Chairman of the Boards, Inc. v. ZHB of the Borough of Wilkinsburg ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Chairman of the Boards, Inc., :
Appellant :
: No. 421 C.D. 2021
v. :
: Argued: October 18, 2021
Zoning Hearing Board of the :
Borough of Wilkinsburg, :
Borough of Wilkinsburg, and :
Lamar Advertising, Inc. :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: December 30, 2021
Chairman of the Boards, Inc.1 (Appellant) appeals from the March 16,
2021 order of the Court of Common Pleas of Allegheny County (trial court), which
affirmed the decision of the Zoning Hearing Board (ZHB) of the Borough of
Wilkinsburg (Borough).
A. Statement of Facts
In November of 2012, Appellant applied for a permit for the construction
of a 14’ by 48’ double-sided lighted outdoor advertising billboard on property located
1
Chairman of the Boards, Inc. is an outdoor advertising company with displays and billboards
in the areas surrounding Pittsburgh, Pennsylvania.
on 400 Sherwood Road, Pittsburgh, Pennsylvania (Property).2 (R.R. at 18a-32a.) The
Property is situated in an R-2 Residential One and Two-Family zoning district and is
currently developed and operated as the Sherwood Event Center, comprised of an
outdoor pool, event space, and outdoor hockey rink. Id. at 98a-99a. The Borough’s
Zoning Officer and Director of Code Enforcement, Eric Parrish (Zoning Officer),
denied the application based on section 260-49(f) of the Borough’s then-operative
zoning ordinance, which excluded billboards and all off-site advertising signs from all
zoning districts within the Borough. Id. at 39a-40a. Appellant appealed, challenging
the substantive validity the Borough’s zoning ordinance pursuant to section 916.1 of
the Pennsylvania Municipalities Planning Code3 (MPC). Id. at 41a-42a. After a public
hearing, the ZHB issued a written decision on January 29, 2013, concluding that section
260-49(f) of the ordinance constituted an impermissible de jure exclusion of billboards
in the Borough and granted Appellant site-specific relief to construct the billboard on
the Property (the “2013 Decision”). Id. at 43a-45a. The 2013 Decision specifically
stated:
The Applicant is entitled to the site-specific relief sought in
the Application and shall be permitted to construct a 14’ x
48’ double-sided billboard at 400 Sherwood Road,
Pittsburgh, PA 15221, in accordance with the Application
filed with the Borough.
Id.
2
The Property was owned by Hosanna House, Inc., which wished to construct the billboard
as a means to raise revenue to support the charitable work it does. (Reproduced Record (R.R.) at
98a.)
3
Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L.
1329, 53 P.S. §10916.1.
2
The 2013 Decision also recommended that the Borough Council amend
its zoning ordinance to permit billboards and other off-site advertising signs and
establish reasonable objective standards and regulations governing their use. Id.
On August 7, 2013, Borough Council adopted an ordinance (Amended
Ordinance) permitting outdoor advertising signs (billboards) as a conditional use in the
IND-Industrial and C-1 Commercial districts, but still prohibiting billboards in the R-
2 zoning district, where the Property is situated. See Borough of Wilkinsburg Zoning
Ordinance, §260-709.
According to Appellant, it applied for a permit shortly after the 2013
Decision but did not pay the requisite fee. It is undisputed that Appellant never actually
obtained a building permit from the Borough and it did not pursue the issuance of the
building permit in 2013 or at any time thereafter.
In October of 2019, nearly six years after the 2013 Decision was rendered,
Appellant filed a new application with the Borough seeking to construct the same
billboard that was the subject of the 2013 Decision. (R.R. at 49a-50a.) The Zoning
Officer denied Appellant’s request and advised Appellant that a new permit application
was required because the ordinance had been amended, and Appellant would have to
establish compliance with the new zoning regulations. Id. at 46a-48a. The Zoning
Officer cited sections 260-902(D) (Abandonment or discontinuance of nonconforming
uses) and 260-905 (Nonconforming signs) of the Amended Ordinance to support the
determination that “the use and sign is considered abandoned” and “[a] resubmission
for zoning approval is required” and cited section 260-702 (Signs) of the Amended
Ordinance to support the determination that Appellant was precluded from constructing
the billboard on the Property unless Appellant could establish compliance with the
Borough’s Amended Ordinance. Id.
