IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William J. Carr, Eileen L. Carr, : and The Horsham Neighborhood : Association , :

Appellant s :

: No. 1 5 3 6 C.D. 201 6
v. : Argued: June 5 , 201 7
: Horsham Township : : v. : : Horsham

- Blair, L.P. :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH , Judge

HONORABLE JULIA K. HEARTHWAY , Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED: July 10, 201 7

This is an appeal from an order of the Court of Common Pleas of Montgomery County (trial court) dismissing a land use appeal filed by William J.
Carr and Eileen L. Carr (Objectors) 1 challenging the validity of a Horsham Township (Township) ordinance. For the reasons set forth below, w e reverse the trial court’s dismissal of Objectors’ procedural challenges to the ordinance as untimely on the ground that Objectors were entitled to a nunc pro tunc appeal, but

1 Although the Horsham Neighborhood Association is also list ed in t he caption as an appellant , only the Carrs are appellants

.2

affirm its dismissal of Objectors’ spot zoning an d other substantive challenges to
the ordinance

.

On December 9, 2015, the Township Council enacted Ordinance No.
2015

- 8 (the Ordinance). (12/9/15 Township Council Meeting Minutes, Reproduced Record (R.R.) at 86a; Ordinance, R.R. at 151a

- 163a.) The Ordi nance amended the Township’s zoning ordinances and zoning map to permit a specific
mixed

- use commercial development sought by Horsham

- Blair, L.P. (Developer) as
a conditional use in the GC

- 2 General Commercial and Highway Commercial zoning district and to rezone as GC

- 2 certain Industrial and R

- 4 Residential properties equitably owned by Developer that adjoined other properties of Developer that were already zoned GC

- 2. (Ordinance, R.R. at 151a

- 163a; 11/11/15 Township Council Meeting Minutes, R.R. at 78a

- 8 0a.) The mixed

- use development that Developer intends to build on its GC

- 2 and rezoned properties includes a convenience store with gasoline sales, a pharmacy , and three restaurants. (11/23/15 Township Council H earing T ranscript at 4, R.R. at 129a.) Objectors were present at the December 9, 2015 Township Council meeting and a prior Township Council meeting concerning the Ordinance. (Objectors’ Response to Motion to Quash Appeal ¶ 64, R.R. at 105a; Objectors’ Brief in Opposition to Motion to Quash Appeal at 13, R.R. at 119a ; 8/8/16 Trial Court Order ¶ 3 ; 11/11/15 Township Council Meeting Minutes, R.R. at 79a.)

The Ordinance became effective on December 14, 2015, five days after its adoption. (Ordinance, R.R. at 155a

- 156a.) Following the enactment of the Ordinance, the Township published legal notices, the second of which appear ed on December 28, 2015, that described the content of the Ordinance and stated that it was adopted on December 9, 2015 and became effective December 14, 2015

.3

(12/17/15 Township Letter Placing Newspaper Advertisement, R.R. at 188a; Published Notice of Ordinance, R.R. at 142a

- 143a.) These published notices also
stated: This notice is intended to provide notification of the adoption

of the Ordinance li sted above and any person claiming a right to challenge the validity of the Ordinance must bring a legal action within thirty (30) days of the publication of the second notice of adoption which will appear in this newspaper on December 28, 2015

. (Publishe d Notice of Ordinance, R.R. at 143a.)

On January 26, 2016, more than 30 days after adoption and effective date of the Ordinance, but less than 30 days after the December 28, 2015 second published notice, Objectors filed a land use appeal in the trial cour t challenging the validity of the Ordinance. In this appeal, Objectors asserted that the enactment of
the Ordinance violated the Sunshine Act 2 and public hearing requirements of the Township’s ordinances. (Notice of Land Use Appeal ¶¶ 14

- 22, 42

- 47, R.R. a t 15a

16a, 19a

- 2 0 a.) Objectors also asserted that the Ordinance was invalid on the ground that it was spot zoning and arbitrarily and capriciously disregarded provisions of the Township zoning ordinances protecting residential neighborhoods. ( Id. ¶¶ 23

- 41 , 48

- 51, R.R. at 16a

- 2 0 a.)

