The MuNews

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. 

The Commonwealth Court recently ruled that there is a two-year statute of limitations to file a lawsuit claiming an overcharge for a tapping fee.  Harleysville Homestead, Inc. v. Lower Salford Township Authority, 732 C.D. 2008 (filed:  August 28, 2009).   The Court held that the two-year statute of limitations in Section 5524 of the Judicial Code applied because the allegation that the Authority overcharged for its tapping fees in violation of the Municipal Authorities Act sounds in tort for negligent performance of a statutory duty since the Authority has the statutory duty under the Municipal Authorities Act to correctly calculate a tapping fee.

The Commonwealth Court has issued its decision on the preliminary objections filed by East Brunswick Township to the Attorney General’s lawsuit under ACRE that East Brunswick’s sludge ordinance is preempted by state statutes regulating sludge.  Commonwealth of Pennsylvania, Office of Attorney General, v. East Brunswick Township, 476 M.D. 2007 (filed August 21, 2009).

            For purposes of deciding the Township’s preliminary objections, the court had to assume that the application of sludge is a “normal farming operation,”  bringing the ordinance under ACRE and the jurisdiction of the Attorney General.  While the Court has not yet decided on the merits whether the application of sludge is a “normal farming operation,” it would appear from the tone of the Court’s opinion that proving this is a hurdle that the Attorney General will be able to clear easily. 

            The Commonwealth Court in its opinion sent a clear message that local governments cannot regulate how, when and where sludge may be used to fertilize farmland.  The East Brunswick Township ordinance established fee, bond, chemical testing, notice and signage requirements that must be satisfied in order to apply sludge to land in the township.  The Commonwealth Court found that the Township did not have the authority to adopt many, if not all, of the ordinance provisions by reason of the Solid Waste Management Act (SWMA).  A local government cannot duplicate the regulatory regime established in the SWMA, and cannot impose more stringent requirements than the SWMA.

            It remains to be seen whether East Brunswick Township will continue the fight with the Attorney General over its sludge ordinance.