3
On November 22, 2019, Appellant appealed the denial to the ZHB,
arguing that the site-specific relief granted to it in 2013 made the billboard a permitted,
not a nonconforming, use of the Property, and that the award of site-specific relief in
2013 “attached to the land,” and as such could not be made subject to or defeated by
the Borough’s Amended Ordinance adopted thereafter. Id. at 50a.
A duly advertised public hearing was held on February 5, 2020, before the
ZHB. The Borough and Lamar Advertising (Lamar), through their respective counsel,
appeared at the public hearing in support of the Zoning Officer’s denial. At the hearing,
there was conflicting evidence as to whether Appellant actually “filed for” a building
permit after the 2013 Decision. It was undisputed that Appellant never paid the
requisite permit fee and that Appellant never obtained a permit. According to
Appellant’s owner, Linda Staffilino:
a. Appellant applied for, but never obtained, a building
permit for the billboard from the Borough after the
issuance of the 2013 Decision. (R.R. at 93a).
b. Appellant never paid any applicable building permit fees
for the issuance of a building permit for the billboard.
(R.R. at 93a).
c. Appellant never constructed the billboard after the
issuance of the 2013 Decision. (R.R. at 90a-91a).
Consistent with Staffilino’s testimony, Appellant’s counsel represented to
the ZHB at the hearing that a building permit for the billboard was never issued.
Specifically, Appellant’s counsel represented to the ZHB that “[t]here was no permit
issued the first time. We never had it, and we never got it, and we never paid for it.”
(R.R. at 157a.)
4
In response, the Borough argued that under section 916.1(g) of the MPC,
53 P.S. §10916.1(g), Appellant had one year within which to file for a building permit,
which did not occur. The Borough presented testimony of its Zoning Officer who
confirmed that one of the conditions to obtain a permit is that one must pay the fee
associated with the permit. R.R. at 119a. The Zoning Officer also explained that if a
permit was issued, under the Uniform Construction Code,4 an applicant, like Appellant
here, would have had 180 days after the permit’s issuance to begin the construction
work authorized by the issued permit or the permit becomes null. Id. at 109a.
B. ZHB’s Decision
After the hearing, the ZHB made the following relevant findings of fact:
6. In [the 2013 Decision], the [ZHB] . . . granted site-specific
relief to [Appellant] to construct a Billboard on the Property.
7. At the 2020 Hearing, Ms. Staffilino testified that
[Appellant] filed an application for the building permit after
the 2013 Decision but never paid the fee and she was unsure
whether a building permit was issued by the Borough.
8. [The Zoning Officer] testified that according to the
Borough’s computer records, the Borough issued a building
permit for the Billboard in “June or July of 2013” but no
building permit was produced at the 2020 Hearing or
thereafter.
9. Attorney Finnegan, counsel for [Appellant], argued in his
closing that “[t]here was no permit issued the first time. We
never had it, and we never got it, and we never paid for it.”
10. [The Zoning Officer] testified that under the applicable
construction codes adopted by the Borough that were in
effect at the time [Appellant] submitted an application for a
4
34 Pa. Code §§401.1-405.42.
5
building permit in 2013, such permit, if it had been issued,
would have expired in the event that [Appellant] failed to
commence construction within 180 days from the date that
the permit was issued.
11. It is undisputed by the parties that no construction
activities related to the Billboard ever occurred on the
Property between the 2013 Decision and the date of the
Hearing.
12. Under Section 260-709 of the current Borough Zoning
Ordinance, Billboards may be authorized by the Borough
Council as a conditional use only in the IND and C-1 Zoning
Districts. Billboards are not permitted in the R-2 Zoning
District under the current Zoning Ordinance.
