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Yannaccone v. Lewis Township Board of Supervisors

Commonwealth Court of Pennsylvania

August 9, 2019

James Yannaccone, Appellant
Lewis Township Board of Supervisors

          Submitted: May 24, 2019



          ANNE E. COVEY, JUDGE

         James Yannaccone (Yannaccone) appeals, pro se, from the Northumberland County Common Pleas Court's (trial court) May 30, 2018 order declaring the Lewis Township (Township) Board of Supervisors' (Board) Ordinance No. 2014-7 (Ordinance) valid and in full force and effect. Yannaccone presents four issues for this Court's review: whether the trial court erred (1) by recognizing the Township's Zoning Ordinance Committee (ZOC) as a valid planning agency; (2) by holding that the Board's monthly meetings fulfilled the Pennsylvania Municipalities Planning Code's (MPC)[1] requirement that at least one public meeting is held after public notice; (3) by applying Section 5571.1(e)(2) of the Judicial Code[2] to conclude that the Board's procedures in enacting the Ordinance substantially complied with the MPC; and (4) by applying Section 1002.1-A of the MPC.[3] Upon review, we reverse.


         Since approximately 2005, the Township[4] and Turbotville Borough (Turbotville) participated as a joint planning commission (Joint Commission) for zoning and land use planning. At that time, the Township did not have a separate planning commission.[5] By October 7, 2013 letter, the Board notified Turbotville that it would withdraw from the Joint Commission effective January 1, 2015. The Board subsequently hired consultant KPI Engineering (KPI) to draft a new zoning ordinance exclusively for the Township. Correspondingly, the Township formed ZOC, consisting of Board members, Joint Commission members and Township residents, to provide KPI input during the proposed ordinance drafting process. ZOC met several times in early-to mid-2014 to review KPI's proposed ordinance, which KPI eventually presented to the Board.

         The Board sent copies of the proposed ordinance to the Joint Commission and the Northumberland County Planning Commission (County Planning Commission), both of which provided comments to the Board. The Board published notice of a public hearing scheduled on the proposed ordinance for August 14, 2014 in the Milton Standard Journal. Township property owners, including Yannaccone, attended the August 14, 2014 hearing. The Board adopted the

         Ordinance at its regular November 5, 2014 meeting. The Ordinance was effective January 1, 2015. The Board forwarded a copy of the Ordinance to the County Planning Commission on January 19, 2015.

         On January 29, 2015, Yannaccone filed a complaint in the trial court against the Board pursuant to Section 5571.1 of the Judicial Code and Section 1002-A(b) of the MPC[6] (relating to ordinance validity challenges), [7] requesting that the Ordinance "be declared void since inception." Reproduced Record (R.R.) at 6a; see also R.R. at 7a-8a. Therein, Yannaccone alleged, inter alia, that the Ordinance was invalid because ZOC was not the Township's authorized planning agency. See R.R. at 6a-7a.

         On or about February 16, 2015, the Board filed preliminary objections to the complaint asserting, inter alia, that Yannaccone did not have standing. On March 3, 2015, Yannaccone replied to the preliminary objections. The trial court heard argument on July 1, 2015 and, on July 9, 2015, the trial court sustained the Board's objection to standing, but overruled the remaining objections.

         On July 21, 2015, Yannaccone filed an amended complaint, wherein he represented that he was a Township landowner. On August 11, 2015, the Board filed its reply and new matter to Yannaccone's amended complaint. On August 25, 2015, Yannaccone filed a reply to the Board's new matter. On November 23, 2015, Yannaccone filed a motion for summary judgment. On December 23, 2015, the Board responded to the summary judgment motion. The trial court held argument on the summary judgment motion on April 6, 2016.

         On June 23, 2016, the trial court denied Yannaccone's summary judgment motion. The trial court further ruled that the Board complied with the MPC's procedural requirements for enacting the Ordinance. See Yannaccone Br. App. at A-9 - A-10. The trial court also concluded that there was no authority to support Yannaccone's claim that the Ordinance is void ab initio simply by virtue of the Board's delay in forwarding the adopted Ordinance to the County Planning Commission. See Yannaccone Br. App. at A-10.

