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Thomas Streck, Darlene Adonizio, Gerald Kronk, Peter H. Kells, Ronald v. Lower Macungie Township Board of Commissioners and David M. Jaindl

December 14, 2012

THOMAS STRECK, DARLENE ADONIZIO, GERALD KRONK, PETER H. KELLS, RONALD MOYER, CONSTANCE MOYER, JOSEPH CASTAGNA, KIMBERLY CASTAGNA, AND KAREN KRONK
v.
LOWER MACUNGIE TOWNSHIP BOARD OF COMMISSIONERS AND DAVID M. JAINDL, INDIVIDUALLY, AND JAINDL REALTY, L.P. APPEAL OF: LOWER MACUNGIE TOWNSHIP BOARD OF COMMISSIONERS THOMAS STRECK AND DARLENE ADONIZIO, H/W, GERALD KRONK AND KAREN KRONK, H/W, PETER H. KELLS, RONALD MOYER AND CONSTANCE MOYER, H/W, JOSEPH CASTAGNA AND KIMBERLY CASTAGNA, H/W
v.
LOWER MACUNGIE TOWNSHIP BOARD OF COMMISSIONERS AND DAVID M. JAINDL, INDIVIDUALLY AND JAINDL REALTY, L.P. APPEAL OF: DAVID M. JAINDL AND JAINDL REALTY, L.P.



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Submitted: May 15, 2012

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY JUDGE LEAVITT

The Township of Lower Macungie and David M. Jaindl and Jaindl Realty, L.P. (collectively, Jaindl) appeal an order of the Court of Common Pleas of Lehigh County (trial court) that invalidated the 2010 amendments to the Zoning Ordinance of Lower Macungie Township.*fn1 The trial court did so because it found that the 2010 amendments had not been enacted in accordance with the public notice requirements for a zoning ordinance. Concluding that the trial court erred, we reverse.

At issue is a 700-acre parcel located in the Township, most of which is owned by Jaindl. In September and October of 2009, Jaindl filed a series of applications with the Township to construct a quarry on his land, permitted under the Zoning Ordinance as a conditional use. To avoid the litigation expected by such a development, the Township and Jaindl entered into a memorandum of understanding. By this "understanding," Jaindl agreed to withdraw his applications to construct a quarry, and the Township agreed to amend its Zoning Ordinance to allow certain commercial and industrial uses, other than quarrying, in the area where Jaindl's land is located. The memorandum of understanding listed the amendments to be made to the Township's Zoning Ordinance and Subdivision and Land Development Ordinance (SALDO) as well as a timeline for their enactment.

Thereafter, amendments to the Zoning Ordinance were finalized and set forth in a proposed Ordinance No. 2010-06. Notice of the ordinance proposal was given in area newspapers on June 9 and 16, 2010. The newspaper notices included the title of the ordinance and a summary of the substance of the proposed amendments; the location where the complete text of Ordinance No. 2010-06 could be found; the dates, times, and locations of public hearings on the amendments; and a statement that the ordinance could be enacted at the Board of Supervisors' meeting of July 1, 2010. In addition, the Township sent individual notices to property owners whose land would be affected by the new zoning districts; these individual notices contained the same information offered in the newspaper notices. Finally, the Township placed signs around the perimeter of the 700 acres of land to be rezoned that repeated the same information found in the newspaper and individual notices.

The public meeting on Ordinance No. 2010-06 was conducted as advertised, and on July 1, 2010, the Township enacted Ordinance No. 2010-06. This ordinance transformed the 700 acres of land at issue from principally agricultural to a variety of commercial and industrial uses; it also enacted certain dimensional and parking requirements appropriate for those new uses.*fn2 However, the scope of Ordinance No. 2010-06 went far beyond creating new zoning districts. It amended certain definitions in the Zoning Ordinance, including, inter alia, "fast food restaurant" and "warehouse," and those Zoning Ordinance provisions relating to signs and mall security services. It also repealed the Zoning Ordinance provision that required traffic studies in some instances.*fn3 On July 2, 2010, Ordinance No. 2010-06 became effective.*fn4

Thereafter, the Township published notices on July 7, 2010, and July 14, 2010, to inform the public that Ordinance No. 2010-06 had been enacted. These post-enactment notices stated that the deadline for challenging the new ordinance on procedural grounds was 30 days from the date of the second publication, i.e., July 14, 2010.

