Messina v. EAST PENN TP.
| Decision Date | 26 May 2010 |
| Docket Number | No. 1919 C.D. 2009.,1919 C.D. 2009. |
| Citation | 995 A.2d 517 |
| Parties | Charles N. MESSINA, Agnes Messina, Lehigh Asphalt Paving and Construction Co., Appellants v. EAST PENN TOWNSHIP, Nancy Blaha and Christopher Pekurny. |
| Court | Pennsylvania Commonwealth Court |
COPYRIGHT MATERIAL OMITTED
John A. VanLuvanee, Blue Bell, for appellants.
James R. Nanovic, Jim Thorpe, for appellee, East Penn Township.
Joseph J. Matika, Summit Hill, for appellees, Nancy Blaha and Christopher Pekurny.
BEFORE: LEADBETTER, President Judge, McGINLEY, Judge, SIMPSON, Judge, LEAVITT, Judge, BROBSON, Judge, McCULLOUGH, Judge, and BUTLER, Judge.
OPINION BY Judge SIMPSON.
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),1 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.2 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.
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)3 and Section 5571.1(a) of the Judicial Code, 42 Pa.C.S. § 5571.1(a).4
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 court5 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.
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 Township...." Tr. Ct., Slip Op., 9/14/09, at 4; Reproduced Record (R.R.) at 16a (). 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:
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.
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.
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:
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...
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