Philadelphia, Thursday, September 18, 2008
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Litigation
New Laws Provide Opportunities, Risks for Land Use Planning Decisions
By Raymond P. Pepe
Special to the Legal Intelligencer
Raymond P. Pepe is a partner in the
T
he General Assembly enacted major
revisions to Pennsylvania laws governing the timing, manner and scope
of review of claims that municipal actions
are procedurally invalid. The impetus for
this action was the increasingly frequent
challenges to the procedural validity of local
land use decisions, which have resulted
in court decisions invalidating local ordinances and local decisions, sometimes years
after the actions have been taken.
The legislation (Acts 2008-39 and 40)
amends the Judicial Code and Municipalities
Planning Code (MPC) to establish strict time
limits on when procedural challenges to
municipal actions can be initiated and to
establish an optional procedural mechanism
to protect the validity of previously issued
ordinances and decisions. The new limitations on procedural validity challenges and
the new mechanisms to retroactively protect
the validity of prior municipal actions create
both opportunities and risks for municipalities, landowners and developers, and persons contesting local land use decisions.
Background: Pennsylvania’s
Strict Void Ab Initio Doctrine
The new legislation was adopted to remedy threats to the reliability of land use
decisions arising out of Pennsylvania’s strict
application of the void ab initio doctrine.
The void ab initio doctrine initially
emerged in Pennsylvania jurisprudence in
the 19th century as a result of provisions
included in legislation incorporating the
Harrisburg office of K&L Gates. He can be reached
at 717-231-5988 or raymond.pepe@klgates.com.
city of Philadelphia and Allegheny County
explicitly declaring “null and void” any ordinances not properly advertised or publicly
posted as evidenced in Marshall v. Cmwlth.
Beginning in 1904, however, the doctrine
was expanded to apply to municipal statutes which determined the effective date
of ordinances based on the time of compliance with advertising and posting requirements but did not expressly declare noncomplying ordinances
null and void, as seen
in Carpenter v. Yeadon
Boro. Since that time,
an increasingly stringent void ab initio doctrine has emerged.
In Fierst v. William
Penn Memorial Corp.,
the Supreme Court
upheld the denial of
an injunction against
the development of a
cemetery in violation
of a zoning ordinance
because a newspaper
notice indicated an ordinance was accompanied by a zoning map but failed to indicate
where the map was filed. The court held
that provisions of a separate municipal ordinance declaring the township secretary as
the official repository of official documents
were insufficient to provide notice regarding where the maps could be inspected
and allowed the landowner to challenge
the procedural validity of the ordinance
regardless of whether the landowner had
actual knowledge of the provisions of the
ordinance.
In Kelly v. City of Philadelphia, the
court declared invalid ab initio an ordinance adopted following extensive public
hearings for which notice was published
in three newspapers in compliance with
Philadelphia’s Home Rule Charter. The
court disregarded provisions of the Home
Rule Charter requiring that notices be published 15 days prior to the public hearings,
and instead concluded that the city was
required to comply with
an earlier law applicable to all municipalities requiring five days’
prior notice. The court
dismissed as irrelevant
evidence regarding the
participation of a substantial number of persons at the hearings and
the lack of proof of prejudice to any individuals
because of the defective
notices.
Likewise, Kurren’s
Appeal found an ordinance invalid because notice of was given of
a “public meeting” rather than a “hearing.”
The court ruled that, “The fact that over 100
persons, including the Kurrens, did attend
the meeting … and that they were permitted
to express their views, does not excuse the
failure of city council to follow the statutory
mandate … [which was] clearly expressed
and cannot be relaxed.”
Act 2008-39 provides
municipalities and
landowners important
new methods to protect
land use ordinance and
decisions from challenges
to their procedural
validity.
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Similarly, in Philadelphia v. Shanahan,
the Commonwealth Court voided an ordinance adopted by the City Council following its publication in two rather than three
newspapers notwithstanding the fact that
a labor dispute had shut down the other
newspapers of general circulation and made
timely compliance with publication requirements impossible.
Comparable principles were articulated by
the Supreme Court in the West Conshohocken
Borough Appeal when interpreting provisions of the borough code which required
ordinances to be recorded in an ordinance
book within 30 days. The court invalidated
an ordinance when the borough attempted to
satisfy recording requirements by temporarily stapling a new enactment into the ordinance for 33 days prior to actually typing the
enactment into the ordinance book.
