, although conceding its failure to publish the location for examining the amendment and obtaining copies, nevertheless contends that it “strictly complied” with the requirements of Section 610(a) of the MPC, so long as strict compliance is not interpreted to require “literal compliance” that, in its view, leads to an absurd result. The Township relies heavily on the report of the Local Government Commission of the General Assembly entitled Analysis of Revisions to the Pennsylvania Municipalities Planning Code (Act 247 of 1968, as amended by Act 170 of 1988): Historical Development, Legislative Intent, and Commentary on Amendments Enacted During 1987-88 Legislative Session (George T. Bisel 1989). The analysis for Section 610 states: “This section is amended to combine and replace existing Section 610 and Section 611. This procedure for enacting zoning ordinances is similar to those procedures required by the various municipal codes for enactment of ordinances.” Id. at 33. The Township points to various municipal code notice provisions that provide for publication of the full text of an ordinance or a statement of the place of availability.
In Pittsburgh School District Condemnation Case, 430 Pa. 566, 244 A.2d 42 (1968), the Township notes, the Supreme Court held that the strict construction required for eminent domain provisions did not require that they be construed as narrowly as possible or so literally and without common sense that the obvious intent of the legislature is frustrated. The Township distinguishes Lower Gwynedd Township by noting that the points of noncompliance resulted in the landowner’s not being able to see the ordinance before it was enacted, whereas here the publication of the full text prevented that problem.
The landowner responds that the provisions of Section 610(a) are not confusing, ambiguous or obscure. He cites cases requiring strict compliance with publication requirements, including the recent case of Johnson v. Zoning Hearing Board of Stroud Township, 144 Pa.Commonwealth Ct. 479, 601 A.2d 927 (1992), where this court affirmed a common pleas court’s invalidation of an ordinance under Section 609(b) of the MPC,
We agree with the ZHB and the landowner. The requirement to publish the place of availability for inspection and copying stands on its own in Section 610(a) and appears in a different sentence from other directions relating to whether or not the full text is published. The plain language of the
Further, we perceive no violation of the rule of construction against absurd results, 1 Pa.C.S. § 1922(1). The Township does not dispute that Section 610(a) requires it to make the proposed ordinance available for examination and obtaining of copies. Where that is the case we agree it is absurd not to require publication of the relevant information. The legislature intended townships to provide thorough notice and opportunity to study a proposed land use ordinance or amendment. We cannot frustrate the legislature’s clear intent. The order of the common pleas court is affirmed.
ORDER
AND NOW, this 31st day of March, 1993, the order of the Court of Common Pleas of Bucks County at No. 91-11855-13-5, dated May 13, 1992, is affirmed.
. Act of July 31, 1968, P.L. 805, as reenacted and amended by Section 55 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10610.
. 53 P.S. § 10909.1(a)(2), added by Section 87 of the Act of December 21, 1988, P.L. 1329.
. The landowner asserts that the Township waived this issue by failing to raise it at the earliest possible time before the ZHB, citing Cohen v. Zoning Hearing Board of Adjustment of the City of Pittsburgh, 53 Pa.Commonwealth Ct. 311, 417 A.2d 852 (1980). In Cohen the appellants did not raise the issue of standing before the zoning hearing board at all. Here the Township did, albeit by memorandum submitted after the hearing. We conclude that the issue was not waived.
. 53 P.S. § 10913.3, added by Section 93 of the Act of December 21, 1988, P.L. 1329.
. Compare Northampton Residents Association v. Northampton Township Board of Supervisors, 14 Pa.Commonwealth Ct. 515, 521, 322 A.2d 787, 791 (1974), which interpreted standing pursuant to the provision governing procedural validity challenges before the 1988 amendment and reenactment of the MPC, former Section 1003, added by Section 1003 of the Act of June 1, 1972, P.L. 333, formerly 53 P.S. § 11003, repealed by Section 100 of the Act of December 21, 1988, P.L. 1329:
[W]hile Section 1003 of the MPC ... does not specifically provide who may bring an appeal pursuant thereto, it should be noted that challenges to the validity of a zoning ordinance are spoken of throughout the MPC as being brought only by a ‘landowner’ or by a ‘person aggrieved’. We believe it reasonable to hold, therefore, that an appeal raising the question of an alleged defect in the process of enactment of a zoning ordinance may be brought only by a ‘landowner’ whose land is directly affected by the ordinance in question, or by a petitioner who is clearly a 'person aggrieved'.
The landowner cites Roeder v. Hatfield Borough Council, 439 Pa. 241, 266 A.2d 691 (1970), for support, but that case is inapposite. Roeder involved a substantive validity challenge brought pursuant to former Section 914 in its original form, formerly 53 P.S. § 10914, repealed by Section 94 of the Act of December 21, 1988, P.L. 1329, which provided that certain challenges might be filed with the Board "by any officer or
. 2 Pa.C.S. § 752.
. Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 65741.
. E.g., Section 1006(4) of the Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46006(4):
Publication of any proposed ordinance shall include either the full text thereof or the title and a brief summary prepared by the borough solicitor setting forth all the provisions in reasonable detail and a*484 reference to a place within the borough where copies of the proposed ordinance may be examined.
. 53 P.S. § 10609(b).