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Charles N. Messina, Agnes Messina, Lehigh Asphalt Paving and v. East Penn Township

December 17, 2012


Appeal from the order of Commonwealth Court at No. 1919 CD 2009 dated May 26, 2010 affirming the order of Carbon County Court of Common Pleas, Civil Division, at No. 2254 CV 2008 dated September 8, 2009.

The opinion of the court was delivered by: Mr. Justice Eakin


ARGUED: May 10, 2011


Appellants, Charles and Agnes Messina, and Lehigh Asphalt Paving and Construction Company, appeal from the Commonwealth Court's affirmation of the order of the Carbon County Court of Common Pleas, which held appellants' challenge to East Penn Township Zoning Ordinance No. 1996-94 was time-barred. We affirm.

Charles and Agnes Messina own 114.4 acres in East Penn Township, Carbon County, where they reside in a single-family residence. Lehigh Asphalt Paving and Construction Company is the equitable owner of the property pursuant to an option contract, and it uses a portion of the property as a quarry.

On July 22, 1996, East Penn Township adopted the East Penn Township Zoning Ordinance and Zoning Map of 1996, via Township Ordinance No. 1996-94. Under the Ordinance, appellants' property is in the Rural and Rural Residential zoning districts. Lehigh Asphalt's use of the property is nonconforming, but is allowed, as the use predates the Ordinance. The Ordinance has been amended in 2000, 2001, and 2005.

On August 11, 2008, appellants filed a lawsuit in the Carbon County Court of Common Pleas. They asserted the Ordinance was void ab initio because East Penn Township failed to strictly adhere to procedural requirements for adopting a zoning ordinance as required by § 10610(b) of the Municipalities Planning Code (MPC).*fn1

Appellants specifically argued East Penn Township made changes to the zoning map on the night of the Ordinance's adoption and failed to provide notice to the public of these changes before enacting them. Nancy Blaha and Christopher Pekurny, residents of the township, were granted intervenor status by the trial court.

The trial court was unable to determine what changes had been made to the Ordinance on the night of its adoption, due to the record's vagueness. It offered to hold an evidentiary hearing on what changes had been made, but the parties declined. Consequently, the trial court held appellants failed to show a substantial change made on the night of the Ordinance's adoption, and found the claim was statutorily time-barred. Trial Court Opinion, 9/14/09, at 22.

The Commonwealth Court affirmed in a published en banc opinion, finding appellants failed to meet their burden of proof. Messina v. East Penn Township, 995 A.2d 517 (Pa. Cmwlth. 2010) (en banc). Appellants petitioned for allowance of appeal, which we granted, limited to whether 42 Pa.C.S. § 5571.1 precludes a procedural challenge made more than two years after the effective date of the ordinance, and whether the failure to re-advertise after changes were made to the zoning map invalidated the ordinance. Messina v. East Penn Township, 9 A.3d 1136 (Pa. 2010) (per curiam). This case presents a mixed question of fact and law. When reviewing such mixed questions, to the extent that factual findings and credibility determinations are at issue, we will accept the trial court's conclusions insofar as they are supported by the record. To the extent that a legal question is at issue, a determination by the trial court will be given no deference and will instead be reviewed de novo.

In re Condemnation by Urban Redevelopment Auth. of Pittsburgh, 913 A.2d 178, 183 (Pa. 2006) (citation omitted).

This Court has long required procedural strictness when evaluating the enactment of municipal ordinances. See Cranberry Park Associates v. Cranberry Township Zoning Hearing Board, 751 A.2d 165, 167-68 (Pa. 2000) (improper recording violated statutory enactment procedures such that ordinance was void ab initio and § 5571.1 time-bar did not apply); see also Schadler v. Zoning Hearing Board of Weisenberg Township, 850 A.2d 619, 627 (Pa. 2004) (ordinance was void ab initio due to various procedural defects in enactment process); Lower Gwynedd Township v. Gwynedd Properties, Inc., 591 A.2d 285, 287 (Pa. 1991) (reiterating this Court's unswerving view that statutory steps for ordinance enactment are mandatory and non-waivable).

In response to our decision in Cranberry Park, the Legislature amended § 5571.1 to require that procedural challenges be made "within 30 days after the intended effective date of the ordinance." 42 Pa.C.S. § 5571.1(b)(1). In Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 907 A.2d 1033 (Pa. 2006), we rejected the Legislature's attempt to create an absolute rule, holding that where a claim alleges violation of notice or due process rights, the statutory 30-day limit for procedural challenges is not constitutionally permissible. Id., at 1044-45. In Luke v. Cataldi, 932 A.2d 45 (Pa. 2007), we extended the void ab initio rationale to land use decisions - failure to give public notice or hold public hearings prior to granting conditional use permits violated due process rights and rendered the grant void ab initio; the 30-day limit for land use appeals did not preclude the challenge. Id., at 55-56.

In 2008, following our decision in Glen-Gery, the Legislature again amended § 5571.1, acknowledging an exception to the 30-day window where a challenger can show the time-bar would impermissibly deprive him of his constitutional rights.

The relevant portions of § 5571.1 provide:

(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 ...

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