Is a defective ordinance always ineffective? It all depends, according to a new decision of the Commonwealth Court. In Hawk v. the Eldred Township Board of Supervisors, —A.2d—(Pa. Commw. Ct. 2009), the Pennsylvania Commonwealth Court discussed Section 5571.1 of the Judicial Code as well as related changes to Section 1002-A (b) of the Municipalities Planning Code with respect to procedural challenges to municipal ordinances. The Appellant filed a procedural challenge to an ordinance nearly four years after the ordinance’s enactment date. New Section 5571.1 of the Judicial Code sets forth a multi-tiered system in which the criteria for challenging an ordinance vary and increase depending upon the amount of time that has passed since its adoption. The Court found that the Appellant was unable to meet his burden to show that insufficient notice was given to the public. The Appellant was further unable to rebut the presumption of substantial reliance on the ordinance by the Township and its landowners – a requirement set forth in Section 5571.1(d)(2) of the Judicial Code which applies if the ordinance is challenged two or more years after its effective date.
The Court noted that a challenge to an ordinance can never be time barred if doing so would cause the challenger to suffer a deprivation of constitutional rights; however, this was not shown in the instant case. As discussed by the Court, Section 5571.1 of the Judicial Code does indeed increase the hurdles to procedural challenges as time passes, and further increases the burden placed on challengers to rebut the presumption of reliance upon the ordinances which serves to protect municipalities and alleviate their uncertainty as to whether their ordinances are valid. Clearly, municipalities should continue to carefully follow procedures with respect to enactment of their ordinances; however, it does appear that with the passage of time, municipalities now have a greater chance of their ordinances being found to be valid and enforceable.