         After discovery was completed, the trial court held a non-jury trial on May 23, 2018. On May 30, 2018, the trial court ruled in the Board's favor, holding that the Ordinance was valid and in full force and effect for the reasons set forth in the trial court's June 23, 2016 order.[8] See Yannaccone Br. App. at A-6. Yannaccone appealed to this Court.[9]


         Initially, Section 5571.1(d) of the Judicial Code states, in pertinent part:

[A]ppeals 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.
. . . .
(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 set forth in subsection (e).

42 Pa.C.S. § 5571.1(d). With respect to validity challenges brought within 30 days of the ordinance's effective date, Section 5571.1(e)(1) of the Judicial Code requires that "the party alleging the defect must meet the burden of proving that there was a failure to strictly comply with statutory procedure." 42 Pa.C.S. § 5571.1(e)(1). This Court has ruled that, in light of the validity presumption, the burden to invalidate an ordinance is "extremely heavy." McClimans v. Bd. of Supervisors of Shenango Twp., 529 A.2d 562, 564 (Pa. Cmwlth. 1987).

         Section 607 of the MPC requires:

(a) The text and map of the proposed zoning ordinance, as well as all necessary studies and surveys preliminary thereto, shall be prepared by the planning agency of each municipality upon request by the governing body.
(b) In preparing a proposed zoning ordinance, the planning agency shall hold at least one public meeting pursuant to public notice and may hold additional public meetings upon such notice as it shall determine to be advisable.
(c) Upon the completion of its work, the planning agency shall present to the governing body the proposed zoning ordinance, together with recommendations and explanatory materials.
(d) The procedure set forth in this section shall be a condition precedent to the validity of a zoning ordinance adopted pursuant to this act.
(e) If a county planning agency shall have been created for the county in which the municipality adopting the ordinance is located, then at least 45 days prior to the public hearing by the local governing body as provided in [S]ection 608 [of the MPC, 53 P.S. § 10608 (relating to ordinance enactment)], the municipality shall submit the proposed ordinance to said county planning agency for recommendations.

53 P.S. § 10607 (emphasis added). "Section 607 of the MPC requires that the planning agency present to the governing body completed work in the form of a proposed zoning ordinance." Kohr v. Lower Windsor Twp. Bd. of Supervisors, 867 A.2d 755, 757 (Pa. Cmwlth. 2005).

         Section 608 of the MPC specifies that, thereafter,

[b]efore voting on the enactment of a zoning ordinance, the governing body shall hold a public hearing thereon, pursuant to public notice, and pursuant to mailed notice and electronic notice to any owner of a tract or parcel of land located within a municipality . . . . The vote on the enactment by the governing body shall be within 90 days after the last public hearing. Within 30 days after enactment, a copy of the zoning ordinance shall be forwarded to the county planning agency or, in counties where no planning agency exists, to the governing body of the county in which the municipality is located.

53 P.S. § 10608 (emphasis added).

         Planning Agency

         Yannaccone first argues that the trial court erred by recognizing ZOC as a valid planning agency. He specifically claims that ZOC did not properly exist, since it "sprang out of the void," see Original Record, Notes of Testimony, May 23, 2018 (N.T.) at 63, it was not limited to Board members, and its membership exceeded the MPC's limit.

         Section 607 of the MPC and Section 209.1(b)(2) of the MPC[10] expressly authorize a municipality's governing body to request its planning agency to prepare and present a zoning ordinance. 53 P.S. §§ 10209.1(b)(2), 10607. Section 107 of the MPC defines "planning agency" to include "a planning commission, planning department, or a planning committee of the governing body." 53 P.S. § 10107 (emphasis added). Section 201 of the MPC further specifies, in relevant part:

In lieu of a planning commission or planning department, the governing body may elect to assign the powers and duties conferred by [the MPC] upon a planning committee comprised of members appointed from the governing body. The engineer for the municipality, or an engineer appointed by the governing body, shall serve the planning agency as engineering advisor.

