Luke v. Cataldi

¶1DISSENTING OPINION BY

¶2I respectfully disagree with the majority’s decision affirming the trial court’s decision to dismiss Appellant’s complaint for failure to file a timely appeal of the Supervisors’ decision to grant conditional mining use permits in the above-captioned matter.

¶3The majority opinion avers that in the case of procedural defects, the distinction between the enactment of an ordinance or amendment thereto, as in Schadler v. Zoning Hearing Board of Weisenberg Township, 578 Pa. 177, 850 A.2d 619 (2004), and the grant of a conditional use permit governed by the Pennsylvania Municipalities Planning Code (MPC)1 as in the present matter, precludes reaching the same result as the Supreme Court reached in Schadler. In this regard, the majority contends that while in Schadler, the Supreme Court found that failure to comply with required publication procedures rendered an ordinance “void ab initio,” the same rationale is inapplicable in the present matter where the procedural irregularities at issue do not involve an ordinance but rather the grant of a conditional mining use application. The majority’s reliance upon the foregoing distinction, however, without considering the nature of the conditional use application, completely ignores the fact that the allowance of extensive deep mining activities near Appellants’ properties, as in the present case, affects Appellants’ substantive rights as fundamentally as would a legislative enactment.

¶4Further, although the majority concedes that Sections 603(c)(2) and 913.2(a) of the MPC require “the governing body to conduct a hearing before issuing a conditional use permit,” it avers that “whether the meeting conducted by the Supervisors on the application was sufficient to meet the Section 913.2(a) requirement of a ‘hearing’ is not before this Court,” and that even assuming that the Supervisors erred, “Appellants were required to challenge the *1122Supervisors’ action or inaction, by filing a timely appeal.” (Majority Opinion, p. 10). In this regard, the majority is adamant that “nothing in this language [Section 1002-A of the MPC, 53 P.S. § 11002-A] suggests that an appeal that raises one kind of error, ie., failure to hold a hearing, is exempted from the thirty-day requirement for bringing that appeal.” (Majority Opinion, p. 11.) This type of narrow statutory interpretation, essentially a hear-no-evil, see-no-evil literal upholding of procedural rules regardless of the facts, produces a result that is as absurd as it is inequitable.

¶5Notwithstanding the majority’s attempt to obfuscate the type of hearing, “public informational or adjudicatory,” intended in Section 913.2(a) of the MPC (Majority Opinion, p. 10, n. 17), any reasonable reading of Section 603(c)(2) of the MPC unequivocally refers to the allowance of conditional uses pursuant to public notice and hearing. The present record supports Appellants’ averment that, in contravention of both Section 603(c)(2) of the MPC and Article Four of the South Buffalo Township Zoning Ordinance, PA., art. 4, § 401(1990), no public notice was given and/or hearing scheduled concerning the fact that the Board of Supervisors at its June 12, 2000 meeting intended to vote on the mining companies’ conditional use applications. As a result of the foregoing violations, Appellants and other residents were deprived of any opportunity to voice their opposition to mining activities having both a significant impact upon their substantive rights as owners of property, and an irrevocably adverse effect upon their environment and quality of life. In Smith v. Springfield Township Board of Supervisors, 787 A.2d 1112, 1115-16 (Pa.Cmwlth.2001), this Court, quoted our Supreme Court’s opinion in Roeder v. Borough Council of Borough of Hatfield, 439 Pa. 241, 246, 266 A.2d 691, 694 (1970),

“[I]t hardly seems reasonable that the legislature intended that ordinances be immune from constitutional or other challenge after 30 days.” Id. Indeed, courts have stated that substantive validity questions are not subject to the thirty-day appeal period. Holsten v. West Goshen Twp., 56 Pa.Cmwlth. 283, 424 A.2d 997 (1981); Hodge v. Zoning Hearing Board of West Bradford Twp., 11 Pa.Cmwlth. 311, 312 A.2d 813 (1973).

Accordingly, we conclude in the present case that there is no problem with Appellants’ timeliness in challenging either procedure or substance.

¶6[Emphasis added.] Although concededly the foregoing refers to ordinances, the Supreme Court’s rationale herein is nonetheless applicable to the present Appellants who are challenging procedural failures, albeit in the granting of conditional use applications rather than the enactment of legislative changes, that profoundly impact upon their substantive rights as residents and property owners.

¶7The majority insists that because Appellants first challenged the Board’s grant of the mining conditional use applications in June of 2001, after the retroactively effective date of the amendment,2 the untimeliness of Appellants’ challenge beyond’the statutorily prescribed appeal period precludes its success. See Taylor v. Harmony Township Board of Commissioners, 851 A.2d 1020 (Pa.Cmwlth.2004). In Tay*1123lor, we noted that the Supreme Court in Schadler, specifically declined to address the impact of the amendment to Section 5571(c)(5) of the Judicial Code because said amendment was not in effect when Schadler brought his procedural challenge.

¶8Although it is indisputable that Appellant’s first challenge was filed after December 81, 2000, the factual situation here warrants a different result than that reached by this Court in Taylor. Considering the fact that Appellants had no notice about the Board’s June 12, 2000 approval of the mining applications, the earliest that Appellants could have challenged said approval would have been in December of 2000 when, according to the record, mining activities began, thereby affording Appellants little time to comply with appeal deadlines. In this regard, the retroactive application of the amendment back to December 31, 2000, as set forth in the statutory notes to Section 5571(c)(5) of the Judicial Code, as amended on December 9, 2002, is inequitable since Appellants filed their challenge well before the enactment of the amendment, thereby making, absent the amendment’s retroactive application, the Schadlerrationale applicable and the Board’s grant of the mining conditional use applications void ab initio. In City of Philadelphia v. Patton, 148 Pa.Cmwlth. 141, 609 A.2d 903, 904-05 (1992), this Court stated:

Generally, a retroactive application of new legislation will offend the due process clause if, balancing the interests of both parties, such application would be unreasonable. Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 987 (1983). Retroactive laws are deemed unreasonable if they impair contractual or other vested rights_While procedural rules apply to cases filed after their effective dates, substantive rights are governed by the law in effect at the time a cause of action accrues. Bell v. Koppers Co., 481 Pa. 454, 392 A.2d 1380 (1978).

¶9[Emphasis added.] This safeguarding of substantive rights, such as those being asserted by the present Appellants, from obliteration by procedural rules was also reaffirmed by our Supreme Court in Gokalp v. Pennsylvania Manufacturers’ Association Insurance Company, 553 Pa. 452, 719 A.2d 1033, 1034 (1998), wherein the Court reaffirmed the result in Bell, which found that “when substantive rights are involved, the applicable law must be that which is in effect at the time the cause of action arises.” [Emphasis added.]

¶10Based upon the above discussion, the result reached by the majority opinion is inconsistent with the Supreme Court’s decision in Schadlerand with constitutional and equitable principles.

¶11Accordingly, the trial court’s order should be reversed.