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Pennsylvania Land Use Law Library

KEY TOPICS: MUNICIPAL PROCEDURE, PROCEDURAL CHALLENGE, VOID AB INITIO, CRANBERRY PARK

Schadler v. ZHB of Weisenberg Twp., 850 A.2d 619

The Pennsylvania Supreme Court reversed the decision of the Commonwealth Court and held that a challenge to the validity of a zoning ordinance based on procedural defects in the ordinance’s enactment was not time-barred because it was filed more than thirty days after the ordinance’s effective date. The Court reasoned that the ordinance was void ab initio and, therefore, the 30-day limitations period set forth in Section 909.1(a)(2) of the MPC and Section 5571(c)(5) of the Judicial Code never began running so as to operate as a bar to Schadler’s procedural challenge. The Court expressly rejected the Township’s argument that the repeal of the Section 65741 and simultaneous enactment of the “savings clause” of 66601 of the Second Class Township Code (SCTC) vitiated the Court’s analysis in Cranberry Park, overruled Valiantos v. Zoning Hearing Board of Richmond Township, or excused the Township’s procedural deficiencies.

Initially, Schadler challenged an Ordinance dealing with mobile home parks two hundred days after the Ordinance’s stated effective date. Schadler claimed that the Ordinance was invalid due to the Supervisors’ failure to comply with certain statutory requirements governing the procedure for enacting municipal ordinances. The Zoning Hearing Board (ZHB) of Weisenberg Township dismissed Schadler’s claim, concluding that it was untimely because the MPC and SCTC each require procedural challenges to the validity of a land use ordinance to be raised within thirty days of the ordinance’s effective date.

Schadler appealed the ZHB’s dismissal to the trial court and the court reversed it stating that the Supervisor’s failure to follow statutory procedural requirements had rendered the Ordinance void ab initio, or having no legal effect from the beginning. Therefore, the 30-day time limit was not applicable.

The Commonwealth Court overturned the trial court’s holding and stated that logic or precedent used by the trial court to determine that the Ordinance was void ab initio was based on the holding of Cranberry Park Assocs. ex rel. Viola v. Cranberry Township ZHB. The Court reasoned that Cranberry Park relied on a section of the SCTC that preceded the current section, which, by the Court’s interpretation, mandated that a 30-day limitations period for procedural challenges always begins ticking on an ordinance’s nominal effective date, irrespective of procedural defects in the ordinance’s enactment. This holding effectively vitiated the Court’s analysis in Cranberry Park.

The Supreme Court specifically avoided the question whether public notice and acquiescence can be presumed where a procedurally defective ordinance has been on the books and obeyed in practice for a long time.

Section 5571(c)(5) of the Judicial Code, as amended by Act of December 9, 2002, P.L. 1705, No. 215 Section 3, postdated the commencement of the challenge and was not applicable.

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