Appeal of: Chester County Outdoor, LLC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Appeal of: Chester County :
Outdoor, LLC, from the Decision :
of the East Pikeland Township Zoning :
Hearing Board Dated March 23, 2016 :
:
Appeal of: Chester County : No. 1761 C.D. 2016
Outdoor, LLC : Argued: June 5, 2017
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION
BY JUDGE BROBSON FILED: July 28, 2017
Appellant Chester County Outdoor, LLC (CCO) appeals from an
order of the Court of Common Pleas of Chester County (trial court), dated
October 11, 2016. The trial court affirmed the decision of the East Pikeland
Township Zoning Hearing Board (ZHB), thereby dismissing CCO’s appeal. For
the reasons discussed below, we affirm in part, vacate in part, and remand for
further proceedings.
To fully understand how this matter is presently before the Court, a
summary of the basic facts and procedural history from our decision in Chester
County Outdoor, LLC v. Board of Supervisors of East Pikeland Township,
123 A.3d 806 (Pa. Cmwlth. 2015) (East Pikeland Township I), is necessary and
helpful:
CCO engages in the business of developing,
owning, operating, and leasing commercial off-premises
advertising billboards. CCO is the billboard lessee of
property located at 458 Schuylkill Road (Property), in
East Pikeland Township. On December 20, 2011, CCO
filed a challenge to the substantive validity of the East
Pikeland Township Zoning Ordinance (Ordinance) with
the [ZHB]. Specifically, CCO alleged that
Sections 1902.13 and 1904.1 of the Ordinance unlawfully
excluded billboards. CCO did not request site-specific
relief from the ZHB or submit plans for a proposed
billboard with the validity challenge.
On February 7, 2012, the Board of Supervisors of
East Pikeland Township (the Township) adopted
resolution No. 2012-03 declaring the challenged Sections
of the Ordinance to be invalid. On March 28, 2012, the
ZHB issued a decision and order sustaining the
challenge. No party appealed the ZHB’s decision. On
July 26, 2012, the Township adopted a curative
amendment to the Ordinance.
On July 30, 2012, CCO filed [a] declaratory
judgment action with the trial court, seeking (1) a
declaration that CCO is entitled to site-specific relief to
permit a billboard use on the Property, and (2) a hearing
be held pursuant to Section 1006-A(d) of the
Pennsylvania Municipal Planning Code (MPC)[, 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,] to
consider plans for the proposed billboards in determining
CCO’s right to site-specific relief. Concurrently, CCO
filed a petition for a hearing to determine site-specific
relief.
On August 20, 2012, the Township moved for the
ZHB to be appointed special hearing master pursuant to
Section 1006-A(c) of the MPC. CCO objected, arguing
that only the trial court could grant relief. The trial court
granted the motion over CCO’s objection and directed
the ZHB to hold a hearing to determine CCO’s
entitlement to site-specific relief. On September 2, 2014,
the ZHB issued its report, denying CCO site-specific
relief. The ZHB found that the proposed billboards:
(1) would present a threat to health, safety, and welfare;
(2) do not comply with the extant provisions of the
Ordinance; and (3) do not comply with other reasonable
zoning regulations. CCO filed exceptions to the report.
2
Following argument, the trial court issued an order
and opinion in which it granted CCO’s exceptions to the
special report to the extent the exceptions challenged the
appointment of the ZHB as a special master under
Section 1006-A(c) of the MPC for the purpose of
considering site-specific relief. The trial court also
declined to implement the report. The trial court
explained:
It is evident now that proceeding
under Article X-A of the MPC[, Act of
July 31, 1968, P.L. 805, as amended, added
by the Act of December 21, 1988,
P.L. 1329, 53 P.S. §§ 11001-A to 11006-A,]
was in error inasmuch as no appeal was or is
pending. To the contrary, when CCO
commenced this action it was the successful
challenger of a provision of the Ordinance.
This action was brought as a declaratory
judgment action, not a land use appeal.
Therefore, Article X-A of the MPC is
inapposite.