13. If the [ZHB] determines that the site-specific relief
granted pursuant to the 2013 Decision expired or is otherwise
no longer valid, then [Appellant] would require a use
variance or in the alternative, an acknowledgment that the
Billboard is authorized as a preexisting nonconforming use.
[Appellant] did not present evidence in support of either of
these alternative theories.
(ZHB Decision, 8/6/20, Findings of Fact (F.F.) Nos. 6-13 at 2-3.)
Based on these findings of fact, the ZHB concluded that “the site-specific
rights granted pursuant to the 2013 Decision have lapsed. See 53 P.S. §10916.1(g).”
Id. at 5. The ZHB found that Appellant did not secure a building permit within one
year of the issuance of the 2013 Decision, and, even if it did, its request for relief still
failed because it did not commence construction of the billboard within 180 days in
accordance with construction codes adopted by the Borough that were in effect at the
time.
The 2013 Decision stated that “[Appellant] is entitled to site-
specific relief sought in the Application and shall be
permitted to construct a 14’ x 48’ double-sided billboard at
6
[the Property] in accordance with the Application filed with
the Borough.”
Although the testimony at the 2020 Hearing by various
witnesses, including the Zoning Officer, was inconsistent
with respect to whether a building permit was actually issued
by the Borough, [Appellant’s] counsel stated at the 2020
Hearing that “there was no permit issued the first time. We
never had it, and we never got it, and we never paid for it.”
Moreover, it is undisputed that no construction activity
occurred at the Property in furtherance of the installation of
the Billboard between the 2013 Decision and the 2020
Hearing.
Even if [Appellant] had obtained a building permit after the
2013 Decision, the Borough Zoning Officer testified that
pursuant to the construction codes in existence at that time,
the building permit would have expired where no
construction commenced within 180 days.
Id.
C. Trial Court’s Decision
Appellant appealed to the trial court, which took no additional evidence.
By order and opinion dated March 16, 2021, the trial court concluded that the ZHB did
not commit any errors of law or abuse its discretion in denying Appellant’s requested
relief because the ZHB appropriately found that the site-specific relief granted in 2013
was abandoned. The trial court explained:
Appellant’s October 2019 building permit application
request was denied because the site-specific relief of the
Property had been abandoned. The original site-specific
approval was issued in January of 2013. The testimony at
the [ZHB] hearing was inconsistent as to whether a building
permit was issued by the Borough. However, it is undisputed
that no construction activity occurred at the Property between
the 2013 Decision and the 2020 hearing. If a building permit
7
had been issued, then the Ordinance required [it] to begin
construction within 180 days. . . . Under either scenario,
[Appellant] failed to act on the grant of the site-specific relief
and accordingly those rights have lapsed.
(Trial ct. op., 3/16/21, at 4-5).
D. Analysis
Appellant now appeals.5 It argues that the ZHB committed an error of law
and manifestly abused its discretion when it determined that the site-specific relief
granted to Appellant in 2013 had lapsed and/or been abandoned. It offers five
arguments in support, each of which we find lack merit for the following reasons.
1.
First, Appellant argues that the Amended Ordinance6 (adopted to cure the
original ordinance), which the Borough relied on to deny Appellant’s 2019 request for
the building permit, cannot be applied to overcome the site-specific relief granted to
Appellant in 2013. Appellant cites Casey v. Zoning Hearing Board, 328 A.2d 464, 468
(Pa. 1974), and Fernley v. Board of Supervisors of Schuylkill Township, 502 A.2d 585(Pa. 1985), for the proposition that
a zoning provision adopted by a municipality which cures the
constitutional infirmity but which was not considered or
advertised prior to the filing of the challenger’s application
5
In a zoning appeal, such as here, where the trial court takes no additional evidence, this
Court’s scope of review is limited to determining whether the zoning hearing board committed an
error of law or a “manifest abuse of discretion,” meaning it made findings of fact which are not
supported by substantial evidence. Sowich v. Zoning Hearing Board of Brown Township, 245 A.3d
1188, 1195 (Pa. Cmwlth. 2021) (citing Valley View Civic Association v. Zoning Board of Adjustment,
462 A.2d 637, 639 (Pa. 1983)); see also In re Ridge Park Civic Association, 240 A.3d 1029, 1031
(Pa. Cmwlth. 2020). Substantial evidence is defined as “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id.