53 P.S. § 10201 (emphasis added).

         Regarding ZOC's creation, at the May 23, 2018 trial, Yannaccone presented the Board's answers to his interrogatories, wherein the Board admitted that ZOC was appointed by the Board, rather than created by ordinance. See Yannaccone Ex. 1 at 2; see also N.T. at 50, 58. Although Section 201 of the MPC specifies that planning commissions and/or planning departments shall be created "by ordinance," 53 P.S. § 10201, it is silent with respect to planning committees. Section 201 of the MPC merely states that the Board shall enlist a planning committee to prepare a proposed ordinance for the Board's review and adoption. 53 P.S. § 10201. Yannaccone does not cite to and this Court's research did not disclose any authority requiring the Board to create ZOC by ordinance.

         Board-appointed Township secretary/treasurer Lucinda R. Bomberger (Bomberger) testified at the hearing that ZOC's formation was discussed at regular Board meetings before the Board decided to separate from the Joint Commission. See N.T. at 36. Township Supervisor Willard F. Murray (Murray) recalled at the hearing that the Board assigned ZOC its proposed ordinance drafting task sometime between November 2013 and January 2014, and ZOC met for the first time in January 2014. See N.T. at 44, 50, 58. Bomberger confirmed that ZOC's meetings were open to the public, and that the Board's April 3, 2014 meeting minutes reflect that the public was expressly informed of that fact. See N.T. at 18, 40; see also Board Ex. 5.

         Murray also recalled that there were regular ZOC reports at the February to November 2014 Board meetings, and that the March 5, 2014 Board minutes specifically reflected the date and time of the next ZOC session. See N.T. at 56-57, 59; see also Board Ex. 4. Bomberger explained that she kept the Board's meeting minutes, which reflect that, on February 5, March 5, and April 3, 2014, one of the Board members offered ZOC progress reports. See Board Ex. 3 at 2, Board Ex. 4 at 1, Board Ex. 5 at 1, 3; see also N.T. at 14-18. She recalled, and the Board's May 7, 2014 meeting minutes recorded, that Township solicitor Benjamin Landon (Landon) reported on ZOC's status and the Board's next steps. See Board Ex. 6 at 2; see also N.T. at 18-19. Bomberger declared that the Board's June 4, 2014 meeting minutes denote that Landon's declaration that the public hearing on the proposed ordinance would take place on August 14, 2014. See Board Ex. 7 at 1; see also N.T. at 20-21. Bomberger represented that, at the Board's July 2, 2014 meeting, Landon explained that the Board would advertise the August 14, 2014 hearing 30 days in advance. See Board Ex. 12 at 1; see also N.T. at 24. Murray testified that the Board's meeting minutes are posted online for public access and review. See N.T. at 56-57.

         Yannaccone admitted that he did not attend or participate in Board meetings until he saw the Board's public hearing notice relative to the proposed ordinance, which would have been in approximately mid-July 2014. See N.T. at 65; see also Board Exs. 9, 12; N.T. at 17, 20, 22-24, 57, 60. Because the Board established that ZOC was discussed in 2013, it was created some time in late 2013 or early 2014, and its progress was reported for the better part of 2014, it appears that Yannaccone's claim that ZOC "sprang out of the void," N.T. at 63, stems from his failure to attend the Board's public meetings or keep himself apprised of its activities.

         Yannaccone claims in his brief that "[t]he Board has not offered any evidence that [] ZOC [] even existed - [there are] no Board minutes noting the creation of [] ZOC . . ., [and] no Board minutes noting the appointment of its members . . . ." Yannaccone Br. at 17. However, Yannaccone had the burden of proving that the Board failed to strictly comply with the MPC. 42 Pa.C.S. § 5571.1(d), (e). ...

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