Does Section 5571(C)(5) Apply to Zoning Hearing Boards ?
This Court, in Glen-Gery Corporation v. Zoning Hearing Board of Dover, 856 A.2d 884 (Pa. Cmwlth. 2004), specifically addressed the issue of whether Section 5571(c)(5) of the Judicial Code, as amended by Act 215 of 2002, is applicable to appeals to zoning hearing boards or whether it is applicable only to appeals to courts.
In Glen-Gery, the Court was presented with procedural challenge filed by a landowner to the validity of both the township's zoning ordinance and subdivision ordinance.
At the time the challenge was filed in May of 2002, the latest enactment of the zoning ordinance was September 8, 1997, and the latest enactment of the subdivision ordinance was February 13, 1995.
On April 25, 2003, the township's zoning hearing board dismissed the challenge as untimely in reliance upon this Court' decision in Schadler and Section 5571(c)(5) of the Judicial Code, as amended.
The landowner appealed, arguing that the zoning hearing board erred in dismissing its procedural challenge. the landowner took issue with this Court's decision in Schadler and the substance and retroactivity of the amended Section 5571(c)(5) of the Judicial Code.
Recognizing that the Supreme Court reversed our decision in Schadler, we then addressed the issue of whether the zoning hearing board erred in determining that amended Section 5571(c)(5) of the Judicial Code barred the procedural challenge as untimely.
In Glen-Gery, we specifically determined that the amended Section 5571(c)(5) of the Judicial Code applies to land use appeals filed before the zoning hearing boards, including the landowner's challenge of the township's zoning ordinance and subdivision ordinance, and must be applied retroactively to appeals filed after December 31, 2000.
The Court wrote:
In applying the above principles of statutory construction, we believe that the General Assembly clearly intended that Section 5571(c)(5) of the Judicial Code, as amended, applies to land use ordinances adopted pursuant to the MPC.
Not only was it adopted later in time than the MPC, but it also unequivocally states that it was intended to apply to land use ordinances enacted under the MPC.
Consequently, we conclude that Glen-Gery's argument to the contrary is at odds with the well-settled principles of statutory construction and, therefore, lacks merit. Glen-Gery, 856 A.2d at 892.
Additionally, we wrote:
In applying the above-mentioned rules of statutory construction to the amendment to Section 5571(c)(5), we believe that it is clear from the language of Section 6 of Act 2002-215 that the General Assembly obviously intended that it applies to a challenge relating to an alleged defect in the process of the enactment or adoption of any ordinance commenced after December 31, 2000. Glen-Gery, 856 A.2d at 893.