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Messina v. East Penn Township

May 26, 2010

CHARLES N. MESSINA, AGNES MESSINA, LEHIGH ASPHALT PAVING AND CONSTRUCTION CO., APPELLANTS
v.
EAST PENN TOWNSHIP, NANCY BLAHA AND CHRISTOPHER PEKURNY



The opinion of the court was delivered by: Judge Simpson

Argued: March 17, 2010

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

In this land use appeal, we consider whether a municipality failed to comply with certain procedural requirements for enactment of a zoning ordinance as set forth in the Pennsylvania Municipalities Planning Code (MPC),*fn1 and whether any failure to do so resulted in a denial of procedural due process so as to render a zoning ordinance enacted 12 years earlier void ab initio.*fn2 Upon review, we conclude the challengers to the zoning ordinance, who declined the offer of a hearing on their procedural validity challenge, did not prove the existence of a procedural defect affecting notice or due process concerns. We further conclude the challengers did not rebut a statutory presumption that the municipality and its landowners substantially relied on the validity and effectiveness of the zoning ordinance over the 12 years between enactment of the zoning ordinance and the procedural validity challenge. Therefore, we decline to declare the ordinance void ab initio.

I. Background

A. Procedural History

In August 2008, Charles N. Messina and Agnes Messina and Lehigh Asphalt Paving and Construction Company (Lehigh Asphalt) (collectively, Challengers) filed a procedural validity challenge to the East Penn Township Zoning Ordinance, Township Ordinance No. 1996-94, adopted July 22, 1996 (zoning ordinance), in the Court of Common Pleas of Carbon County (trial court) pursuant to Section 1002-A(b) of the MPC, 53 P.S. §11002-A(b)*fn3 and Section 5571.1(a) of the Judicial Code, 42 Pa. C.S. §5571.1(a).*fn4

Pursuant to a writ of certiorari issued by the Prothonotary of Carbon County, East Penn Township (Township) filed a record of its proceedings regarding adoption of the zoning ordinance.

Shortly thereafter, the trial court granted petitions to intervene filed by Nancy Blaha and Christopher Pekurny (Intervenors), who opposed Challenger's procedural validity challenge.

The trial court*fn5 subsequently held argument on the validity challenge. Significant for our analysis, at the time of argument the trial court offered to schedule a hearing for any party to submit evidence on the procedural validity challenge; however, no party expressed an interest in doing so. Thus, the trial court confined its review to the documents filed by the Township in response to the Prothonotary's writ of certiorari.

B. Facts

The Messinas are legal owners of a parcel of land in East Penn Township, Carbon County, which is presently used as a quarry. Lehigh Asphalt is the equitable owner of the quarry pursuant to an option contract.

The quarry covers 114.4 acres and is located in the Township's rural and rural residential zoning districts. The Messinas reside in a single-family dwelling on the property. Lehigh Asphalt uses the balance of the property for mining and excavation operations. Challengers assert the zoning ordinance prevents them from expanding their mining and excavation operations.

Prior to July 1996, the Township did not have a zoning ordinance. The zoning ordinance the Township adopted in July 1996 established a comprehensive zoning scheme effective July 27, 1996. The general effect of the ordinance was "to place[] restrictions on the use and development of land in the [T]ownship .." Tr. Ct., Slip Op., 9/14/09, at 4; Reproduced Record (R.R.) at 16a ("Introduction" to zoning ordinance). After its initial adoption, the Township amended the zoning ordinance three times, in 2000, 2001, and 2005, all prior to the present challenge.

The record filed by the Township contained documents relating to the enactment of the zoning ordinance, including Township Planning Commission minutes from meetings that occurred from 1994 through 1996. Also included were proofs of publication dated April 15, May 15 and July 16, 1996, as well as minutes from the 1996 Township Board of Supervisors' (Supervisors) meetings.

Additionally, the record contained various letters from concerned Township residents regarding the proposed ordinance, including a letter from resident Greg Solt, suggesting a change to the zoning map.

