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McConville v. The City of Philadelphia

Commonwealth Court of Pennsylvania

November 27, 2013

Lynn McConville and Dea M. McAlonan, Appellants
v.
The City of Philadelphia, and Shelley Smith, individually and in her official capacity as City Solicitor of the City of Philadelphia

Argued: September 9, 2013

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION

P. KEVIN BROBSON, Judge

This is an appeal from the decision of the Court of Common Pleas of Philadelphia County (trial court) to sustain the preliminary objections of the City of Philadelphia and Shelly R. Smith, individually and in her official capacity as Solicitor of the City of Philadelphia (collectively, City) and dismiss the Amended Complaint (Complaint) of Appellants Lynn McConville (McConville) and Dea M. McAlonan (McAlonan) (collectively, Appellants) for lack of standing. For the reasons set forth below, we affirm in part and reverse in part the trial court's order.

BACKGROUND

A. The Complaint

1. The Claims

In their Complaint, Appellants challenge the legality of a 2006 Consent Agreement between the City[1] and various entities connected to the outdoor advertising business (Billboard Companies).[2] The Consent Agreement stems from litigation initiated by the Billboard Companies in the United States District Court for the Eastern District of Pennsylvania against the City, challenging the constitutionality of recently-enacted City ordinances regulating billboards within the City, including a provision that imposed an excise tax on billboard revenues. The nearly 28-page Consent Agreement is comprehensive. For our purposes, however, a paragraph on page 3 of the Consent Agreement accurately summarizes its purpose and substance:

This Consent Agreement will avert protracted and uncertain litigation concerning substantial constitutional issues which involve the risk of liabilities and significant financial penalties. This Consent Agreement clarifies the application of regulations to the Plaintiffs' conduct of their businesses, assures their compliance with applicable laws, as well as the additional obligations imposed herein, and creates new and specific monetary obligations on Plaintiffs, including obligations for the removal of certain outdoor advertising signs that the City might not otherwise succeed in imposing upon them under law. Finally, under this Consent Agreement, all parties have agreed to forego their statutory rights under the Philadelphia Code for recourse to the administrative agencies and the Courts, and have agreed to the final determinations of a Special Master with respect to certain disputes arising under this Consent Agreement regarding the lawful status of certain Outdoor Advertising Signs.

(S.R.R. 3b-4b (emphasis added).) Appellants' Complaint challenges the portion of the Consent Agreement that bypasses existing administrative and judicial remedies that provide a public forum to resolve disputes over the conformity of a billboard with applicable City ordinances. Instead, the Consent Agreement provides for a private contractual remedy to resolve such matters between the City and the Billboard Companies in front of a Special Master and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, or such other rules as the Special Master might propose and to which the City and the Billboard Companies agree. (S.R.R. 15b.)

In Count I of their Complaint, Appellants claim that this contractual remedy deprives them of their due process rights secured under the Fifth and Fourteenth Amendments to the United States Constitution and their right of access to the courts of this Commonwealth. (Reproduced Record (R.R.) 28a.) In Count II, Appellants contend that the Consent Agreement's provisions, both substantive and procedural, are in conflict with duly-enacted City ordinances regulating billboards and challenges thereto. To the extent the Consent Agreement can be said to supersede those ordinances, Appellants claim that the Consent Agreement was "enacted" in violation of the Pennsylvania Sunshine Act, 65 Pa. C.S. §§ 701-716. In Count III, Appellants contend that the Consent Agreement constitutes unlawful contract zoning of billboards within the City. In Count IV, Appellants contend that the Consent Agreement is void ab initioi.e., invalid from the outset. In their prayer for relief, Appellants seek declaratory and injunctive relief and an award of attorneys' fees and expenses for the litigation.

2. Alleged Interest of McAlonan

McAlonan owns a commercial property in the City. (R.R. 4a.) On February 12, 2009, a billboard located on a property adjacent to McAlonan's property collapsed onto McAlonan's property, damaging her property and destroying the billboard. (Id.) McAlonan takes the position that under applicable City ordinances, the billboard was a nonconforming use, because it was located within 300 feet of a residential district. As such, it could not be reconstructed. (Id. 15a.) When H.A. Steen Industries, Inc. (Steen), the owner of the billboard and a party to the Consent Agreement (id. 14a), began reconstructing the billboard without any permit, McAlonan complained to the City, which issued a cease and desist order. (Id. 16a.) A few weeks later, Steen resumed reconstruction activities. McAlonan again complained to the City, which issued a notice of violation to Steen. (Id.) Thereafter, without notice to McAlonan or a hearing, the City rescinded the violation notice and issued a building permit for the reconstruction of the billboard.

McAlonan complained. In response, according to paragraph 91 of the Complaint, the City "made an oblique reference to an agreement between the Law Department and the billboard owner." (Id. 17a.) In that same paragraph of the Complaint, Appellants allege that, "[b]ecause Ms. McAlonan was unaware of the Consent Agreement's existence or terms, she did not understand ...


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