Sunshine Act Violation May Void a Condemnation Action Where the Agency Failed to Post Notice of the Meeting to Condemn at the Principal Office of the Agency Holding the Meeting
In Re Condemnation by West Chester Area School District, 50 Pa. D.& C.4th 449, January 2, 2001.
Cross reference: MPC Section 908(1), Sunshine Act, Section 709(b)
A school district seeking to consider condemnation of land for a public use at a special meeting must provide notice of the meeting at least twenty-four hours in advance of the time of convening the meeting in accordance with Section 709(a) of the Sunshine Act. 65 Pa. C.S. Section 709(a). Public notice, which is defined in Section 603 of the Sunshine Act, 65 Pa.C.S. Section 603, requires both a public notice advertised in a newspaper of general circulation and notice posted prominently at the principal office of the agency meeting or at the public building in which the meeting is to be held.
In this case, school district's advertised the specially scheduled meeting regarding condemnation of a parcel of land, in a general circulation paper available to the public by 6:30 a.m. on June 5, 2000. The meeting was scheduled for 8 a.m. on June 6 , 2000. No notice was posted in a public area of the school district's offices or otherwise at the building where the meeting was held.
The condemnees argued that the advertised notice was insufficient because "some number" of newspaper readers could not be expected to obtain the newspaper before the 24 hours prior to the school district's meeting scheduled for 8 a.m. The trial court held that an advertised notice, otherwise sufficient, complies with Section 709(a) if it appears in an edition of a newspaper actually published and available to readers at least 24 hours before the scheduled meeting. The court found testimony from the newspaper's publisher that the paper is delivered to homes and retail outlets by 6:30 every morning, sufficient proof of twenty-four hour advance notice.
However, the failure to properly post the notice was fatal to the school district's action. The court noted that the purpose of the Sunshine Act is to afford citizens generally an opportunity to observe the process of their government, and not solely to give notice to the parties. Posting is not accomplished by demonstrating that the meeting notice was available within the agency's office files. Nor does the presence of the party appellants at the meeting cure the defect or render the defect harmless error. The trial court looked at the purpose of posting in the context of various statutes which mandate such notice prior to taking official action, including the posting requirement found in MPC Section 908(1), 53 P.S.Section10908(1), for matters before a zoning hearing board. The court held the rule for posting notice should not be less demanding in cases involving the governmental exercise of the power of eminent domain. All actions taken by the school district's board of directors were voided by court order.
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