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East Penn zoning ordinance survives challenge on appeal

Published June 02. 2010 05:00PM

Lehigh Asphalt and Charles and Agnes Messina appealed a Court of Common Pleas opinion that the zoning ordinance in East Penn Township was procedurally accurate when the company applied for a quarry permit on Hollow Road.

The opinion by Judge Robert Simpson was filed on May 26. In the opinion he said the land-use appeal was to consider whether a municipality (East Penn) failed to comply with procedural requirements of the Municipalities Planning Code. He decided there was no defect affecting notice or due process concerns.

The zoning ordinance had been in use and relied upon by the municipality and landowners for 12 years between the enactment on July 22, 1996, and the validity challenge of August 2008.

East Penn filed a record of its proceedings regarding adoption of the zoning ordinance with the prothonotary of Carbon County. Nancy Blaha and Chris Pekurny, township residents, were granted petitions to intervene in opposition to Lehigh Asphalt.

The county court offered to schedule a hearing for either party to submit evidence on the challenge, but neither wanted to do so. The case was based on the information submitted to the prothonotary.

Lehigh Asphalt is the equitable owner of the Messina property and operates a quarry on the 114.4 acres. It asserts the zoning ordinance prevents them from expanding their mining and excavation operations.

The zoning ordinance was amended three times in 2000, 2001 and 2005. Submitted were minutes from the planning commission and supervisors meetings, proof of advertising and letters from residents including one from Greg Solt which suggested a zoning boundary revision to the zoning map. Without the revision the ordinance was not passed, but it was adopted after the map change was made.

The change was a movement of the boundary between business commercial and village commercial zones, neither of which abut the Messina property. Regardless of whether it could be proved there were procedural questions on that, it would have no affect. County court also determined there were omissions and gaps in the information provided but no one wanted to provide evidence so it was not considered.

The four alleged defects named by Lehigh Asphalt were that the amendment was not advertised properly because the entire text was not provided, no copy was filed with the county law library, it was not re-advertised after substantial changes were made and it was not submitted to the county planning commission at least 45 days before enactment.

The county court considered the summary satisfactory. It was not proved there was no copy filed at the law library, and the challengers did not submit evidence to support their claim that substantial changes were made. The court agreed the change was not submitted to the county planning commission.

The court found appeals of an ordinance have to be brought within 30 days. Lehigh Asphalt waited 12 years.

The Messinas attended seven of the meetings during which the proposed ordinance was discussed and Lehigh Asphalt's attorney was informed - so their interests were protected.

"For all of the foregoing reasons, we affirm the order of the trial court." Judge Robert Simpson.

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