         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William J. Carr, Eileen L. Carr,             :
and The Horsham Neighborhood                 :
Association,                                 :
                   Appellants                :
                                             : No. 1536 C.D. 2016
              v.                             : Argued: June 5, 2017
                                             :
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, 2017

              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, we 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 listed in the caption as an appellant,
only the Carrs are appellants.
affirm its dismissal of Objectors’ spot zoning and 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 Ordinance
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-80a.) 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 Hearing Transcript 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 appeared 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.


                                        2
(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 listed 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.
(Published 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 court challenging the
validity of the Ordinance. In this appeal, Objectors asserted that the enactment of
the Ordinance violated the Sunshine Act2 and public hearing requirements of the
Township’s ordinances. (Notice of Land Use Appeal ¶¶14-22, 42-47, R.R. at 15a-
16a, 19a-20a.) 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-20a.)
                 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’ claims that the
Ordinance was spot zoning and arbitrary and capricious because the Pennsylvania



2
    65 Pa. C.S. §§ 701-716.


                                             3
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
confusion 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 challenges. This appeal followed.4
               In this Court, Objectors 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 the trial court correctly held that
Objectors’ procedural challenges to the Ordinance were not filed within the
applicable appeal period. Appeals 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, were 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. 2007) (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
subject matter jurisdiction over challenge to a particular type of government action is a question
of law).


                                                4
effective date. 42 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 appeal 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 common 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 constitutional 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…)
                                                5
A.3d 865, 870-75 (Pa. Cmwlth. 2012). 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, 652-53
(Pa. 2007). The alleged Sunshine Act violation occurred no later than December 9,
2015, when the Ordinance was enacted, and Objectors knew of it at that time
because they were present at that Township Council meeting. Accordingly, the 30-
day period for filing any Sunshine Act challenge expired on January 8, 2016,
before 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 the Sunshine Act provides in relevant part:
               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.


                                                6
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 prejudice, 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). The
Section 108 appeal deadline, however, applies only to persons who had no prior
notice of the ordinance and 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. § 10108(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 adequate 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 873-75. Because Objectors had notice of the
Ordinance’s enactment on December 9, 2015, their appeal was 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 873-75.
             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 their appeal is exempt from the deadlines
because application of the deadlines would result in a denial of constitutional
rights. See 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 the


                                          7
last meeting at which action 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 deny Objectors or the public the opportunity to timely appeal. Objectors had
notice of the Ordinance and any Sunshine Act violation when the 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
defects 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 public 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 allowed
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 875; C.S. v. Department of Public Welfare, 879 A.2d
1274, 1279 (Pa. Cmwlth. 2005). A notice published by the government agency


                                          8
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
875; see also Ness v. York Township Board of Commissioners, 81 A.3d 1073, 1082
(Pa. Cmwlth. 2013), app. dismissed as improvidently granted, 105 A.3d 1257 (Pa.
2014) .
            In Streck, this Court held that 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 because the
government agency published a Section 108 notice that stated a different, later
appeal deadline. 58 A.3d at 875. The Court ruled that where a notice under
Section 108 was published before the expiration of the appeal period, that notice
created 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, alternatively, 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 planning, 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 notice. 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 Code
            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 the
                                         9
              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 stated 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 that 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. The trial court’s assertion that Objectors were not
confused by the published 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’ Response 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
was without merit, that does not alter the fact 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 Objectors’ 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…)
                                              10
               Objectors also argue that the trial court erred in dismissing their
substantive challenges to the Ordinance for lack of jurisdiction. 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),
10916.1(a)-(b).9
               The trial court therefore properly dismissed Sections 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. Developer cites no provision of the MPC or 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 violated 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 have 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) Persons 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 decision thereon under section 909.1(a)(1).
53 P.S. § 10916.1(a)-(b).


                                                11
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-
17a.) 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, 1131 (Pa. Cmwlth. 2014); Atherton Development Co. v.
Township of Ferguson, 29 A.3d 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 17a-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 in violation of the Sunshine Act. (Notice of Land
Use Appeal ¶¶14-22, R.R. at 15a-16a.) Sections IX and X assert arbitrary and
capricious disregard of public hearing requirements in Township ordinances. (Id.
¶¶42-47, R.R. at 19a-20a.) “Challenges to the validity of a land use ordinance
raising procedural questions or alleged defects in the process of enactment or
adoption” of an ordinance must be filed in the court of common pleas, not the
zoning hearing board.     53 P.S. § 11002-A(b).     The trial court therefore had
jurisdiction to hear Sections V, IX and X of Objectors’ land use appeal.




                                        12
              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 trial court for further proceedings on the merits of those challenges,
and affirm the trial court’s dismissal of Sections VI-VIII and XI of Objectors’ land
use appeal.




                                        _______________ ____________________
                                        JAMES GARDNER COLINS, Senior Judge




                                          13
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



William J. Carr, Eileen L. Carr,          :
and The Horsham Neighborhood              :
Association,                              :
                   Appellants             :
                                          : No. 1536 C.D. 2016
            v.                            :
                                          :
Horsham Township                          :
                                          :
            v.                            :
                                          :
Horsham-Blair, L.P.                       :



                                   ORDER


            AND NOW, this 10th day of July, 2017, the order 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 Appellants’ 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 dismissed
Sections VI-VIII and XI of Appellants’ land use appeal.
            Jurisdiction relinquished.




                                         ________ ___________________________
                                         JAMES GARDNER COLINS, Senior Judge
