In May of this year, the Pennsylvania Commonwealth Court rendered a decision in Messina v. East Penn Township that solidifies the limitations imposed by recent amendments to the Judicial Code to the ab initio doctrine, as applied to land use cases. In Messina, the court held that land owners who sought to challenge a zoning ordinance 12 years after it was adopted must meet the statutory requirements imposed in the amendments to the Judicial Code, in order to prevail on the claim that the zoning ordinance was void ab initio.
The doctrine of “void ab initio” is normally seen in the context of due process challenges to enactment of statutes. As summarized in Messina , the doctrine stands for the principle that a statute held to be unconstitutional is void in its entirety and is inoperative as if it never existed. The issue in Messina was whether a party is barred from challenging a land use statute after the expiration of statutorily required time limits, notwithstanding that party’s allegation of due process defects in enactment of the challenged statute. The Messina court held that, based on amendments to the Judicial Code passed by the General Assembly, a party could be barred from raising such challenges if it fails to rebut the statutory presumptions of notice, materiality and reliance.
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