6Again, the Amended Ordinance prohibited billboards in the R-2 zoning district, and
Appellant would have to apply for, and establish, that it was entitled to a variance.
8
for review of the zoning ordinance, may not be given effect
for purposes of fashioning the appropriate relief to be
awarded to the successful challenger.
Fernley, 502 A.2d at 589.
Appellant further contends that under Pennsylvania law,
if a governing body determines that its ordinance is defective
because it totally prohibits the use proposed by the
challenging landowner, then the governing body must permit
the challenging landowner to develop his land as proposed in
the “plans and other materials” submitted with the challenge,
provided, of course, that what is submitted is reasonable, and
not injurious to the public health, safety, welfare, and morals.
Adams Outdoor Advertising, Ltd. v. Hanover Township Zoning Hearing Board, 633
A.2d 240, 245 (Pa. Cmwlth. 1993) (internal citation omitted).
Appellant argues that, under Casey and Fernley, because in 2013 it
successfully challenged the substantive validity of the original ordinance, which
prohibited billboards in all zoning districts, the Amended Ordinance, which ostensibly
cured the exclusionary defect (but still prohibits billboards in the R-2 zoning district),
cannot now be used to deny Appellant relief. In other words, it contends that the site-
specific relief awarded in 2013 attached to the Property in perpetuity and never expires.
Initially, we agree with Appellant that under Casey and Fernley, the
Borough was required to permit Appellant to develop its Property as proposed in the
plans submitted with the validity challenge, provided, of course, that what is submitted
is reasonable, and not injurious to the public health, safety, welfare and morals. The
landmark decision concerning the remedy for an invalid zoning ordinance is our
Supreme Court’s decision in Casey. Casey requires that a successful challenger to a
zoning ordinance be granted the relief requested unless the government unit proves that
9
the proposed use will be injurious to the public health, safety, and welfare. Casey
considered:
[W]hether a court has the power to grant an applicant-
challenger definitive relief upon rendering a zoning
ordinance constitutionally infirm. . . . “Obviously, if judicial
review of local zoning action is to result in anything more
than a farce, the courts must be prepared to go beyond mere
invalidation and grant definitive relief.” To forsake a
challenger’s reasonable development plans after all the time,
effort and capital invested in such a challenge is grossly
inequitable.
328 A.2d at 469 (citation omitted) (footnotes omitted). Further, a township may not
retroactively enact a zoning provision that cures the constitutional infirmity in order to
avoid a court’s order to allow the challenger’s proposed use. In Fernley, landowners
successfully challenged the township’s zoning ordinance as de jure exclusionary of
multi-family dwellings. Our Supreme Court remanded with instructions to approve the
landowners’ request unless the township could show that the plan was incompatible
with the site or reasonable, preexisting health and safety codes and regulations relating
to land, structures, or other emplacement on land existed. Again, our Supreme Court
reflected on Casey, reasoning that an applicant, successful in having a zoning ordinance
declared unconstitutional, should not be frustrated in his quest for relief by a retributory
township. Fernley, 502 A.2d at 589 (quoting Casey, 328 A.2d at 469). While approval
of a challenger’s plan is not automatic but must be predicated on the suitability of the
proposed site and various health and safety considerations, the Fernley Court
specifically held that a zoning provision adopted by a municipality that cures the
constitutional infirmity but that was not considered prior to the filing of the challenge
10
to the zoning ordinance, may not be given effect for purposes of fashioning the
appropriate relief to be awarded to the successful challenger.
