Glen-Gery Corp. v. ZHB of Dover Twp., 856 A.2d 884 (Pa. Cmwlth. 2004)
Glen-Gery Corp. v. Dover Twp. Zoning Hearing Board, 907 A.2d 1033 (Pa. 2006).
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 wanted to challenge the procedural validity of an ordinance in Dover Township years after it was enacted. The ZHB dismissed the case because it declared that they did not have jurisdiction over the case since the challenge commenced beyond the statutorily required 30 days after enactment.
The factual background and reasoning to determine if the amended Judicial Code prohibited actions beyond 30 days is very similar to Taylor v. Harmony Twp. Board of Commissioners, 851 A.2d 1020 (Pa. Cmwlth. 2004). The court expressly accepted Taylor as controlling.
Glen-Gery attempted to distinguish the Taylor decision on the basis that the ordinance at issue in that case was not a zoning ordinance. The court disagreed and stated that the Judicial Code applied to the MPC authorized ordinances.
The final argument Glen-Gery asserted was that amended Judicial Code was not applicable to its case because the ordinance was adopted prior to the revision of the Judicial Code. The Court stated that the legislature may enact laws that burden rights retroactively, but may only do so explicitly. Because the statute clearly stated that it covered any action commencing after December 31, 2000, the amended Judicial Code controlled this case and time barred Glen-Gery’s procedural challenge.
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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