Citing an unreported panel decision of this Court,
Chester County Outdoor, LLC v. Board of Supervisors of
Penn Township (Pa. Cmwlth., No. 1599 C.D. 2013, filed
July 31, 2014) (Penn Township), the trial court opined
that CCO’s request for site-specific relief did not belong
before the trial court: “CCO’s next step in our case, after
prevailing on its challenge, should have been to submit
plans to the Township. CCO has never applied for and
been denied site-specific relief. Since no application has
been denied, no relief is available under Section 1006-A
of the MPC.”
East Pikeland Township I, 123 A.3d at 807-08 (footnotes and citations omitted).
CCO appealed the trial court’s decision to this Court, arguing that as
the successful challenger to the Ordinance, it was entitled to site-specific relief that
must be crafted by the trial court. This Court, relying upon its prior unreported
decision in Penn Township, a case with a virtually identical procedural posture,
held that the trial court did not err in directing CCO to submit its request for
3
site-specific relief to the appropriate municipal authority, because the trial court
did not have jurisdiction to review plans or applications, which had never been
submitted to the appropriate authority for consideration.
Thereafter, on November 5, 2015, CCO submitted a building permit
application (Permit Application), with the building plans for its proposed billboard
appended thereto, to the Township’s Zoning Officer (Zoning Officer).
(Reproduced Record (R.R.) at 393a-435a.) On November 18, 2015, the Zoning
Officer denied CCO’s Permit Application. (Id. at 436a-40a.) CCO appealed the
Zoning Officer’s denial of its Permit Application to the ZHB. (Id. at 441a-518a.)
The ZHB conducted a hearing on January 27, 2016. (Id. at 519a.) At that time,
CCO and the Township entered into a joint stipulation, whereby CCO and the
Township stipulated to the admission of the following documents for consideration
by the ZHB: (1) the record established before the ZHB at the time that the ZHB
was appointed by the trial court to serve as the special hearing master, including
transcripts from the hearings held on June 26, 2013, August 28, 2013,
September 25, 2013, October 23, 2013, December 18, 2013, January 22, 2014,
February 19, 2014, March 26, 2014, April 23, 2014, and May 21, 2014, and the
exhibits admitted into evidence at such hearings; (2) the record established during
the declaratory judgment action before the trial court; (3) this Court’s decision in
East Pikeland Township I; (4) CCO’s Permit Application; and (5) the Zoning
Officer’s denial of CCO’s Permit Application. (Id. at 519a-24a.) By decision
dated March 23, 2016, the ZHB concluded that CCO was not entitled to the
site-specific relief that it had requested and denied CCO’s appeal.
(Id. at 601a-25a.)
4
CCO appealed the ZHB’s decision to the trial court. On
October 11, 2016, after taking no additional evidence, the trial court issued an
opinion and order, affirming the ZHB’s decision and dismissing CCO’s appeal. In
so doing, the trial court concluded, inter alia: (1) Section 1005-A of the MPC1 set
forth the standard of review applicable to its review of the denial of CCO’s request
for site-specific relief and did not require it to conduct a de novo review of the
evidence; (2) CCO’s proposed billboard had to comply with the Ordinance in
effect at the time that CCO submitted its Permit Application because CCO’s
Permit Application was untimely filed; (3) CCO’s proposed billboard failed to
comply with the provisions of the Ordinance in effect at the time that CCO
submitted its Permit Application, which included the Township’s subsequently
adopted curative amendment; and (4) the Ordinance’s unchallenged provisions
regulating the use of signs generally remained applicable to CCO’s proposed
billboard following its successful validity challenge, and CCO failed to establish
that its proposed billboard complied with such provisions. (Trial Ct. Op. at 5-21.)