As Appellant correctly points out, the reason behind the law’s protection
of a successful challenger to an exclusionary ordinance from a municipality’s
enforcement of the provisions of an ordinance amended or enacted thereafter is to bar
a municipality from attempting to thwart a valid zoning challenge by enacting a zoning
amendment after a zoning challenge has been filed. Casey, 328 A.2d at 469. However,
that is not what happened here. Appellant submitted a substantive validity challenge
to the then-existing zoning ordinance which precluded billboards in any zoning district
in the Borough. Appellant was successful and was permitted to develop the Property
as proposed, subject to certain reasonable restrictions, regardless of how the Property
was zoned. That is, it was allowed to construct the billboard in the R-2 zoning district
even though it was technically prohibited under the Amended Ordinance. If the ZHB
had not awarded Appellant site-specific relief at the time it sustained Appellant’s
substantive validity challenge, then an analysis under Casey and Fernley would be
relevant. However, that is not the issue before us. Six years lapsed from the time
Appellant was awarded the right to construct the billboard in an R-2 zoning district and
Appellant’s first steps towards constructing the billboard. Thus, the issue before us
must necessarily consider the six-year lapse.
To determine if Appellant has a vested right to develop its land in
accordance with its plans without regard to time limits, an analysis under section
916.1(g) of the MPC, 53 P.S. §10916.1(g), is appropriate. Section 916.1(g) of the
MPC, 53 P.S. §10916.1(g), which became effective in 2001, provides that where an
applicant obtains site-specific relief, subsequent changes to the zoning regulations will
not be applied to the subject property for a period of one year. During that one-year
11
period, the applicant must file for a building permit. After the expiration of the one-
year “protected” period, the applicant is then subject to the then-adopted zoning
regulations.
Section 916.1(g) provides:
Where, after the effective date of this act, a curative
amendment proposal is approved by the grant of a curative
amendment application by the governing body pursuant to
section 909.1(b)(4)[7] or a validity challenge is sustained by
the zoning hearing board pursuant to section 909.1(a)(1) or
the court acts finally on appeal from denial of a curative
amendment proposal or a validity challenge, and the proposal
or challenge so approved requires a further application for
subdivision or land development, the developer shall have
two years from the date of such approval to file an application
for preliminary or tentative approval pursuant to Article V or
VII. Within the two-year period, no subsequent change or
amendment in the zoning, subdivision or other governing
ordinance or plan shall be applied in any manner which
adversely affects the rights of the applicant as granted in the
curative amendment or the sustained validity challenge.
Upon the filing of the preliminary or tentative plan, the
provisions of section 508(4) shall apply. Where the proposal
appended to the curative amendment application or the
validity challenge is approved but does not require further
application under any subdivision or land development
ordinance, the developer shall have one year within which
to file for a building permit. Within the one-year period, no
subsequent change or amendment in the zoning,
subdivision or other governing ordinance or plan shall be
applied in any manner which adversely affects the rights of
the applicant as granted in the curative amendment or the
sustained validity challenge. During these protected
periods, the court shall retain or assume jurisdiction for the
purpose of awarding such supplemental relief as may be
necessary.
7
Added by the Act of December 21, 1988, P.L. 1329.
12
53 P.S. §10916.1(g) (italics and bold emphasis added).
The language of section 916.1(g) of the MPC is unambiguous. Where a
substantive validity challenge is approved granting site-specific relief, the “developer
shall have one year within which to file for a building permit.” 53 P.S. §10916.1(g).
(emphasis added). Subsection (g) makes clear that there is a “protected period” upon
which the approval remains valid and upon the lapse of the one-year period, the relief
granted expires unless a building permit application has been submitted within such
one-year period.
Here, it is undisputed that the Borough did not apply the Amended
Ordinance in a manner that adversely affected the rights of Appellant during the one-
year period from the date of the 2013 Decision. It is also undisputed that Appellant,
after receiving site-specific relief in 2013, failed to submit a full and complete building
permit application, including payment of the applicable fee,8 within that one-year
period. Accordingly, the site-specific relief awarded in the 2013 Decision expired after
one year, and Appellant had no further rights to construct the billboard that would be
in violation of application regulations without further municipal approvals.