The record reveals that on July 22, 1996, the night the Supervisors voted to adopt the zoning ordinance, the Supervisors took an initial vote on the zoning ordinance as advertised, but the vote did not produce the votes necessary for adoption. Amendments proposed by Township resident Greg Solt were then made to the proposed zoning map. A second vote was taken, this time on the revised zoning ordinance. On this second vote, the revised zoning ordinance was adopted. The minutes of the July 22, 1996 meeting state in relevant part:

Joe Ehritz made a motion to adopt the Zoning Ordinance with the Greg Solt's changes on the Zoning Map. Motion was then changed to "as proposed". There being no second, motion did not pass. Joe Ehritz made a motion seconded by Steve Fatzinger to adopt a Pending Ordinance Doctrine. AIF [All in Favor].

Executive session was called at 8:10 p.m. and ended at 8:40 p.m. (litigation).

After further discussion on the Zoning [M]ap, Joe Ehritz made a motion, seconded by Ted Smith to adopt the Zoning Ordinance with the Greg Solt's changes on the Zoning Map. AIF. Changes were made on the map.

Tr. Ct., Slip Op. at 4-5; R.R. at 116a.

The trial court determined that changes were made to the zoning ordinance on the night of its adoption. As a result, the zoning ordinance actually adopted differed to some extent from the zoning ordinance proposed and advertised prior to the meeting. The trial court further determined there was no evidence that the Carbon County Planning Commission reviewed the changes or that Township residents were on notice of the changes prior to the July 22, 1996 meeting.

The trial court further determined it could not discern from the record with certainty the precise change or changes made. The trial court noted (with emphasis added):

We recognize that the record could be more complete. There are certainly omissions, gaps, and ambiguities probably arising from the lapse of 12 years between the adoption of the ordinance in 1996 and the commencement of the present action in 2008. That is why we proposed during argument that an evidentiary hearing might be advisable. However, none of the parties desired to present evidence. Therefore, in deciding this appeal, we are limited to the record as transmitted to the prothonotary by the township.

Tr. Ct., Slip Op. at 5, n.4.

The trial court further stated it was possible the changes made were those requested in Greg Solt's letter: movement of a boundary line between the "Business Commercial" and "Village Commercial" zoning districts from the east side to the west side of the Repsher subdivision in the Township. Because Lehigh Asphalt's quarry does not abut the Repsher subdivision and is not located in either the Business Commercial Zone or the Village Commercial Zone, the trial court stated that the movement of this boundary line may not have had any impact on the quarry or its proposed expansion.

C. Trial Court Decision

In a thoughtful and thorough opinion, the esteemed trial court began by analyzing Challenger's assertions regarding the alleged procedural defects in the adoption of the zoning ordinance. The trial court pointed out Challengers identified four alleged procedural defects:

(i) public notice of the proposed amendment published in the Times Leader, a newspaper of general circulation in the county, did not include either the full text of the zoning ordinance or a "brief summary" setting forth the zoning ordinance provisions "in reasonable detail," as required by Section 610(a) of the MPC, 53 P.S. §10610(a);

(ii) an attested copy of the proposed zoning ordinance was not filed with the Carbon County Law Library as required by Section 610(a)(2) of the MPC, 53 P.S. §10610(a)(2);

(iii) the zoning ordinance was not re-advertised before adoption after substantial amendments were made to it as required by Section 610(b) of the MPC, 53 P.S. §10610(b); and,

(iv) the Township did not submit a final version of the zoning ordinance, including all amendments, to the County Planning Commission at least 45 days prior to enactment of the zoning ordinance as required by Section 607(e) of the MPC, 53 P.S. §10607(e).

