Commonwealth Court Rules Municipality’s Failure To Record New Zoning Ordinance on Its Books Renders Ordinance Ineffective

August 2011Newsletters In the Zone

In Bartkowski Inv. Group, Inc. v. Board of Com’rs of Marple Tp., 18 A.3d 1259 (Pa. Cmwlth. 2011), decided April 15, 2011, the Commonwealth Court addressed two issues regarding procedural challenges to a zoning ordinance. The first issue dealt with section 5571.1 of the Judicial Code, and the court relied on its previous decision in Messina v. East Penn Twp. to find ultimately that minor changes regarding renumbering of statutory provisions of a new ordinance alone did not demonstrate an impermissible deprivation of constitutional rights, as required under § 5571.1, for a procedural challenge brought after 30 days. With respect to the second issue, the court held the challenger’s complaint regarding the township’s failure to record the new zoning ordinance in the official township ordinance book did not constitute a procedural challenge, and thus, the 30-day time period to bring procedural challenges under section 5571.1 of the Judicial Code did not apply.

Bartkowski Investment Group, Inc. (BIG) is a billboard advertising company that leased property from various owners in Marple Township to construct billboards. BIG submitted applications to the zoning board for approval to erect the billboards. However, the township’s zoning ordinance did not allow for any billboard advertising. The township published notice that it would conduct a public hearing to consider adopting the amendment allowing for billboard advertising. After the hearing, the zoning board ultimately adopted a municipal cure to allow for the construction of billboards in the township. However, the ordinance it adopted renumbered statutory provisions from the ordinance as previously advertised to the public. Moreover, the adopted ordinance did not permit the use of the billboards that BIG proposed in its applications for zoning approval. Thus, BIG was informed that its applications for zoning approval were denied. Although the amendment to the ordinance was adopted, under § 1502 of the First Class Township Code, the township was required to record the ordinance in the official township ordinance book within one month of the date of passage, which it failed to do.

In response, BIG filed a procedural challenge to the ordinance under § 5571.1 of the Judicial Code as well as a complaint for declaratory and mandamus relief. Additionally, BIG filed a substantive challenge to the validity of the original ordinance, prohibiting the erection of any billboards, prior to the enactment of the ordinance at issue.

The basis of the procedural challenge was that the adopted ordinance differed from the ordinance advertised to the public and sent to the planning commission for approval in that the statutory provisions were renumbered in the adopted ordinance. The basis for the complaint for declaratory and mandamus relief was that the township never recorded the billboard ordinance in the official township ordinance book within one month of passage, as required under the First Class Township Code. For that reason, BIG argued the new ordinance did not become effective and therefore could not be retroactively applied to BIG’s substantive challenge to the original ordinance that did not allow for the erection of any billboards.

The trial court first found the procedural challenge was time-barred by the 30-day period under § 5571.1 of the Judicial Code because BIG did not establish there would be an impermissible deprivation of constitutional rights so as to allow it to challenge the ordinance after the 30-day limit. The trial court noted there was no deprivation of constitutional rights because the renumbering alone did not amount to any sort of prejudice, since the ordinance was advertised and the public was given an opportunity to attend the hearing. Second, with respect to the complaint for declaratory and mandamus relief, the trial court found this issue was indistinguishable from the procedural challenge and thus held the issue was also time-barred.

On appeal, the Commonwealth Court affirmed the trial court with regard to the procedural challenge, finding the renumbering of the statutory provisions in the enacted ordinance, compared to the ordinance that was advertised to the public and sent to the planning commission, did not result in an impermissible deprivation of constitutional rights. The court looked to key factors set out in Messina, such as multiple hearings on the proposed zoning ordinance and several proofs of publication proving the township provided notice to the public, finding there was sufficient notice to the public of impending changes. In applying the Code and the Messina factors to this case, the court found the township’s published notices substantially complied with the procedures for enactment of an ordinance amendment. Thus, the court affirmed the trial court’s conclusion that the procedural challenge was, in fact, time-barred by § 5571.1 of the Judicial Code.

The Commonwealth Court did not agree with the trial court’s finding that the complaint for declaratory and mandamus relief with respect to the township’s failure to record the new ordinance was indistinguishable from the procedural challenge. The court first looked to § 1502 of the First Class Township Code, which requires an ordinance be recorded within one month after its passage. The court additionally found persuasive § 1601 of the Second Class Township Code, which provides, in pertinent part, that “the failure to record within the time provided shall not be deemed a defect in the process of enactment or adoption of such ordinance.” Accordingly, the court held that where the ordinance was not recorded, it did not become invalid but rather was ineffective, and based on the ordinances’ ineffectiveness at the time BIG filed its substantive challenge, the ordinance could not be retroactively applied to the substantive challenge. As a result, the court held the ordinance was valid but remanded in part to determine when and if the new ordinance became effective.

Bartkowski Investment Group demonstrates the difficulty of raising a procedural challenge beyond the initial 30-day time limit under § 5571.1 where such challenge is premised on a municipality’s failure to readvertise and recirculate a proposed ordinance amendment after minor changes are made to the proposed ordinance prior to enactment. However, in holding that the failure to record renders an ordinance ineffective rather than procedurally defective, the court carved out a narrow exception to the application of § 5571.1 where a municipality fails to record a new ordinance on its books.

For more information, please contact Clair E. Wischusen at 215.918.3559 or [email protected].

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