CCO appealed the trial court’s decision to this Court. On appeal,2
CCO has raised eight issues for our consideration. For purposes of discussion and
disposition, we have reordered, condensed, and combined the cognizable issues as
follows: (1) whether the process to challenge zoning laws under Section 916.1 of
1
Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329,
53 P.S. § 11005-A.
2
In an appeal from a trial court’s order affirming a decision of a zoning hearing board,
where the trial court takes no additional evidence, our review is limited to considering whether
the zoning hearing board abused its discretion or erred as a matter of law. Interstate Outdoor
Adver. v. Zoning Hearing Bd. of Warrington Twp., 39 A.3d 1019, 1024 n.5 (Pa. Cmwlth. 2012),
appeal denied, 75 A.3d 1283 (Pa. 2013).
5
the MPC3 is unconstitutional; (2) whether the trial court erred by concluding that
CCO’s Permit Application was not timely submitted; (3) whether the trial court
erred by concluding that the ZHB possessed the requisite authority and jurisdiction
to consider CCO’s request for site-specific relief; (4) whether the trial court erred
by (a) denying CCO’s request for a de novo review of the evidence, (b) concluding
that CCO rather than the Township had the burden of establishing that none of the
general provisions of the Ordinance applied to CCO’s proposed billboard,
(c) concluding that the ZHB could apply the Township’s subsequently adopted
curative amendment to CCO’s request for site-specific relief, and (d) failing to
grant CCO’s request for site-specific relief in some form; (5) whether the ZHB
capriciously disregarded the unrebutted testimony of CCO’s experts regarding the
safety of the proposed billboard; and (6) whether the trial court erred by affirming
the ZHB’s conclusion that CCO’s proposed billboard did not comply with the
Ordinance’s unchallenged and generally applicable provisions.
First, we address CCO’s argument that the zoning challenge process
under Section 916.1 of the MPC is unconstitutional. More specifically, CCO
argues that under the United States and Pennsylvania Constitutions, courts have the
sole authority to hear, determine, and remedy zoning challenges. CCO argues
further that Section 916.1 of the MPC is unconstitutional because it confers the
exclusive power of judicial review over the constitutionality of zoning laws upon
municipal zoning hearing boards and prohibits a landowner from commencing a
zoning challenge directly in court. In response, the Township argues that zoning
3
Act of July 31, 1968, P.L. 805, as amended, added by the Act of Dec. 21, 1988, P.L.
1329, 53 P.S. § 10916.1.
6
hearing boards are quasi-judicial bodies authorized by Article V, Section 1 of the
Pennsylvania Constitution. Alternatively, the Township argues that Article V,
Section 8 of the Pennsylvania Constitution gives the General Assembly the
authority to create municipal zoning hearing boards, which the General Assembly
did through the enactment of the MPC.
Section 916.1 of the MPC4 governs the procedure by which an
aggrieved person may challenge the validity of a zoning ordinance. This appeal,
however, does not involve a challenge to the validity of a zoning ordinance.
Rather, it involves the denial of CCO’s Permit Application—i.e., CCO’s request
for site-specific relief following its successful challenge to the validity of
Sections 1902.13 and 1904.1 of the Ordinance. CCO’s validity challenge was part
of a separate proceeding that the ZHB decided on March 28, 2012, and that neither
CCO nor the Township appealed. As this appeal does not involve a challenge to
the validity of the Ordinance, the issue of the constitutionality of Section 916.1 is
not properly before the Court, and we need not address it at this time.
4
Section 916.1 of the MPC provides, in relevant part:
(a) A landowner who, on substantive grounds, desires to challenge the
validity of an ordinance or map or any provision thereof which prohibits or
restricts the use or development of land in which he has an interest shall submit
the challenge either:
(1) to the zoning hearing board under section 909.1(a); or
(2) to the governing body under section 909.1(b)(4), together with
a request for a curative amendment under section 609.1.
(b) Persons aggrieved by a use or development permitted on the land of
another by an ordinance or map, or any provision thereof, who desires [sic] to
challenge its validity on substantive grounds shall first submit their challenge to
the zoning hearing board for a decision thereon under section 909.1(a)(1).
