Pittsburgh, PA

Legal Intelligencer

(by Steve Korbel, Anna Jewart and Anna Hosack)

Last week, thousands of newly elected public officials took office across Pennsylvania and began their duties.  Whether beginning a first or fifth term, those in public office must review their obligations regarding open meetings and public engagement.  Several statutes in Pennsylvania impose open meeting, public comment, and advertising requirements.  This “cheat sheet” will focus on the most common requirements for local governments, and specifically will address two key statutes: the Pennsylvania Sunshine Act, 65 Pa.C.S. § 701716 (the “Sunshine Act”) and the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq, (the “MPC”), which local government officials are likely to come across in their duties.

The Sunshine Act is the primary “open meetings” law for the Commonwealth of Pennsylvania.  Its intent is to promote the right of the public to be present at all meetings of public agencies and to witness the deliberation, policy formulation, and decision-making of those agencies.  In general, it requires that agencies, including local governing bodies and their committees, take official action at a public meeting.  The MPC is the statute that authorizes local zoning and other land use regulations.  It sets additional requirements for actions involving zoning, subdivision, and land development.

The Sunshine Act and MPC are not the only statutes that regulate how official action is taken.  Municipal enabling legislation such as the Borough Code, 8 Pa.C.S. §101 et seq., First Class Township Code, 53 P.S. §55101 et seq., and Second Class Township Code, 53 P.S. §65101 et seq., impose advertising and other requirements for the approval of ordinances, bidding processes, approval of budgets, and other matters.  Local officials should consult with their solicitor to confirm they have considered all relevant requirements before taking official action on a matter.

A. The Sunshine Act and Regular Public Meeting Requirements.
The following requirements apply to every meeting at which an agency wishes to take official action or deliberation, regardless of the subject matter.

      1. Official Action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public unless closed under § 707 of the Sunshine Act.
        With certain limited exceptions, every decision, vote, recommendation, establishment of policy, or action on any motion, proposal, resolution, rule, regulation, ordinance, report, or order must occur at a “public meeting.”  Any discussion of agency business held for the purpose of making a decision must occur at a public meeting.
      1. All Public Open Meetings Require Advance Public Notice in a Print Newspaper of General Circulation in the Municipality and Posting of the Municipal Office or Meeting Location.
        For a meeting to be considered an open meeting under the Sunshine Act, the agency must give advance “public notice” of the meeting.  “Public Notice” means publication of a notice of the place, date, and time of the meeting in a newspaper of general circulation in the political subdivision where the meeting will be held, and posting of the notice prominently at the principal office of the agency holding the meeting or at the public building in which the meeting is to be held.
      1. Regular Meetings May be Advertised Annually, no less than 3 Days in Advance of the First Meeting.
        The “regular meetings” of an agency are those set annually for the remainder of the year.  The Sunshine Act requires that all agencies give “public notice” of its first regular meeting of each calendar year not less than three (3) days in advance of the meeting as well as public notice of the schedule of its remaining public meetings for that year.
      1. Special Meetings and Rescheduled Regular Meetings Must be Advertised no less than 24 Hours in Advance of the Start of the Meeting.
        “Special meetings,” (those scheduled by an agency after its regular schedule of meetings has been established) or changes to the regular schedule must be advertised at least 24 hours in advance of the start of the meeting.
      1. An Agenda Listing Every Item on Which the Agency Will Take Official Action Must be Posted on the Agency Website and at the Meeting Location at Least 24 Hours in Advance of the Meeting.
        In 2021, the Sunshine Act was amended to require that in addition to public notice, all agencies are now required to provide notification of agency business to be considered at all open meetings by posting an agenda.  The agenda must list each matter of agency business that will or may be the subject of deliberation or official action at the meeting.  With limited exceptions, agencies cannot take official action on matters not included on the posted agenda.  The agency is required to post its agenda on its public website and at the meeting location no later than 24 hours prior to the start of the meeting.  In addition, agencies must make paper copies of the agenda available to individuals in attendance at the meeting.
      1. Adoption of Ordinances, Generally, Require Public Notice at least 7 Days and not more than 60 days Prior to Adoption.
        Ordinances (of a non-zoning nature) typically require additional public notice prior to consideration and adoption.  These requirements are established by the relevant municipal enabling legislation.  Typically, one must publish every proposed ordinance, or a summary prepared by the solicitor, at least once in a newspaper of general circulation no more than 60 days and no less than 7 days prior to enactment.  Depending on the subject matter of the ordinance at issue, additional requirements may apply.

