Rickert v. Latimore Township Board of Supervisors
Rickert v. Latimore Township Board of Supervisors
Opinion of the Court
OPINION BY
The owners of several tracts of land along “old route 15” in Latimore Township challenged the procedure of the Township’s Board of Supervisors (Supervisors) employed in enacting new zoning regulations that rezoned their tracts from Commercial-Industrial to Agricultural-Conservation and made various other text and map changes to the 1987 Ordinance. The Zoning Hearing Board (ZHB) upheld the new zoning regulations. Landowners, Terry R. Rickert, Robert L. Junkins, M. Everett Weiser and his wife Olive L. Weiser appealed to the Court of Common Pleas of Adams County (common pleas), which reversed the ZHB. The Township filed the present appeal. We affirm.
On March 4, 2002, the Supervisors enacted the 2002 Zoning Ordinance, which encompasses 105 pages and appears to be a complete ordinance that essentially replaces the prior 1987 Ordinance. At the same time, they also adopted a zoning map that decreased the size of the Commercial-Industrial District and added two new zoning districts.
On January 24, 2002, the Supervisors published notice of a meeting scheduled for January 28 expressly to set a date to hear public comments on the proposed zoning ordinance and map. On February 15, the Supervisors published notice in the Gettysburg Times announcing the public hearing scheduled for March 4, “to consider a proposed amendment and the adoption thereof’ and informing that a copy of
In addition to these published notices, the Township posted approximately 24 notices at various sites around the Township. In particular, the posted notices were placed where map changes were contemplated in the area of the Residential-Agricultural District in the western part of the Township, along the Route 15 corridor where changes were contemplated in the Commercial-Industrial District and in an area in the eastern part of the Township under consideration for rezoning to Agricultural-Conservation II. ZHB Hearing May 23, 2002, Appellant’s Exh. 2. The Township did not post notices in the area where it proposed that a portion of the Residential-Agricultural District near Lake Meade be rezoned to the newly created Residential-Lake Meade District or near tracts in the northeast where minor changes were contemplated in the Residential-Agricultural and Residential-Suburban Districts.
Following the March 4 enactment, Landowners filed a timely procedural challenge to the ZHB. Landowners contended that the Supervisors adopted a new ordinance without strictly complying with the requirements in Section 607 and 608 of the Municipalities Planning Code (MPC),
Landowners appealed to common pleas, challenging the sufficiency of evidence supporting the finding that the Supervisors enacted an amendment rather than a new ordinance and raising all of the procedural errors earlier asserted. Without taking additional evidence, common pleas agreed that the evidence established that the Supervisors adopted a new ordinance rather than mere amendments. Common pleas explained that comparison of the 1987 Ordinance and the newly enacted ordinance revealed that the Supervisors changed or added 91 sections amounting to 52% of the prior ordinance, defined 7 zoning districts rather than the 5 established in 1987, added substantially to the definitional section, and amended the zoning map. Common pleas also pointed to the lack of italics and underscoring in the usual style utilized by the Township for prior amendments.
Based on the conclusion that the Supervisors adopted a new ordinance, common pleas ruled that the enactment failed to comply with the MPC in that the Township Planning Commission did not prepare the new ordinance and the published notices of the public hearing were misleading in characterizing the ordinance as an amendment. In the alternative, common pleas ruled that even if considered as an amendment, the enactment failed to comply with the MPC requirements for posted and published notice. Common pleas deemed posted notice inadequate due to the lack of posting in areas of proposed map changes, such as Lake Meade, and deemed published notice inadequate because the summary failed to “provide any insight as to the major thrust” of the changes. Based on these conclusions, common pleas declared the ordinance void ab initio.
The Township filed the present appeal. It contends that the ordinance was an amendment, published notice describing it as such did not mislead, a fair reading of the published summary reveals sufficient information to alert the public to contemplated changes, and the posted notices complied with the MPC directive to post “at points deemed sufficient by the municipality along the tract to notify potentially interested citizens.” Section 609(b), 53 P.S. § 10609(b). Finally, the Township challenges the ZHB’s finding, which common pleas adopted, that the Supervisors prepared the ordinance.
In ruling that the published notices were inadequate, common pleas focused on the published statement that the ordinance under consideration amended the existing zoning ordinance. Common pleas concluded that this statement misled potentially interested residents. For this reason, common pleas ruled that the published notices, in failing to state that a new ordinance was under consideration, did not accurately inform the public as to the “particular nature of the matter to be .considered,” as required under the definition in Section 107, 53 P.S. §§ 10107. While we agree with common pleas that the Supervisors failed to adhere to requisite procedures, we do not conclude that the published notice inaccurately stated the nature of the zoning ordinance. Rather, we conclude that the enactment is fatally flawed by the Supervisors’ failure to adequately post hearing notices along tracts subject to a map change.
