Opinion
Argued November 3, 1977
February 6, 1978.
Zoning — Challenge to validity of zoning ordinance — Defect in enactment process — Pennsylvania Municipalities Planning Code, Act 1968, July 31, P.L. 805 — Posting of bond — The Second Class Township Code, Act 1933, May 1, P.L. 103.
1. Challenges to the validity of a zoning ordinance involving defects in the process of enactment for all municipalities except Pittsburgh and Philadelphia are now governed exclusively by provisions of the Pennsylvania Municipalities Planning Code, Act 1968, July 31, P.L. 805, which do not require the posting of a bond, and the bond posting requirements of The Second Class Township Code, Act 1933, May 1, P.L. 103, are no longer applicable to such challenges. [517-18]
Argued November 3, 1977, before Judges CRUMLISH, JR. and BLATT, sitting as a panel of two.
Appeal, No. 1954 C.D. 1976, from the Order of the Court of Common Pleas of Allegheny County in case of Guy Petrone v. Hampton Township Zoning Hearing Board, No. SA 1204 of 1976.
Appeal in the Court of Common Pleas of Allegheny County challenging validity of zoning ordinance. Motion to quash filed. Motion granted. O'KICKI, J. Challenger appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
G. William Bills, Jr., for appellant.
John C. Mohan, for appellee.
Guy Petrone (Appellant) appeals here from a determination of the Court of Common Pleas of Allegheny County that his zoning appeal should be quashed because of his failure to post bond.
The Appellant, a landowner in the Township of Hampton, filed a zoning appeal contesting the validity of Ordinance No. 195 which was enacted by the Township Council on July 13, 1976. The appeal, which was taken directly to the lower court in accordance with Section 1003 of the Pennsylvania Municipalities Planning Code (MPC), was based upon allegations that the Township did not comply with the procedures as set forth in the MPC in its adoption of this ordinance. The Township filed a motion to quash the appeal because the Appellant had not posted bond in accordance with The Second Class Township Code (Code). Following oral argument on that issue, the lower court quashed the appeal, and it is from this determination that the Appellant now appeals to this Court.
Hampton Township, Pa., Ordinance 195 (1976).
Act of June 1, 1972, P.L. 333, 53 P. S. § 11003, which provides as follows:
Validity of ordinance; procedural questions
Questions of an alleged defect in the process of enactment or adoption of any ordinance or map shall be raised by an appeal taken directly from the action of the governing body to the court filed not later than thirty days from the effective date of the ordinance or map.
Section 702 of The Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, added by Act of April 27, 1945, P.L. 319, § 1, as amended, 53 P. S. § 65741, provides as follows:
Any person aggrieved may, within thirty days after any ordinance or resolution takes effect, make complaint as to the legality of such ordinance or resolution to the court of common pleas upon entering into recognizance with sufficient surety to prosecute the same with effect, and for the payment of costs.
The sole legal issue presented here is whether or not the law requires the posting of bond in a zoning appeal involving procedural questions as to the validity of a second class township zoning ordinance. Prior to 1972, the filing of a bond was a condition precedent to such an appeal under Section 702 of the Code, 53 P. S. § 65741. However, appeals claiming a defect in the process of enactment of a zoning ordinance for all municipalities except Pittsburgh and Philadelphia, now arise under Section 1003 of the MPC, 53 P. S. § 11003, which includes no provision mandating the posting of a bond. Moreover, Section 1001 of the MPC expressly provides that the procedures set forth therein constitute the exclusive mode for securing review of any decision, determination or order of a local governing body of a municipality. Added by Act of June 1, 1972, P.L. 333, 53 P. S. § 11001. This section was added along with other major amendments to the MPC in 1972, and subsequent to its effective date, therefore, the exclusive procedure for filing zoning appeals in all municipalities except Philadelphia and Pittsburgh, is that provided by the MPC. See Appeal of Cibula, 25 Pa. Commw. 333, 360 A.2d 812 (1976); In Re: Appeal of Merlino, 19 Pa. Commw. 143, 339 A.2d 642 (1975); Penn Township Board of Supervisors v. DeRose, 18 Pa. Commw. 626, 339 A.2d 859 (1975). Appeals concerning procedural questions as to the validity of second class township zoning ordinances, therefore, must now be brought under Section 1003 of the MPC, 53 P. S. § 11003, which does not require bond instead of under Section 702 of the Code, 53 P. S. § 65741. See Morrisville Bank v. Township of Falls, 20 Pa. Commw. 149, 151, 341 A.2d 258, 259 (1975), and Ryan, Pennsylvania Zoning Law and Practice, § 9.1.14: at 27 (1977). The lower court's reliance upon language in the case of Hodge v. Zoning Hearing Board of West Bradford Twp., 11 Pa. Commw. 311, 312 A.2d 813 (1973), was misplaced because the applicable provisions of the MPC in that case did not include the 1972 amendments.
Sections 105 and 107 of the MPC, 53 P. S. § 10105, 10107, exclude cities of the first and second class, which are Philadelphia and Pittsburgh.
See Footnote 2. However, a lower court may require a bond under Sections 916 and 1008(4) of the MPC, 53 P. S. § 10916, 11008 (4), in land development appeals, situations not relevant here.
We conclude, therefore, that the Appellant's zoning appeal should not have been quashed, that the court below, having committed an error of law must be reversed, and that this case must be remanded for proceedings on the merits.
ORDER
AND NOW, this 6th day of February, 1978, we hereby reverse the order of the Court of Common Pleas of Allegheny County and order that this case be remanded for proceedings on the merits.