Developer intervened and filed a motion to quash the appeal. In its motion to quash, Developer argued, inter alia , that Objectors’ appeal was barred as untimely and that the trial court lacked jurisdiction over Objectors’ cla ims that the Ordinance was spot zoning and arbitrary and capricious because the Pennsylvania

2 65 Pa. C.S. §§ 7 0 1

- 716

.4

Municipalities Planning Code (MPC) 3 requires that substantive land use challenges be filed with the zoning hearing board. In their response to the motion to quash , Objectors argued that the appeal was filed within the applicable period, but that if it was not, they were entitled to appeal nunc pro tunc because the published notice stated that the appeal period was 30 days from December 28, 2016 and created
confusio n as to the appeal deadline. (Objectors’ Response to Motion to Quash Appeal ¶¶ 26

- 27, R.R. at 93a

- 94a; Objectors’ Brief in Opposition to Motion to Quash Appeal at 8, R.R. at 114a.) On August 8, 2016, the trial court granted Developer’s motion to quash the appeal on the ground that Objectors’ procedural challenges to the Ordinance were not timely filed and on the ground that it lacked jurisdiction over Objectors’ substantive challenge s. This appeal followed

. 4

In this Court, Objector s argue , as they did before the trial court, that their appeal was timely filed and that if it was not timely filed , they were entitled to

a nunc pro tunc appeal

. We conclude that t he trial court correc tly h e l d that Objectors ’ procedural challenges to the Ordinance were not filed within the applicable appeal period. A ppeals challenging a land use ordinance based on procedural defects in its enactment must be filed within 30 days of the ordinance’s

3 Act of July 31, 1968, P.L. 805, as amended , 53 P.S. §§ 10101

- 11202. Sections 909.1 , 916.1 , and 1002

– A of the MPC , cited herein, w ere added by the Act of December 21, 1988, P.L. 1329

. Section 108 of the MPC , also cited herein, was added by the Act of July 4, 2008, P.L. 319

.

4 The issues in this appeal are all questions of law subject to this Court’s plenary, de novo review. Day v. Civil Service Commission of Borough of Carlisle , 931 A.2d 646, 650 (Pa. 2007) (timeliness of appeal is a question of law) ; Narberth Borough v. Lower Merion Township , 915 A.2d 626, 634 (Pa. 200 7) (same) ; Brown v. Levy , 993 A.2d 364, 365 n.1 (Pa. Cmwlth. 2010) ( whether the trial court erred in denying leave to appeal nunc pro tunc is a question of law ); Mazur v. Trinity Area School District , 961 A.2d 96, 101 (Pa. 2008) (whether trial court has

su bject matter jurisdiction over challenge to a particular type of government action is a question of law )

.5

effec tive date. 4 2 Pa. C.S. § 5571.1; 5 Section 1002

- A(b) of the MPC , 53 P.S. §
11002

- A (b); 6 Streck v. Lower Macungie Township Board of Commissioners , 58

5 Section 5571.1 of the Judicial Code provides in relevant part: (a) Applicability; court of common pleas.

-- (1) This section shall apply to any app eal raising questions relating to an alleged defect in the process of or procedure for enactment or adoption of any ordinance, resolution, map or similar action of a political subdivision. (2) An appeal pursuant to this section shall be to the court of com mon pleas. (b) Appeals of defects in statutory procedure.

-- (1) Any appeal raising questions relating to an alleged defect in statutory procedure shall be brought within 30 days of the intended effective date of the ordinance

. (2) Except as provided in subsection (c), it is the express intent of the General Assembly that this 30

- day limitation shall apply regardless of the ultimate validity of the challenged ordinance. (c) Exemption from limitation.