7
Next, we address CCO’s argument that the trial court erred by
concluding that CCO’s Permit Application was not timely submitted. In making
this conclusion, the trial court reasoned that because CCO did not require further
land subdivision or development approval and only needed to apply for a building
permit, the conditions of Section 916.1(g) of the MPC5 were met and CCO had one
year within which to file for a building permit or it would lose the protections
established by Section 916.1(g)—i.e., that no subsequent amendment to the
Ordinance could be applied to adversely affect CCO’s rights sustained in the
validity challenge. CCO argues that the one-year time limitation set forth in
5
Section 916.1(g) of the MPC provides:
Where, after the effective date of this act, a curative amendment proposal
is approved by the grant of a curative amendment application by the governing
body pursuant to section 909.1(b)(4) or a validity challenge is sustained by the
zoning hearing board pursuant to section 909.1(a)(1) or the court acts finally on
appeal from denial of a curative amendment proposal or a validity challenge, and
the proposal or challenge so approved requires a further application for
subdivision or land development, the developer shall have two years from the date
of such approval to file an application for preliminary or tentative approval
pursuant to Article V or VII. Within the two-year period, no subsequent change
or amendment in the zoning, subdivision or other governing ordinance or plan
shall be applied in any manner which adversely affects the rights of the applicant
as granted in the curative amendment or the sustained validity challenge. Upon
the filing of the preliminary or tentative plan, the provisions of section 508(4)
shall apply. Where the proposal appended to the curative amendment application
or the validity challenge is approved but does not require further application under
any subdivision or land development ordinance, the developer shall have one year
within which to file for a building permit. Within the one-year period, no
subsequent change or amendment in the zoning, subdivision or other governing
ordinance or plan shall be applied in any manner which adversely affects the
rights of the applicant as granted in the curative amendment or the sustained
validity challenge. During these protected periods, the court shall retain or
assume jurisdiction for the purpose of awarding such supplemental relief as may
be necessary.
8
Section 916.1(g) has not yet run because CCO did not submit its proposal for the
billboard with its validity challenge to Sections 1902.13 and 1904.1 of the
Ordinance. Alternatively, CCO argues that to the extent that a proposal for its
proposed billboard was approved, the one-year time limitation was tolled and
extended by the Development Permit Extension Act (Permit Extension Act).6
CCO argues further that such one-year time limitation should be tolled for the
duration of any litigation associated with the validity challenge and its efforts to
obtain site-specific relief. In response, the Township argues that because proposed
billboards do not require subdivision or land development, CCO had one year from
the date of the ZHB’s March 28, 2012 decision upholding CCO’s validity
challenge to file a building permit application. The Township argues further that
6
Act of July 9, 2013, P.L. 362, as amended, 53 P.S. §§ 11703.1-.8. Section 3 of the
Permit Extension Act, as amended, 53 P.S. § 11703.3, provides, in pertinent part:
(a) Automatic suspension.—For an approval that is granted for or in effect
between the beginning of the extension period[, December 31, 2008,] and
July 2, 2013, whether obtained before or after the beginning of the extension
period, the running of the period of the approval shall be automatically suspended
until July 2, 2016.
Section 2 of the Permit Extension Act, as amended, 53 P.S. § 11703.2, defines an
“approval” as:
(1) [A]ny government agency approval, agreement, permit, including a
building permit or construction permit, or other authorization or decision:
(i) allowing a development or construction project to proceed; or
(ii) relating to or affecting development, granted pursuant to a
statute, regulation or ordinance adopted by a municipality, including the
following:
....
(T) The [A]ct of July 31, 1968[, P.L. 805, as amended,
53 P.S. §§ 10101-11202], known as the [MPC].
9
CCO well-exceeded that one-year time limitation because CCO did not file its
Permit Application until November 2015, nearly three years after the ZHB’s
decision. The Township also argues that the Permit Extension Act does not save
the untimeliness of CCO’s Permit Application because the ZHB’s decision to
sustain CCO’s validity challenge does not constitute an “approval.”
Section 916.1(g) of the MPC provides, in pertinent part: “[w]here the
proposal appended to the . . . validity challenge is approved but does not require
further application under any subdivision or land development ordinance, the
developer shall have one year within which to file for a building permit.”
