Challenges to the validity of zoning ordinances based on the void ab initio doctrine were rejected based on the period of time of acquiescence – the period the ordinances survived without challenge, the reasonable reliance on the provisions of the ordinances by Township residents and the potential turmoil that would result upon declaring the ordinances void based on procedural defects in enactment.
Geryville Materials, Inc. v. Lower Milford Township Zoning Hearing Board, 972 A.2d 136 (Pa. Commw. 2009).
Geryville materials owned parcels totaling in excess of 628 acres in an Agricultural-Rural Zoning District in Lower Milford Township. Geryville filed a request for a special exception with the Zoning Hearing Board to allow for quarrying and related activities on the property. While the request for special exception was pending, the Pennsylvania Supreme Court issued its decision in Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 907 A.2d 1033 (2006) which allowed the landowner in that case to challenge the validity of a zoning ordinance based on procedural defects during its enactment beyond the statutory 30 day period for challenge. As a result of that decision, Geryville filed challenges with the Zoning Hearing Board seeking a ruling that the ten ordinances applicable to its property were void ab initio under Glen-Gery. The Zoning Hearing Board conducted numerous hearings and issued a ruling upholding the ordinances. It determined that there were no procedural defects in the enactment of the zoning ordinances and, therefore, they were not void ab initio. Geryville appealed to the Common Pleas Court, and the Township and a resident intervened. The Court affirmed the decision of the Zoning Hearing Board, finding that the procedural defects were not sufficient to constitute a violation of procedural due process and the reasonable reliance upon the ordinances by Township residents precluded a finding that the ordinances were void. Geryville subsequently appealed to the Commonwealth Court.
As an initial matter, the Commonwealth Court rejected Geryville’s argument that the Zoning Hearing Board’s failure to mail its decision until a week later required a finding of a deemed approval under the MPC, as Geryville could demonstrate no consequence of the late mailing that deprived it of due process. Geryville then argued that the Board’s decision had to be reversed based on its failure to make specific factual findings concerning each of the alleged deficiencies in enactment. The Court found that any such error was harmless. The Court then examined the primary issues on appeal -- whether there were defects in the enactment process sufficient to render the ordinances void ab initio under Glen-Gery and whether the Court improperly considered the Township residents’ reasonable reliance on the ordinances. The Court found that, even if there were defects in the enactment process, an ordinance may be upheld if there was a lapse of time without challenge and reasonable reliance on the provisions of the ordinance. Here, the evidence was that interested parties have obeyed the ordinances for a significant period of time and the Township relied on the same in issuing 3,000 permits. The ordinances at issue were 39, 33, 20, 11, 6 and 3 years old. The Court noted the huge uncertainty that would arise if they were suddenly declared void. The ordinances more than 8 years old are, under Schadler v. Zoning Hearing Board of Weisenberg Township, 578 Pa. 177, 850 A.2d 619 (2004), necessarily valid notwithstanding any procedural defects in enactment. It found that, with respect to the two newer ordinances, great turmoil would result if the ordinances were deemed invalid and, therefore, declined to apply the void ab initio doctrine to invalidate the same.
Opinion Date: May 13, 2009
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