Messina v. East Penn Township

9 Pa. D. & C.5th 55
CourtPennsylvania Court of Common Pleas, Carbon County
DecidedSeptember 8, 2009
Docketno. 2254 CV 2008
StatusPublished

This text of 9 Pa. D. & C.5th 55 (Messina v. East Penn Township) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Carbon County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Messina v. East Penn Township, 9 Pa. D. & C.5th 55 (Pa. Super. Ct. 2009).

Opinion

BLACK, S.J.,

Appellants, Charles N. Messina, Agnes Messina, and Lehigh Asphalt Paving and Construction Co., have filed a procedural validity challenge to the East Penn Township Zoning Ordinance, Township Ordinance no. 1996-94, adopted July 22, 1996. Appellants aver that procedural errors occurred at the time the ordinance was adopted and that as a result the ordinance is void ab initio. However, the challenge was not filed until August 11,2008, more than 12 years after adoption of the ordinance, and in the meantime the township and its residents and landowners have substantially relied on the validity and effectiveness ofthe ordinance. Therefore, appellants’procedural validity challenge is time-barred.

I. FACTS AND PERTINENT HISTORY

A. Procedural History

On August 11,2008, appellants commenced this action by filing an appeal in the nature of a procedural validity challenge to the ordinance. The appeal was filed with this court pursuant to 42 Pa.C.S. §5571.1(a) ofthe Judicial Code and 53 P.S. § 11002-A(b) of the Municipalities Planning Code (MPC). On September 9, 2008, the Carbon County Prothonotary issued a writ of certiorari directing East Penn Township to file with the prothonotary a record of its proceedings regarding the adoption ofthe ordinance. Pursuant to this writ, the township filed its records regarding adoption of the ordinance on October 24, 2008.

On November 6, 2008, Nancy Blaha filed a notice of intervention with the prothonotary of Carbon County [57]*57seeking to intervene in this matter for the purpose of opposing the appellants’ claim that the ordinance is invalid. Subsequently, on December 5,2008, Chris Pekumy also sought to intervene in the matter for the same purpose. Intervenor Blaha is a resident of East Penn Township, and Intervenor Pekumy owns property adjacent to the quarry at the center of this legal dispute. The intervenors originally sought to intervene as a matter of right, but later petitioned to intervene pursuant to Pa.R.C.P. 2327(4) on the ground that they have a legitimate legal interest in sustaining the ordinance, and that this interest may not be adequately represented by the township. We granted their petition to intervene, and they have participated in the briefing and argument through counsel.

Argument was held on the merits of the procedural validity challenge on July 27, 2009, following the submission of briefs. At the time of argument we offered to schedule a hearing for any party to submit relevant evidence. None of the parties expressed any interest in presenting evidence. Therefore, we have limited our review of evidence to those documents filed of record with the prothonotary in response to the writ of certiorari.

B. Relevant Facts

Charles N. Messina and Agnes Messina are the legal owners of a parcel of land located in East Penn Township, Carbon County, Pennsylvania, identified as Carbon County tax map parcel no. 99-8-1 IB and presently used as a quarry. Lehigh Asphalt Paving and Construction Company is the equitable owner of the quarry pursuant [58]*58to an option contract to purchase the property. The record is unclear as to when Lehigh Asphalt was granted the option or whether the option has been exercised.

The quarry is comprised of 114.4 acres and is located in the rural (R) and rural residential (RR) zoning districts established pursuant to the ordinance. Appellants’ use of the quarry is for mining and excavation. They aver that the ordinance prevents them from expanding their mining and excavation operations.

Prior to July 22, 1996, the township did not have a zoning ordinance. The ordinance adopted by the township on that date established a comprehensive zoning ordinance effective July 27, 1996. The effect of the ordinance was “to place restrictions on the use and development of land in the [T]ownship.”1 Subsequent to its initial adoption, the ordinance has been amended three times, in 2000, 2001 and 2005, all prior to the instant procedural challenge.

The record filed in this case contains documents relating to the enactment of the ordinance by the Township Planning Commission, including minutes of the Planning Commission dating from 1994 through 1996. Additionally, proofs of publication dated April 15, May 15, and July 16, 1996, are part of the record; as well as minutes of the Township Board of Supervisors meetings in 1996. Finally, various letters from concerned township residents regarding the proposed ordinance, including a letter from Greg Solt suggesting a change, are also part of the record.

[59]*59The record indicates that on July 22, 1996, the night the ordinance was adopted, the township supervisors took an initial vote on the ordinance as advertised. That vote failed to produce the necessary votes for adoption. Amendments proposed by Greg Solt were then made to the proposed zoning map. A second vote was taken, this time on the ordinance as amended. On this second vote the ordinance as amended 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’, [sic] There being no second, motion did not pass. Joe Ehritz made a motion seconded by Steve Fatzinger to adopt a pending ordinance doctrine. AIF.2
“Executive session was called at 8:10 p.m. and ended at 8:40 p.m. (litigation).
“After further discussion on the zoning map, 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.”3

It is apparent that changes were made to the zoning ordinance on the night of its adoption. This means that the ordinance actually adopted differed to some extent from the ordinance proposed and advertised prior to the meeting. There is no evidence that the Planning Commission reviewed the changes or that township residents were on notice of the changes prior to the meeting of July 22, 1996.

[60]*60Nor can we discern from the record with certainty the precise change or changes made.4 It is possible that the changes made were those requested in the June 22,1996 letter of Greg Solt.5 Those changes were limited to movement of the boundary line between the “business commercial zone” and “village commercial zone” from the east to the west side of the Repscher subdivision. Because the quarry does not abut the Repscher subdivision and is not located in either the business commercial zone or village commercial zone, the movement of this line may not have had any impact on the quarry or its proposed expansion.

II. ANALYSIS

A. Procedural Defects in the Adoption of the Ordinance

The process for enacting a zoning ordinance under the MPC is complex with specific rules concerning notice and procedure. Our appellate courts have stated that strict adherence to these rules is mandatory to protect the public interest. See e.g., Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 907 A.2d 1033 (2006); and

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Bluebook (online)
9 Pa. D. & C.5th 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/messina-v-east-penn-township-pactcomplcarbon-2009.