(Emphasis added.) This one-year time limitation is not applicable to an application
for building permit unless the ZHB approved a proposal that was appended to the
validity challenge. In this case, the ZHB did not consider, let alone approve, a
proposal, because CCO did not append a billboard proposal to its validity
challenge. As a result, the requirement that a building permit be filed within one
year of the approval of a proposal appended to a validity challenge is not
applicable to the facts of this case, and we must, therefore, conclude that the trial
court erred by finding that CCO’s Permit Application was not timely submitted.
Next, we address CCO’s argument that the trial court erred by
concluding that the ZHB possessed the requisite authority and jurisdiction to
consider CCO’s request for site-specific relief. More specifically, CCO argues that
its request for site-specific relief is an equitable remedy that must be determined by
a court and cannot be left to the municipality that unconstitutionally prohibited the
use in the first place. In response, the Township argues that the doctrine of res
judicata precludes CCO from arguing that the ZHB lacked authority to determine
CCO’s request for site-specific relief, because this Court previously rejected this
10
argument in East Pikeland Township I and Penn Township. Alternatively, the
Township argues that, to the extent that this matter is considered to be a later phase
of the East Pikeland Township I matter, the “law of the case” doctrine precludes
the reconsideration of this argument at this time.
In East Pikeland Township I and Penn Township, this Court
concluded that CCO was not entitled to site-specific relief directly from the trial
court, because the trial court did not have jurisdiction to review plans or
applications that had never been submitted to the appropriate authority for
consideration. E. Pikeland Twp. I, 123 A.3d at 810; Penn Twp., slip op. at 4. In
other words, before the trial court could consider CCO’s request for site-specific
relief, CCO was first required to file an appropriate application with the local
municipality. E. Pikeland Twp. I, 123 A.3d at 809-10. Despite its two
unsuccessful attempts at the same argument, CCO again argues that the ZHB lacks
the authority to consider its request for site-specific relief. We decline to
re-examine the issue, and we reaffirm our holding in East Pikeland Township I.
Thus, the trial court did not err in determining that the ZHB possessed the requisite
authority and jurisdiction to consider initially CCO’s request for site-specific relief.
Finally, we address CCO’s arguments that the trial court erred by
denying CCO’s request for a de novo review of the evidence, concluding that CCO
rather than the Township had the burden of establishing that none of the general
provisions of the Ordinance applied to CCO’s proposed billboard, concluding that
the ZHB could apply the subsequently adopted curative amendment to CCO’s
request for site-specific relief, and failing to grant CCO’s request for site-specific
relief in some form. More specifically, CCO argues that “[g]iven the MPC’s
emphasis on the court’s exclusive role in granting site-specific relief and CCO’s
11
reliance upon this judicial aid as its sole remedy, the trial court is required to
examine the matter of site-specific relief de novo[,]” and, therefore, the ZHB’s
findings of fact and conclusions of law should not be entitled any weight in the
trial court’s determination of the request for site-specific relief. (CCO’s Br. at 33.)
CCO argues further that because the Ordinance specifically excluded billboards, it
was the Township’s burden to prove “the materiality of any existing generally
applicable regulations and how applying such regulations are reasonably related to
protecting the public health and safety.” (CCO’s Br. at 37.) CCO also argues that
a curative amendment adopted by a municipality after a validity challenge has been
filed should be given no effect in fashioning site-specific relief. CCO contends
further that as the successful challenger to the Ordinance’s unconstitutional
exclusion of billboards, CCO is entitled to some form of site-specific relief.
