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

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.

(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).

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).

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

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