(b)Appeals of defects in statutory procedure.—
(1) Any appeal raising questions relating to an alleged defect in statutory procedure shall be brought within 30 days of the intended effective date of the ordinance.
(2)except as provided in subsection (c), it is the express intent of the General Assembly that this 30-day limitation shall apply regardless of the ultimate validity of the challenged ordinance.
(c) Exemption from limitation.—An appeal shall be exempt from the time limitation in subsection (b) if the party bringing the appeal establishes that, because of the particular nature of the alleged defect in statutory procedure, the application of the time limitation under subsection (b) would result in an impermissible deprivation of constitutional rights.
(d) Presumptions.—Notwithstanding any other provision of law, appeals pursuant to this section shall be subject to and in accordance with the following:
(1)An ordinance shall be presumed to be valid and to have been enacted or adopted in strict compliance with statutory procedure.
(2) In all cases in which an appeal is filed more than two years after the intended effective date of the ordinance is allowed to proceed in accordance with subsection (c), the political subdivision involved and residents and landowners within the political subdivision shall be presumed to have substantially relied upon the validity and effectiveness of the ordinance.
(3) An ordinance shall not be found void from inception unless the party alleging the defect in statutory procedure meets the burden of proving the elements in set forth in subsection (e).
(e) Burden of proof.—Notwithstanding any other provision of law, an ordinance shall not be found void from inception except as follows:
(1) In the case of an appeal brought within the 30-day time limitation of subsection (b), the party alleging the defect must meet the burden of proving that there was a failure to strictly comply with statutory procedure.
(2) In the case of an appeal which is exempt from the 30-day time limitation in accordance with subsection (c), the party alleging the defect must meet the burden of proving each of the following:
(i) That there was a failure to strictly comply with statutory procedure.
(ii) That there was a failure to substantially comply with statutory procedure which resulted in insufficient notification to the public of impending changes in or the existence of the ordinance, so that the public would be prevented from commenting on those changes and intervening, if necessary, or having knowledge of the existence of the ordinance.
(iii) That there exist facts sufficient to rebut any presumption that may exist pursuant to subsection (d)(2) that would, unless rebutted, result in a determination that the ordinance is not void from inception.
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(g) Definitions.—As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
"Intended effective date." Notwithstanding the validity of the challenged ordinance, the effective date specified in the challenged ordinance ….
"Ordinance." An ordinance, resolution, map or similar action of a political subdivision.
"Statutory procedure." The preenactment and postenactment procedures prescribed by statute or ordinance in adopting an ordinance.
42 Pa. C.S. §§5571.1(a), (b), (c), (d), (e) and (g).
As noted above, the 2008 legislation added Section 108 of the MPC, 53 P.S. §10108, which provides for post-enactment notice of the adoption of a land use ordinance or entry of a land use decision. In the case of an ordinance, either the governing body of the municipality, a municipal landowner or a resident may publish notice. 53 P.S. §10108(b). The purpose of publishing optional post-enactment notice under Section 108 is to reaffirm the procedural validity of the land use ordinance or decision. Streck v. Lower Macungie Twp. Bd. of Comm'rs, 58 A.3d 865 (Pa. Cmwlth. 2012). If no appeal is taken within 30 days of the second publication of the optional notice, the procedural validity of the ordinance or decision is reaffirmed. Id. Here, the Board elected to publish additional post-enactment notice of the adoption of the Zoning Ordinance and SALDO pursuant to Section 108.
Section 108 of the MPC provides in pertinent 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) … 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.
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(d) Notwithstanding this or any other act, in order to provide certainty of the validity of an ordinance or decision, any appeal or action contesting the validity of an ordinance based on a procedural defect in the process of enactment or the validity of an ordinance based on a procedural or substantive defect shall be dismissed, with prejudice, as untimely if not filed within the 30th day following the second publication of the notice authorized in this section.
(e) Any appeal or action filed within the 30-day period referred to in subsection (d) shall be taken to the court of common pleas and shall be conducted in accordance with and subject to the procedures set forth in 42 Pa. C.S. §5571.1 (relating to appeals from ordinances, resolutions, maps, etc.) in the case of challenges to ordinances ….