-- An appeal shall be exempt from the time limitation in subsection (b) if the party bringing the appeal establishes that, because of the particular nature of the alleged defect in statutory procedure, the application of the time limitation under subsection (b) would result in an impermissible deprivation of con stitutional rights.

* * * (e) Burden of proof.

-- Notwithstanding any other provision of law, an ordinance shall not be found void from inception except as follows:

* * * (2) In the case of an appeal which is exempt from the 30

- day time limitation in accordance with subsection (c), the party alleging the defect must meet the burden of proving each of the following:

* * * (ii) That there was a failure to substantially comply with statutory procedure which resulted in insufficient notification to the public of impending changes in or the existence of the ordinance, so that the public would be prevented from commenting on those changes and intervening, if necessary, or from having knowledge of the existence of the ordinance. 42 Pa. C.S. § 5571.1(a)

- (c) , (e) (emphasis added).

6 Section 1002

- A(b) of the MPC provides : (b) Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption shall be raised by appeal taken directly to the court of common pleas of the judicial district in which the municipality adopting the ordinance is located in (Footnote continued on next page...)6

A.3d 865, 870

- 75 ( Pa. Cmwlth. 201 2 )

. Objectors did not file their appeal to the trial court until January 26, 2016, more than 30 days after the December 14, 2015
effective date of the Ordinance

. In addition, claims that a governmental action is
invalid because it was taken in violation of the Sunshine Act must be brought within 30 days of the discovery of the Sunshine Act violation. 65 Pa. C.S. § 713 ; 7 Day v. Civil Service Commission of Borough of Carlisle , 931 A.2d 646, 65 2

- 53 (Pa. 2007). T he alleged Sunshine Act violation occurred n o la ter tha n December 9,
2015 , when the Ordinance was enacted , and Objectors knew of it at that time
because they were present at th at Township Council meeting . Accordingly, the 30

- day period for filing any Sunshine Act challenge expired on January 8, 2016 , b efore Objectors filed their appeal

.

Objectors argue that the Township ’s published notice extended the appeal deadline for challenging the Ordinance

. This argument is without merit. Section 108 of the MPC provides for published notice of the adoption of a land use ordinance “ once each week for two successive weeks in a newspaper of general circulation in the municipality ” that advises that “ any person claiming a right to challenge the validity of the ordinance

... must bring a legal action within 30 days

(continued...) accordance with 42 Pa. C.S. § 5571.1 (relating to appeals from ordinances, resolutions, maps, etc.). 53 P.S. § 11002

- A(b ).

7 Section 713 of t he Sunshine Act provides in relevant p a r t :

A legal challenge under this chapter shall be filed within 30 days from the date of a meeting which is open, or within 30 days from the discovery of any action that occurred at a meeting which was not open at which this chapter was violated, provided that, in the case of a meeting which was not open, no legal challenge may be commenced more than one year from the date of said meeting. 65 Pa. C.S. § 713.7

of the publication of the second notice

. ” 53 P.S. § 10108 (b), (c)(3). Section 108
further provides that “ any appeal or action contesting the validity of an ordinance based on a procedural defect in the process of enactment

... shall be dismissed, with prejud ice, as untimely if not filed within the 30th day following the second publication of the notice authorized in this section .” 53 P.S. § 10108 ( d ). Th e Section 108 appeal deadline, however, applies only to persons who had no prior
notice of the ordinance a nd does not alter or extend the appeal deadline of 30 days
from the effective date set by Section 5571.1 of the Judicial Code and Section
1002

- A(b) of the MPC for those who had notice of the ordinance’s enactment at
the time of its enactment. 53 P.S. § 10 108 (h ) (“[n] othing in this section shall be construed to abrogate, repeal, extend or otherwise modify the time for appeal as set
forth in section 1002

- A, where the appellant was a party to proceedings prior to the entry of a decision or otherwise had an ad equate opportunity to bring a timely
action in accordance with section 1002

- A to contest the procedural validity of an
ordinance ”) ; Streck , 58 A.3d at 87 3

- 75. Because Objectors had notice of the Ordinance’s enactment on December 9, 2015 , their appeal wa s subject to the appeal deadlines of Section 5571.1 of the Judicial Code and Section 1002

- A(b) of
the MPC , not the later deadline in the published notice. Streck , 58 A.3d at 87 3

- 75.