On August 13, 2010, Thomas Streck, who owns property adjacent to the 700 acres of rezoned land, and several other landowners, who own land within the rezoned area and had received individual notices (collectively, Objectors), challenged the validity of Ordinance No. 2010-06 on procedural grounds. They also filed an appeal with the Zoning Hearing Board to challenge Ordinance No. 2010-06 on substantive grounds, claiming that the new ordinance was invalid because it had been enacted pursuant to an illegal zoning contract.

Jaindl intervened in Objectors' land use appeal before the trial court. Joined by the Township, Jaindl moved to quash Objectors' appeal as time-barred because it had not been filed within 30 days of the July 2, 2010, effective date of Ordinance No. 2010-06, i.e., August 2, 2010. The trial court denied the motion to quash. It held that Objectors' appeal was timely because the Township's post-enactment notices had invited challenges to be filed within 30 days of the second notice of July 14, 2010. Objectors filed their appeal on August 13, 2010, within the deadline presented in the second notice, which was timely under the Township's own notice.*fn5

Thereafter, the parties addressed the merits of Objectors' claim that the Township had failed to follow the procedures for the enactment of Ordinance No. 2010-06 set forth in Section 610 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202. The trial court held in favor of Objectors.

The trial court found that the Township's newspaper notices published in advance of the public meeting on Ordinance No. 2010-06 were deficient because the summary of the ordinance contents did not provide "reasonable detail," as is mandated by Section 610(a) of the MPC, 53 P.S. §10610(a). Otherwise, the trial court found no deficiencies in the procedure by which Ordinance No. 2010-06 was enacted. The trial court did not address Objectors' other argument, namely that Ordinance No. 2010-06 should be nullified because it owed its genesis to an illegal zoning contract.

The Township and Jaindl appealed the trial court's order of January 31, 2011, which denied the motion to quash, and the order of August 31, 2011, which nullified Ordinance No. 2010-06.*fn6 In this appeal,*fn7 Jaindl presents two questions for our review. First, Jaindl contends that Objectors' appeal was time barred under the Judicial Code because it was not filed within 30 days of July 2, 2010, the effective date of Ordinance No. 2010-06; that date was not changed by the Township's post-enactment notices. Second, Jaindl contends that the trial court erred because the record shows that the pre-enactment notices of Ordinance No. 2010-06 fully complied with the requirements of Section 610(a) of the MPC, 53 P.S. §10610(a).

We begin with a review of the statutes relevant to a challenge to an ordinance on procedural grounds. It is a task not unlike the assembly of a Chinese puzzle.

Section 5571.1 of the Judicial Code authorizes a challenge to the validity of an ordinance on grounds that the process of its enactment was defective. Section 5571.1 states, in relevant part, as follows:

(a) Applicability; court of common pleas.--

(1) This section shall apply to any appeal raising questions relating to an alleged defect in the process of or procedure for enactment or adoption of any ordinance, resolution, map or similar action of a political subdivision.

(2) An appeal pursuant to this section shall be to the court of common pleas.

(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.

42 Pa. C.S. §5571.1(a)-(c) (emphasis added). Relevant here is the requirement that a procedural challenge must be brought within 30 days of the ordinance's effective date, unless that deadline "would result in an impermissible deprivation of constitutional rights." 42 Pa. C.S. §5571.1(c).

Section 5571.1 then establishes the burden of proof that must be satisfied by the party lodging a procedural challenge. Where the appeal is filed within 30 days of the ordinance's effective date, the party alleging the defect must meet the burden of proving that there was a failure to strictly comply with statutory procedure.

42 Pa. C.S. §5571.1(e)(1).*fn8 Where the appeal is filed outside the 30-day deadline, the party must prove a right to an exemption from the deadline. This is done by evidence demonstrating that the municipality's "failure to substantially comply" with the applicable procedures prevented the public from commenting on the ordinance. 42 Pa. C.S. §5571.1(e)(2)(ii). Once the appellant demonstrates the right to an exemption, he must then prove that the ordinance did not "strictly comply" with the procedures applicable to its enactment. 42 Pa. C.S. §5571.1(e)(2)(i).*fn9 Finally, Section 5571.1(d)(1) provides that ordinances will be presumed to ...


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