(f) Where no appeal or action contesting the procedural validity of an ordinance or the procedural or substantive validity of a decision is filed within the period set forth in subsection (d), the ordinance or decision shall be deemed to be reaffirmed or reissued on the date of the second publication of the optional notice permitted under this section.
(g) An appeal shall be exempt from the time limitation in subsection (d) only if the party bringing the appeal establishes that the application of the time limitation in subsection (d) will result in an unconstitutional deprivation of due process.
(h) Nothing in this section shall be construed to abrogate, repeal, extend or otherwise modify the time for appeal in section 1002-A, where the appellant was a party to the proceedings prior to the entry of a decision or otherwise had an adequate opportunity to bring a timely action in accordance with section 1002-A to contest the procedural validity of an ordinance or the procedural or substantive validity of a decision.
53 P.S. §§10108(a), (b), (d), (e), (f), (g) and (h) (emphasis added).
D. ZHB's Dismissal of Appeal
At its November 2012 regular meeting, the ZHB dismissed Bowders' appeal due to lack of jurisdiction as a result of the 2008 amendments to the MPC, which vested jurisdiction over appeals raising procedural validity challenges in the common pleas courts. Appellant Bowders did not appeal the ZHB's dismissal order. At the meeting, the ZHB also informed Appellants that the Township published optional post-enactment notice under Section 108(b), which advised that an appeal alleging a procedural defect in the adoption of the Ordinances must be filed in the common pleas court on or before October 27, 2012.
E. Appellants' Petition for Review (Validity Challenge)
However, in February 2013, Appellants filed a "Petition for Review – Procedural Defect in Process of Enactment of Zoning and SALDO Ordinances"(validity challenge). Appellants filed their validity challenge under Section 108(g) of the MPC on the ground that they suffered an unconstitutional deprivation of due process as a result of various procedural defects in the initial adoption of the Ordinances.
F. Board's Motion to Dismiss
In response, the Board filed a motion to dismiss alleging Appellants' validity challenge was untimely filed for a number of reasons. First, the Board asserted the 30-day appeal period under 42 Pa. C.S. §5571.1(b) expired October 16, 2012, 30 days after the Ordinances intended effective date. Appellants filed their validity challenge on February 4, 2013.
Second, pursuant to Section 108(b) of the MPC, the Board published its second advertisement on September 27, 2012. Thus, the appeal period in Section 108(d) of the MPC expired on October 27, 2012. Clearly, Appellants' February 2013 validity challenge was untimely under Section 108(d).
Third, having missed the 30-day appeal period in Section 108(d), Appellants needed to establish under Section 108(g) of the MPC "that the application of the time limitation in subsection (d) would result in an unconstitutional deprivation of due process." 53 P.S. §10108(g) (emphasis added). To that end, the Board asserted, Appellants failed to show they were deprived of any constitutional due process right. Appellants attended and participated at public meetings of the Board and the Township's Planning Commission. Appellants also attempted to timely appeal, but did so to the wrong body.
G. Trial Court Order
Ultimately, after a truncated procedure in motions court, the trial court agreed with the Board and entered an order dismissing Appellants' validity challenge based on their failure to allege an unconstitutional deprivation of their due process rights as required by Section 108(g) of the MPC. In so doing, the trial court reasoned (with emphasis added):
Section 108(g) of the MPC contains an exception to the 30 day filing requirement: an appeal may be filed after the 30 days if unconstitutional deprivation of due process is alleged. Appellants allege in their Petition that the [Board] denied due process to its citizens by failing to comply with provisions of the MPC requiring the Township to conduct a public meeting pursuant to public notice prior to adopting the SALDO and Zoning Ordinance. However, Appellants admit in their Petition that notices of various public hearings on the enactments were published and that hearings were held for the purpose of receiving public comments. Whether or not the notice or hearings complied with the requirements of the MPC is not at issue. In addition, whether the due process rights of other citizens of the Township were violated by the alleged failure to properly publish notice and hold public meetings is not in issue. This is so because Appellants admitted in their argument before the Court on February 28, 2013 that they were aware of the hearings held on the adoption of the SALDO and Zoning Ordinance, they in fact attended those hearings, and they both had and took advantage of the opportunity to comment. Further, there are no specific averments in Appellants' Petition for Review that Appellants['] due process rights were violated. Finally, since Appellants had actual notice and were heard their due process rights can not be said to have been violated in the manner that was generally averred in the Petition for Review.