Objectors also argue that the Judicial Code, MPC and Sunshine Act appeal deadlines did not begin to run until January 6, 2016, when Developer filed an amended permit application, and that th e ir appeal is exempt from the deadlines
because application of the deadlines would result in a denial of constitutional rights. S ee 42 Pa. C.S. § 5571.1(c), (e)(2)(ii). These arguments likewise fail . The January 6, 2016 amended permit application was not an enactment or amendment of the Ordinance and did not alter the Ordinance’s effective date or the fact that the8

last meeting at which ac tion was taken on the Ordinance was December 9, 2015. Therefore, whatever its effect on Developer’s mixed

- use commercial development , the amended permit application is irrelevant to the appeal deadlines for challenging defects in the Ordinance’s enactment and for raising Sunshine Act violations.

Moreover, the alleged deficiencies in the Township’s procedures did

not den y Objectors or the public the opportunity to timely appeal. Objectors had notice of the Ordinance and any Sunshine Act violation when t he Ordinance was enacted on December 9, 2015, as they were present at that Township Council meeting. In addition, the alleged defects in the Ordinance’s enactment did not impair the public’s ability to file a challenge to the Ordinance. The procedural
de fects asserted by Objectors involve denial of the opportunity to comment at the meetings where the Ordinance was being considered, not lack of notice of the Ordinance’s content, the meetings or its enactment (Notice of Land Use Appeal ¶¶ 14

- 22, 42

- 47, R.R. at 15a

- 16a, 19a

- 20a), and the Ordinance was adopted at a public meeting. (12/9/15 Township Council Meeting Minutes, R.R. at 83a

- 86a .) Because neither Objectors nor the p ublic were denied notice of the Ordinance’s

enactment , there is no basis for a claim that enforcement of the applicable appeal
deadlines would result in a deprivation of constitutional rights.

The trial court, however, erred in denying Objectors’ request for nunc pro tunc appeal. An appeal filed after the expiration of the deadline is al lowed
nunc pro tunc where the filer shows that extraordinary circumstances involving fraud or breakdown in the administrative process caused the delay in filing. Cook v. Unemployment Compensation Board of Review , 671 A.2d 1130 , 1131 (Pa. 1996) ; Streck , 58 A.3d at 87 5; C. S . v. Department of Public Welfare , 879 A.2d 1274, 1279 (Pa. Cmwlth. 2005). A notice published by the government agency9

during the appeal period that states a later appeal deadline constitutes a breakdown in the administrative process that supports nunc pro tunc relief. Streck , 58 A.3d at 87 5 ; see also Ness v. York Township Board of Commissioners , 81 A.3d 1073 , 1082 (Pa. Cmw lth . 2013) , app. dismissed as improvidently granted , 105 A.3d 1257 (Pa. 2014)

. In Streck , this Court held tha t although Section 108 of the MPC did not extend the deadline imposed by Section 5571.1 of the Judicial Code and
Section 1002

- A(b) of the MPC, appellants challenging an ordinance’s enactment on procedural grounds were entitled to nunc pro tunc relief becau se the government agency published a Section 108 notice that stated a different, later appeal deadline. 58 A.3d at 875. T he Court ruled that where a notice under
Section 108 was published before the expiration of the appeal period, that notice

create d confusion as to the deadline and an appeal filed more than 30 days after the ordinance’s effective date but before expiration of the deadline stated in the published notice was timely on nunc pro tunc grounds. Id. The Court explained:

Objectors argue, a lternatively, that by undertaking the Section 108 notices during the 30

- day appeal period set by Section 5571.1 of the Judicial Code, the Township created confusion entitling them to a nunc pro tunc appeal. We agree. Objectors may have been able, and plann ing, to appeal under the 30

