In recent years, communities have been re-evaluating zoning ordinances in hopes of spurring economic development during uncertain times. Sometimes the process is self-initiated by a local governing body, but more often a developer leads the charge by requesting alterations to zoning provisions in order to maximize development potential. But zoning changes present many risks that can place development plans in jeopardy if procedural requirements are not followed. The best advice for developers and their attorneys is to work with local solicitors to make sure the rules for enacting zoning amendments are followed.

Unfortunately, those rules are not always easy to identify and/or interpret, and attorneys representing developers need to be aware of evolving case law regarding land-use issues. In December, the Pennsylvania Supreme Court decided Messina v. East Penn Township, No. J-46-2011 (Pa. Dec. 17, 2012), a case involving the validity of a zoning ordinance in light of alleged procedural defects that occurred prior to enactment of the ordinance. This case offers guidance for developers seeking zoning changes to accommodate development.

In Messina, the appellants owned property in East Penn Township, Carbon County, Pa. In 1996, East Penn Township adopted a zoning ordinance designating the appellants’ property as "rural" and "rural residential." In 2008, the appellants filed an appeal seeking to declare the ordinance void ab initio because of alleged procedural defects in the ordinance’s enactment in violation of the Pennsylvania Municipalities Planning Code. The ordinance included a proposed zoning map, and the record showed that the township supervisors made additional changes to the proposed zoning map on the night of the ordinance’s adoption, but the record did not show what changes had been made.

At issue in the case are two procedural defects. The first defect, alleged by the appellants, was the failure to advertise substantial changes to a proposed zoning ordinance amendment, as required by 53 P.S §10610(b) of the MPC. The second procedural defect, referenced by the court in its conclusion, was the failure to submit changes to a proposed zoning ordinance to the East Penn Township Planning Commission for review and comment.

Although the court made no reference to the statutory provision requiring such submissions, presumably, the court was referring to either 53 P.S. §10607 and/or §10609(c) of the MPC, both of which have been interpreted as requiring that changes to an ordinance be submitted to a planning agency prior to enactment.

As to both procedural defects, the court applied 42 Pa.C.S. §5571.1, which governs appeals of defects in statutory procedure, and concludes that "where a challenge is made within 30 days [of enactment], nothing less than strict compliance with the procedural requirements of the MPC will allow the ordinance to stand." However, "after 30 days, substantial compliance with procedural requirements will allow an ordinance to stand."

In Messina, the appellants challenged the ordinance well after the 30-day appeal period (12 years after), meaning the standard for evaluating procedural defects was substantial compliance with procedural requirements.

The court reasoned that it was unable to determine whether the township substantially complied with procedural requirements because the record did not indicate what change had been made to the proposed zoning map. Regarding the first procedural defect (the failure to readvertise), 53 P.S. §10610(b) of the MPC requires readvertisement only in the event a proposed change is substantial. Without knowing what the proposed change was, there was no means to determine whether the change was substantial. Notably, the court declined to hold that a map change is per se a substantial change. In the absence of facts demonstrating a substantial change to the proposed ordinance (i.e., an appreciable change in the overall policy of the ordinance), there was no way to determine whether the procedural requirement of readvertisement was even required.

The court also concluded that the township "failed to strictly comply with statutory procedures." The court was probably not referring to the township’s failure to readvertise the ordinance changes because the procedures under the MPC do not call for readvertisement in the event of any change, only in the event of a substantial change.

Because the court was unable to determine whether a substantial change was made to the ordinance for purposes of evaluating whether the procedural defect was substantial, it was no more able to determine whether a substantial change was made for purposes of determining whether the procedural defect strictly complied with procedural requirements.

Accordingly, the holding in Messina should not be interpreted to apply a mandatory requirement that all changes to an amendment be readvertised to meet the strict compliance requirement. Even so, the threshold for what constitutes a substantial change in the context of zoning amendments remains vague, and those seeking to make changes to an ordinance would be best served by readvertising in the event any modification is made to a proposed amendment following the initial advertisement.

When the court referred to the township’s failure to strictly comply with procedural requirements, the court most likely was referring to the failure to submit changes to the East Penn Township Planning Commission. This comports with prior Commonwealth Court decisions interpreting Sections 607 and 609(c) of the MPC, in which it was determined that changes to proposed ordinances must be submitted to a planning agency "whether substantial changes have occurred or not," as the court held in Kohr v. Lower Windsor Township Board of Supervisors, 867 A.2d 755, 758 (Pa Cmwlth 2005).

Accordingly, any failure to submit ordinance changes to the planning commission could constitute a failure to strictly comply with procedural requirements, and any challenge brought within 30 days of enactment of such an ordinance would result in the ordinance being declared void ab initio.

Importantly, the Supreme Court also reiterated its prior holdings that the limits on appeals under 42 Pa.C.S. §5571.1 do not apply when a violation of constitutional rights is at issue.

As a practical matter, based on this case, developers and their attorneys should strive for strict compliance with procedural requirements for all proposed ordinance changes. While not all changes to a proposed ordinance are considered substantial changes, the threshold for substantial changes remains vague.

Accordingly, to avoid risk, a developer proposing a zoning ordinance amendment should request that a municipality readvertise in the event any favorable change is made to the proposal after the initial advertisement. In addition, given that all challenges within 30 days of enactment are subject to strict compliance review, in the event any change is proposed after the planning agency has provided its initial review, a developer should request that a municipality resubmit the changed amendment to the planning agency for further review. •

Michael A. Kostiew is an associate in the Pittsburgh office of Reed Smith’s real estate group. His experience includes handling commercial real estate and transactional, land-use and litigation matters.