In response, the Township argues that the trial court did not err by
limiting its review to the evidentiary record presented to the ZHB and determining
that it was not required to conduct a de novo review of the evidence, because this
Court previously rejected CCO’s arguments to the contrary in East Pikeland
Township I and Penn Township, and, therefore, res judicata and the “law of the
case” doctrine preclude the reconsideration of CCO’s arguments. Rather than
addressing whose burden it is to prove whether any unchallenged provisions of the
Ordinance are material and applicable to CCO’s request for site-specific relief,
however, the Township simply argues that the Ordinance’s general sign criteria
and regulations applicable to structures apply to CCO’s request for site-specific
relief because CCO did not challenge such provisions as part of its validity
challenge, and the Township’s witnesses identified a wide variety of such
regulations with which CCO’s proposed billboard does not comply. The Township
12
also argues that based upon the approach adopted by this Court in
J.B. Steven, Inc. v. Board of Commissioners of Wilkins Township, 654 A.2d 135(Pa. Cmwlth.), appeal denied, 668 A.2d 1139 (Pa. 1995),7 a curative amendment
“is among the factors that play into the review of a request for site[-]specific
relief.” (Township’s Br. at 31.) Lastly, the Township argues that CCO is not
entitled to the unfettered, unlimited, and automatic right to construct any billboard
it desires simply because CCO filed a successful validity challenge to the
Ordinance’s provisions excluding billboards. Rather, CCO’s proposed billboard
must comply with the Ordinance’s unchallenged provisions, be a reasonable use,
and not be contrary to the public health, safety, and welfare.
This Court previously addressed CCO’s arguments regarding de novo
review and the grant of some form of site-specific relief in In re Bartkowski
Investment Group, Inc., 106 A.3d 230 (Pa. Cmwlth. 2014), appeal denied,
118 A.3d 1109 (Pa. 2015). After reviewing the unambiguous language in
Section 1006-A of the MPC8 and numerous decisions of this Court and the
7
The procedural and factual posture of J.B. Steven, Inc. is distinguishable from the
present case. In J.B. Steven, Inc., the zoning hearing board determined that the building permits
for the proposed billboards would not be issued unless the applicant complied with what this
Court referred to as the “Board’s Curative Amendment.” J.B. Steven, Inc., 654 A.2d at 137.
The “Board’s Curative Amendment,” however, appears simply to have been the zoning hearing
board’s own proposed curative amendment, which set forth what the zoning hearing board
believed to be reasonable restrictions on the erection of the proposed billboards, and not a
curative amendment that had been formally adopted by the township—i.e., it was simply an
explanation of what the zoning hearing board believed to be reasonable restrictions on the
applicant’s request for site-specific relief. See J.B. Steven, Inc., 654 A.2d at 137-40.
8
Section 1006-A of the MPC provides, in relevant part:
(c) If the court finds that an ordinance or map, or a decision or order
thereunder, which has been brought up for review unlawfully prevents or restricts
a development or use which has been described by the landowner through plans
(Footnote continued on next page…)
13
Pennsylvania Supreme Court, this Court identified several binding principles that
apply in circumstances in which a successful challenger of a zoning ordinance is
seeking site-specific relief:
First, Section 1006-A gives broad discretionary powers
to the trial court to fashion appropriate relief to the
successful challenger of a zoning ordinance. In
exercising this power to fashion judicial relief, the trial
court owes no deference to the administrative findings of
the zoning hearing board or governing body, whichever
rejected the challenger’s substantive validity challenge.
This does not mean, however, that a trial court must also
ignore findings of the local agency or the evidence
gathered in the local agency proceeding. Though not
binding, both may inform a trial court’s decision under
Section 1006-A. The trial court may also conduct a
hearing to receive evidence. Such additional evidence,
(continued…)
and other materials submitted to the governing body, agency or officer of the
municipality whose action or failure to act is in question on the appeal, it may
order the described development or use approved as to all elements or it may
order it approved as to some elements and refer other elements to the governing
body, agency or officer having jurisdiction thereof for further proceedings,
including the adoption of alternative restrictions, in accordance with the court's
opinion and order.
(d) Upon motion by any of the parties or upon motion by the court, the
judge of the court may hold a hearing or hearings to receive additional evidence
or employ experts to aid the court to frame an appropriate order. If the court
employs an expert, the report or evidence of such expert shall be available to any
party and he shall be subject to examination or cross-examination by any party.
He shall be paid reasonable compensation for his services which may be assessed
against any or all of the parties as determined by the court. The court shall retain
jurisdiction of the appeal during the pendency of any such further proceedings and
may, upon motion of the landowner, issue such supplementary orders as it deems
necessary to protect the rights of the landowner as declared in its opinion and
order.