Appellant submits that, regardless of whether it was actually issued a
building permit, it nevertheless complied with section 916.1(g) of the MPC because it
“filed an application” for a building permit within one year of the date of the 2013
Decision. (Appellant’s Br. at 25.) However, the mere filing of an application for a
building permit without paying the requisite fee does not satisfy this provision. The
Uniform Construction Code requires a developer to obtain building permits and pay
any permit fees before commencing construction. Section 403.63(k) provides that “[a]
8
Section 121-4.A(3)(a) of the Ordinance provides “[a] fee for each plan examination, building
permit and inspection shall be paid in accordance with the fee schedule adopted from time to time by
the Borough of Wilkinsburg.” Borough of Wilkinsburg Zoning Ordinance, §121-4.A(3)(a).
13
permit is not valid until the required fees are collected[.]” 34 Pa. Code §403.63(k). See
also Cornell Narberth, LLC v. Borough of Narberth, 167 A.3d 228, 238 (Pa. Cmwlth.
2017). Clearly, the intent of section 916.1(g) of the MPC is to limit the period of time
a developer can take advantage of site-specific relief, which would otherwise be
prohibited under the new ordinance. Merely filing an application for a permit without
paying the requisite fee or taking any further measures to ensure the issuance of the
permit is insufficient to toll the one-year protected period.
Moreover, as the ZHB and trial court pointed out, even if Appellant timely
filed an application for a permit and paid the requisite fee, the right to receive a permit
does not eliminate the necessity “to be in compliance with any other codes, ordinances
or statutes which might in fact be applicable.” Northampton Township v. G.R.S.H.,
Inc., 322 A.2d 758, 762 (Pa. Cmwlth. 1974). Under section 403.43 of the Uniform
Construction Code, an applicant has 180 days after the permit’s issuance to begin the
construction work authorized by the issued permit or the permit becomes null. 34 Pa.
Code §403.43. It is undisputed that Appellant never began construction of the
billboard; therefore, even if a permit had been issued, it became null after 180 days
under section 403.43 of the Uniform Construction Code.
Accordingly, we conclude that the trial court neither abused its discretion
nor committed errors of law in affirming the ZHB’s decision that the 2013 Decision
had lapsed, and that Appellant has no further rights to construct the billboard that would
violate the Amended Ordinance without further municipal approvals.
2.
Next, Appellant argues that substantial evidence did not support the
ZHB’s finding that the Borough issued a permit for the billboard. It contends that under
section 403.43 of the Uniform Construction Code, a permit becomes invalid unless the
14
authorized construction work begins within 180 days after the permit’s issuance. It
reasons that because the permit was never in fact issued, the 180-day limit cannot be
considered when determining whether the billboard use was abandoned.
Appellant appears to fault the Borough for not issuing the permit.
However, it was undisputed that Appellant failed to pay the requisite building permit
fee; therefore, the Borough was not obligated to issue the permit. More importantly,
the ZHB did not find that the Borough issued a building permit. Rather, it observed,
as an aside, that even if Appellant had obtained a building permit after the 2013
Decision, the building permit would have expired where no construction commenced
within 180 days. Notwithstanding this remark, the actual basis for the ZHB’s denial of
Appellant’s appeal was because the site-specific relief expired under section 916.1(g)
of the MPC. We have already held that the ZHB and trial court did not err in this
regard. Accordingly, this issue is without merit.
3.
Appellant next argues that the ZHB’s conclusion in Finding of Fact No.
13 that Appellant failed to present evidence that use of the Property for a billboard
constituted a preexisting nonconforming use was not supported by any facts or law.
Again, Finding of Fact No. 13 states:
If the [ZHB] determines that the site-specific relief granted
pursuant to the 2013 Decision expired or is otherwise no
longer valid, then the Applicant would require a use
variance or in the alternative, an acknowledgement that the
Billboard is authorized as a preexisting nonconforming
use. The Applicant did not present evidence in support of
either of these alternate theories.
(ZHB Decision, F.F. No. 13) (emphasis added).
