The Pendulum Swings on Procedural Challenges: Messina v. East Penn Twp., — A.2d —, 2010 WL 2105119 (Pa. Commw. 2010)August 2010 – Newsletters In the Zone
In Messina, the Commonwealth Court affirmed the decision of the trial court in declining to declare a zoning ordinance void ab initio under the legislature's new multitiered standard for procedural challenges.
The process for enacting a zoning ordinance under the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101, et seq., (the MPC) is complex with detailed rules concerning notice and procedure. If a municipality fails to strictly comply with these procedural requirements, an applicant can file a procedural challenge to the validity of the ordinance within 30 days of its purported enactment. 53 P.S. 10909.1.
In Schadler v. Zoning Hearing Bd. of Weisenberg, 850 A.2d 619 (Pa. 2004) and Glen-Gery Corp. v. Zoning Hearing Bd. of Dover Twp., 907 A.2d 1033 (Pa. 2006), the Pennsylvania Supreme Court held that procedural defects implicate due process and render a zoning ordinance void ab initio such that the 30-day statutory time limit on procedural challenges does not run. As such, in Schadler and Glen-Gery, applicants were able to successfully challenge the procedural validity of zoning ordinance many years after their initial enactment.
In 2008, the Pennsylvania General Assembly amended Section 5571.1 of the Judicial Code to implement a multitiered standard for procedural challenges in which the burden of proof increases as time passes. 42 Pa.C.S. § 5571.1. Specifically:
- If an appeal is brought within the initial 30-day time limitation, the challenger must only prove a failure to "strictly comply" with statutory procedures. Section 5571.1(e)(1).
- If an appeal is brought beyond the 30-day time limitation, the challenger must establish that application of the 30-day limit would result in an impermissible deprivation of constitutional rights. Section 5571.1(c). In such cases, the challenger has the additional burden to prove the failure to strictly comply with statutory procedures resulted in insufficient notice to the public of proposed changes to the zoning ordinance, so that the public would be prevented from commenting upon changes, intervening or having knowledge of the ordinance's existence. Section 5571.1(e)(2).
- If two years have passed since the ordinance's intended effective date, the challenger must also establish facts sufficient to rebut a presumption in subsection (d)(2) that the municipality and its residents have substantially relied upon the validity and effectiveness of the ordinance. Section 5571.1(e)(3).
The challengers in Messina sought to invalidate the initial enactment of a zoning ordinance in East Penn Township (the Township) that prevented the expansion of a mining and excavation operations located in the Township's rural and rural residential zoning districts. Essentially, the challengers sought to invalidate the zoning ordinance on the basis that the ordinance that was adopted differed from the ordinance that was advertised and sent to the county planning commission in that it amended the boundary line between the business commercial and village commercial zoning districts. The trial court determined because the amendment to the boundary line was made 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 that the Township violated the strict requirements of Section 607(e) of the MPC in failing to submit a final version of the zoning ordinance, including all amendments to the County Planning Commission at least 45 days prior to the enactment of the zoning ordinance. See 53 P.S. § 10607(e).
Nevertheless, observing that the challengers filed their challenge more than 12 years after enactment of the zoning ordinance, the trial court concluded the challengers failed to satisfy the heightened burden of proof under Section 5571.1(e) to prevail. In addition, the trial court found the challengers failed to present any evidence to rebut the presumption in Section 5571.1(d)(2) that the Township and its residents substantially relied on the validity and effectiveness of the zoning ordinance. As a result of this presumed substantial reliance, the trial court held the procedural challenge was time-barred.
The trial court also rejected the challengers' assertion that they were exempt from any time limitation on the grounds they were denied due process. The trial court found the amendment to the proposed amendment only affected the location of the boundary line between the village commercial and the business commercial zoning districts within a certain subdivision. Noting the challengers' quarry was not located in either the business commercial or the village commercial zoning districts, the trial court concluded the challengers failed to prove their property was affected in any way by the amendment or they had an interest in the amendment beyond a general interest attributable to any citizen in the Township. Accordingly, the trial court held the challengers were without standing to challenge the amendment procedure on due process grounds. For all these reasons, the trial court denied the challengers' procedural challenge.
On appeal to the Commonwealth Court, the challengers asserted the trial court erred in improperly applying the provisions of Section 5571.1 of the Judicial Code. The challengers contended that by attempting to impose unreasonable and illogical burdens and presumptions on a challenger, the General Assembly attempted an "end-run" around the Supreme Court's decision in Glen-Gery.
The Commonwealth Court rejected the challengers' argument and upheld the trial court's application of the new multitiered standard in Section 5571.1. The Commonwealth Court found the heightened standard properly responded to concerns expressed in Schadler and Glen-Gery over the possible excesses of the void ab initio doctrine. Specifically, the Commonwealth Court found Section 5571.1 synthesized dicta in Glen-Gery, which stated a lapse of time coupled with some indication that persons interested in land use in a municipality have obeyed the ordinances purported to have been enacted, would suffice to support a decision electing not to apply the void ab initio doctrine despite evidence of defects in the enactment process.
Accordingly, the Commonwealth Court affirmed the order of the trial court that applied Section 5571.1 in declining to declare the zoning ordinance void ab initio.
The Messina decision leaves open whether procedural challenges raised beyond the 30-day time limit are effectively dead under the General Assembly's new heightened standard, especially when such challenges are brought more than two years after the intended effective date of a zoning ordinance.
For more information, please contact Clair E. Wischusen at 215.918.3559 or [email protected].