The MuNews

 In In re Appeal of Arnold, 147 C.D. 2009 (Commonwealth Court, filed August 13, 2009), the Commonwealth Court has clarified when a Board makes a final decision.  In this case, the Appellant argued that it was not the public vote in December that was the final decision, but rather the date when the written decision was issued in January.   The Appellant opposed a conditional use for a Wal-Mart that was approved by a 2-1 vote.  One of the supervisors who voted for the conditional use did not win re-election, and the Apellant argued that the “final” written decision was only a 1-1 vote. The Commonwealth Court did not buy that argument.   The Commonwealth Court noted that the Sunshine Act requires that all votes must be publicly cast and must take place at a meeting open to the public.  The only purpose of a written decision under the MPC is to explain the reasoning and basis for the vote - not to vote again.  To hold otherwise would open the door to a governing body voting one way at the open meeting and then issuing a written final decision at odds with the vote.

Once again, the Federal Trade Commission has delayed enforcement of the Red Flags Rules.   Enforcement is now set to take effect June 1, 2010.  Originally, the rule went into effect on January 1, 2008 but compliance was deferred until November 1, 2009.

In a recent case, Hawk v. The Eldred Township Board of Supervisors, (218 C.D. 2009, filed October 6, 2009), The Commonwealth Court, opinion by Judge Pelligrini, ruled that the  changes made in 2008 by the Legislature to Section 5571.1 of the Judicial Code (423 Pa.C.S. §5571.1)  to challenge the procedural validity of a land use ordinance are constitutional.  The changes were made in response to the Supreme Court’s Glen-Gery decision, which held that defects in the enactment of the ordinance render the ordinance void ab initio, and the ordinance is to be treated as if it never existed.

                        

            In Hawk, the challenger was cited for operating a dirt race track.  Hawk then challenged the zoning ordinance for not being adopted properly.  The Commonwealth Court first ruled that the Section 5571.1 does apply to Hawk’s appeal because even though the ordinance was adopted in 2004 and section 5571.1 was adopted in 2008, a statute that relates to procedural matters applies to all cases filed after the effective date of the statute.  The new changes went into effect on July 8, 2008 and Hawk filed his challenge on October 10, 2008, so Section 5571.1 apples to his challenge.

 

            The Commonwealth Court next ruled that the Township’s zoning ordinance was not void ab initio, even though the Township did not strictly follow every requirement under the MPC.  Section 5571.1 provides a multi-tiered analysis depending on how much time has passed since an ordinance was adopted.  In this case, the time delay was four years.  After two years, a challenger must show not just that procedural rules were not followed, but that there was a deprivation of a constitutional right (i.e. the challenger had no notice that the ordinance was going to be enacted).  The Township was able to show that it held numerous advertised meetings before it adopted the ordinance that would have provided notice to Hawk, even if all the technical notice requirements under the MPC were not met.  A challenger also must  rebut the presumption that after two years an ordinance has been substantially relied upon by the public.  The Commonwealth Court ruled that Hawk failed to his burden under Section 5571.1.

 

             This is another BIG decision for municipalities because it upholds the Legislature’s attempt to redress the Supreme Court’s holding in Glen-Gery that could have the effect of tossing aside long-standing ordinances simply because an advertising mistake was made years ago.