Chester County Outdoor, L.L.C. v. Bd. of Supervisors of Penn Twp. ( 2014 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Chester County Outdoor, LLC, :
Appellant :
:
v. : No. 1599 C.D. 2013
: Argued: June 20, 2014
Board of Supervisors of Penn :
Township :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: July 31, 2014
Appellant Chester County Outdoor, LLC (CCO) appeals from an
order of the Court of Common Pleas of Chester County (trial court), dated
September 6, 2013. The trial court sustained the preliminary objections filed by
the Board of Supervisors of Penn Township (Township), thereby dismissing
CCO’s complaint with prejudice and without leave to replead. We affirm.
CCO engages in the business of developing, owning, operating, and
leasing commercial off-premises advertising billboards. CCO is a billboard lessee
of property located at 27 Commerce Boulevard (Property) in Penn Township. On
August 10, 2011, CCO filed a challenge to the substantive validity of the
Township’s Zoning Ordinance (Ordinance) with the Penn Township Zoning
Hearing Board (ZHB). Specifically, CCO alleged that Section 1800.G of the
Ordinance unlawfully excluded billboards. The Township intervened in the
challenge and agreed with CCO’s position. On December 1, 2011, the ZHB issued
a decision and order sustaining CCO’s validity challenge.
Notably, during the proceedings before the ZHB, CCO withdrew its
request for site-specific relief and accompanying plans, which it had previously
submitted in conjunction with its challenge. Nevertheless, the ZHB noted in its
decision that CCO would not be entitled to the particular site-specific relief
depicted in its application, because the plans would not comply with various
unchallenged sections of the Ordinance. As a consequence, CCO appealed to the
trial court, alleging that the ZHB erred and abused its discretion in denying CCO
site-specific relief. In concluding that CCO did not have standing to appeal, the
trial court denied CCO’s appeal and affirmed the ZHB’s decision. This Court
subsequently affirmed on appeal, explaining that CCO was the prevailing party
below and that the portion of the ZHB’s decision relating to site-specific relief was
dictum. In re Chester Cnty. Outdoor, LLC, 64 A.3d 1148, 1152 (Pa.
Cmwlth. 2013).
On June 19, 2013, CCO filed the instant declaratory judgment action
with the trial court, seeking a declaration that (1) CCO is a successful challenger to
the Ordinance’s unlawful exclusion of billboards and (2) only the trial court can
grant the site-specific relief owed to a successful challenger of a zoning ordinance.1
1
With regard to the latter request, CCO specifically sought a declaration that only the
trial court could determine the form of judicial relief to be awarded to a successful challenger
under Section 1006-A(c) of the Pennsylvania Municipalities Planning Code, Act of
July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L. 1329, 53 P.S.
§ 11006-A(c), or grant equitable relief to a successful challenger. (Reproduced Record (R.R.)
at 11a.) For purposes of this appeal, we will refer to the relief sought by CCO as site-specific
relief.
2
(Reproduced Record (R.R.) at 9a-11a.) On July 15, 2013, the Township filed
preliminary objections to CCO’s complaint in the nature of a demurrer. In the
alternative, the Township moved for the ZHB to be appointed as a special hearing
master pursuant to Section 1006-A(c) of the Pennsylvania Municipalities Planning
Code2 to determine whether CCO was entitled to site-specific relief and, if so, to
what extent.
On September 6, 2013, the trial court issued an order sustaining the
Township’s preliminary objections, thereby dismissing CCO’s complaint with
prejudice and without leave to replead. The trial court explained that CCO
successfully challenged Section 1800.G of the Ordinance, such that it was no
longer an impediment to CCO’s use of the Property. (R.R. at 109a.) The trial
court further noted that it did not appear that CCO had applied for any use of the
Property. (Id.) The trial court rejected CCO’s position that only the trial court can
determine the form of relief to be awarded to a party who successfully challenges a
provision of a zoning ordinance. (Id.) In so doing, the trial court explained that in
a zoning appeal involving an applicant that has successfully challenged a provision
of a zoning ordinance and sought site-specific relief, the trial court is empowered
to grant relief. (Id.) Nevertheless, in a circumstance where the applicant sought
relief from a zoning hearing board and obtained all the relief it sought, the trial
court no longer has jurisdiction to grant any relief. (Id.) Finally, the trial court
observed that CCO had provided no reason, and the trial court could not discern
2
Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988,
P.L. 1329, 53 P.S. § 11006-A(c).
3
one, for why CCO could not now apply to the Township for a use of the Property.
(Id.) CCO then appealed to this Court.
On appeal,3 CCO argues that the trial court erred in sustaining the
Township’s preliminary objections, because the trial court has exclusive authority
to determine the site-specific relief to be awarded to a successful challenger of a
zoning ordinance. CCO also argues that municipalities lack the authority to
determine such relief. Moreover, CCO argues that the trial court has the ability to
grant site-specific relief even where no plans were submitted to the zoning hearing
board. Finally, CCO argues that current Pennsylvania law provides no remedy to a
landowner whose challenge is successful before the zoning hearing board.
This Court agrees with the trial court’s decision and further concludes
that the opinion of the Honorable Robert J. Shenkin, issued pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a), thoroughly discusses and
properly disposes of the arguments raised on appeal to this Court. As such, we
adopt the analysis in his opinion, filed October 10, 2013, for purposes of appellate
3
This Court’s review of a trial court’s order sustaining preliminary objections in the
nature of a demurrer is limited to considering whether the trial court erred as a matter of law or
abused its discretion. Braun v. Borough of Millersburg, 44 A.3d 1213, 1215 n.3 (Pa. Cmwlth.),
appeal denied, 55 A.3d 525 (Pa. 2012). In ruling on preliminary objections, courts must accept
as true all well-pleaded material allegations in a complaint and any reasonable inferences that
may be drawn from the averments. Meier v. Maleski, 648 A.2d 595, 600 (Pa.
Cmwlth. 1994). Courts, however, are not bound by legal conclusions encompassed in a
complaint, unwarranted inferences from facts, argumentative allegations, or expressions of
opinion. Id. Courts may sustain preliminary objections only when the law makes clear that the
plaintiff cannot succeed on his claim, and any doubts must be resolved in favor of the
plaintiff. Id. Courts review preliminary objections in the nature of a demurrer under these
guidelines and may sustain a demurrer only when a plaintiff fails to state a claim for which relief
may be granted. Clark v. Beard, 918 A.2d 155, 158 n.4 (Pa. Cmwlth. 2007).
4
review. Accordingly, we affirm the trial court’s order on the basis of the attached
Rule 1925(a) opinion issued in Chester County Outdoor, LLC v. Board of
Supervisors of Penn Township, Chester County, No. 13-05944, filed
October 10, 2013.
P. KEVIN BROBSON, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Chester County Outdoor, LLC, :
Appellant :
:
v. : No. 1599 C.D. 2013
:
Board of Supervisors of Penn :
Township :
ORDER
AND NOW, this 31st day of July, 2014, the order of the Court of
Common Pleas of Chester County, dated September 6, 2013, sustaining the Board
of Supervisors of Penn Township’s preliminary objections and dismissing Chester
County Outdoor, LLC’s complaint with prejudice and without leave to replead, is
hereby AFFIRMED. This Court adopts the analysis of the Honorable Robert J.
Shenkin in his opinion, issued pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a), in Chester County Outdoor, LLC v. Board of Supervisors of
Penn Township, Chester County, No. 13-05944, filed October 10, 2013.
P. KEVIN BROBSON, Judge