Responding to the alleged defects, the trial court determined: the record revealed the published "brief summary" of the zoning ordinance was sufficient to satisfy Section 610(a) of the MPC; Challengers did not submit any evidence to support their contention that a copy of the zoning ordinance was not filed with the county law library, and, in any event, the published notice indicated a copy of the ordinance was, in fact, placed in the law library; and, Challengers did not submit any evidence to support their claim that the Township made substantial changes to the zoning ordinance prior to adoption and, therefore, any alleged failure of the Township to re-advertise the amended ordinance prior to passage was not fatal.

However, the trial court determined that because an amendment to the proposed ordinance was accepted on the night of adoption, it was clear the Township did not submit the final version of the ordinance to the County Planning Commission at least 45 days prior to enactment. Thus, the trial court determined the Township violated the strict requirement of Section 607(e) of the MPC to inform the County Planning Commission of the content of the proposed zoning ordinance, including all amendments, at least 45 days prior to its adoption.

The trial court next embarked on a discussion of Pennsylvania Supreme Court cases that addressed the issue of procedural irregularities in the adoption of municipal ordinances. See Luke v. Cataldi, 593 Pa. 461, 932 A.2d 45 (2007); Glen-Gery Corp. v. Zoning Hearing Bd. of Dover Twp., 589 Pa. 135, 907 A.2d 1033 (2006); Schadler v. Zoning Hearing Bd. of Weisenberg Twp., 578 Pa. 177, 850 A.2d 619 (2004); L. Gwynedd Twp. v. Gwynedd Props., Inc., 527 Pa. 324, 591 A.2d 285 (1991).

The trial court further recognized that following the Supreme Court's decision in Glen-Gery, the General Assembly took action to limit the application of the void ab initio doctrine through an amendment to the Judicial Code, which placed time limits on procedural challenges to an ordinance, even where the procedural defects implicate constitutional issues. See 42 Pa. C.S. §5571.1. The trial court noted the amendment continues the intent of the void ab initio doctrine to some extent by allowing procedural challenges to an ordinance after the expiration of the 30-day appeal period to avoid "an impermissible deprivation of constitutional rights." 42 Pa. C.S. §5571.1(c). However, the General Assembly balanced this provision with a temporal limit on such challenges unless conditions are met. The trial court stated the statute accomplishes this by establishing presumptions and burdens that a challenging party must satisfy in order to invoke the void ab initio doctrine. The relevant portions of Section 5571.1 state:

(b) Appeals of defects in statutory procedure.-

(1) Any appeal raising questions relating to an alleged defect in statutory procedure shall be brought within 30 days of the intended effective date of the ordinance.

(2) Except as provided in subsection (c), it is the express intent of the General Assembly that this 30-day limitation shall apply regardless of the ultimate validity of the challenged ordinance.

(c) Exemption from limitation.--An appeal shall be exempt from the time limitation in subsection (b) if the party bringing the appeal establishes that, because of the particular nature of the alleged defect in statutory procedure, the application of the time limitation under subsection (b) would result in an impermissible deprivation of constitutional rights.

(d) Presumptions.--Notwithstanding any other provision of law, appeals pursuant to this section shall be subject to and in accordance with the following:

(1) An ordinance shall be presumed to be valid and to have been enacted or adopted in strict compliance with statutory procedure.

(2) In all cases in which an appeal filed in court more than two years after the intended effective date of the ordinance is allowed to proceed in accordance with subsection (c), the political subdivision involved and residents and landowners within the political subdivision shall be presumed to have substantially relied upon the validity and effectiveness of the ordinance.

(3) An ordinance shall not be found void from inception unless the party alleging the defect in statutory procedure meets the burden of proving the elements set forth in subsection (e).

(e) Burden of proof.--Notwithstanding any other provision of law, an ordinance shall not be found void from inception except as follows:

(1) In the case of an appeal brought within the 30-day time limitation of subsection (b), the party alleging the defect must meet the burden of proving that there was a failure to strictly comply with statutory procedure.

(2) In the case of an appeal which is exempt from the 30-day time limitation in accordance with subsection (c), the party alleging the defect must meet the ...


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