Tr. Ct. Order, 3/18/13, at 2-3. Appellants appeal.
Appellants raise several issues on appeal. They contend the trial court erred by failing to properly apply Section 108(d) of the MPC and by finding that the Board did not deny Appellants due process despite the Board's failure to strictly comply with the MPC's procedural requirements. Appellants also contend the Board violated the due process rights of other Township citizens by failing to provide public notice of, and hold public hearings on the proposed Zoning Ordinance.
Further, Appellants assert that various deficiencies in the initial adoption of the Ordinances constitute fatal flaws.
III. Discussion A. Section 108 Optional Post-Enactment Notice
Appellants first argue the trial court failed to properly apply the provisions of Section 108(d) of the MPC, which requires that an appeal be filed within 30 days following the second publication of optional post-enactment notice under Section 108(b). To that end, Appellants contend the Board's Section 108(b) post-enactment notice was void from inception because it did not include the address of the municipal building where the full text of the Zoning Ordinance and the SALDO could be viewed by the public as required by Section 108(c)(1)(iii) of the MPC, 53 P.S. §10108(c)(1)(iii).
Further, Appellants assert the Board's defective Section 108 notice, which the Board issued during the 30-day appeal period set by 42 Pa. C.S. §5571.1(b), did not explain that the 30-day deadline in Section 5571.1(b) remained in effect. Thus, Appellants maintain, they reasonably construed the defective Section 108 notice as waiving the 30-day appeal period in 42 Pa. C.S. §5571.1(b).
In support of their position, Appellants cite Streck, where, as here, the municipality published a Section 108 post-enactment notice during the 30-day appeal period set by 42 Pa. C.S. §5571.1(b) without explaining that the deadline in Section 5571.1 remained in effect. In Streck, we reasoned, the Section 108 notices could be construed as waiving the 30-day deadline in 42 Pa. C.S. §5571.1(b). We therefore held, in part, that the possible confusion resulting from the different notices amounted to a breakdown in the administrative process that entitled the appellants, to an appeal nunc pro tunc as they requested. See Streck, 58 A.2d at 873.
1. Nunc Pro Tunc Appeal
Given that the Board published its optional post-enactment notice during the 30-day appeal period set by 42 Pa. C.S. §5571.1(b), without explaining that the deadline in 42 Pa. C.S. §5571.1(b) remained in effect, Appellants could have been entitled under Streck to an appeal nunc pro tunc had they promptly filed an appeal within the 30-day appeal period in Section 108(d) or established other grounds for an appeal nunc pro tunc.
However, an appellant seeking permission to file a nunc pro tunc appeal must proceed with reasonable diligence once he knows of the necessity to take action. Schofield v. Dep't of Transp., Bureau of Driver Licensing, 828 A.2d 510 (Pa. Cmwlth. 2003). Indeed, an application must be filed within a reasonable time after the occurrence of the extraordinary circumstance. See Amicone v. Rok, 839 A.2d 1109 (Pa.Super. 2003) (nunc pro tunc petition denied because it was filed four months after petitioner's notice of appeal was rejected). Given Appellants' unexplained lengthy delay in filing their validity challenge in the trial court, we conclude that they would not be entitled to an appeal nunc pro tunc under 42 Pa. C.S. §5571.1(b), had they applied for one. Schofield.
2. Unconstitutional Deprivation of Due Process
Where, as here, there is no validity challenge brought within 30 days of the second advertisement of the optional post-enactment notice, new Section 108(f) of the MPC operates to reaffirm or reissue the municipal action in question. 53 P.S. §10108(f). In this case, that results in the reissuance of the Ordinances as of September 27, 2012. The reissuance of the Ordinances renders moot any preexisting procedural issues which might have arisen during initial enactment. See id.; cf. Moore v. Dept. of Transp., Bureau of Motor Vehicles, 19 A.3d 1200 (Pa. Cmwlth. 2011) (Secretary's reopening of record provided appellants notice and opportunity to be heard and cured pre-existing defects in procedure); Flickinger v. Lebanon Sch. Dist., 898 A.2d 62 (Pa. Cmwlth. 2006) (de novo proceeding before Secretary cures any procedural defects in local agency proceedings).
