MC Outdoor, LLC v. Bd. of Comm'rs of Abington Twp.
| Citation | 78 A.3d 1269 |
| Parties | MC OUTDOOR, LLC, Appellant v. BOARD OF COMMISSIONERS OF ABINGTON TOWNSHIP. |
| Decision Date | 30 October 2013 |
| Court | Commonwealth Court of Pennsylvania |
OPINION TEXT STARTS HERE
Gregg I. Adelman, Blue Bell, for appellant.
Kelly S. Sullivan, Media, for appellee Board of Commissioners of Abington Township.
Bruce J. Eckel, Glenside, for appellee Abington Township Zoning Hearing Board.
BEFORE: LEADBETTER, Judge, BROBSON, Judge, and FRIEDMAN, Senior Judge.
OPINION BY Judge LEADBETTER.
MC Outdoor, LLC (MC) appeals from an order of the Court of Common Pleas of Montgomery County that sustained the preliminary objections of the Abington Township Board of Commissioners (Commissioners), raising, inter alia, the pendency of a prior action and MC's failure to exhaust an available statutory remedy, and dismissed MC's complaint. In its action against the Commissioners, MC sought a declaration that the provisions of the Abington Township Zoning Ordinance (Ordinance) prohibiting off-site or off-premise advertising signs were de jure exclusionary and invalid and, therefore, that off-site advertising signs proposed in its substantive validity challenge filed with the Township Zoning Hearing Board (ZHB) were approved. MC also sought an order directing the Township to issue permits for the off-site advertising signs proposed before the ZHB. MC argues that the trial court improperly dismissed the complaint based on the pendency of the substantive validity challenge proceeding before the ZHB and its failure to exhaust a remedy available in that proceeding. MC claims that the validity challenge before the ZHB was rendered moot by the Commissioners' subsequent adoption of a resolution declaring the challenged provisions invalid. We reject MC's argument and affirm the trial court's order.
MC is in the business of developing, operating and leasing outdoor advertising structures, such as billboard signs. In June through August 2010, MC entered into agreements with the owners of five properties along York Road and Huntingdon Pike in the Township, in which the property owners agreed to lease off-site or off-premise billboard signs to be erected on their properties to MC.
On November 5, 2010, MC filed with the ZHB a substantive validity challenge to the following provisions of the Ordinance regulating advertising signs:
Section 1005. General Sign Regulations.
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C. Location of Sign.
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5. All signs, except directional and permitted off-site temporary signs, shall only be erected on the premises to which the use relates, and no sign erected or maintained on any property shall advertise anything other than that which is offered for sale or service on said property.
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A. The following signs are exclusively prohibited from being erected or displayed:
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14. Any off-premise sign except governmental signs, directory signs for service organizations and churches, temporary signs displayed for a period not to exceed two (2) weeks, signs approved by the municipality, or as otherwise may be permitted herein.
15. Any sign now or hereafter existing which no longer advertises a bona-fide business conducted on the property on which said sign is erected must be removed within fourteen (14) days following the close of business, or in such case thereafter, upon written notification from the Code Official.
....
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2. Special Commercial and Planned Business Districts.
a.
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(2) Signs can only be placed on the lot premises which they serve.
MC alleged that these provisions constituted an invalid de jure exclusion of off-site advertising signs and that MC should be permitted to develop off-site billboard signs as proposed in plans and drawings submitted to the ZHB with the validity challenge. MC subsequently agreed in writing to waive the time period in Section 908(1.2) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended,53 P.S. § 10908(1.2), within which the ZHB was required to hold a first hearing, and to postpone a first hearing indefinitely to discuss a possible settlement.1
Subsequently on January 13, 2011, the Commissioners adopted Resolution No. 11–002, declaring Sections 1005.C.5, 1007.A.14 and 15, and 1008.2.B.2.a(2) of the Ordinance challenged by MC before the ZHB, as well as Section 1008.2.B.1.a(2) prohibiting off-site advertising signs in town commercial and mixed use districts, invalid. The Commissioners stated that a de jure exclusion of off-site advertising signs had been held invalid in Pennsylvania; defending MC's validity challenge would be “prohibitively costly”; the outcome of the challenge was “uncertain”; it was in the Township's best interest to declare those provisions invalid; and, the Commissioners had adopted a motion to declare those provisions invalid at a special meeting held on December 20, 2010. Resolution No. 11–002 at 9, 11 and 12; Reproduced Record (R.R.) at 69a, 71a and 72a. The Commissioners directed the Township staff to prepare a proposed curative amendment by June 17, 2011. MC and the Township thereafter negotiated possible relocations and modifications of the proposed billboard signs to settle MC's substantive validity challenge. At a public presentation on March 21, 2011, MC proposed to erect modified billboard signs at alternative locations.
