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HomeMy WebLinkAbout2004-6457 Civil ROBERT J. KASPER and : IN THE COURT OF COMMON PLEAS OF JEANETTE E. KASPER, : CUMBERLAND COUNTY, PENNSYLVANIA CLARENCE TOIGO and MARY P. : TOIGO, LANE I. THRUSH and : SHIPPENSBURG AREA : DEVELOPMENT CORPORATION,: NO. 2004 – 6457 CIVIL TERM Appellant : : V.: : SOUTHAMPTON TOWNSHIP, : CIVIL ACTION – LAW Appellee : IN RE: LAND USE APPEAL BEFORE GUIDO, J. OPINION AND ORDER OF COURT Currently before us is Appellants’ challenge to the validity of a zoning ordinance adopted by appellee on November 22, 2004. Appellants have alleged six procedural defects in connection with the passage of the township’s zoning ordinance. They are as follows: 1)The ordinance was not prepared by the township planning agency as required by Section 607 (a) of the Municipalities Planning Code (hereinafter MPC.) 53 P.S. § 10607 (a). 2)The township planning agency did not submit recommendations and explanatory materials to the township board of supervisors as required by Section 607 (c) of the MPC 53 P.S. § 10607 (c). 3)The township did not submit a copy of the final ordinance to the Cumberland County Planning Commission as required by Section 607 (e) of the MPC. 53 P.S. 10607 (e). 4)An attested copy of the proposed ordinance was not filed in the county law library as required by Section 610 (a) (2) of the MPC. 53 P.S. § 10610 (a) (2). NO. 2004 – 6457 CIVIL TERM 5)The Township failed to comply with the advertising requirements of Section 610 (b) of the MPC by failing to readvertise the ordinance after making substantial changes. 53 P.S. § 10610 (b). 6)The zoning ordinance is not generally consistent with the comprehensive plan as required by Section 603 (j) of the MPC. 53 p.s. § 1063(j). We held an evidentiary hearing in connection with this matter on December 4, 2006. At their request the parties were given time to secure a transcript of the hearing and to prepare briefs in support of their respective positions. The matter is now ready for disposition. FINDINGS OF FACT We will begin by setting forth the facts as we found them to be after hearing the testimony. In the spring of 2004, at the direction of the Southampton Township Board of Supervisors the township engineer and a paid consultant prepared the first draft of the zoning ordinance at issue. They then submitted the draft ordinance to the Cumberland County Planning Commission for comment on June 16, 2004. The county planning commission made its recommendations by letter dated July 15, 2004. On July 12, 2004 the board of supervisors adopted a resolution creating a township planning committee as an advisory body. The resolution went on to provide as follows: The membership of the Planning Committee shall be each elected Supervisor, the appointed Township Engineer to serve as Engineering advisor, and the Solicitor to the Board of Supervisors or an attorney 1 appointed by the Board of Supervisors to serve as legal advisor. On July 15, 2004, the township planning committee held a public hearing on the proposed zoning ordinance. Over the next month the committee held three more 1 Joint Exhibit # 8. 2 NO. 2004 – 6457 CIVIL TERM 2 meetings to accept public comment. After considering the public comment, as well as the suggestions of the county planning commission, the township planning committee suggested several changes to the ordinance. On August 17, 2004 at the conclusion of its final meeting the township planning committee voted unanimously to recommend the proposed zoning ordinance and zoning map to the supervisors along with their proposed 3 changes. On August 23, 2004 the board of supervisors accepted the ordinance and zoning map, along with the suggested changes, from the township planning committee. The board directed that a copy of the proposed ordinance be filed in the county law library, which was done on August 26, 2004. The board also voted to hold a public meeting on 4 the ordinance on September 16, 2004. Public comment on the ordinance was taken at that meeting. On September 27, 2004 the board of supervisors held another public meeting at which it approved several zoning change requests as well as minor text changes to the ordinance. A final public meeting was held on October 11, 2004 during which various additional minor text changes to the ordinance were approved. The final draft of the ordinance incorporating the changes approved by the board was delivered to the Sentinel and News Chronicle for public inspection on November 10, 2004. Thereafter, notice of the supervisors’ intention to adopt the proposed ordinance was appropriately advertised in each of those publications. The ordinance was adopted at a meeting of the board of supervisors on November 22, 2004. An attested copy of the 2 All of the meetings held by the planning committee in connection with the proposed ordinance were duly advertised. 3 See Joint Exhibit # 32 pp. 89-90. 4 The meeting was properly advertised in two papers of general circulation. The advertisements informed the public that copies of the ordinance were available for inspection at the township offices, the county law library and the newspaper. 3 NO. 2004 – 6457 CIVIL TERM ordinance as adopted was delivered to the county planning commission and county law library on December 20, 2004. There were four separate revisions to the ordinance after it was first drafted and submitted to the Cumberland County Planning Commission in June 2004. These revisions were made in response to comments made by the public at the various meetings held by the township planning committee and the board of supervisors, as well as the changes approved by the supervisors at their meetings on September 27 and October 11, 2004. None of the revisions were submitted to the county planning commission for review, nor were any of the revisions substantial. Applicable Law We start with the proposition that township ordinances are presumed to be valid. Shadler v. Zoning Hearing Board of Weisenbergt Township, 578 Pa. 177, 850 A.2d 619 (Pa. 2004). The burden of proving that an ordinance is invalid is upon the challenger. Id. On the other hand “the procedures established by the legislature for the enactment of ordinances must be followed strictly in order for an ordinance to be valid.” Id. at 624 quoting from Lower Gwynedd Twp. v. Gwynedd Props., Inc., 591 A.2d at 287 (1995). Discussion Appellants allege that the instant ordinance is invalid because of the township’s failure to strictly comply with various provisions of the MPC during the course of its enactment. The six specific procedural defects alleged arise under three sections of the MPC. We will discuss the alleged errors under each section separately. 