A Supreme Court decision last fall threw the door wide open for lawsuits to be brought against municipalities challenging local ordinances on procedural grounds years, or even decades, after the laws were passed.Now state Rep. David Kessler (D-130th Dist.) is taking action to close that door.
Until last September, a challenge of an ordinance based on a technicality-such as the date of a legal ad or the distance between posted public notice signs-had to be filed during a 30-day window.
But a Supreme Court ruling in a case between Berks County business Glen-Gery Corporation and Dover Township, Lancaster County, changed all that.
Glen-Gery filed a lawsuit in 2004 challenging Dover Township's zoning ordinance, which was limited the company's ability to surface mine its land, claiming that there were procedural errors in how the law was enacted.
Lower-level courts threw out the case citing the 30-day window, but Glen-Gery appealed the decision until it ended up before the state's highest court, which reversed the lower court decisions and ruled that the company had the right to challenge the zoning ordinance on procedural issues, even years after the ordinance went into effect.
That decision opened the door for lawsuits to be brought against townships 10 or 15 years after an ordinance was approved-when the members who approved the ordinance have likely retired from public office.
Since the precedent-setting decision, more than 25 similar lawsuits have been filed throughout the state.
The ruling leaves municipalities at risk of having entire ordinances invalidated because of details regarding how the ordinance was enacted.
It forces officials to keep proof that all procedural requirements were followed in the event that an ordinance is challenged.
In the face of a challenge, townships are forced to choose between spending tens of thousands of taxpayer dollars to defend a procedural challenge or sit down at the bargaining table with the entity bringing the lawsuit and changing the ordinance.
"Even if procedures were followed, it opens up the door for lawsuits against the municipality," Kessler said. "If township supervisors know they followed procedures correctly, they have to spend money to defend it or chose not to spend the money and change the zoning ordinance. To defend some thing like this they can be spending $50,000 to $100,000."
With 15 years of experience in local government, Kessler, who currently serves as chairman of the Oley Township Board of Supervisors, saw an immediate need to remedy this situation.
Kessler is sponsoring a bill that would make it extremely difficult for procedural challenges to be brought against an ordinance more than two years after it was adopted. It would also allow townships to offer proof of public reliance on the ordinance and proof that it was properly enacted. The bill is expected to go before the state's local government committee, of which Kessler is a member.
Kessler was elected to the House of Representatives in 2006. His district includes Birdsboro, Boyertown and Fleetwood boroughs, part of Exeter Township and all of Amity, Colebrookdale, Douglass, Earl, Oley, Pike, Rockland, Ruscombmanor and Union townships.