An East Penn Township, Pa., zoning ordinance has survived state Supreme Court review at least partly because of an undeveloped record regarding a last-minute, and unadvertised, change to the law.

The justices rejected arguments from the owners of a 100-plus acre plot of land in Carbon County, Pa., who had appealed the ordinance 12 years after it went into effect. The court, instead, concluded the lawsuit was time-barred, as the plaintiffs did not meet the burden of proof to eschew an otherwise 30-day window in which one can challenge a municipal ordinance in Pennsylvania.

The plaintiffs, Charles and Agnes Messina and Lehigh Asphalt Paving and Construction, argued the mere fact that landowners had relied upon the ordinance for years did not preclude a challenge to the law’s procedural validity — the township made changes to the ordinance as advertised on the night of its passage without notifying the public of those changes, according to the opinion, but it was unclear from the record the precise nature of those changes.

The plaintiffs also argued that where a procedural defect may implicate notice and due process, the doctrine of void ab initio must always apply. But the court disagreed, stressing the 12 years dividing the passage of the ordinance and the commencement of Messina v. East Penn Township lent credence to the law’s validity under a “presumption of reliance.”

“As time passes, the natural and unavoidable reliance of the public and the municipality on the validity of the ordinance causes the presumption of validity to wax as the rationale for undoing the ordinance wanes,” Justice J. Michael Eakin wrote for the court in a 14-page opinion. “However, as the statutory scheme itself notes, the constitution trumps any statutory tethers on the time for a challenge, and a violation thereof cannot be per se precluded by statute. The void ab initio doctrine remains vibrant, though inapplicable here.”

At issue in the case is whether the Messinas and Lehigh — who were also equitable owners of the property, according to the opinion — met the burden of proof to fulfill the exception to the time bar of 42 Pa.C.S. Section 5571.1, on appealing defects in statutory procedure.

The law spells out that an ordinance will be presumed to be valid and enacted in “strict compliance with statutory procedure.”

If an appeal to an ordinance is filed within 30 days of its intended effective date, the party alleging a defect must only prove a failure to strictly comply with statutory procedure.

For those falling outside the 30-day window, however, the burden changes.

As Section 5571.1 states, there are three things an appealing party must prove: That there was a failure to strictly comply with statutory procedure; there was a failure to substantially comply with statutory procedure, resulting in insufficient notification to the public of changes that prevent the public’s ability to comment; and there are facts sufficient to rebut any presumption of reliance.

Eakin noted the township, unable to provide evidence it notified its residents of the 11th-hour changes, did not strictly comply with the law.

Turning to the second burden, Eakin said the record did not indicate the precise nature of the change, meaning the plaintiffs therefore failed to show the township failed to “substantially comply” with the statutory procedure.

“If the change is not shown to be substantial, it cannot justify a declaration that the ordinance is void ab initio,” Eakin said.

As for the presumption of reliance, Eakin noted the law states that, for all cases where an appeal is filed more than two years after an ordinance’s intended effective date, people falling within the law’s political subdivision are “presumed to have substantially relied upon the validity and effectiveness of the ordinance.”

The plaintiffs, Eakin said, did not present evidence rebutting the presumption of reliance.

The court was unanimous that the plaintiffs’ challenge failed, but Justice Debra Todd filed a concurring opinion to suggest the majority’s analysis did not need to stretch beyond the insufficient record.

“I also agree that, because of the deficiencies in the record before us, we cannot assess the substantiality of the last-minute change to the ordinance at issue and, thus, we cannot determine whether the void ab initio doctrine is presently implicated,” Todd said. “However, as, in my view, that doctrine was the sole basis of [the plaintiffs'] challenge to Section 5571.1 — and that challenge fails for want of a sufficient record — I would not further opine on the validity or operation of Section 5571.1, as does the majority.”

John A. VanLuvanee of Eastburn and Gray, who represented the plaintiffs, called the opinion “disappointing,” adding that it didn’t address the issues upon which his argument focused.

VanLuvanee said the last two times the General Assembly attempted to amend judicial code to impose a time bar on procedural challenges, the Supreme Court held those amendments were irrelevant because you “can’t breathe new life into an ordinance that never existed.”

“We’re dealing with another judicial attempt to put up a roadblock to someone who wants to challenge an ordinance.”

As for the presumption of reliance, VanLuvanee asked this question: “What right does a municipality have to rely on an ordinance that is adopted without following all the right procedural steps?

“That’s the effect of this decision.”

For East Penn’s attorney, James R. Nanovic, the court got it right.

“We think the decision is sound, correct, and the proper interpretation of the statute,” Nanovic said.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.

 (Copies of the 16-page opinion in Messina v. East Penn Township, PICS No. 12-2334, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •