Rural Route Neighbors v. East Buffalo Tp. Zoning Hearing Board,
2004 WL 2412378 (Pa. Cmwlth.)
Note: Reargument denied by Commonwealth Court.
Twenty-one months after Township adopted an ordinance rezoning property from low density residential to highway commercial (Ordinance), an unincorporated association appealed to the zoning hearing board alleging procedural defects in enactment of the Ordinance. Board dismissed the challenge as untimely and Association appealed. The court of common pleas affirmed the decision of the Board and dismissed the appeal. Association then appealed to the Commonwealth Court, arguing that Section 5571(c)(5) did not bar the appeal as untimely.
In Schadler, the Supreme Court held that a subdivision and land use ordinance (SALDO) enactment that did not comply with the procedural requirements of the Second Class Township Code (SCTC) or the Municipalities Planning Code (MPC) is void ab initio(from the beginning), unless the procedural defects either were related to (1) advertising a summarized version without simultaneously posting a complete copy at a public facility, or (2) non-recording of the ordinance in a timely manner. Citing the “plain language” of the MPC and the SCTC, the Supreme Court concluded that the thirty-day challenge period starts when an ordinance becomes effective, and that if an ordinance never becomes effective, then the period for challenge does not run. Thereafter, challenges brought months or even years after the adoption of an ordinance could proceed.
The Court concluded that, subsequent to Schadler, the General Assembly’s 2002 revision to Section 5571(c)(5) of the Judicial Code legislatively nullified ab initio challenges unless filed within 30 days after the intended effective date of the ordinance or, if no date is specified, within 60 days of its adoption.
In this case, the Commonwealth Court rejected the Association’s argument that Schadler’s ab initio precedent allowed the appeal in spite of the revisions to Section 5571(c)(5). Confirming its recent decision in Glen-Gery, the Commonwealth Court reaffirmed that Section 5571(c)(5) as amended applies to appeals brought before zoning hearing boards.
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