15
Appellant contends that its use of the Property for a billboard was not a
nonconforming use and did not become a nonconforming use by virtue of the Amended
Ordinance. It argues that a certificate of nonconformance was never issued by the
Borough for the Property or Appellant’s proposed use thereof for a billboard.
Therefore, the ZHB’s reliance thereon to find that a preexisting nonconforming use
was abandoned constituted an abuse of discretion and error of law.
We find that Appellant misconstrues the ZHB’s finding. First, the ZHB
found that, since the 2013 site-specific relief lapsed, to construct its billboard now,
Appellant needed a use variance or proof that the billboard was previously authorized
as a preexisting nonconforming use. The ZHB did not hold that the billboard was a
preexisting nonconforming use. It merely noted that since the Property is in an R-2
zoning district, it was necessary for Appellant to establish that it was entitled to a use
variance or to present evidence that the billboard was previously authorized as a
preexisting nonconforming use. To establish that it was entitled to a use variance,
Appellant was obligated to establish, in addition to the criteria set forth in section 910.2
of the MPC, 53 P.S. §10910.2,9 that “the property is valueless without the variance and
cannot be used for any other permitted purpose.” Hertzberg v. Zoning Board of
Adjustment of City of Pittsburgh, 721 A.2d 43, 47 (Pa. 1998). We discern no error.
Appellant provided no evidence or argument that the Property, which is being used as
a community youth center, is valueless without the billboard.
9
Pursuant to Section 910.2 of the MPC, added by the Act of December 21, 1988, P.L. 1329,
the power to grant a variance is limited to only those circumstances where the applicant proves: that
a zoning restriction imposes an unnecessary hardship due to unique physical conditions peculiar to
his property that are not self-created; that the requested variance is necessary to enable a reasonable
use of the property; that the grant of a variance will not alter the essential character of the
neighborhood, nor substantially or permanently impair appropriate use or development of adjacent
property, nor be detrimental to the public welfare; and that the requested variance represents the
minimum variance that will afford relief and the least possible modification of the requirement.
16
4.
Next, Appellant takes issue with the ZHB’s reliance on the Amended
Ordinance, which, like its predecessor, prohibits billboards in the R-2 zoning district.
Specifically, in Finding of Fact No. 12 the ZHB found:
12. Under Section 260-709 of the [Amended] Ordinance,
Billboards . . . are not permitted in the R-2 Zoning District
under the current Zoning Ordinance.
(ZHB Decision, F.F. No. 12.)
Appellant argues that the ZHB erred in “presuming” the Amended
Ordinance was valid. Appellant contends that sections 108 and 917 of the MPC govern
the notice the Borough is required to provide to its citizens and property owners prior
to the adoption of any revised zoning ordinance. 53 P.S. §§10108, 10917. It argues
that, despite its requests at the hearing, and its requests under the Right-to-Know Law10
prior to the hearing, the Borough failed to demonstrate that it provided the public with
the legally required notice of these revised zoning ordinance provisions prior to their
adoption. It argues that the validity of the Amended Ordinance relied upon by ZHB
cannot be presumed, and it cannot be given any credence or validity without proof of
its proper advertising and adoption as required by the MPC. Therefore, Appellant
contends, the ZHB’s reliance thereon to deny the site-specific relief granted Appellant
by the 2013 Decision constituted an abuse of discretion and error of law.
We find this issue was waived by Appellant’s failure to raise it before the
ZHB or the trial court. First, the record contains no procedural validity challenge to
the Amended Ordinance brought pursuant to section 5571.1 of the Judicial Code, 42
Pa.C.S. §5571.1. Further, we have reviewed the transcript of the hearing and are unable
to locate anywhere where counsel argued before the ZHB that the Amended Ordinance
10
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-.3104.
17
was invalid. Appellant has also failed to point to anywhere in the record where the
issue was raised before the trial court. Where neither the ZHB nor trial court made any
determinations regarding this issue and we will not, in the first instance, address it on
appeal. See Pa. R.A.P. 302(a) (issues not raised in the lower court are waived).11
5.
