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Falkler v. Lower Windsor Township Zoning Hearing Board

January 21, 2010

GREGORY FALKLER, APPELLANT
v.
LOWER WINDSOR TOWNSHIP ZONING HEARING BOARD, RED LION MUNICIPAL AUTHORITY AND IVAR DEJONG
GREGORY FALKLER
v.
LOWER WINDSOR TOWNSHIP
v.
RED LION MUNICIPAL AUTHORITY AND IVAR DEJONG
APPEAL OF: RED LION MUNICIPAL AUTHORITY



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

Argued: December 8, 2009

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

In these consolidated appeals, Gregory Falkler (Falkler) and Red Lion Municipal Authority (Authority) both appeal from an order of the Court of Common Pleas of York County (Trial Court) denying the appeals of Falkler and the Authority from an order of the Lower Windsor Township Zoning Hearing Board (ZHB). The Trial Court affirmed the ZHB's order dismissing Falkler's appeal from the issuance of a Certificate of Nonconformance by a Lower Windsor Township Zoning Officer, on the basis that the appeal had been untimely filed, and that the ZHB was thusly without jurisdiction to entertain the appeal.

The following facts are not disputed herein. Daniel "Pete" Boyd (Boyd) is the owner of real property located at 1357-1359 Snyder Corner Road, in Red Lion, Pennsylvania (the Property). On June 21, 2007, a Lower Windsor Township (Township) Zoning Officer issued a Certificate of Nonconformance (Certificate) to Boyd that purported to acknowledge Boyd's right to operate a nonconforming body shop and salvage yard on his Property.

Falkler, an adjoining landowner, became aware of the Certificate on or before December 6, 2007, and subsequently attended a Board of Supervisors meeting on December 13, 2007, at which the subject of the property's nonconforming use status was discussed. On January 16, 2008, Falkler filed an appeal of the issuance of the Certificate with the ZHB. Thereafter, the Authority intervened as an objector to the nonconforming use.*fn1 Boyd subsequently filed a Motion to Dismiss the appeal as untimely. A hearing ensued, at which all parties were present and represented by counsel.

Most generally summarized, Falkler argued that the Property did not meet the requirements of a nonconforming use because it had not legally existed prior to the enactment of the Township Zoning Ordinance (Ordinance). Neither Falkler nor the Authority disputed the timeline of events cited above, including the fact that the appeal was filed more than thirty days beyond the date that the Certificate was issued and more than thirty days beyond the latest date that they could argue that they were aware of the issuance. Falkler did assert that he was unaware of a thirty-day limit within which to file his appeal of the Certificate's issuance.*fn2

The ZHB concluded that, pursuant to both Section 914.1(a) of the Pennsylvania Municipal Planning Code (MPC)*fn3 and Section 905 of the Ordinance, any appeal of the citation was to be brought within the thirty-day limit prescribed therein. Even considering the potential exception to this rule based upon actual knowledge of the Certificate's issuance, the ZHB concluded that the appeal was untimely, and that the ZHB was thusly without jurisdiction to entertain the appeal. Accordingly, the ZHB dismissed the appeal by Decision and Order dated June 19, 2008.

Falkler appealed to the Trial Court, and the Authority intervened with a cross appeal. Additionally, Ivan DeJong*fn4 (DeJong) also filed a Petition to Intervene. By Order dated February 24, 2009, the Trial Court affirmed the ZHB's Decision and Order, agreeing that the ZHB was without jurisdiction due to the untimely appeal. In its Opinion issued thereafter pursuant to Pa.R.A.P. 1925, the Trial Court essentially found the ZHB's reasoning and conclusions to be sound. Both Falkler and the Authority now appeal to this Court.

Where the trial court did not receive any additional evidence, this Court must determine whether the Board made an error of law or committed an abuse of discretion in reaching its decision. Llewellyn's Mobile Home Court, Inc. v. Springfield Township Zoning Hearing Board, 485 A.2d 883 (Pa. Cmwlth. 1984). The issues herein have been reordered in the interests of clarity. As noted, there is no dispute herein that the appeal was untimely filed, being filed beyond the applicable thirty-day limit from the point at which Falkler became aware of the Certificate's issuance. Falkler and the Authority both rely upon two precedents of our Supreme Court in their appeals, namely, Schadler v. Zoning Hearing Board of Weisenberg Township, 578 Pa. 177, 850 A.2d 619 (2004), and Luke v. Cataldi, 593 Pa. 461, 932 A.2d 45 (2007). Citing thereto, Falkler and the Authority now argue that the Certificate was void ab initio, and therefore, the thirty-day appeal period limitation under the MPC is inapplicable. Further, the appealing parties argue that their notice and due process rights have been violated by the ZHB's application of the MPC appeal period limitation. We disagree, both as to the applicability of those precedents to the facts of this matter, and to the parties' due process assertions.

Schadler addressed a landowner's procedural challenge to the enactment of a municipal zoning ordinance regulating mobile homes, which challenge was filed 200 days after the ordinance had been enacted. The Supreme Court concluded that a municipal ordinance was void ab initio because of the municipality's failure to comply with statutory notice requirements prior to the ordinance's enactment. The foundation of the Supreme Court's reasoning was built upon the premise that an ordinance purportedly enacted in violation of the statutory notice requirements was not properly enacted, and thus never had an effective date from which the applicable thirty-day appeal period under the MPC could be held to begin running; hence, any procedural challenge thereto was not time barred. The Supreme Court stressed the importance of strict compliance with the express procedural requirements of ordinance enactment:

The purpose of requiring compliance with the procedural requirements for enacting township ordinances is premised on the importance of notifying the public of impending changes in the law so that members of the public may comment on those changes and intervene when necessary.

Schadler, 578 A.2d at 189, 850 A.2d at 627.

Subsequently, in relevant part, the Supreme Court has limited the application of the void ab initio doctrine to circumstances implicating notice, due process, or other constitutional rights of a party. See Glen-Gery Corp. v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 907 A.2d 1033 (2006). Additionally, the Supreme Court applied the doctrine as articulated in Schadler to situations involving ...


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