B. The MPC and Requirements for Public Hearings on Zoning Ordinances and Applications.
Municipalities that have adopted, or are considering adopting, zoning ordinances must also consider the requirements of the MPC.  The MPC imposes additional requirements for certain actions of the municipal governing body, planning commission, and zoning hearing board related to zoning, subdivision, and land development within their borders.  These requirements can be complex, but a brief overview of some frequent issues follows.

      1. Adoption of Zoning and Subdivision and Land Development Ordinances Requires a Public Hearing Subject to Public Notice Under the MPC.
        When a municipality wants to adopt an ordinance that involves zoning, subdivision, or land development it must also follow requirements established by the MPC.  Adoption of an ordinance that involves these matters requires the municipal governing body to hold a “public hearing” before adoption.  A “public hearing” is a formal meeting held pursuant to “public notice” as defined by the MPC, not the Sunshine Act.  When an MPC ordinance is involved, “public notice” requires notice, stating the time and place of the hearing and the text of the ordinance or a summary, prepared by the solicitor which sets forth all provisions in reasonable detail.  The notice must be published once each week for two successive weeks in a newspaper of general circulation.  The first advertisement must run not more than 30 days prior to the public hearing.  The second advertisement must run not less than 7 days prior to the public hearing.
      1. Ordinances Changing the Zoning Map Typically Require that the Impacted Properties be Posted 1 Week in Advance of the Public Hearing and Mailed to the Property Owners 30 days in Advance.
        In addition to the public notice described above, when a proposed zoning ordinance amendment involves a change to the zoning map, notice of the public hearing must be posted conspicuously along the tract at issue at least one week in advance.  The municipality must also mail notices to the addresses to which real estate tax bills are sent for each impacted property at least 30 days before the public hearing.  These requirements do not apply if the changes constitute “comprehensive rezoning.”
      1. Public Hearings on Zoning Applications Must be Held Subject to Public Notice, Written Notice Must be Given to the Applicant, and the Property Must be Posted.
        The MPC also requires that a public hearing be held on applications for conditional use approval (heard by the governing body) variances, special exceptions, or appeals of a zoning officer’s determination (heard by the zoning hearing board) as well as certain other matters.  The same MPC “public hearing” advertising requirements utilized for hearings on zoning ordinances apply to these hearings.  The impacted property must also be posted conspicuously at least one week in advance of the public hearing.

While some find these requirements redundant or trivial, they must be carefully reviewed and followed.  Members of an agency who participate in a meeting with the intent of violating the Sunshine Act may be found guilty of a summary offense and sentenced to fines up to $1,000 for a first offense and $2,000 for a second or subsequent offense.  A failure to follow the requirements of the MPC can be challenged in court and, in some instances, can invalidate the action taken by the governing body.

Stephen L. Korbel is a shareholder in the Public Sector Services and Employment and Labor groups of Babst Calland Clements & Zomnir.  Contact him at skorbel@babstcalland.com or 412-394-5627.  Anna S. Jewart is an associate in Babst Calland’s Public Sector Services group and focuses her practice on zoning, subdivision, land development, and general municipal matters.  Contact her at ajewart@babstcalland.com.  Anna R. Hosack is an associate in Babst Calland’s Public Sector Services group and focuses her practice on zoning, subdivision, land development, and general municipal matters.  Contact her at ahosack@babstcalland.com.

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Reprinted with permission from the January 9, 2024 edition of The Legal Intelligencer© 2024 ALM Media Properties, LLC. All rights reserved.