On April 14, 2011, the Commissioners adopted Resolution No. 11–014 rescinding Resolution No. 11–002. The Commissioners stated that the adoption of Resolution 11–002 was predicated on the costs of the defending MC's validity challenge before the ZHB and the uncertainty of its outcome; the Commissioners considered MC's alternative proposal to erect advertising signs with electronic-display faces at three locations; and, the adverse impacts of the proposed signs “outweigh[ed] the concerns of the uncertainty of litigating” the validity challenge. Resolution No. 11–014 at 1; R.R. at 82a. The Commissioners declared Resolution No. 11–002 null and void and reaffirmed the validity of the Ordinance.
On the same day, MC filed the instant action with the trial court, asserting that its substantive validity challenge before the ZHB was no longer in dispute because the Commissioners declared the challenged provisions of the Ordinance invalid in Resolution No. 11–002. In Count I, MC asked the trial court to declare that those provisions of the Ordinance constituted an invalid de jure exclusion of off-site advertising signs and that its validity challenge “has merit and is successful.” Complaint, ¶ 21.B; R.R. at 9a. In Count II, MC sought a declaration that the billboard signs proposed before the ZHB were approved. In Count III, MC sought a writ of mandamus directing the Township to issue permits for the proposed billboard signs.
The Commissioners filed preliminary objections to MC's complaint. The Commissioners argued that Counts I and II (declaratory action) should be dismissed under Rule 1028(a)(6) of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 1028(a)(6), because MC's substantive validity challenge was pending before the ZHB which had the exclusive jurisdiction over the challenge, and under Rule 1028(a)(7) because MC failed to exhaust an available statutory remedy. The Commissioners also demurred to Count III (mandamus action) under Rule 1028(a)(4). The trial court sustained the preliminary objections raising the pendency of a prior action and the failure to exhaust an available statutory remedy and dismissed the complaint without prejudice to pursue the substantive validity challenge pending before the ZHB. MC's appeal to this Court followed.2
MC argues that the trial court improperly dismissed the action on the basis of the failure to exhaust a statutory remedy available in the pending ZHB proceeding. MC maintains that its substantive validity challenge before the ZHB was rendered moot by the Commissioners' declaration of the invalidity of the Ordinance in Resolution No. 11–002. According to MC, no factual or legal issues remained for the ZHB's consideration after the Commissioners' invalidity declaration,3 and forcing MC to continue the validity challenge before the ZHB would delay enforcement of its due process rights.4
A landowner challenging the validity of an ordinance on substantive grounds must submit the challenge (1) to the zoning hearing board or (2) to the governing body “together with a request for a curative amendment.” Section 916.1(a)(1) and (2) of the MPC, added by Section 99 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10916.1(a)(1) and (2). The zoning hearing board has exclusive jurisdiction to hear and render final adjudications on substantive validity challenges, “except those brought before the governing body.” Section 909.1(a)(1) of the MPC, added by Section 87 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10909.1(a)(1). If the zoning hearing board hears a substantive validity challenge and finds it to have merit, the zoning hearing board's decision must “include recommended amendments to the challenged ordinance which will cure the defects found.” Section 916.1(c)(5) of the MPC.5
In this matter, MC submitted the validity challenge to the ZHB and did not seek a curative amendment before the Commissioners. The ZHB, therefore, had exclusive jurisdiction to hear and decide MC's validity challenge. Section 909.1(a)(1) of the MPC. MC agreed to postpone the ZHB's first hearing indefinitely and never withdrew the validity challenge. Therefore, MC's validity challenge was pending before the ZHB when MC filed the instant action.
Two months after MC filed the substantive validity challenge with the ZHB, the Commissioners commenced a curative amendment proceeding pursuant to Section 609.2 of the MPC, added by Section 2 of the Act of October 5, 1978, P.L. 1067, 53 P.S. § 10609.2, which provides in relevant part:
If a municipality determines that its zoning ordinance or any portion thereof is...
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