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Ness v. York Township Board of Commissioners

Commonwealth Court of Pennsylvania

December 4, 2013

Dennis L. Ness and John E. Bowders, Appellants
v.
York Township Board of Commissioners

Submitted: September 13, 2013

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION

ROBERT SIMPSON, Judge

Dennis L. Ness and John E. Bowders (Appellants), representing themselves, appeal from an order of the Court of Common Pleas of York County (trial court) that dismissed their petition for review challenging the York Township Board of Commissioners' (Board) adoption of the Township's 2012 Zoning Ordinance and Map (Zoning Ordinance) and 2012 Subdivision and Land Development Ordinance (SALDO) (collectively, Ordinances). Appellants' petition sought a declaration that the newly adopted Ordinances were void due to procedural defects in their enactment. The trial court dismissed Appellants' petition as an untimely filed appeal under Section 108 of the Pennsylvania Municipalities Planning Code (MPC)[1] (relating to optional notice of ordinance or decision; procedural validity challenges). For the reasons that follow, we affirm, although we employ a different rationale.[2]

I. Background

A. Enactment of Ordinances

In July 2010, the Board advertised a public notice in the local newspapers of a Board workshop meeting to be held on Monday, July 12, 2010 to discuss updating the Zoning Ordinance. See Board's Motion to Dismiss (MTD), [3]2/21/13, at Ex. H. Next, in January 2011, the Township advertised notice of a Planning Commission workshop meeting to be held on January 6, 2011 to review a draft of the proposed SALDO. MTD at Ex. I. In February 2012, the Township advertised notice of another Planning Commission workshop meeting to be held on February 22 and 23, 2012, to review the drafts of both proposed Ordinances. MTD at Ex. J.

Thereafter, in April 2012, the Township twice advertised notice of a public hearing of the Planning Commission on April 17, 2012 to review the proposed Ordinances. MTD at Ex. K. Next, in July and August 2012, the Board twice advertised a public hearing before the Board to be held on August 13, 2012 to consider and receive comment on the proposed Ordinances. MTD at Ex. A.

At the August 13 hearing, the Board voted to adopt the Ordinances. Appellants were present at the August 13 hearing. In an e-mail message dated August 21, 2012, Appellant Bowders advised the Board that he intended to file suit in common pleas court to invalidate the newly adopted Ordinances. MTD at Ex. B. However, Appellant Bowders further advised:

Upon written assurances that the [Board] will re-advertise promptly (and properly), serve [the full text of the Ordinances upon] the law library and newspaper, and conduct a new Public Hearing and a "do-over vote", I will withhold legal action. Perhaps a third Public Hearing will convince the [Board] to vote consistent with the wishes of the citizens.

MTD at Ex. B (bolding and italics in original).

In late August 2012, the Board advertised notice of a public meeting to be held on September 11, 2012, for consideration of the Ordinances, and an amendment to the Zoning Map realigning the Urban Growth Boundary. MTD at Ex. C. The notice provided (with emphasis added):

A copy of the full proposed text of the Ordinances summarized above may be purchased … or examined by any citizen in the office of the Township Manager, 190 Oak Road, Dallastown, Pennsylvania, on business days between the hours of 8:00 o'clock am and 4:30 o'clock pm.

Id. Appellant Bowders attended the September 11 meeting and spoke in opposition to the Ordinances. However, the Board ultimately voted to adopt the Ordinances, which stated they would become effective in five ...


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