Our analysis does not depend on our first determining whether the Supervisors enacted an amendment or adopted a new ordinance. In the present case, the challenged ordinance is equally susceptible to either characterization. The document appears to be a complete integrated ordinance and states that it repeals and replaces the prior ordinance. However, comparison of the 1987 Ordinance and the newly enacted ordinance supports the ZHB’s finding that the new ordinance changed only a portion of the prior ordinance. We conclude that the factors that common pleas pointed to, such as the quantum of changes affected, the absence of the conventional strike/add drafting format or the statement that the enacted ordinance repeals and replaces an earlier ordinance, do not provide a sound basis for distinguishing a new ordinance from amendments. In any event, resolution of the present case does not require us to determine whether the challenged ordi
The MPC does not define or otherwise clarify what critical distinctions mark the difference between a wholly new ordinance subject to the requirements of Sections 607 and 608 versus an amendatory ordinance subject to the requirements of Section 609. Clearly, the initial zoning ordinance adopted by a municipality must be prepared in accordance with Section 607 and enacted in accordance with Section 608. Other than this requirement, the MPC provides no bright line rule as to whether a municipality must announce comprehensive changes effected by the repeal and replacement of an existing ordinance as a “new” ordinance. Logically, it would seem that all zoning legislation after the adoption of the first ordinance is an amendment. However, proposed changes to an existing ordinance may be so numerous and broad in their affect that treating the proposed legislation as a new ordinance is appropriate. For example, in Budco Theatres, Inc. v. Zoning Hearing Board of Springettsbury Township, 159 Pa.Cmwlth. 257, 682 A.2d 1072 (1993), the municipality repealed and replaced its previous zoning ordinance based on a newly drafted comprehensive plan. Id. at 1075-76. Our court ruled that the municipality properly enacted the new ordinance under Section 608 and was not required to comply with the requirement in Section 609 for an additional public hearing on post-hearing changes in a proposed draft of zoning amendments. Id.
From a purely practical perspective, when a municipality undertakes, as it must do periodically, a review of its comprehensive plans for future land use, the legislative result may be very broad changes to the prior ordinance. Published notice that the municipality is considering an entirely new ordinance that replaces the previous ordinance certainly serves to put property owners on notice to inquire further into how they may be affected. Inasmuch as the purpose of published notice is to alert interested landowners, s e.g., Lower Gwynedd Township v. Gwynedd Properties, Inc., 527 Pa. 324, 329, 591 A.2d 285, 287-88 (1991), calling an ordinance that repeals and replaces the previous ordinance “new” serves the purpose. But, equally correct when considering enactment of a zoning ordinance that follows the enactment of the first ordinance, is notice that labels the proposed ordinance an “amendment.” The only crucial matter is that once the governing body determines that its proposed ordinance is either new or an amendment, it consistently labels the proposed legislation and complies with the applicable procedural requirements.
Generally, statutes calling for notice in a particular manner and form before a zoning law is adopted or amended are mandatory and nonwaivable. Kurren Appeal, 417 Pa. 623, 208 A.2d 853 (1965); Kelly v. Philadelphia, 382 Pa. 459, 115 A.2d 238 (1955). The procedures established by the legislature for the enactment of ordinances must be strictly followed in order for an ordinance to be valid. Lower Gwynedd Township v. Gwynedd Properties, Inc., 527 Pa. 324, 591 A.2d 285 (1991).
In challenging the adequacy of posted notice, Landowners pointed to the failure to post every one of their properties along Route 15. Section 609 does not require posting each tract subject to a map amendment; it requires posting at points along the affected tract sufficient to notify potentially interested citizens. The postings in the Route 15 corridor were adequate. However, the Township failed to post any notices of proposed map changes in the Lake Meade District in the southwest where an area was rezoned to AC-I and in the northeast where boundary changes were made in the area of the R-A and R-S District.
Accordingly, we affirm.
ORDER
AND NOW, this 7th day of March, 2005, the order of the Court of Common Pleas of Adams County in the above captioned matter is hereby AFFIRMED.
. The Supervisors added the Agricultural-Conservation II (AC II) District, located in a relatively small area in the northeast, where uses are permitted additional to those permitted in the established AC I District. The new ordinance also added the Residential-Lake Meade (R-LM) District, located along the west side of Lake Meade in an area previously zoned Residential-Agricultural (RA) and there reduced the permitted uses previously provided under the RA regulations. Notably, the regulations for the newly created AC II District permit “concentrated animal operations” by special exception and thereby provide for this more intense agricultural use and its attendant detrimental impacts within a more limited area than the larger AC I District.
. Act of July 31, 1968, P.L. 805.