14
whether developed before the trial court or the zoning
hearing board at the trial court’s direction, would seem
necessary should the trial court consider alternative sites
and/or alternative configurations for the use at issue. A
trial court may retain experts. A trial court may refer
some matters to the appropriate governing body in the
municipality for further proceedings. But, critically, a
trial court retains jurisdiction and overseas the process.
Ultimately, what form of judicial relief is appropriate—
e.g., location and/or configuration—is the trial court’s
decision, subject to a right of appeal, of course, to this
Court.
Having recognized the extent of a trial court’s
authority under Section 1006-A of the MPC, we must
also acknowledge that while a trial court may conduct its
review using all of the evaluative tools available, we
cannot say that a trial court’s failure to utilize one or all
of the options will constitute an abuse of discretion under
Section 1006-A of the MPC. As we have attempted to
emphasize, a trial court’s powers under this provision are
broad and discretionary. It seems apparent that, in order
for the trial court properly to exercise the powers the
General Assembly has vested in it, a trial court must keep
in mind that the paramount concern the General
Assembly expressed in Section 1006-A of the MPC, as
interpreted by the courts, is to seek to provide a
successful challenger with some measure of relief. That
paramount concern, however, may be limited by the
coexistence of legitimate health, safety, and welfare
concerns, and in certain cases a review of reasonable
standards set forth in pertinent zoning and land use
provisions that may be applicable to a particular use at a
particular location. Thus, the discretionary powers
vested in trial courts serve these two considerations.
Bartkowski, 106 A.3d at 248-49 (emphasis in original). This Court went on to
conclude that if the trial court refuses to grant the successful challenger of a zoning
ordinance the site-specific relief requested, the trial court must consider whether
alternative relief can and should be made available. Id. at 250.
15
In addition, in Fernley v. Board of Supervisors of Schuylkill
Township, 502 A.2d 585 (Pa. 1985), our Supreme Court addressed the applicability
of a subsequently adopted curative amendment to a successful challenger’s request
for site-specific relief, as well as the burden of proof with respect to the application
of general provisions following a successful challenge to a zoning ordinance. In
Fernley, the Supreme Court stated:
[A] zoning provision adopted by a municipality which
cures the constitutional infirmity but which was not
considered or advertised prior to the filing of the
challenger’s application for review of the zoning
ordinance, may not be given effect for purposes of
fashioning the appropriate relief to be awarded to the
successful challenger.
Fernley, 502 A.2d at 589 (citing Casey v. Zoning Hearing Board, 328 A.2d 464,
468 (Pa. 1974)). The Supreme Court stated further that while a successful
challenger is permitted to develop the subject property as proposed, an approval is
not automatic and “must be predicated on the suitability of the proposed site and
various health and safety considerations.” Id. Therefore, the Supreme Court held
that a successful challenger’s request for site-specific relief must be granted unless
the municipality can establish the materiality of pre-existing and generally
applicable zoning provisions and that the proposed development is incompatible
with such provisions. Id. at 591.
The holdings of Bartkowski and Fernley establish the framework that
governs the trial court’s review of CCO’s request for site-specific relief as the
successful challenger of Sections 1902.13 and 1904.1 of the Ordinance. While
CCO is required to first submit its request for site-specific relief to the ZHB for
consideration and determination, the trial court is the ultimate decision maker. The
trial court is required to conduct a de novo review of the evidence and need not
16
give deference to the ZHB’s findings. As part of such de novo review, however,
the trial court, in its discretion, is permitted to accept the ZHB’s findings as its
own. The trial court is also permitted, but not required, to hold a hearing and take
additional evidence. After conducting its de novo review, the trial court is required
to grant CCO’s request for site specific relief, unless the Township meets its
burden of proving the materiality of certain unchallenged, pre-existing, and
generally applicable provisions of the Ordinance and that CCO’s proposed
billboard is incompatible with such provisions. When applying these
unchallenged, pre-existing, and generally applicable provisions to CCO’s billboard
proposal, however, the trial court must be mindful to not apply provisions relating
to on-premises signs in a manner that would exclude all billboards or limit the trial
court’s discretion in fashioning site-specific relief to CCO. In addition, the trial
court is not permitted to apply the Township’s July 26, 2012 curative amendment
to CCO’s request for site-specific relief, as such curative amendment was adopted
after CCO filed its validity challenge. In the event that the trial court concludes
that CCO’s proposed billboard is incompatible with any of the Ordinance’s
unchallenged, pre-existing, and generally applicable provisions and/or that the
proposed billboard is contrary to the public health, safety, and welfare, the trial
court must consider alternative sites and/or alternative configurations for the
proposed billboard and fashion some form of site-specific relief to CCO.