Recent Modifications of Void
Ab Initio Doctrine
The General Assembly previously attempted on several occasions to modify
procedural requirements to avoid the invalidation of ordinances. For example, the
MPC and the Judicial Code were amended
to prohibit procedural challenges to the
validity of ordinances more than 30 days
following the actual or intended effective
date of ordinances and various municipal
codes were amended to eliminate recordation as a precondition to the validity of ordinances. Although the initial judicial reaction
to such legislation was to strictly construe
exceptions to procedural requirements, more
recently courts have also begun to limit the
doctrine to cases involving constitutional due
process issues. This emerging trend may be
affected by Acts 2008-39 and 40 in a manner
difficult to predict.
In Cranberry Park Assc. v. Cranberry
Twp. Zoning Hearing Bd., the court considered the applicability of amendments to
the MPC restricting procedural challenges
to those filed within 30 days of the effective
date of an ordinance. Notwithstanding the
passage of eight years after the procedural
defects occurred, the Supreme Court invalidated the ordinance based on the failure
of the township to number, date, sign and
record the ordinance in the municipal ordinance book. It did so based on the theory
that procedural defects kept the ordinance
from having a valid effective date from
which the 30-day limitation period could
run.
When the MPC was further amended
to bar procedural challenges based on the
intended rather than actual effective date of
ordinances, the court in Schadler v. Zoning
Hearing Bd. refused to apply the amendments to the MPC because the ordinance
was adopted before the MPC amendments
took effect. Based on principles of statutory construction, the court also limited the
application of amendments only to defects
in the filing and recording of ordinances
and not to defects in advertising. In doing
so, however, the court predicated its ruling
upon “egregious procedural defects” that
made it “difficult to see how the public
could have possibly been on notice regarding the changes in the zoning laws.”
In interpreting amendments to MPC limiting procedural challenges to those filed
within 30 days of the intended effective
date of ordinances, Glen-Gery Corp. v.
Dover Twp., refused to summarily dismiss
a claim as time barred, but noted that the
challenges would ultimately be permissible
only if constitutional due process concerns
were implicated. Likewise, Luke v. Cataldi
permitted claims filed challenging the procedural validity of ordinances more than
30 days after their intended effective date
to proceed only where “the supervisors’
alleged failure to comply with applicable
notice requirements may have left appellants without any practical opportunity to
contest the effects of the supervisors’ action on their property rights.”
The cumulative effects of the Cranberry
Park, Schadler, Glen-Gery and Cataldi
decisions have been both to increase the degree of scrutiny paid to procedural requirements for local decision making, while at
the same time focusing greater attention on
the constitutional underpinnings of the void
ab initio doctrine. Acts 2008-39 and 40
are consistent with this changing case law,
but in some circumstances reinvigorate the
focus on strict compliance with procedural
mandates.
The Judicial Code
Amendments
Act 2008-40 provides that appeals and
challenges to any “alleged defect in the
process of enactment or adoption of any
ordinance, resolution, map or similar action
of a political subdivision” must be raised
“within 30 days after the intended effective
date” of the ordinance, resolution, map or
similar action, unless “the party bringing
the appeal establishes that, because of the
particular nature of the alleged defect in
statutory procedure,” application of the
30-day time limit “would result in an impermissible deprivation of constitutional
rights.”
In all challenges to the procedural validity,
Act 2008-40 provides that local actions “shall
be presumed to be valid and to have been
enacted or adopted in strict compliance with
statutory procedure.” In addition, for appeals
filed more than two years after an intended
effective date, the legislation provides that the
political subdivisions, residents and landowners “shall be presumed to have substantially
relied upon the validity and effectiveness” of
the challenged actions.
If appeals or challenges are filed with 30
days of an intended effective date, Act 2008-40
provides that a local action shall not be found
void from inception unless a challenger meets
the burden of proving “there was a failure to
strictly follow required procedure.” For appeals and challenges allowed to proceed at
a later date, a party must demonstrate that a
failure to “substantially comply” with pre- and
post-enactment procedural requirements “resulted in insufficient notification” which prevented the public “from commenting on those
changes” and intervening in proceedings.
Notwithstanding any other law, Act 2008-40
requires challenges to the procedural validity
of local ordinances, resolutions, maps and
similar actions to be taken directly to a court
of common pleas. When appeals or challenges
result in any determination that local actions
were void from inception, the legislation provides that any such determination “shall not affect any previously acquired rights of property
owners who have exercised good faith reliance
on the validity of the [local action] prior to the
determination.”
