The opinion of the court was delivered by: Judge Pellegrini
Argued: September 17, 2009
BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.
Bruce Hawk (Hawk) appeals from an order of the Court of Common Pleas of Monroe County (trial court) denying his land use appeal seeking to have (1) the Eldred Township Zoning Ordinance (Ordinance) declared void ab initio*fn1 for failure by the Eldred Township Zoning Hearing Board (Zoning Board) to follow proper statutory procedures when adopting the Ordinance and (2) Section 5571.1 of the Judicial Code, 42 Pa. C.S. §5571.1,*fn2 declared unconstitutional because it restricts him from contesting the adoption of the Ordinance.
Hawk owns a 21.27 acre parcel of property in a commercial zoning district of Eldred Township, Pennsylvania. In May 2007, Hawk cleared and graded land on that property and constructed an oval dirt course with jumps and banked turns. Hawk also created a "Weekend Warriors Club" whose members used his track for riding motorcycles and ATVs. Race tracks are not a permitted use in a commercial zoning district.
That summer, the Township zoning officer issued a zoning enforcement notice citing Hawk for operating a race track without a zoning permit. Hawk appealed the enforcement notice to the Zoning Board, which denied his appeal. He later filed two permit applications with the Township. The first application was to allow Hawk to use his property for the riding of ATVs and other recreational vehicles. The second concerned the private recreational club using Hawk's property for the riding of motorcycles and ATVs. The Township zoning officer denied the first permit but granted the second one as long as the property was only used by the club for meetings, routine socializing and recreation. Hawk again appealed to the Zoning Board.
On March 11, 2008, the Zoning Board affirmed the denial of Hawk's first permit application because the riding of motor vehicles fell within the Ordinance's definition of "race track" and was not a permitted use in a commercial zoning district. The Zoning Board also found that Hawk's use of the property as a race track was not a permitted use for a private club in a commercial zoning district. Hawk appealed this decision to the trial court, which affirmed. He then appealed the decision to this court, which, in an opinion dated July 1, 2009,*fn3 again affirmed.
On October 10, 2008, Hawk filed another "appeal" with the trial court.*fn4 This "appeal" actually constituted a challenge to the method by which the Ordinance was enacted. Hawk contends, and the Board of Supervisors of Eldred Township (Supervisors) do not dispute, that the procedures used in adopting the Ordinance did not strictly comply with statutory procedures prescribed by the Municipal Planning Code (MPC).*fn5 These include: failure to submit the proposed Ordinance to the Monroe County Planning Commission (MCPC);*fn6 revision of the draft ordinance without submitting it to the MCPC and/or Township Planning Commission for recommendations;*fn7 failure to advertise a summary of amendments at least 10 days prior to enactment of the Ordinance;*fn8 failure to file an attested copy of the Ordinance with the Monroe County Law Library, other county offices, or a newspaper of general circulation;*fn9 failure to hold a public meeting with the Township Planning Commission;*fn10 and failure to provide a copy of the Ordinance to the MCPC within 30 days of its enactment.*fn11 Because these statutory procedures were not followed, Hawk contends that the Ordinance is void ab initio.
Despite these procedural defects, the Township, which had never had a zoning ordinance before, did take many measures to publicize its efforts to enact the Ordinance and invite public input. It began holding zoning planning meetings twice each month throughout 2002 and 2003 that were publicly advertised and open to the public. Prior to the eventual enactment of the Ordinance in 2004, the Supervisors also held two public hearings, both of which were advertised in a public notice in the Pocono Record newspaper that included links to two websites where the complete text of the Ordinance could be viewed. The second public notice stated that the Supervisors would consider enacting the Ordinance at one of the next two regularly scheduled meetings, which were held every other Wednesday. The Supervisors enacted the Ordinance at the second regularly scheduled meeting on April 21, 2004. Finally, the Pocono Record ran a front page story the next day concerning the adoption of the new Ordinance.
Hawk also contends that the newly enacted Section 5571.1 of the Judicial Code is unconstitutional because it restricts his ability to challenge the Ordinance as void ab initio. The trial court denied Hawk's appeal, holding that Section 5571.1 is constitutional, that it applies to Hawk, and that he may not challenge the Ordinance as void ab initio because his due process rights were not violated. This appeal followed.
The limitation of time to bring an appeal challenging the procedures used to enact zoning ordinances has been the subject of much judicial and responding legislative action since our Supreme Court's decision in Cranberry Park Associates ex rel. Viola v. Cranberry Township Zoning Hearing Board, 561 Pa. 456, 751 A.2d 165 (2000). That decision held that an ordinance was void ab initio even though the challenge had not been brought within 30 days of the ordinance's adoption as required by Section 5571(c)(5) of the Judicial Code, 42 Pa. C.S. §5571(c)(5). Our Supreme Court reasoned that because the ordinance had never been recorded, it had no effective date from which to measure the 30 days to bring a challenge.
In Schadler v. Zoning Hearing Board of Weisenberg Township, 578 Pa. 177, 850 A.2d 619 (2004), the Supreme Court again held that an ordinance was void ab initio and not subject to Section 5571(c)(5)'s 30 day limitation period where the challenged ordinance had been recorded but suffered from other procedural defects. The township supervisors had failed to file an attested copy of the ordinance in the county law library or other designated county office, to run pre-enactment newspaper advertisements that contained the full text of the proposed ordinance, and to file a summary of the ordinance in any place where the public could access it. Schadler, 578 Pa. at 188-89, 850 A.2d at 626. The Court held that these procedural defects made it too difficult for the public to be put on notice regarding changes to the ordinance, causing it to be void ab initio. Since it was void ab initio, it held that there was no effective date from which to measure Section 5571(c)(5)'s 30 day limit on procedural challenges.*fn12
In response to Cranberry Park, the General Assembly amended Section 5571(c)(5) in 2002.*fn13 The new Section 5571(c)(5) inserted the word "intended" before "effective date," so that the 30 day time limit to bring procedural challenges would apply even if the ordinance was void ab initio. The intended effective date was defined as the date specified in the ordinance or 60 days after the township adopted the ordinance if no date was specified. It left in place that the appeal or challenge had to be brought first to the zoning board. See 42 Pa. C.S. §5571(c)(5).
Again, our Supreme Court, in Glen-Gery Corporation, held that the amendment to Section 5571(c)(5) did not change its analysis in Cranberry Park and Schadler that an ordinance that fails to comply with the statutorily mandated procedures is void ab initio, rendering any time bar to its challenge void. The Court explained that the purpose of the void ab initio doctrine is to protect the due process rights of citizens because a landowner's constitutionally guaranteed right to ...