Consent Order Relied Upon To Convert Billboard Sign To Digital
Written by: Alan Nochumson
In Callowhill Neighborhood Association v. City of Philadelphia Zoning Board of Adjustment, 2015 Pa. Commw. LEXIS (June 17, 2015), the Commonwealth Court decided whether a municipal plan examiner abused her discretion when she relied upon a consent order declaring that a static billboard sign was legal and a subsequently issued administrative memorandum confirming same when she issued a zoning permit converting the sign into a digital one.
In 1985, there was a non-accessory two-sided billboard sign erected on the 1100 block of Vine Street in the city of Philadelphia by way of a zoning permit, the opinion said.
According to the opinion, in 2007, litigation regarding the lawfulness of that sign was amicably resolved by way of a consent order entered into between the city of Philadelphia Law Department and the property owner. In the consent order, the city and the property owner agreed that the sign was lawful in all respects and, in accordance with the terms and conditions of the consent order, the city of Philadelphia Department of Licenses and Inspections by way of memorandum confirmed that the sign was legally permitted.
In 2012, the property owner submitted a zoning permit application seeking to convert the sign face to a digital format, the opinion said. Thereafter, the Department of Licenses and Inspections granted the zoning permit application as of right and issued a zoning permit, the opinion said.
Upon the issuance of the zoning permit, several individuals and entities jointly filed a petition for appeal with the Zoning Board of Adjustment challenging the issuance of the zoning permit based upon, among other things, the change to digital format did not comply with several provisions of the Zoning Code.
In support of their challenge, the appellants submitted documentary evidence, including photographs, and presented the testimony of the plans examiner who granted the zoning permit application.
At the hearing, the consent order entered into by the city’s Law Department and the property owner in 2007 as well as the subsequently issued memorandum to the Department of Licenses and Inspections recognizing the legality of the sign was entered into on the record.
During the hearing, the plans examiner testified that she granted the zoning permit application based upon the application itself, the zoning permit legalizing the sign in 1985, the consent order and the subsequently issued memorandum to the Department of Licenses and Inspections, and her independent review of the relevant provisions of the Zoning Code as they pertain to the proposed digital sign.
The Zoning Board of Adjustment denied the appeal of the issuance of the zoning permit. In doing so, the Zoning Board of Adjustment not only found that the plans examiner properly interpreted the relevant provisions of the Zoning Code as they pertain to the zoning permit application, but that it was appropriate for the plans examiner to rely upon the consent order and subsequently issued memorandum.
The ruling made by the Zoning Board of Adjustment was then appealed to the trial court. After the trial court denied that appeal as well, the appellants then appealed the trial court’s ruling to the Commonwealth Court.
A divided Commonwealth Court denied the appeal.
One of the first issues addressed by the majority opinion written by Judge Renee Cohn Jubelirer was whether the appellants had standing to challenge the issuance of the zoning permit before the Zoning Board of Adjustment.
Jubelirer set forth the standard upon which Pennsylvania courts determine whether such standing exists.
Citing to Spahn v. Philadelphia Zoning Board of Adjustment, 977 A.2d 1132 (Pa. 2009), Jubelirer declared that, in order for an appellant to possess such standing, the appellant must demonstrate that he is an “aggrieved person,” and, for an appellant to be considered an “aggrieved person,” the appellant must show an interest that is “substantial, direct, and immediate.”
In her written opinion, Jubelirer openly questioned if the issue of whether the appellants had standing before the Zoning Board of Adjustment had been duly preserved. Regardless, Jubelirer found that at least one of the appellants, a church located within immediate vicinity of the property upon which the sign was located, had standing to object to the issuance of the zoning permit, and since one of the appellants had such standing, Jubelirer elected not to address whether the other appellants also had standing.
Jubelirer then discussed whether the plans examiner essentially abused her discretion by relying upon the consent order and subsequently issued memorandum when deciding to grant the zoning permit application.
The appellants attacked the legality of the static sign by arguing the consent order was not binding upon the city. In making this legal argument, they emphasized that there was no public proceeding where they were provided notice of the consent order and an opportunity to be heard. In particular, they asserted that the consent order had not been enacted by City Council and the city’s Law Department cannot bind the city through a private written agreement.
First of all, Jubelirer, in a footnote, emphasized that the appellants, in making their argument, did not state that they were unaware of the proposed settlement or had no procedural opportunity to intervene in the litigation that was settled by the consent order.
Jubelirer then concluded that the consent order, which was approved by the trial court, “ha[d] a res judicata effect, binding the parties with the same force and effect as final decree rendered after a full hearing upon the merits.” As such, according to Jubelirer, “It is binding on the city regardless of whether the provisions contained therein have been enacted into law by City Council.”
Essentially with that same line of reasoning, Jubelirer rejected the appellants’ argument that the Department of Licenses and Inspections improperly relied upon the memorandum issued after the consent order was entered into by the city’s Law Department and the property owner.
The appellants argued that the memorandum was issued without any basis in the law. Specifically, the appellants indicated that the memorandum had no binding effect as it was not published as an “L&I Code Bulletin of Information.”
In the memorandum opinion, Jubelirer concluded that the mere fact that the memorandum was not published as an “L&I Code Bulletin of Information” did not change the binding effect of the memorandum. Jubelirer stated that “whether L&I’s interpretation of the Zoning Code is set forth in a memorandum or a code bulletin, deference must be given to L&I’s interpretation absent proof of fraud, collusion, bad faith or abuse of power.
Since there was no proof of fraud, collusion, bad faith, or abuse of power in the record, Jubelirer held that the Department of Licenses and Inspections did not improperly rely upon the memorandum when determining whether to issue the zoning permit to convert the sign to digital.
Reprinted with permission from the July 21, 2015 edition of The Legal Intelligencer © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.