- day deadline in accordance with Section 1002

- A of the MPC and Section 5571.1 of the Judicial Code, when the Township suddenly announced a new deadline, i.e. , 30 days from July 14, 2010, the date of the second post

- enactment noti ce. A nunc pro tunc appeal is appropriate where there has been a breakdown in the administrative process. We conclude that here such a breakdown occurred. First, the Section 108 notices did not explain that the deadline of Section 5571.1 of the Judicial Co de remained in effect. Second, because the Section 108 notices were issued within the 30

- day period after enactment of Ordinance No. 2010

- 06, they may be construed as waiving the10 30

- day deadline in Section 5571.1. For these reasons, we hold that Objectors’ appeal was timely under principles of nunc pro tunc

. Id. (citation omitted) (emphasis in original). In Ness , this Court reaffirmed the holding of Streck that an appellant is entitled to nunc pro tunc relief where he appeals before the later deadline stat ed in a published Section 108 notice, but
denied nunc pro tunc relief because the appeal was not filed within the appeal period set forth in the Section 108 notice. 81 A.3d at 1082

.

This case is indistinguishable from Streck . Here, as in Streck , the notice was published before the statutory appeal deadlines expired, the notice stated a new, later deadline for “ any person claiming a right to challenge the validity of the Ordinance” (Published Notice of Ordinance, R.R. at 143a) without explaining th at it did not apply to persons with prior knowledge of the Ordinance , and Objectors filed their appeal after the statutory deadlines expired, but before the
deadline set in the notice. T he trial court’s assertion that Objectors were not
confused by the pu blished notice (Trial Court Op. at 15

- 17) is contradicted by the
record. Objectors argued to the trial court that they understood the published notice as giving them until January 27, 2016 to file any appeal challenging the Ordinance. (Objectors’ Respons e to Motion to Quash Appeal ¶¶ 23

- 27, R.R. at
92a

- 94a; Objectors’ Brief in Opposition to Motion to Quash Appeal at 8

- 9 , R.R. at
114a

- 115a.) While Objectors’ legal position on the effect of the Township’s notice

wa s without merit , that does not alter the fa ct that they were confused by the
notice. Accordingly, as in Streck , Objectors were entitled to a nunc pro tunc appeal. 8

8 Developer argues that the trial court’s dismissal of Obj ectors’ procedural challenges can be affirmed on the alternative ground that Sunshine Act violations cannot be asserted in a land use appeal. While Developer raised this argument below in its motion to quash, the trial court did (Footnote continued on next page...)11 Objectors also argue that the trial court erred in dismissing their
substantive challenges to the Ordinance for lack of jurisdic tion. We do not agree

. Appeals challenging the validity of a land use ordinance on substantive grounds must be filed with the zoning hearing board , not in the court of common pleas. Sections 909.1(a)(1) and 916.1(a)

- (b) of the MPC, 53 P.S. §§ 10909.1 (a)(1) , 109 16 .1 (a)

- (b)

. 9

The trial court therefore properly dismissed Section s VI

- VIII and XI of Objectors’ land use appeal for lack of jurisdiction. These sections all state substantive challenges, as they challenge the content of the Ordinance and the

(continued...) not address this issue. D eveloper cites no provision of the MPC o r the Sunshine Act or any case law that bars consideration of Sunshine Act violations in a land use appeal. Moreover, even if Developer prevailed in this argument, it could not support affirmance of the dismissal of all of Objectors’ procedural challenges, as Objectors’ procedural challenges to the Ordinance include
non

- Sunshine Act claims that the Township vi olated public hearing requirements set forth in Township ordinances. (Notice of Land Use Appeal ¶¶42

- 47, R.R. at 19a

- 20a.) We therefore decline to rule on this question.

