Posted by: Patricia Salkin | December 13, 2013

PA Commwlth Court Agrees Only ZHB and Not Zoning Officer Can Issue a Special Exception

Anter filed an application for a special exception to erect a billboard on property it owned in a planned business and commercial zoning district (“C-2 District”) which was denied following a hearing. Anter appealed to the trial court, which affirmed, and the Commonwealth Court affirmed due to the application missing an engineering certification as required.

Anter submitted a revised application that included the engineer’s certificate. However, the zoning officer refused the issuance because a special exception had not been granted by the ZHB.
Anter appealed and the board denied the appeal noting that Anter needed a special exception which the zoning officer could not issue. Anter appealed to the trial court, which affirmed. On appeal to the Commonwealth Court Anter argued that the ZHB and the trial court made an error in concluding that the zoning officer could not issue a permit where the ZHB had not granted a special exception. The court disagreed stating that the applicable Zoning Code provides: “One billboard or off-premises sign may be erected, constructed or maintained on any premises in a zoned district if a special exception is granted by the ZHB.”
In accordance with the Zoning Code and the Pennsylvania Municipalities Planning Code (MPC), only the ZHB was authorized to issue a special exception. The court found the zoning officer properly denied the sign permit because Anter never received ZHB approval for a special exception.

Anter argued that because it now possessed a valid engineering certificate, the defect in the Application had been cured, and therefore was entitled to a sign permit. The court stated that their prior order affirming the denial of Anter’s Application for a special exception was a final order. It did not specify that the Application should remain open or be amended, nor did it call for a remand. Thus, the un-appealed order ended the litigation regarding the Application. Accordingly, Anter needed to apply again to the ZHB for a special exception. Instead, he applied for a permit with the zoning officer, who lacked such authority to issue a permit absent a special exception from the ZHB.

Anter Assoc. v Zoning Hearing Bd. of Concord Tp., 2013 WL 5962807 (Pa Commw Ct 11/ 8/ 2013)

The opinion can be accessed at: http://www.pacourts.us/assets/opinions/Commonwealth/out/755CD13_11-08-13.pdf


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