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WILLIAM R. LYNCH AND LILLIAN LYNCH v. URBAN REDEVELOPMENT AUTHORITY PITTSBURGH (08/21/85)

decided: August 21, 1985.

WILLIAM R. LYNCH AND LILLIAN LYNCH, HIS WIFE; AND WINSTON NETWORK, INC., APPELLANTS
v.
THE URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of William R. Lynch and Lillian Lynch, his wife; and Winston Network, Inc. v. The Urban Redevelopment Authority of Pittsburgh, No. SA 455 of 1983.

COUNSEL

Richard G. Kotarba, with him, Kevin F. McKeegan, Meyer, Unkovic & Scott, for appellants.

Michael J. Scott, with him, Joseph Gariti, III, for appellee.

Judge MacPhail, and Senior Judges Blatt and Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 91 Pa. Commw. Page 262]

William R. Lynch, Lillian Lynch (Lynches), and Winston Network, Inc. (Winston), appeal here an order of the Court of Common Pleas of Allegheny County which dismissed their appeal from a decision of the Urban Redevelopment Authority of Pittsburgh (Authority). The Authority's decision denied the Lynches permission to lease a portion of their property to Winston for the erection of a billboard advertising sign. We affirm.

The Lynches are the owners of property located at 6353 Penn Avenue in Pittsburgh. They acquired this property from the Authority by deed dated June 3, 1981 which was duly recorded in the Recorder of Deeds office in Allegheny County. The deed granted by the Authority to the Lynches contained several restrictive covenants, one of which stated that the Lynches would make no changes in the improvements to the property after the completion of the construction thereof which would constitute a major change in said improvements or in the utilization of the property except with the written approval of the Authority. Pursuant to their contract with the Authority, the Lynches proceeded to construct a two-story brick structure on the property and on November 24, 1982, the Authority issued a Certificate of Completion which was recorded in the Recorder of Deeds office

[ 91 Pa. Commw. Page 263]

    for Allegheny County. This certificate evidenced that the improvements constructed by the Lynches were completed in accordance with the Disposition Contract which they had signed with the Authority. Sometime thereafter, the Lynches leased a portion of this property to Winston for the purpose of erecting an outdoor billboard-type advertising sign. The property is in a M-3 Zoning District and an advertising sign as proposed by Winston is a permitted use in a M-3 district. In April 1983, Winston applied for an occupancy permit to erect its proposed billboard. The Pittsburgh Zoning Administrator informed it that no occupancy permit would be issued without the Authority's approval, although the sign proposed by Winston would meet the requirements of the zoning ordinance. On July 14, 1983, the Authority considered Winston's request for permission to erect the advertising billboard and, after discussion, the Authority denied the request. Both the Lynches and Winston appealed the denial to common pleas court which dismissed the appeal on January 27, 1984.

[ 91 Pa. Commw. Page 264]

In this appeal, the Lynches and Winston, collectively referred to as "Appellants," contend that (1) the restrictive covenants contained in the deed do not give the Authority the power to prohibit the erection of the advertising billboard in question; (2) assuming that the covenant did indeed give the Authority such power, the Authority abused its discretion when it refused permission to erect the billboard; and (3) the Authority's refusal to grant approval for the erection of the billboard constitutes an unconstitutional restraint upon speech. As no record was made before the Authority and the common pleas court decided the case on a stipulation of facts entered into by the parties, our scope of review is to determine whether the common pleas court abused its discretion or committed an error of law. Schultz v. Zoning Hearing Board Page 264} of West Wyoming Borough, 67 Pa. Commonwealth Ct. 552, 447 A.2d 1075 (1982).

We shall first address Appellants' contention that the covenant contained in the deed conveying the property from the Authority to the Lynches did not retain a power in the Authority to prohibit the erection of an advertising billboard as proposed by Winston. The Lynches' deed contains the following covenant upon which the Authority relies as its basis to prohibit the erection of the billboard in question:

The Grantee [Lynches], for itself and its successors and assigns, to or of the Property or ...


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