In this case, the trial court failed to adhere to this framework. First,
the trial court failed to conduct a de novo review of the evidence presented before
17
the ZHB, instead giving deference to the ZHB’s findings.9 Second, the trial court
improperly concluded that CCO’s proposed billboard was required to comply with
the Ordinance in effect at the time that CCO filed its Permit Application, which
included the Township’s curative amendment. Third, the trial court improperly
shifted the burden of proof to CCO and concluded that CCO failed to establish that
the proposed billboard complied with the Ordinance’s unchallenged, pre-existing,
and generally applicable provisions. Lastly, the trial court failed to fashion some
form of site-specific relief for CCO. As a result, we must conclude that the trial
court erred as a matter of law.
Accordingly, we affirm the trial court’s order with respect to its
conclusion that the ZHB possessed the requisite authority and jurisdiction to
consider CCO’s request for site-specific relief. We vacate the trial court’s order in
9
In East Pikeland Township I, this Court, in an attempt to assuage CCO’s concerns that it
would not receive a fair hearing before the ZHB, noted in a footnote that the submission of a
request for site-specific relief to the ZHB for approval is merely the first step. E. Pikeland Twp.,
123 A.3d at 810 n.8. This Court noted further that if CCO was displeased with the ZHB’s
decision, it could appeal the matter to the trial court, and the trial court could elect to receive
additional evidence and review the case de novo pursuant to Section 1005-A of the MPC. Id.
The question of what standard of review would be applicable to the trial court’s review of any
denial of CCO’s request for site-specific relief, however, was not before this Court in East
Pikeland Township I. As a result, this Court’s statements in that regard were dicta and did not
represent the holding in East Pikeland Township I. The trial court interpreted this Court’s
statements as requiring it to conduct its review of any denial of CCO’s request for site-specific
relief under the deferential standard set forth in Section 1005-A of the MPC. Upon further
review and consideration now that the issue is squarely before the Court, we conclude that
Section 1006-A of the MPC, not Section 1005-A, applies, where, as here, following a successful
validity challenge, the zoning hearing board rejects plans for site-specific relief and the
developer appeals that decision to the common pleas court.
18
all other respects and remand the matter to the trial court for further proceedings
and the issuance of a decision consistent with this Opinion.10
P. KEVIN BROBSON, Judge
10
Because we have concluded that the trial court erred by failing to adhere to the
framework set forth above regarding its review of CCO’s request for site-specific relief as the
successful challenger of Sections 1902.13 and 1904.1 of the Ordinance, and we have remanded
the matter to the trial court for further proceedings consistent with this opinion, we need not
consider the remainder of CCO’s arguments addressing the sufficiency of evidence.
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Appeal of: Chester County :
Outdoor, LLC, from the Decision :
of the East Pikeland Township Zoning :
Hearing Board Dated March 23, 2016 :
:
Appeal of: Chester County : No. 1761 C.D. 2016
Outdoor, LLC :
ORDER
AND NOW, this 28th day of July, 2017, the order of the Court of
Common Pleas of Chester County (trial court) is AFFIRMED in part and
VACATED in part, and the matter is REMANDED to the trial court for further
proceedings consistent with the accompanying opinion.
Jurisdiction relinquished.
P. KEVIN BROBSON, Judge