The Commonwealth Court of Pennsylvania has struck down a central Pennsylvania township’s zoning ordinance because the applicable planning agency did not advertise and hold a public meeting prior to the enactment of the zoning ordinance. The ordinance had been in place for the last six years. Its invalidation will require township officials to restart the process to adopt the ordinance in full compliance with the procedures under the Pennsylvania Municipalities Planning Code (MPC).
If the MPC is not precisely followed and a validity challenge is brought within 30 days of the zoning ordinance’s effective date, courts are obligated to declare the ordinance invalid. Section 608 of the MPC lays out the prerequisites for a township to enact a 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….
53 P.S. § 10608. This sounds simple enough, but a closer look at the terms in question reveals that the municipality must comply with numerous procedures to ensure the prospective zoning ordinance’s validity.
“Public notice” is defined 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 hearing.” 53 P.S. § 10107.
Additionally, prior to the governing body’s public hearing, Section 607(b) of the MPC requires the applicable planning agency to “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.” 53 P.S. § 10607(b). This is the section of the MPC that the township failed to comply with when it enacted its zoning ordinance six years ago, and that failure is what led to the ordinance’s invalidation.
Like the provisions under Section 608 of the MPC for public hearings, a closer review of Section 607 shows additional steps that a municipality must take to perfect a public meeting. Pursuant to the definitions under Section 107 of the MPC, any “public meeting” must also comply also comply with “public notice” requirements under the Sunshine Act, 65 Pa.C.S. § 703, including the posting of meeting notices at the principal office of the agency and giving notice to certain parties as required by Section 709(c) of the Sunshine Act.
The public meeting requirements for the applicable planning agency under Section 607 of the MPC were critical to the invalidation of the Lewis Township zoning ordinance. Early in 2014, the township formed a Zoning Ordinance Committee (ZOC) consisting of township supervisors, members of a joint planning commission with an adjoining municipality, and township residents. The township hired a consultant engineering firm to draft the zoning ordinance based on input from the ZOC. The consultant met periodically with the ZOC at informal, non-advertised meetings. The township supervisors discussed the consultant’s recommendations at duly advertised board meetings. The board of supervisors held a duly advertised public hearing in August 2014, and enacted the zoning ordinance at a duly advertised board meeting in December 2014.
Township resident James Yannaccone brought a validity challenge within 30 days of the effective date of the zoning ordinance. He asserted the zoning ordinance was invalid because the ZOC never held a duly advertised public meeting before the board of supervisors enacted the zoning ordinance. Following a non-jury trial, the court of common pleas ruled in the Township’s favor, finding that the township substantially complied with the public meeting requirements for planning agencies under Section 607 of the MPC because the board of supervisors discussed the ZOC’s progress at the duly advertised board meetings.
The Commonwealth Court reversed the trial court’s decision and invalidated the zoning ordinance. Although board of supervisors’ complied with the public notice and public meeting requirements under section 608 of the MPC to hold a duly advertised public hearing and to adopt the ordinance a duly advertised public meeting of the board of supervisors, planning agencies are also mandated by section 607(b) of the MPC “to hold at least one public meeting after public notice.” As such, “neither the notices published or posted regarding Board meetings or the Board’s August 14, 2014 hearing on the proposed ordinance satisfied the strictures” of section 607(b) of the planning code. None of the ZOC’s informal meetings with the engineering consultant were advertised, and thus the township did not strictly follow the public meeting and public notice requirements for planning agencies under the MPC.
This case serves as a reminder to municipalities of the harsh consequences that may result from overlooking any of the MPC’s procedural requirements. Here, the public was fully aware of the zoning ordinance before enactment because the board of supervisors duly advertised the public hearing and the public meeting at which the board of supervisors adopted the zoning ordinance. Nonetheless, because the applicable planning agency did not hold a separate public meeting prior to enactment, the zoning ordinance was invalidated and the township is required to restart the enactment process from the beginning.
With contribution from Angela Mauroni, second year J.D. candidate at the University of Pittsburgh School of Law.