Agenda - Planning Commission - 09/06/2007

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Zoning Bulletin See also: South Dakota 1/. U.S. Dept. of Interi01; 423 F.3d 790 (8th Cir. 2005), art. denied, 127 S. Ct. 67, 166 L. Ed. 2d 23 (U.S. 2006). Code--Landowners seek review of ordinance under code Township argues petition invalid without required deposit Citarion: In re Wharton Tp. Ordinance No.2 of 2006 ex 1'el. Pallay, 2007 WL 1774379 (Fa. Comml-u. Ct. 2007) PEN"'NS)'lVA.NlA (06/21/07)-ln July 2006, Wharton Township passed an ordinance that extended a township road through the property of several landowners. Under a section of the township ZOnill.g code, there was a process for landowners affected by ordill.ances to seek review. The code, in relevant part, stated that: "iilly resident or property owner affected by the ordinance may within thiny days after the en- actment of the ordinance of the board of supervisors, upon entering in the court sufficient surety to indemnify the board of supervisors for all COStS incurred in the proceedings, file exceptions to the ordinance together with a petition for review. Upon receipt of the exception and surety, the court of common pleas shall appoint viewers from the coun- LY board of viewers for the purpose of reviewing the ordinance and ex- ceptions thereto." The landow-ners filed a petition in the court of common pleas as was required. A court employee suggested that the surety-which was es- sentially a deposit-would be $1,000, but the landowners did not pay anything at the time of filing. i\fter 30 days had passed, the township asked the court to dismiss the case, arguing that the landowners' failure to enter the surety invalidated their petition. At the court hearing to decide on the dismissal, the landO"wners argued that the proposed order attached to their original petition merely "sug- gested" a sufficient amount for the deposit, but the trial court did not is- sue any order confuming the suggested amount. Therefore, the landown- ers argued, the proper amount of surety was never determined. The landowners argued that the court had to determine the surety be- fore they could enter it to protect them from the township "attacking" the petition on the grounds that the payment was insufficient. The land- owners presented and filed a second petirion for the appointment of a board of viewers and also proposed an order from the trial court setting a specific amount of surety to be entered with the court within 14 days. The trial court found that, under the code, the surety had to be entered before a party could file a perition for review of an ordinance: Since there was no surety posted here, the landow-ners failed to meet a statutory re- quirement and their perition could not be considered. The township's re- quest to dismiss was graIlted, and the landowners appealed. 4 104