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Geryville Materials, Inc. v. Lower Milford Township Zoning Hearing Board

May 13, 2009

GERYVILLE MATERIALS, INC., APPELLANT
v.
LOWER MILFORD TOWNSHIP ZONING HEARING BOARD, LOWER MILFORD TOWNSHIP, LEHIGH COUNTY, PENNSYLVANIA, AND DON WEINBERGER



The opinion of the court was delivered by: Senior Judge McCLOSKEY

Argued: March 30, 2009

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.

OPINION

Geryville Materials, Inc. (Geryville) appeals an order of the Court of Common Pleas of Lehigh County (trial court) that affirmed a decision of the Zoning Hearing Board of Lower Milford Township (ZHB) denying Geryville's procedural challenge to the validity of certain of the Township's zoning and subdivision ordinances dating to 1967. For the reasons that follow, we affirm the decision of the trial court.

Geryville is the equitable owner of numerous parcels of land, consisting of 628.483 acres located in an Agricultural-Rural Zoning District in Lower Milford Township (the Township). In 2004, Geryville filed a request with the ZHB for a special exception that would allow it to use the property for quarrying and related activities, including, among other things, bituminous asphalt plant(s), concrete batch plant(s), construction company activities, equipment repair facilities, offices, retail sales, wholesale of stone, landscaping and related products, storage, parking and loading.

However, Geryville applied for, and received, several continuances of the application for a special exception seeking to stay consideration of that application while it brought a substantive challenge to the present zoning ordinance and a request for a curative amendment with the Township's Board of Supervisors.*fn1 Apparently, while Geryville's substantive challenge was still pending before the Board of Supervisors, our Supreme Court issued its decision in Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 907 A.2d 1033 (2006). In that case, our Supreme Court, analyzing the legal application known as the void ab initio doctrine, concluded that a party seeking to pursue a challenge in 2002 to ordinances enacted by Dover Township in 1995 and 1997 based upon alleged procedural defects in the enactment process could maintain such an action, despite statutory language limiting the right of a party to raise a procedural-defect challenge to a period of thirty days following the intended effective date of an ordinance. See 42 Pa. C.S. §5571(c)(5). The Court noted that such challenge was proper, despite the statutory limitation period, where the legislative body that attempted to enact the ordinances did not strictly comply with the procedural requirements of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 - 11202.

In its brief to this Court, Geryville notes that, within approximately one week of the Supreme Court's issuance of that decision,*fn2 it filed the present validity challenges with the ZHB seeking a determination that ten Township land use ordinances (including both zoning and subdivision and land development ordinances) were void ab initio under the Supreme Court's analysis in Glen-Gery.*fn3

The ZHB considered Geryville's challenge at numerous hearings.*fn4 During the course of those hearings, Geryville submitted numerous exhibits concerning the process of enactment relating to the ordinances it sought to challenge. The Township offered the testimony of several residents whose testimony generally indicated that they would not have purchased their property in the Township if the Township had not had a zoning ordinance in effect. The Township also submitted evidence into the record indicating that between 1967 and 2007, the Township had received and acted upon 2,966 permits or applications relating to land use approval under the ordinances in effect throughout this time period.

The ZHB made no specific findings regarding the actual process of enacting the challenged ordinances, other than to indicate that no procedural defects in the enactment procedure rendered the ordinances void ab initio. The ZHB noted that Geryville's claims were very broad and that under Glen-Gery, the void ab initio rule should not be applied where the citizenry has relied upon a law for an extensive period of time. Hence, with regard to any potential procedural defects, the ZHB determined that the reliance by the citizenry rendered the doctrine inapplicable with regard to all of the challenged ordinances. Based upon the foregoing, the ZHB denied Geryville's procedural challenges to the ordinances.*fn5

Geryville appealed that decision to the trial court, which engaged in a more thorough evaluation of the individual zoning enactments that Geryville challenged. The Township and a resident, Don Weinberger, intervened before the trial court. The trial court closely examined the numerous specific defects Geryville had raised before the ZHB, and, in general, concluded that, even where Geryville had produced evidence with regard to the various defects supporting its position, the defects that Geryville had established were not so substantial as to constitute a violation of procedural due process. The trial court noted that the Township had established reliance upon the ordinances by citizens in the Township, and that Glen-Gery actually supported the ZHB's decision, noting that to hold the ordinances void ab initio would be unfair to residents and the Township as they had acted in reasonable reliance on the ordinances.

Geryville appealed that decision to this Court, raising the following issues:*fn6

(1) whether the ZHB's failure to mail its decision within one day of the date of the decision entitled it to a deemed approval of its proposed use of the property; (2) whether the lack of factual findings by the ZHB regarding the specific circumstances surrounding the enactment process of the challenged ordinances entitled it to an order sustaining its challenges to the ordinances; (3) whether the trial court adopted its own factual findings and consequently exceeded its review powers; (4) whether the ZHB's factual findings relating to the enactment process, or lack thereof, reflected a capricious disregard of competent evidence; (5) whether the process used to adopt the challenged ordinances consisted of defects rendering the challenged ordinances void ab initio; (6) whether the ZHB erred in concluding that the reliance suggested by the factual findings provided a sufficient basis upon which to reject the application of the void ab initio doctrine; (7) whether the ZHB Board erred in concluding that certain accepted deviations from statutory notice requirements did not constitute due process violations; and (8) whether an ordinance that is deemed to be void ab initio is capable of being amended.

Geryville first argues that it is entitled to a deemed approval of its validity challenges based upon the fact that the Board did not mail its decision until nearly a week after the date of its decision, an alleged violation of Section 908(10) of the MPC, which provides as follows:

A copy of the final decision or, where no decision is called for, of the findings shall be delivered to the applicant personally or mailed to him not ...


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