9 Section 909.1(a) (1) of the MPC provides: (a) The zoning hearing board shall hav e exclusive jurisdiction to hear and render final adjudications in the following matters: (1) Substantive challenges to the validity of any land use ordinance, except those brought before the governing body pursuant to sections 609.1 and 916.1(a)(2). 53 P. S. § 10909.1(a)(1). Section 916.1 of the MPC provides in relevant part : (a) A landowner who, on substantive grounds, desires to challenge the validity of an ordinance or map or any provision thereof which prohibits or restricts the use or development of land in which he has an interest shall submit the challenge either: (1) to the zoning hearing board under section 909.1(a); or (2) to the governing body under section 909.1(b)(4), together with a request for a curative amendment under section 609.1. (b) Pe rsons aggrieved by a use or development permitted on the land of another by an ordinance or map, or any provision thereof, who desires to challenge its validity on substantive grounds shall first submit their challenge to the zoning hearing board for a dec ision thereon under section 909.1(a)(1). 53 P.S. § 10916.1(a)

- (b).12

development that it approved, rather than the procedures by which the Ordinance
was enacted. Section VI asserts a claim that the Ordinance is invalid on the ground that it constitutes spot zoning. (Notice of Land Use Appeal ¶¶ 23

- 27 , R.R. at 16a

1 7 a.) Spot zoning challenges are substantive challenges to the validity of an
ordinance. Penn Street, L.P. v. East Lampeter Township Zoning Hearing Board , 84 A.3d 1114, 1117

- 20, 11 3 1 (Pa. Cmwlth. 2014); Atherton Development Co. v. Township of Ferguson , 29 A.3 d 1197, 1203

- 05, 1214 (Pa. Cmwlth. 2011).
Sections VII

- VIII and XI of Objectors’ land use appeal allege that the Ordinance is invalid because the Township arbitrarily and capriciously disregarded substantive provisions of its zoning ordinances concerning traffic and residential areas. (Notice of Land Use Appeal ¶¶28

- 41, 48

- 51, R.R. at 1 7 a

- 20a.) Claims of arbitrary and capricious disregard of other, substantive zoning ordinance provisions are likewise substantive validity challenges. Plaxton v. Lycoming County Zoning Hearing Board , 986 A.2d 199, 202

- 03 (Pa. Cmwlth. 2009).

In contrast, Sections V, IX and X of Objectors’ land use appeal raise procedural challenges to the Ordinance. Section V asserts that the Ordinance is
invalid because it was enacted i n violation of the Sunshine Act. (Notice of Land Use Appeal ¶¶ 14

- 22, R.R. at 15a

- 16a.) Sections IX and X a ssert arbitrary and capricious disregard of public hearing requirements in Township ordinances . ( Id. ¶¶ 42

- 47, R.R. at 19a

- 20a.) “ C hallenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption ” of an o rdinance must be filed in the court of common pleas, not the zoning hearing board

. 53 P.S. § 11002

- A(b)

. The trial court the refore had jurisdiction to hear Sections V, IX and X of Objectors’ land use appeal.13 For the foregoing reasons, we reverse the order of the trial court insofar as it dismissed Sections V, IX and X of Objectors’ land use appeal , remand
this case to the tria l court for further proceedings on the merits of those challenges, and affirm the trial court’s dismissal of Section s VI

- VIII and XI of Objectors’ land use appeal

.

_______________ ____________________ JAMES GARDNER COLINS, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

William J. Carr, Eileen L. Carr, : and The Horsham Neighborhood : Association, :

Appellant s :

: No. 1536 C.D. 201 6
v. : : Horsham Township : : v. : : Horsham

- Blair, L.P. :

O R D E R

AND NOW, this 10 th day of July , 201 7 , the o rder of the Court of
Common Pleas of Montgomery County (trial court) in the above

- captioned matter
is REVERSED insofar as it dismissed Sections V, IX and X of Appellant s ’ land use appeal and this matter is REMANDED for further proceedings on the merits of those challenges. The order of the trial court is AFFIRMED insofar as it dismiss ed
Sections VI

- VIII and XI of Appellant s ’ land use appeal

.

Jurisdiction relinquished.

________ ___________________________ JAMES GARDNER COLINS, Senior Judge