4 NO. 2004 – 6457 CIVIL TERM Section 603 Section 603 of the MPC provides in relevant part that “(z)oning ordinances adopted by municipalities shall be generally consistent with the municipal . . . comprehensive plan . . .” 53 P.S. § 10603 (j) Appellants contend that the ordinance at issue did not comply with this requirement. However the township’s expert witness opined that the zoning ordinance as enacted was generally consistent with the comprehensive plan. He testified at length as to the basis for his opinion. We found his testimony to be both credible and convincing. Section 607 Section 607 of the MPC provides in relevant part as follows: Preparation of proposed zoning ordinance (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. . . . (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. . . . (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 section 608, the municipality shall submit the proposed ordinance to said county planning agency for recommendations. 53 P.S. § 10607 (a) (c) (e). Appellants allege that the township failed to comply with this Section because 1) the original draft ordinance was not prepared by the planning committee; 2) the planning committee did not submit recommendations and explanatory material to the board of supervisors; and 3) the proposed ordinance submitted to the 5 NO. 2004 – 6457 CIVIL TERM county planning commission was not the final document. We are satisfied that the township strictly complied with the requirements of the Section 607 of the MPC. It is true that the original draft of the ordinance was prepared by the township engineer and a consultant. However, the ordinance submitted to the board of supervisors was prepared by the township planning committee. It carefully considered the draft ordinance and obtained input from the public as well as the township engineer, its consultant and solicitor. Before adopting it as its own, the township planning committee suggested several revisions based upon that input. It then recommended the proposed ordinance to the board of supervisors. While the ordinance recommended to the board was not identical to the ordinance submitted to the county planning commission, it contained only minor changes, including some of which were made to comply with that commission’s recommendations. Furthermore, we see no requirement in the MPC that each revision needs to be submitted to the county planning commission. The only requirement is that the proposed ordinance be submitted to the county planning commission at least 45 days prior to enactment. That requirement was met in the case at bar. Section 610 The relevant portions of Section 610 of the MPC provide as follows: Publication, advertisementandavailability of ordinances (a)Proposed zoning ordinances and amendments shall not be enacted unless notice of proposed enactment is given in the manner set forth in this section . . . The governing body shall publish the proposed ordinance or amendment once in one newspaper of general circulation in the municipality not more than 60 days nor less than 7 days prior to passage. Publication of the proposed ordinance or amendment shall include either the full text thereof or the title and a brief summary, . . . If the full text is not included: 6 NO. 2004 – 6457 CIVIL TERM (1)A copy thereof shall be supplied to a newspaper of general circulation in the municipality at the time the public notice is published. (2)An attested copy of the proposed ordinance shall be filed in the county law library or other county office designated by the county commissioners, . . . (b) In the event substantial amendments are made in the proposed ordinance or amendment, before voting upon enactment, the governing body shall, at least ten days prior to enactment, readvertise, 53 P.S. § 10610 (a) (b). Because we find that no substantial amendments were made to the proposed ordinance appellants’ claim that it should have been readvertised under 5 Section 610 (b) is without merit. However, appellants’ claim under 610 (a) is more problematic. The publication of the proposed ordinance required under 610 (a) included only the title and a brief summary. Therefore, the township was required to supply a copy to the newspapers, which it did. It was also required to file an “attested copy of the proposed ordinance” in the county law library, which it did not do. The only attested copy of the ordinance ever delivered to the law library was done so by correspondence dated December 20, 2004, almost a month after the ordinance was passed. While a copy of the proposed ordinance was delivered to the law library on August 26, 2004, it was neither attested nor was it a copy of the exact ordinance actually voted upon. There is no question that the township did not comply with the literal terms of Section 610 (a) (2). However, it is equally clear that neither the appellants nor any other members of the public were prejudiced by the technical error. A copy (albeit not attested) of substantially the same ordinance as was enacted had been on file at the Cumberland County Law Library since August 26, 2004. In addition, exact copies of the ordinance as adopted were available for inspection at the newspaper as well as at the 5 was Additionally the final draft of ordinance as adopted appropriately advertised. Therefore, even if the changes were deemed to have been substantial, this requirement of the MPC was met. 7 NO. 2004 – 6457 CIVIL TERM 6 township offices. Admittedly our Supreme Court has stated that “procedures . . . for the enactment of ordinances must be followed strictly.” Schadler, supra, 850 A.2d at 624. However, in the same opinion the Court also recognized that there may be exceptions to the general rule of strict compliance, noting that: 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, 850 A.2d at 627. It went on to suggest that as long as that purpose was fulfilled, strict compliance may not be necessary. In the instant case, we are satisfied that the public was adequately informed of the substance of the new zoning ordinance and given ample opportunity to comment upon it. To void the ordinance because of an inconsequential procedural defect would be a surreal elevation of form over substance. We are satisfied that the case at bar would qualify as an exception to the strict compliance rule. Therefore, we will deny appellants’ request to declare the ordinance to be void. ORDER OF COURT AND NOW, this ________ day of JULY, 2007, for the reasons set forth in the accompanying opinion Appellant’s Challenge to the Validity of the zoning ordinance of Southampton Township adopted on November 22, 2004, is DISMISSED. Charles M. Suhr, Esquire By the Court, Jan G. Sulcove, Esquire /s/ Edward E. Guido Edward E. Guido, J. 6 This fact was included in the publication required by Section 610 (a). 8