In Glen-Gery, Court Permits Challenge to Ordinance Five Years After Enactment

A battle has been brewing in Pennsylvania between the state's Supreme Court, which is striving to protect the due process rights of landowners in land use cases by applying the void ab initio doctrine, and the legislature and local governments that seek to ensure finality in land use ordinances and approvals by limiting the time frame for appeals. Consider the following scenario:

Congratulations! After many months of public meetings, meetings with civic associations and neighbors, the township approved an amendment to the zoning code, which rezoned your property to permit uses that fit within your plan to develop the property. Furthermore, no one appealed the enactment of the amendment within the 30-day appeal period, which encourages you to proceed with your development plans. You then embark on a lengthy land development review process involving further public meetings with the township. Having now obtained your land development approval from which no appeals were taken and your building permits, you begin construction believing your development is free from challenge.

Under Pennsylvania's Municipalities Planning Code ("MPC"), 53 P.S. §§ 10101 - 11202, a challenge to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment must be appealed to the zoning hearing board within 30 days after the effective date of the ordinance. 53 P.S. § 10909.1(a)(2). Recently, however, the Supreme Court of Pennsylvania decided Glen-Gery Corp. v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 907 A.2d 1033 (2006), wherein a landowner was allowed to challenge the enactment of an ordinance more than 30 days after it was enacted. In fact, the landowner in Glen-Gery brought its appeal more than 5 years after the ordinance in question was enacted, based upon the theory that the ordinance was void ab initio. Under this doctrine, a statute held unconstitutional is considered void in its entirety and inoperative as if it had no existence from the time of its enactment. In other words, if the ordinance was not properly enacted in the first instance, then it never became effective, thus the 30 days within which to appeal its enactment never began.

Although Glen-Gery and the cases that preceded it involved procedural appeals by landowners who were prevented from using their own property in some way due to an ordinance, nothing in these cases would preclude a protestant from using the void ab initio theory to challenge an ordinance more than 30 days after its effective date. For example, in the rezoning scenario above, if the township did not give proper notice of the public hearing for the rezoning amendment, the neighbor who did not take an appeal within 30 days of enactment of the rezoning ordinance may still have the ability to challenge the ordinance on procedural grounds by alleging that the ordinance is void ab initio. Although he may not ultimately succeed in his appeal, the time it takes for an appeal to wind its way through the court system could certainly have an adverse impact on your development.

The MPC requires a township to follow several mandatory steps in order to enact a zoning ordinance amendment. The law is quite clear that a township must strictly comply with the procedural requirements of the MPC and that substantial compliance with these procedures is not good enough. Further, the zoning codes of many municipalities do not follow the mandatory requirements of the MPC. Thus, even if the township enacts a zoning ordinance amendment that complies with the procedures set forth in its zoning code, such ordinance may still be deemed defective because it does not comply with the MPC. Moreover, such discrepancy between a municipality's zoning code and the MPC may itself be enough to support a void ab initio appeal.

What does this mean if you want to develop your land in accordance with the township's zoning code? It means that you should understand how the rezoning process works under both the MPC and a municipality's zoning code to make sure that the municipality within which your project is located is doing or has done things correctly. Moreover, simply following the zoning code may not be sufficient. Although it is virtually impossible to prevent a protestant from challenging a development project on procedural grounds or otherwise, being more aware of the process itself can help you limit the grounds for a successful challenge.