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Nockamixon Township v. Nockamixon Township Zoning Hearing Board

November 18, 2010

NOCKAMIXON TOWNSHIP
v.
NOCKAMIXON TOWNSHIP ZONING HEARING BOARD
HANSON AGGREGATES, BMC, INC., APPELLANT



The opinion of the court was delivered by: Judge Butler

Argued: October 14, 2010

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

Hanson Aggregates, BMC, Inc. (Hanson) appeals the May 3, 2010 order of the Court of Common Pleas of Bucks County (trial court) reversing the decision of the Nockamixon Township Zoning Hearing Board (ZHB), thereby dismissing Hanson's procedural challenges to the zoning ordinances of Nockamixon Township (Township), a township of the Second Class. The issues before us are: (1) whether the trial court erred as a matter of law when it reversed the ZHB's decision that specified ordinances of 1968 and 1990 failed to comply with mandatory statutory procedures for enactment of zoning ordinances; (2) whether the procedural defects in enactment of the 1968 and 1990 ordinances were of the type that implicated "notice, due process or other constitutional rights," rendering them void ab initio; and, (3) whether evidence of notice, acquiescence or reliance is relevant to a procedural challenge to the validity of a zoning ordinance alleging that the challenged ordinance is void ab initio. For the following reasons, we affirm the decision of the trial court.

Hanson is the owner of two contiguous parcels of real estate (Parcels 30-11-101 and 30-11-100) consisting of approximately 103 acres located on Route 611 at Quarry Road in the Township, in Bucks County. Hanson operates a quarry on Parcel No. 30-11-101, which is located in the Quarry Zoning District pursuant to the Township's 1990 Zoning Ordinance (1990 Ordinance). Parcel No. 30-11-100, which is vacant, is located in the Commercial Zoning District pursuant to the 1990 Ordinance.

On or about February 25, 2008 (and as amended in August of 2009), Hanson filed a procedural challenge to the validity of the following Township ordinances,*fn1 claiming they are void ab initio because they were improperly enacted by the Township:

Ordinance 18 -- enacted by the Township's Board of Supervisors on September 30, 1968 (1968 Ordinance);

Ordinance 56 -- enacted by the Township's Board of Supervisors on December 28, 1989 (1990 Ordinance) -- replacing the 1968 Ordinance;

Ordinance 101 -- enacted by the Board of Supervisors on January 9, 2001 (2001 Codification) - codifying all of the Township's ordinances.

Public hearings were held before the ZHB relative to Hanson's challenges on April 17, 2008, May 15, 2008, June 26, 2008, August 7, 2008, September 4, 2008 and October 16, 2008. On February 19, 2009, the ZHB voted (2 to 1) in favor of sustaining Hanson's challenge and, on March 23, 2009, the ZHB issued a written decision declaring the 1968, 1990 and 2001 Ordinances null and void ab initio, meaning that there were no longer lawful, valid or effective rules, regulations or ordinances governing zoning and/or land use in the Township. The Township appealed the ZHB's decision to the trial court. On May 3, 2010, based upon the record produced before the ZHB, the trial court reversed the ZHB's decision, thereby dismissing Hanson's challenges and leaving the Township's ordinances in full force and effect. Hanson filed an appeal to this Court.*fn2

Hanson first argues on appeal that the trial court erred by finding that the Township published summaries of the provisions of the proposed 1968 Ordinance in accordance with Section 2004 of The Second Class Township Code (Code),*fn3 and of the 1990 Ordinance in accordance with Section 610 of the Pennsylvania Municipalities Planning Code (MPC).*fn4 We disagree.

1968 Ordinance

Section 2004 of the Code, in effect at the time the 1968 Ordinance was proposed, stated:

The supervisors shall exercise the powers granted in section 2001 hereof, by ordinance, which shall provide . . . for at least one week and not more than three weeks prior to the presentation of the proposed ordinance, a notice of intention to consider such proposed ordinance and a brief summary setting forth the principal provisions of the proposed ordinance, in such reasonable detail as will give adequate notice of its contents, and a reference to the place or places within the township where copies of the proposed ordinance may be examined. . . . The provisions of the ordinance need not be advertised or recorded as in other cases. . . . (Emphasis added). The 1968 Ordinance was purportedly enacted on September 30, 1968. Notices published onAugust 30 and 31, 1968 about a planning commission meeting contained statements that copies of the proposed ordinance would be available for public inspection by area residents. Reproduced Record (R.R.) at 52a-56a. On September 16, 1968, a public notice was issued stating:

[T]he zoning ordinance will be available for inspection several evenings before a public meeting is called. Legal technicalities are now being taken care of and the ordinance will be advertised as soon as possible. The date of the public ...


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