The opinion
COLINS, President Judge,
Concurring.
I respectfully disagree with the majority’s decision to reverse the decision of the trial court that had reversed the decision of the Weisenberg Township Zoning Hearing Board (ZHB) after concluding that the Weisenberg Township Mobile Home Park Ordinance (Ordinance 99-4) enacted on February 7, 2000 was void ab initio.
The majority bases its decision upon the applicability of the General Assembly’s enactment of 53 P.S. § 66601 to the present matter and what it refers to as the inapplicability of Cranberry Park Associates v. *1271 Cranberry Township Zoning Hearing Board, 561 Pa. 456 , 751 A.2d 165 (2000), and Valianatos v. Zoning Board of Richmond Township, 766 A.2d 903 (Pa.Cmwlth.2001). The majority opinion states
However, since the inception of the Cranberry Park case, as acknowledged by our Supreme Court in its decision, the General Assembly repealed 53 P.S. § 65741 and recodified the subject matter of that section at 53 P.S. § 66601 [footnote omitted], which provides, in relevant part:
The board of supervisors may adopt ordinances in which general or specific powers of the township may be exercised, and, by the enactment of subsequent ordinances, the board of supervisors may amend, repeal or revise existing ordinances. All proposed ordinances, whether original, amended, repealed, revised, consolidated or codified, shall be published not more than sixty days nor less than seven days before passage at least once in one newspaper circulating generally in the township. Public notices shall include either the full text or a biief summary of the proposed ordinance which lists the provisions in reasonable detail and a reference to a place within the township where copies of the proposed ordinance may be examined. If the full text is not included, a copy shall be supplied to the publishing newspaper when the notice is published, and an attested copy shall be filed within thirty days after enactment in the county law library or other county office designated by the county commissioners, who may impose a fee no greater than that necessary to cover the actual costs of storing the ordinances. The date of such fifing shall not affect the effective date of the ordinance, the validity of the process of the enactment or adoption of the ordinance; nor shall a failure to record within the time provided be deemed a defect in the process of the enactment or adoption of such ordinance. If substantial amendments are made in the proposed ordinance, before voting upon enactment, the board of supervisors shall at least ten days before enactment readvertise in one newspaper of general circulation in the township a brief summary setting forth all the provisions in reasonable detail, together with a summary of the amendments. Ordinances shall be recorded in the ordinance book of the township and are effective five days after adoption unless a date later than five days after adoption is stated in the ordinance.
(Emphasis added and omitted.) The majority selectively focuses upon the recordation requirements of the foregoing section as being the sole determinant of whether or not a proposed ordinance is validly enacted or adopted and ignores the notice and publication requirements that are equally mandatory and with which the Weisenberg ZHB failed to comply. The majority emphasizes only that portion of 53 P.S. § 66601 that states that the date on which the zoning authority files an attested copy of a proposed ordinance shall not affect the effective date of the ordinance and/or the validity of its enactment, without at the same time, acknowledging that the fifing and recordation procedures do not negate the statute’s notice and publication requirements for enacting a proposed ordinance. In this regard, the trial court properly noted the ZHB’s flagrant noncompfiance with the foregoing notice and publication requirements as follows:
The first advertisement, on July 28, 1999, was placed more than sixty (60) days prior to the first meeting, October 4, 1999, and more than sixty (60) days prior to the February 7, 2000, enactment. None of the advertisements included a reference to a place in the *1272 municipality where copies of the proposed Ordinance could be examined. None of the advertisements included the full text or a brief summary of the Ordinance. Further, the February 2, 2000, advertisement was placed less than seven (7) days prior to passage, and did not provide notice that passage of the Ordinance would be considered at the meeting.
The notice provisions contained in the MPC “mandatorily obligate a township to comply with the requirements of such provisions and if a township fails to meet the notice requirements then the appropriate zoning enactment is made null and void.” Valianatos v. Zoning Hearing Board of Richmond Township, 766 A.2d 903, 905 (Pa.Commw.2001) [emphasis in original]....
(Trial court’s opinion in In Re: Land Use Appeal of Timothy J. Schadler (No.2000C-0209, filed November 16, 2001, pp. 8-9).)
The majority concludes that Schadler’s assertion that a municipal ordinance is void ab initio whenever defects in its enactment and/or adoption occur render Section 909.1(a)(2) of the MPC and Section 5571(c)(5) of the Judicial Code meaningless because unless such defects are challenged within 30 days, the proposed ordinance is deemed to be valid. This reliance by the majority upon the filing and recordation provisions of 53 P.S. § 66601 as being all-controlling is misplaced since these sections do not preempt the notice and publication requirements of the statute, which clearly were intended to guarantee public participation in the legislative process.
Accordingly, the trial court’s opinion should be affirmed.
Judge Simpson joins in this dissent.