Technical Assistance - Pennsylvania Land Use Law : PA Land Use

Key Topic: Municipal Procedure

A challenge alleging procedural defects in the enactment of an ordinance may be brought more than thirty days after the ordinance’s intended effective date.

Glen-Gery Corp. v. Dover Twp. Zoning Hearing Board,
907 A.2d 1033 (Pa. 2006).

Approximately seven years after a township enacted a land use ordinance, a mining corporation challenged the validity of the ordinance, claiming that the ordinance was void ab initio (from the beginning) because of procedural due process defects. The Zoning Hearing Board dismissed the claim based on the Judicial Code requirement that a procedural challenge to a land use ordinance must be brought within 30 days of its “intended effective date.” 42 Pa.C.S. Section 5571(c)(5). The trial court and Commonwealth Court affirmed, however, the Supreme Court granted review.

Following the reasoning of its decision in Schadler II, notwithstanding Section 5571(c)(5), the Supreme Court reversed the Commonwealth Court and remanded the case on the narrow issue of whether the ordinance was enacted in contravention of procedural due process requirements. The Supreme Court concluded that “despite a legislative attempt to govern the publication and effective date [of a land use ordinance], a procedural defect still renders a statute or ordinance void ab initio.”

Although the Supreme Court applied the ab initio doctrine in this case, it should be noted that the Court left open the possibility that the doctrine may be inapplicable where “a procedurally defective ordinance has been on the books and obeyed . . . for such a long time that public notice and acquiescence can be presumed” or reliance can be established.

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