Protect Your Project From Being Sidelined By Procedural Challenges

April 10, 2017
Posted in Real Estate Law
Protect Your Project From Being Sidelined By Procedural Challenges

Developers throughout the Commonwealth devote immense amounts of time and money in their projects; don’t let a procedural defect derail all of your hard work.

In Pennsylvania, the Municipalities Planning Code (the “MPC”) gives municipalities authority to enact zoning ordinances governing land use within the municipality. Developers must satisfy the requirements set forth in the zoning ordinances in order to receive the necessary approvals to develop their projects.

Pursuant to the MPC, “[p]roposed zoning ordinances and amendments shall not be enacted unless notice of proposed enactment is given in the manner set forth in this section. . . .” 53 P.S. § 10610. Section 610 requires municipalities to publish notice of, advertise, and make proposed ordinances available for the public to view before enacting the ordinances. The purpose of the notice and advertisement is to make the public aware of the proposed ordinance so that they may appear at the required public hearing and testify before the governing body regarding the proposed ordinance. Specifically, Section 610 requires notice of the proposed ordinance to include the time and place of the public meeting where the ordinance will be considered, where the proposed ordinance can be examined without charge, and requires the municipality to publish the proposed ordinance, or the title and a brief summary, in a newspaper of general circulation. Moreover, the municipality must submit an attested copy of the proposed ordinance to the county law library.

If a municipality does not satisfy the procedural requirements set forth in the MPC, the ordinance can be challenged. The majority of the time, these procedural requirements are left to the municipal solicitor. As a developer, this means that the requisite procedure to ensure that crucial rezoning for your project is out of your hands.

In 2008, the General Assembly responded to several decisions of the Pennsylvania Supreme Court, which held that procedural defects in the enactment of an ordinance may be so grave that they render the ordinance void ab initio. See Hawk v. Eldred Township Board of Supervisors, 983 A.2d 216 (Pa.Cmwlth.2009) (Discussing the history and timeline of the Supreme Court’s decisions). Moreover, because a breakdown in the procedural process of enacting an ordinance can amount to a deprivation of due process, in some circumstances, a challenger to the ordinance can file an appeal long after the 30-day appeal deadline has passed. In order to alleviate some of the concerns regarding challenges being brought years after an ordinance was enacted “the Judicial Code and the MPC established procedures for challenging an ordinance on procedural, not substantive, grounds.” Streck v. Lower Macungie Twp. Bd. of Comm’rs, 58 A.3d 865, 872 (Pa.Cmwlth. 2012), appeal denied, cause remanded, 621 Pa. 110, 74 A.3d 116 (2013).

One of the changes in 2008 was the addition of Section 108 of the MPC. Section 108 “provides a method by which a municipality or an individual can reduce the likelihood that a land use ordinance or a land use permit will be held void ab initio on procedural grounds. A person who has obtained a permit to use his land for a controversial use, say quarrying, can ‘reaffirm’ the procedural regularity of his permit by publishing notices of the permit in accordance with Section 108. Likewise, the procedural regularity of an ordinance enactment can be reaffirmed.” Id.

Section 108 provides, in relevant part:

(a) It is the intent of this section to allow optional public notice of municipal action in order to provide an opportunity to challenge, in accordance with section 1002-A(b) or section 1002.1-A,1 the validity of an ordinance or decision on the basis that a defect in procedure resulted in a deprivation of constitutional rights, and to establish a period of limitations for raising such challenges.

(b) Notice that municipal action has been taken to adopt an ordinance or enter a decision, regardless of whether the municipal action was taken before or after the effective date of this section, may be provided through publication, at any time, once each week for two successive weeks in a newspaper of general circulation in the municipality by the following:

(1) The governing body of the municipality.

(2) In the case of an ordinance, any resident or landowner in the municipality.

(3) In the case of a decision, the applicant requesting the decision or the landowner or successor in interest of the property subject to or affected by the decision.

*          *          *          *

53 P.S. §10108. Section 108 grants a municipality, or a landowner, the ability to correct any procedural defect in the enactment of an ordinance or municipal decision, such as a conditional use or special exception, by publishing notice of the enacted ordinance or decision. While someone seeking to challenge the ordinance or decision still has thirty days from the date of the second notice to do so, by following the procedure provided in Section 108, a developer can prevent future procedural challenges to the ordinance or decision from derailing their hard work long after the initial appeal period has passed.

If you have any questions about Section 108 notices, or need help guiding your project through the zoning and land development process, contact one of the attorneys at Hamburg, Rubin, Mullin, Maxwell & Lupin today.

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