In August 2010, MC Outdoor, LLC (“MC”) entered into agreements with the owners of five different properties to lease their property for the purpose of erecting off-site or off-premise billboard signs. In November 2010, MC filed a substantive validity challenge to the provision regulating advertising signs. MC argued that the zoning provisions regulating advertising signs “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 [zoning board] with the validity challenge.” In January 2011, the Commissioners adopted a resolution declaring the prohibition of “off-site advertising signs in towns and mixed use districts, invalid.” However, in April 2011, the Commissioners rescinded the resolution and reaffirmed the validity of the ordinance.
On that same day, MC filed an action to declare the challenged provisions invalid because the dispute was no longer before the zoning board. MC argued that the provisions were a de jure exclusion of off-site advertising signs, that such a challenge has merit. MC also sought a declaration that the signs were approved and a writ of mandamus to issue permits for the signs. The trial court dismissed MC’s claims for failure to exhaust a statutory remedy available in the pending zoning board proceeding. MC argued that continuing the validity challenge before the zoning board would have delayed relief because it was already rendered moot, as a result of the initial resolution declaring the provisions invalid.
“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.” The zoning board had exclusive jurisdiction over MC’s validity challenge because MC submitted the challenge to the board and did not seek a curative amendment. “MC agreed to postpone the [zoning board’s] first hearing indefinitely and never withdrew the validity challenge,” meaning that its validity challenge was still pending before the board when it brought an action in the courts. Although the Commission conducted a curative amendment proceeding in response to MC’s validity challenge, it was considered a separate proceeding, which meant that although the Commission declared the ordinance invalid at that proceeding, it was not invalid “as a matter of law.”
Because the validity action was still pending before the zoning board when MC instituted a judicial proceeding against the municipality, the court found that the trial court did not err in dismissing MC’s complaint and affirmed.
MC Outdoor, LLC v Board of Commissioners of Abington Township, 78 A.3d 1269 (PA Commwlth Ct. 10/30/2013)
This opinion can be accesed at: http://www.pacourts.us/assets/opinions/Commonwealth/out/1510CD12_10-30-13.pdf