In its final issue, Appellant argues that the ZHB erred in finding that
Lamar had standing as an objector. It asserts that the record is devoid of any proof that
Lamar is an “aggrieved party” as Lamar failed to prove a direct interest in the
adjudication and failed to prove a showing of harm.
Granting or denying a petition to intervene is within the sound discretion
of the agency involved. West Chester Area School District v. Collegium Charter
School, 812 A.2d 1172 (Pa. 2002); Wilkinsburg Educational Association v. School
District of Wilkinsburg, 690 A.2d 1252 (Pa. Cmwlth. 1996). A decision on intervention
will not be disturbed unless there has been a manifest abuse of discretion. Wilkinsburg
Educational Association.
Here, the ZHB granted Lamar party status, concluding that “Lamar has
standing to object as Lamar has [a] direct interest in the outcome of this matter, as
supported by the testimony and evidence as submitted at the 2020 Hearing.” (ZHB
Decision, at 4.) It made the following findings of fact with regard to Lamar’s standing:
14. Lamar has been issued permits by the Pennsylvania
Department of Transportation to construct and operate
outdoor advertising signage on a parcel of property located
11
Any such procedural validity challenge would likely be time barred because over six years
have lapsed. See 42 Pa.C.S. §5571.1(e)(2); Messina v. East Penn Township, 62 A.3d 363, 371 (Pa.
2012) (property owners failed to satisfy their burden of rebutting applicable presumption of reliance,
on challenge to township zoning ordinance based upon claim of failure of public notice brought 12
years after enactment of challenged ordinance).
18
at 1001 Brinton Road, Pittsburgh, PA 15221 in the Borough
of Braddock Hills (the “Lamar Property”). (T. 67).
15. The Lamar Property is located approximately 2,500 feet
from the Subject Property. (Objector’s Exhibit 1).
Id., F.F. Nos. 14-15.
Pursuant to 2 Pa.C.S. §752, regarding local agency adjudications,
aggrieved party standing requires: (1) the party aggrieved to have a “direct interest in
such adjudication,” and that such interest be “substantial”; and (2) a “showing of harm
to that direct substantial interest caused by the matter complained of.” Pittsburgh Trust
for Cultural Resources v. Zoning Board of Adjustment of City of Pittsburgh, 604 A.2d
298, 302 (Pa. Cmwlth. 1992).
We discern no error in the ZHB’s determination that Lamar had standing.
Lamar demonstrated at the hearing that it has a direct interest in the outcome of this
matter, as supported by the uncontroverted testimony and evidence. According to the
evidence presented at the hearing credited by the ZHB, Lamar maintains an easement
on a parcel of property located at 1001 Brinton Road, which is located approximately
2,500 feet from the Property. (R.R. at 130a). The easement provides Lamar with a
perpetual nonexclusive easement for roadway and utility access, and for the
construction, operation, maintenance, and replacement of outdoor advertising signs.
Lamar presented evidence that Appellant’s billboard, if approved, could have direct
impacts on Lamar’s ability to locate and operate outdoor advertising signage upon
Lamar’s property based upon distancing restrictions and other regulations imposed by
the Pennsylvania Department of Transportation.12
12
Notably, at the hearing, Appellant’s counsel raised no objection to Lamar’s standing until
after Lamar was permitted to fully participate in the hearing, granted party status, cross-examined
Appellant’s two witnesses, questioned the Borough’s Zoning Officer, and reviewed and objected to
proposed exhibits.
19
For all the foregoing reasons, we affirm the order of the trial court.
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Crompton did not participate in this decision.
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Chairman of the Boards, Inc., :
Appellant :
: No. 421 C.D. 2021
v. :
:
Zoning Hearing Board of the :
Borough of Wilkinsburg, :
Borough of Wilkinsburg, and :
Lamar Advertising, Inc. :
ORDER
AND NOW, this 30th day of December, 2021, the March 16, 2021 order
of the Court of Common Pleas of Allegheny County is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge