Two recent Pennsylvania cases confirm that bringing a procedural challenge to a zoning ordinance will be difficult, absent bringing such a challenge within thirty days of the date that the ordinance becomes effective.
In Streck v. Lower Macungie Township Board of Commissioners, Nos. 1804 C.D. 2011, 1809 C.D. 2011, 2012 WL 6217379 (Pa. Commw. Ct. Dec. 14, 2012), the Commonwealth Court heard an appeal by the Township of Lower Macungie (Township) and property owners, David M. Jaindl and Jaindl Realty, L.P. (Jaindl), after the trial court found in favor of the challengers, and invalidated the 2010 amendments made to the Zoning Ordinance of the Township based on the fact that the amendments were not enacted in accordance with the public notice requirements set out in Pennsylvania’s Municipality Planning Code (MPC). The Ordinance at issue allowing Jaindl to construct a quarry became effective on July 2, 2010. The Township published two notices to inform the public that Ordinance had been enacted – one on July 7, 2010, and one on July 14, 2010. (The second post-enactment ordinance is permitted, although not required, under Section 108 of the MPC). The notices stated the deadline to challenge the new ordinance on Procedural grounds was 30 days from the second publication: July 14, 2012. The court found that the challengers did not bring their appeal within the 30-day period required under Section 5571.1 of the Judicial Code because, although Section 108 of the MPC allows an additional post-adoption notice, an additional notice does not abrogate the deadline to appeal within 30 days of the date the Ordinance becomes effective. Therefore, despite the Township’s notices stating otherwise, the challengers’ appeal filed on August 13, 2010 was not within the 30-day time limit from the date the Ordinance became effective: July 2, 2010. Moreover, the court also found that the Township’s notices distributed in advance of the enactment of the Ordinance were not procedurally defective, as the trial court had erroneously found, because they did provide reasonable detail as required by Section 610 of the MPC — therefore, the Township did comply with the requirements of the MPC and Section 5571.1 of the Judicial Code, and the procedural challenge was ultimately reversed.
In Messina v. East Penn Township, No. 71 MAP 2010, 2012 WL 6569913 (Pa. Dec. 17, 2012), the Pennsylvania Supreme Court affirmed the Commonwealth Court and the trial court before it, finding that a 1996 zoning ordinance was valid because the Township substantially complied with the statutory requirements under the MPC and Section 5571.1 of the Judicial Code. The Messinas and Lehigh Asphault Paving Co. (Challengers), asserted that the initial enactment of a zoning ordinance in 1996 by East Penn Township (Township) which prevented the expansion of a mining and excavation operations in the Township’s Rural and Rural Residential Zone, was void ab initio because the Township failed to strictly adhere to the MPC’s requirements under 610(b) in adopting the ordinance. Specifically, the Challengers asserted that the Township made last minute changes to the zoning map on the night of the Ordinance’s adoption, and thus the Township failed to provide the requisite 45-day notice to the public of these changes. The court found that the Challengers had failed to show a substantial change was made on the night of the Ordinance’s adoption, and also determined that the claim was time-barred. In so finding, the court applied the multi-tiered standard of Section 5571.1 of the Judicial Code, and determined that because the appeal of the Ordinance was filed more than 12 years after its enactment, the Challengers were required to meet the burden of rebutting the presumption that the Township and its residents have substantially relied upon the validity and effectiveness of the Ordinance, and failed to do so. Moreover, the court cautioned against any challengers attempting to use a sweeping void ab initio challenge, noting that while the doctrine is still in effect, an overly aggressive application of the doctrine, as put forth by the Challengers here, would create uncertainty. The court emphasized that citizens have to rely on zoning classifications, and constant invalidation of ordinances based on the void ab initio doctrine would incite chaos.
In the Zone