Accordingly, the dispositive issue before the trial court here was whether Appellants raised a defect in the Section 108 optional post-enactment notice which could result in an unconstitutional deprivation of due process. In such a case, a challenge beyond 30 days from the date of the second publication can be entertained. Section 108(g), 53 P.S. §10108(g).
We agree with Appellants that in analyzing this issue a court needs to focus on more than deprivation of individual rights. A court also should focus on the shared public interest in the right to participate in the proceedings involving adoption of ordinances. Messina v. East Penn Twp., __ Pa. __, __, 62 A.3d 363, 370 (2012).
When assessing a non-prompt claim of deprivation of individual due process rights, a court may consider whether the individual was prejudiced by the procedures used. Id. This may include an evaluation of whether the complaining party had actual notice and participated in enactment proceedings. Id. As to the shared public interest right to participate in municipal actions, a trial court faced with a delayed procedural challenge should consider whether there has been substantial compliance with statutory procedures. Id. Under the new statutory scheme, strict compliance is required for prompt procedural challenges, but substantial compliance will satisfy due process dictates for delayed challenges. Id. If substantial compliance is lacking in a delayed challenge, an unconstitutional deprivation of due process may be present. Id.
Here, the parties did not invite the trial court to focus on the Section 108 optional post-enactment notice. Significantly, Appellants neither pled nor argued to the trial court that there was any problem with the optional post-enactment notice. See Notes of Testimony, 2/28/13, at 4-10. The first mention of the failure to include the address of the municipal building in the Section 108 optional post-enactment notice was made to this Court on appeal. Moreover, Appellants never moved beyond a "strict compliance" analysis to a "substantial compliance" argument, as is necessary when making a delayed assertion of procedural invalidity. While we question whether the address omission marks a departure from substantial compliance, we need not decide that issue now. Instead, it is clear that Appellants waived this argument for failure to fairly submit it to the trial court. See Pa. R.A.P. 302(a) (issues not raised in the lower court are waived).
Because the Board elected to employ the Section 108 optional post-enactment notice, and no appeal was filed with 30 days of the second advertisement, the Ordinances were deemed reissued as a matter of law. Consequently, procedures related to the initial adoption of the Ordinances are no longer material.
Without question, Appellants did not timely challenge the reissued Ordinances. Because they did not argue or offer to prove to the trial court that the Section 108 optional post-enactment notice failed to substantially comply with statutory requirements, resulting in an unconstitutional deprivation of due process, Appellants lost the opportunity to do so. Accordingly, we affirm.
AND NOW, this 4th day of December, 2013, for the reasons stated in the foregoing opinion, the order of the Court of Common Pleas of York County is
PATRICIA A. McCULLOUGH, Judge
I respectfully dissent. The York Township Board of Commissioners (Board) adopted a zoning ordinance and a subdivision and land development ordinance. Appellants filed an appeal, alleging that the ordinances were void due to procedural defects occurring before or during the enactment process, specifically that the Board failed to conduct the necessary public meetings and hearings, failed to provide sufficient notice to the public, and failed to publish or advertise the full text of the proposed ordinances. (Maj. slip op. at 10 n.5, citing O.R. at Item #11.) However, Appellants' appeal was filed untimely, approximately four months beyond the 30 day-limitation set forth in section 5571.1(b)(2) of the Judicial Code, 42 Pa.C.S. §5571.1(b)(2),  and section 108(d) of the Municipalities Planning Code (MPC).
The Majority holds that because the Board advertised an optional post-enactment notice under section 108(f) of the MPC, the ordinances were "reaffirmed" or "reissued" and, as a result, "any pre-existing procedural issues which might have arisen during initial enactment" are rendered "moot." (Maj. slip. op. at 16.) At the end of its opinion, the Majority concludes: "Because the Board elected to employ the [s]ection 108 optional post-enactment notice, and no appeal was filed within 30 days of the second advertisement, the [o]rdinances were deemed reissued as a matter of law. Consequently, procedures related to the initial adoption of the [o]rdinances are no longer material." Id. at 18. According to the Majority's rationale, a municipality could seek to implement and pass an ordinance without taking any official action whatsoever, but so long as the municipality provides a section 108 post-enactment notice and no appeal is filed within 30 days, that ordinance is valid and immune from attack, even though it was never lawfully passed in the first place.