The MPC Amendments
Act 2008-39 allows municipalities and landowners to retroactively publish official notices
that establish deadlines for the initiation of
procedural challenges. Notice that municipal action has been taken may be given by
publishing a notice once each week for two
weeks in a newspaper of general circulation
distributed within the affected municipality.
Following such publication, notwithstanding
any other requirements of law, procedural
appeals and challenges may be dismissed as
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untimely if not filed within 30 days unless a
party the time limit “would result in an unconstitutional deprivation of due process.”
Following the publication of a retroactive
notice of municipal action, challenges must
be taken directly to a court of common pleas,
rather than zoning hearing boards or municipal
governing bodies. Where no timely validity
challenge is initiated, “the ordinance or decision shall be deemed to be reaffirmed and
reissued on the date of the second publication.”
Where a timely challenge is filed following the
publication, the challenge may be considered
only if “the public was denied notice sufficient
to permit participation in [municipal] proceedings prior to the entry of the decision to the
extent participation was authorized by statute
or ordinance” and “substantive property rights
were or could be directly affected.”
Act 2008-39 also extends the current 30-day
time limit applicable to procedural claims to
also apply to substantive validity challenges
and transfers jurisdiction over procedural
claims to the common pleas court. As is the
case with the publication of optional notices
to confirm prior municipal actions, the 30-day
time limit applies prospectively “except in
cases in which an unconstitutional deprivation
of due process would result.” To qualify for an
exception, a party is required to demonstrate
“insufficient actual or constructive notice” to
file a timely appeal; and that the municipal
action “resulted or could result in a use of
property that directly affects such party’s substantive property rights.”
Act 2008-39 bifurcates the standards for
determining when appeals may result in a determination that municipal action is void from
inception. For challenges filed within 30 days
of municipal action, ordinances or decisions
must “strictly comply with procedure.” After
30 days, a party must demonstrate that “the
public was denied notice sufficient to permit
participation in [municipal] proceedings prior
to the entry of the decision” and that “substantive property rights were or could be directly
affected.” With respect to challenges to the
validity of actions taken by zoning hearing
boards, municipal actions may also be upheld
based upon “substantial compliance” with
notice requirements.
The Impact of the MPC and
Judicial Code Amendments
As is typical with many legislative enactments, the full implications of the Judicial
Code and MPC amendments are unclear in
several areas and seem likely to generate further litigation.
One perverse consequence of the legislation
may be to reinvigorate some aspects of the
strict void ab initio doctrine recently qualified by the Schadler, Glen-Gery and Cataldi
decisions. Where challenges are filed within
30 days of municipal actions, the legislation
requires “strict compliance with procedure”
and requires no demonstration that a party’s
due process rights were impaired. While it is
uncertain how this standard will be applied,
at the very least this change should lead land
developers and those engaged in land transactions to very carefully review the procedural
validity of municipal actions.
While Act 2008-39 provides a potentially
useful mechanism for shielding prior procedural errors from further review, municipalities,
landowners and developers should also carefully consider the risks and benefits associated
with using these new optional procedures. If
no challenges are timely filed following the
publication of the newly authorized optional
notices, claims may only be considered if
they involve procedural errors that affect the
constitutional due process violations affecting
the rights of an appellant. On the other hand,
if challenges are filed within 30 days, notwithstanding the principles articulated in Schadler,
Glen-Gery and Cataldi, the appellant may not
need to demonstrate that its due process rights
have been impaired. Instead, the legislation
appears to allow a challenge to proceed based
on an impairment of the due process rights of
any members of the public.
Perhaps most significant, however, is the
legislation’s application of the time limits now
imposed only on procedural challenges to local
actions, to also apply to substantive challenges
to the validity of ordinances. Heretofore, except for certain multiple filings of requests
for curative amendments, challenges to the
substantive validity of land use ordinances
were not subject to a statute of limitations.
The amendments in Act 2008-39, however,
now limit substantive challenges to those filed
within 30 days of a municipal action unless the
action impairs due process rights. As a result,
developers and landowners need to carefully
monitor changes to local ordinances and not
assume that unreasonably restrictive ordinances may be challenged in the future to the
extent the changes do not affect current land
development plans.
This publication is for informational purposes only and does not contain or convey legal advice. The information herein should
not be used or relied upon in regard to any particular facts or circumstances without first consulting with a lawyer.
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