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All State Signz Co. v. Borough

Commonwealth Court of Pennsylvania

February 6, 2017

All State Signz Company, Appellant
v.
Burgettstown Borough

          Argued: November 14, 2016

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE JOSEPH M. COSGROVE, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge.

          OPINION

          MARY HANNAH LEAVITT, President Judge.

         All State Signz Company (All State) appeals an order of the Court of Common Pleas of Washington County (trial court) granting summary judgment to Burgettstown Borough (Borough). In doing so, the trial court denied All State's request for a writ of mandamus to compel the issuance of billboard permits that All State contended had been deemed approved by operation of law. We reverse and remand.

         In 2012 and 2013, All State signed lease agreements with three landowners to erect billboards on their properties, all of which are located in the Borough. Subsequently, Richard Zelenko, All State's owner, went to the Borough's office to inquire about applying for billboard permits. The Borough advised him that it did not have a standard application for such permits. However, it gave him a copy of an excerpt from the Borough's Zoning Ordinance[1] regulating signs and billboards. Included therein was a provision entitled "Section 213. Billboards and Advertising Signboards, " which provided:

Billboards or advertising signboards may be erected and maintained in commercial and industrial districts, only when they relate or refer directly to the use conducted on the premises, or to the material or products made, sold or displayed on the premises. (July 10, 1961, Article IX, Section 902)

Reproduced Record at 12a (R.R.__); Certified Record (C.R.), Complaint, Exhibit B, at 2.

         In accordance with the Borough's instructions, All State prepared and submitted its own applications for permits for billboards that would advertise businesses not located on the premises where the billboards would be erected. It presented these applications at a Borough Council meeting held on September 9, 2013. All State's counsel attended the meeting, but the Borough Council did not act upon the applications. On March 12, 2014, All State filed a complaint in mandamus to compel the Borough to issue the billboard permits on the basis that they had been deemed approved by operation of law.

         In the complaint, All State alleged that its attorney was advised at the September 9, 2013, Borough Council meeting that the Borough did not have a Zoning Officer or Zoning Hearing Board. Rather, the Borough Council acted as Zoning Officer and Zoning Hearing Board. All State further alleged, referring to the minutes of the September 9, 2013, meeting, that Councilman Reed had "gathered all information and stated [that] council would be in touch" regarding All State's permit applications. R.R. 6a; C.R., Complaint, ¶15. However, "[n]o action, decision or written communication of any nature has been done by [Borough] Council, nor has any request for information been submitted to [All State]." R.R. 6a; C.R., Complaint, ¶17. All State claimed that the Borough was statutorily required to process its applications within 45 days, and having failed to do so, the Borough's only remaining duty was strictly ministerial, i.e., to issue the permits. In its complaint, All State quoted Section 213 of the Zoning Ordinance and stated: "[t]he above-quoted ordinance, adopted in 1961, therefore excludes any billboard advertising of anything not produced, made, sold or displayed on site. It is therefore completely exclusionary to an otherwise lawful use." R.R. 7a; C.R., Complaint, ¶¶22-23.

         The Borough filed an answer with new matter claiming, among other things, that it "at all relevant times had a Zoning Hearing Board." R.R. 40a; C.R., Answers and New Matter, ¶20. The Borough then filed a motion for summary judgment. The parties submitted briefs, and the trial court heard oral argument.

         The Borough argued that All State did not have a clear legal right to the issuance of the billboard permits. Although All State alleged that it was applying for zoning permits, its complaint cited to provisions of the Pennsylvania Construction Code Act, [2] which was inapplicable to the permits in question. Alternatively, the Borough argued that it could not issue the permits to All State because Section 213 of the Zoning Ordinance prohibits a billboard advertising a business not located on the premises. The Borough alleged that All State was aware of this prohibition because it had been given a copy of the Zoning Ordinance by the Borough. The Borough argued that because All State was essentially raising a validity challenge to the Zoning Ordinance, it was not entitled to mandamus relief.

         The Borough argued that All State was required to submit its applications to its Zoning Officer or to its Zoning Hearing Board, which has jurisdiction over the applications. Accordingly, All State could not compel the Borough to issue the permits. The Borough further asserted that even if All State's submission of its applications to the Borough Council were proper, the Council did not accept these applications for filing and never held a hearing on them.

         To support these factual claims, the Borough submitted a copy of the Burgettstown Zoning Code of 1976, which requires the Borough Council to appoint and organize a Zoning Hearing Board. It also submitted an affidavit executed by Tom Repole, who attested that he was the former president and a current member of the Zoning Hearing Board. R.R. 120a, 133a-135a; C.R., Motion for Summary Judgment, Exhibit B, at 2. In response, All State submitted an affidavit executed by its attorney stating that the Borough informed him that it did not have a Zoning Hearing Board and that the Borough Council would be acting in that capacity at its September 9, 2013, meeting. R.R. 202a-203a; C.R., Brief in Support of Answer to Motion for Summary Judgment, Exhibit B, at 2.

         Finding there was no material fact in dispute, the trial court granted the Borough's motion for summary judgment. The trial court found that All State's complaint raised a validity challenge to Section 213 of the Zoning Ordinance, which All State described as "completely exclusionary to an otherwise lawful use." R.R. 240a; Trial Court op., 1/13/16, at 4. The trial court also found that All State had knowledge "from the start and throughout these proceedings that the validity of Section 213 was at issue, " based on All ...


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