Glen-Gery Corporation v. Zoning Hearing Board of Dover Township

In Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 907 A.2d 1033 (2006), Glen-Gery challenged procedural defects in the enactment of two ordinances. Glen-Gery brought the action in 2002. The ordinances were passed in 1995 and 1997, respectively, and contained provisions that any challenges must be raised within thirty days of their respective effective dates. As the ordinances were passed several years prior to the action, the zoning hearing board dismissed Glen-Gery's action as untimely and this Court affirmed the decision. On appeal, the Supreme Court reversed this Court's decision. It explained that an ordinance found unconstitutional was considered void from the date of its enactment. Therefore, "the effect of a finding that the ordinance is void ab initio means that it essentially never became law because of its procedural defects; thus, any component of the challenge that contains a time bar, or intended effective date, is deemed void for having never been properly passed." Glen-Gery Corporation, 589 Pa. at 147-48, 907 A.2d at 1040. As such, if the procedural defects are proven, the effective dates would be deemed not to have occurred. Accordingly, the thirty-day appeal period could not have expired as the appeal period would have never begun. The Supreme Court further explained that the doctrine of void ab initio "only concerns those claims that implicate notice, due process or other constitutional rights of a party...." Glen-Gery Corporation, 589 Pa. at 143, 907 A.2d at 1037. The Court, analyzing the legal application known as the void ab initio doctrine, concluded that a party seeking to pursue a challenge in 2002 to ordinances enacted by Dover Township in 1995 and 1997 based upon alleged procedural defects in the enactment process could maintain such an action, despite statutory language limiting the right of a party to raise a procedural-defect challenge to a period of thirty days following the intended effective date of an ordinance. See 42 Pa. C.S. 5571(c)(5). The Court noted that such challenge was proper, despite the statutory limitation period, where the legislative body that attempted to enact the ordinances did not strictly comply with the procedural requirements of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. 10101 - 11202.