I believe that the Majority places too much legal significance on the post-enactment notice procedure and interprets section 108 of the MPC in a manner that disregards the exemptions to the 30-day time limit in section 5571.1(c) of the Judicial Code and section 108(g) of the MPC. These provisions permit an appeal after the 30-day time limit if the party can establish an unconstitutional deprivation of due process. 42 Pa.C.S. §5571.1(c); 53 P.S. §10108(d).
More importantly, I believe that the Majority employs reasoning that is in direct contravention to binding precedent from our Supreme Court. In Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 907 A.2d 1033 (2006), our Supreme Court held that as a matter of constitutional principle, the void ab initio doctrine will supersede any statutory time-limit for challenging a procedural defect affecting notice or due process rights in the enactment of an ordinance. As the Court explained:
A strict reading of the statute demonstrates that the challenge is clearly time-barred as [a]ppellant waited between five and seven years to contest the allegedly defective procedure during the enactment of the ordinances. However, the effect of a finding that the ordinance is void ab initio means that it essentially never became law because of its procedural defects; thus, any component of the challenge that contains a time bar … is deemed void for having never been properly passed.
[W]e have consistently held that a defect in the enactment renders any time bar null and void as the statute is, in its entirety, void ab initio.
Id. at 147-48 & 152, 907 A.2d at 1040 & 1042 (emphasis added). To date, under the void ab initio doctrine and pertinent statutory law, an appellant's challenge to the procedural validity of an ordinance will not be deemed untimely if the appellant can establish that the municipality failed to substantially comply with statutory procedure, which results in lack of notice or deprivation of due process rights. Messina v. East Penn Township, __ Pa. __, __, 62 A.3d 363, 369 & 372 (2012).
Unlike the Majority, I do not believe that the trial court's order can be affirmed on the alternative theory that the section 108 post-enactment notice "cured" or rendered "moot" any procedural invalidity regarding the ordinances as a matter of law. While a section 108 notice may aid a municipality in proving substantial compliance with statutory procedure, Streck v. Lower Macungie Township Board of Commissioners, 58 A.3d 865, 872 (Pa. Cmwlth. 2012) ("Section 108 of the MPC . . . 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 section 108 notice cannot completely shield a defective ordinance from attack if an appeal is not filed within 30 days. Rather, pursuant to section 5571.1(c) of the Judicial Code, section 108(g) of the MPC, Glen-Gery Corporation, and Messina, a sufficient infringement of due process rights trumps any statutory time-bar for challenging the procedural validity of an ordinance, even when a municipality publishes post-enactment notice. Streck, 58 A.3d at 874 ("[I]f no challenge is brought within 30 days of the date of the municipality's second post-enactment Section 108 notice, the procedural validity of the ordinance is 'reaffirmed.' There is no deadline, however, where it would result in a deprivation of constitutional rights[.]") (emphasis added).
Here, the trial court restricted its due process analysis to Appellants' individual situations, concluding that Appellants themselves received notice and participated in the proceedings. (Trial court op. at 3-4.) However, the trial court failed to consider the due process rights of the public at large, and did not address Appellants' contentions that the public did not receive proper notice and sufficient opportunity to be heard at the meetings. (Trial court op. at 3) ("Whether or not the notice or hearings complied with the requirements of the MPC is not at issue. In addition, whether the due process rights of other citizens of the Township were violated by the alleged failure to properly publish notice of and hold public meetings is not at issue."). Pursuant to Messina, the trial court was obligated to consider the shared public interest and right to participate in municipal actions, and should have determined whether the Board complied with the MPC's statutory procedures regarding public notice that are relevant to Appellants' claims. Messina, __ Pa. at __, 62 A.3d at 370; accord Maj. slip. op. at 16-17.Accordingly, I would vacate and remand for the trial court to apply this legal standard and decide whether Appellants established that the Board failed to substantially comply with statutory procedure when enacting the ordinances.