Citation:

Valianatos v. Zoning Hearing Board of Richmond Township, 766 A.2d 903, Pa. Cmwlth, 2001.
Distinguished by Schadler, 814 A.2d 1265, rev’d 850 A.2d 619 and distinguished in Residents Against Matrix 802 A.2d 712- Also move this case from Appellate procedure to Municipal Procedure
Cranberry Park Assoc. v. Cranberry Twp.

Summary:
Public Notice requirements of MPC Section 610 are mandatory and must be strictly adhered to. Improper notice renders ordinance invalid "ab initio".
Case Details:

Cross Reference: MPC Sections 609 and 610.

In a brief decision, which should be of immense importance to solicitors, planners and municipal officials alike, the Commonwealth Court has held that the notice requirements under MPC 610, which apply equally to adoption of ordinances and amendments thereto, will be strictly scrutinized. The Court also held that if the notice fails to meet the strict requirements of MPC 610, the court will find the ordinance void ab initio (from the date of its enactment).

In this case the Township adopted an ordinance making numerous changes in its zoning ordinance. The Township advertised the proposed amendments, held the required public hearing and approved the amendment. One year after enactment of the ordinance, the landowner filed an application with the Zoning Hearing Board for a variance and also a challenge to the validity of the zoning ordinance amendment which had adversely affected applicant’s right to build a restaurant and motel on his property.

MPC Section 609 provides the basic requirements for adoption of a zoning amendment, requiring a “public hearing” pursuant to “public notice”. Section 610 provides the requirements for publication, advertising, and the availability of proposed zoning ordinances and amendments.

The Commonwealth Court found that, although the Township, in good faith, had attempted to comply with MPC Sections 609 and 610, it nonetheless failed to comply “strictly” with those provisions. Specifically, the Court found that the notice used the phrase “to consider” proposed amendments. The Court held that strict compliance with 609 and 610 require the municipality indicate that the ordinance “would be amended” at the meeting. The court also held that where the proposed amendments would “greatly reduce the value” of some property, the notice must specifically refer to such potential effect.

The court recognized that it was “splitting hairs” in finding “to enact” as sufficient but “to consider enacting” insufficient. Nonetheless, it reiterated its long held policy of interpreting notice requirements in favor of property owners, citing Belle Vernon v. Board of Commissioners of Rostraver , 87 Pa. Cmwlth. 474, 487 A.2d 490 (1985). In that case the court held that a notice was inadequate because it announced a “meeting” and not a “hearing” as required under the MPC.

To make matters worse for the Township, the Court found that since the notice was defective, the enactment of the amendment was void from the beginning. This being so, there was no requirement for the applicant to have appealed the enactment within 30 days under MPC Section 909.1. The court cited its prior decision in Cranberry Park Associates v. Cranberry Township Zoning Hearing Board, 561 Pa. 456, 751 A2d 1065 (2000). In that case the court held that an ordinance which was not properly numbered, signed, dated and recorded never became effective and was struck down eight (8) years after enactment.

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