. Sections 607 and 608, directing the process for adopting a new ordinance, provide 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.
(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 section 608, the municipality shall submit the proposed ordinance to said county planning agency for recommendations.
Section 607, as amended, 53 P.S. § 10607.
Enactment of zoning ordinance
Before voting on the enactment of a zoning ordinance, the governing body shall hold a public hearing thereon, pursuant to public notice. 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 zon*1090 ing ordinances 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.
Section 608, as amended, 53 P.S. § 10608.
. Section 609 establishes the process for amendment, as follows:
Enactment of zoning amendments
(a) For the preparation of amendments to zoning ordinances, the procedure set forth in Section 607 for the preparation of a proposed zoning ordinance shall be optional.
(b) Before voting on the enactment of an amendment, the governing body shall hold a public hearing thereon, pursuant to public notice. In addition, if the proposed amendment involves a zoning map change, notice of said public hearing shall be conspicuously posted by the municipality at points deemed sufficient by the municipali-1y along the tract to notify interested citizens. The affected tract or area shall be posted at least one week prior to the date of the hearing.
(c) In the case of an amendment other than that prepared by the planning agency, the governing body shall submit each such amendment to the planning agency at least 30 days prior to the hearing on such proposed amendments to provide the planning agency an opportunity to submit recommendations.
(d) If, after any public hearing held upon an amendment, the proposed amendment is changed substantially, or is revised, to include land previously not affected by it, the governing body shall hold another public hearing, pursuant to public notice, before proceeding to vote on the amendment.
(e) If a county planning agency shall have been created for the county in which the municipality proposing the amendment is located, then at least 30 days prior to the public hearing on the amendment by the local governing body, the municipality shall submit the proposed amendment to the county planning agency for recommendations.
(f) The municipality may offer a mediation option as an aid in completing proceedings authorized by this Section. In exercising such an option, the municipality and mediating parties shall meet the stipulations and follow the procedures set forth in Article IX [concerning zoning hearing board and other administrative proceedings],
(g) Within 30 days after enactment, a copy of the amendment to 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.
Section 609, as amended, 53 P.S. § 10609. The most recent amendment to Section 609, enacted in January 11, 2002 and effective 90 days thereafter is not applicable to the present action inasmuch as the legislature made the 2002 amendments to the MPC applicable to appeals filed after the effective date. See Section 5 of the Act of January 11, 2002, P.L. 13.
. In addition to the notice requirements in Section 608 for a new ordinance and Section 609 for amendments, both new and amenda-tory ordinances must comply with the requirements in Section 610 for publication, advertisement and availability of the proposed ordinance. We note that common pleas concluded that the Supervisors failed to satisfy the requirements of Section 610 in failing to accurately describe the proposed ordinance and, particularly, in attaching the wrong zoning map to the copy of the proposed ordinance filed in the county law library. We also note and find troubling the inadequacy of the published summary insofar as it fails to indicate where or how the prior ordinance was amended. However, Landowners did
. The record establishes that the preparation of the proposed ordinance was a collaborative effort. Following the adoption of the 2000
. The MPC defines "public notice” as "notice published once each week for two successive weeks in a newspaper of general circulation in the municipality. Such notice shall state the time and place of the hearing and the particular nature of the matter to be considered at the hearing. The first publication shall not be more than 30 days and the second publication shall not be less than seven days from the date of the hearing.” Section 107, as amended, 53 P.S. § 10107.
. The MPC provides implicit support for recognizing a municipality's discretion in treating a zoning ordinance subsequent to the first adoption as new or amendatory. Section 609(a) provides that, in preparing ordinance amendments, the municipality may employ the procedures set forth in Section 607 for the preparation of a new ordinance. In addition, recently enacted changes to Section 609, which are not directly applicable to the present case, suggest that a pragmatic approach based on effective public notice should be the focus rather than concern with a label of "new” versus "amendment.” In 2002, the General Assembly added to Section 609 a requirement that the municipality mail notice of map changes to directly affected property owners. However, mailed notice is not required "when the rezoning constitutes a comprehensive rezoning.” 53 P.S. § 10609(b)(2)(ii). Clearly, regardless of the fact that every zoning ordinance after the first
. In their challenge to the ZHB, Landowners only alleged a deficiency in the postings along the Route 15 corridor. However, after the township submitted its map of the posting locations, which revealed the absence of postings along other tracts subject to map changes, Landowners expanded their argument to include the insufficiency of postings in the additional areas. Thereafter, they consistently preserved this contention.
Reference
- Full Case Name
- Terry R. RICKERT, Robert L. Junkins, M. Everett Weiser and Olive L. Weiser v. LATIMORE TOWNSHIP BOARD OF SUPERVISORS
- Cited By
- 5 cases
- Status
- Published