Messina v. East Penn Twp.

Appellants Charles and Agnes Messina, and Lehigh Asphalt Paving and Construction Company appealed the Commonwealth Court’s affirmation of the order of the Carbon County Court of Common Pleas, which held appellants’ challenge to East Penn Township Zoning Ordinance No. 1996-94 was time-barred. Charles and Agnes Messina own 114.4 acres in East Penn Township where they reside in a single-family residence. Lehigh Asphalt Paving and Construction Company is the equitable owner of the property pursuant to an option contract, and it uses a portion of the property as a quarry. In 2008, appellants filed a lawsuit in the Carbon County Court of Common Pleas asserting the Ordinance was void ab initio because East Penn Township failed to strictly adhere to procedural requirements for adopting a zoning ordinance as required by section10610(b) of the Municipalities Planning Code (MPC). Appellants specifically argued East Penn Township made changes to the zoning map on the night of the Ordinance’s adoption and failed to provide notice to the public of these changes before enacting them. The trial court was unable to determine what changes had been made to the Ordinance on the night of its adoption, due to the record’s vagueness, and offered to hold an evidentiary hearing on what changes had been made, but the parties declined. Consequently, the trial court held appellants failed to show a substantial change made and found the claim was statutorily time-barred. Upon review of the lower courts’ records, the Supreme Court affirmed the holdings that appellants’ claim was time-barred because they failed to meet their burden of proof that the township did not substantially comply with statutory procedure as required by the applicable statute.

Messina v. East Penn Twp.