           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Chester County Outdoor, LLC,             :
                        Appellant        :
                                         :
            v.                           :   No. 29 C.D. 2015
                                         :   Submitted: May 15, 2015
Board of Supervisors of                  :
East Pikeland Township                   :



BEFORE: HONORABLE DAN PELLEGRINI, President Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION BY JUDGE BROBSON                             FILED: September 4, 2015

            Appellant Chester County Outdoor, LLC (CCO) appeals from an
order of the Court of Common Pleas of Chester County (trial court), dated
December 16, 2014. The trial court granted CCO’s exceptions to the report of the
special hearing officer to the extent the exceptions challenged the procedure used
by the trial court. For the reasons discussed below, we affirm.
            CCO engages in the business of developing, owning, operating, and
leasing commercial off-premises advertising billboards.      CCO is the billboard
lessee of property located at 458 Schuylkill Road (Property), in East Pikeland
Township. On December 20, 2011, CCO filed a challenge to the substantive
validity of the East Pikeland Township Zoning Ordinance (Ordinance) with the
Zoning Hearing Board of East Pikeland Township (ZHB). Specifically, CCO
alleged that Sections 1902.13 and 1904.1 of the Ordinance unlawfully excluded
billboards. CCO did not request site-specific relief from the ZHB or submit plans
for a proposed billboard with the validity challenge.
              On February 7, 2012, the Board of Supervisors of East Pikeland
Township (the Township) adopted resolution No. 2012-03 declaring the challenged
Sections of the Ordinance to be invalid. On March 28, 2012, the ZHB issued a
decision and order sustaining the challenge.           No party appealed the ZHB’s
decision. On July 26, 2012, the Township adopted a curative amendment to the
Ordinance.
              On July, 30, 2012, CCO filed the instant declaratory judgment action
with the trial court, seeking (1) a declaration that CCO is entitled to site-specific
relief to permit a billboard use on the Property, and (2) a hearing be held pursuant
to Section 1006-A(d) of the Pennsylvania Municipal Planning Code (MPC)1 to
consider plans for the proposed billboards in determining CCO’s right to
site-specific relief. Concurrently, CCO filed a petition for a hearing to determine
site-specific relief.
              On August 20, 2012, the Township moved for the ZHB to be
appointed special hearing master pursuant to Section 1006-A(c) of the MPC.2
CCO objected, arguing that only the trial court could grant relief. The trial court
granted the motion over CCO’s objection and directed the ZHB to hold a hearing
to determine CCO’s entitlement to site-specific relief. On September 2, 2014, the
ZHB issued its report, denying CCO site-specific relief. The ZHB found that the

       1
         Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988,
P.L. 1329, 53 P.S. § 11006-A(d).
       2
         Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988,
P.L. 1329, 53 P.S. § 11006-A(c).



                                            2
proposed billboards: (1) would present a threat to health, safety, and welfare;
(2) do not comply with the extant provisions of the Ordinance; and (3) do not
comply with other reasonable zoning regulations. CCO filed exceptions to the
report.
              Following argument, the trial court issued an order and opinion in
which it granted CCO’s exceptions to the special report to the extent the exceptions
challenged the appointment of the ZHB as a special master under
Section 1006-A(c) of the MPC for the purpose of considering site-specific relief.
The trial court also declined to implement the report. The trial court explained:
                     It is evident now that proceeding under
              Article X-A [of the MPC3] was in error inasmuch as no
              appeal was or is pending. To the contrary, when CCO
              commenced this action it was the successful challenger
              of a provision of the Ordinance. This action was brought
              as a declaratory judgment action, not a land use appeal.
              Therefore, Article X-A of the MPC is inapposite.
(Trial Ct. Op. at 4 (citing MC Outdoor, LLC v. Bd. of Comm’rs of Abington Twp.,
78 A.3d 1269, 1272-73 n.4 (Pa. Cmwlth. 2013) (“By its express terms,
Section 1006-A(c) [of the MPC] applies to a land use appeal, not to an action
seeking declaratory and mandamus relief.”), appeal denied, 89 A.3d 1286
(Pa. 2014))). Citing an unreported panel decision of this Court, Chester County
Outdoor, LLC v. Board of Supervisors of Penn Township (Pa. Cmwlth., No. 1599
C.D. 2013, filed July 31, 2014) (Penn Township), the trial court opined that CCO’s
request for site-specific relief did not belong before the trial court: “CCO’s next
step in our case, after prevailing on its challenge, should have been to submit plans

      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. § 11001-A to 11006-A§.



                                            3
to the Township. . . . CCO has never applied for and been denied site-specific
relief. Since no application has been denied, no relief is available under Section
1006-A of the MPC.” (Trial Ct. Op. at 5-6.)4
               On appeal5 to this Court, CCO argues that, as the successful
challenger to a zoning ordinance, it is entitled to site-specific relief that must be
crafted by the trial court.6 This Court recently addressed this question in Penn
Township, a case very similar to this one. In that case, CCO leased property in
Penn Township for the purpose of erecting a billboard and filed with the Penn
Township Zoning Hearing Board a validity challenge to the zoning ordinance.
Although CCO included a proposal and request for site-specific relief with the
validity challenge, CCO subsequently withdrew its request and proposed plans.
The Penn Township Zoning Hearing Board upheld the validity challenge.7 CCO
then filed a declaratory judgment action with the trial court, seeking a declaration

       4
           The trial court’s order is limited to granting CCO’s exceptions “to the extent they
challenge the procedure implemented under 53 P.S. [§] 11006-A(c)” and stating that “the Report
of the Special Hearing Officer will not be implemented.” (Trial Ct. Op. at 6.) CCO states
several times in its brief that the trial court denied its declaratory judgment action, but a review
of the trial court docket reveals that no further action was taken by the trial court prior to the
filing of this appeal.
       5
         Our standard of review in declaratory judgment actions is limited to whether the trial
court abused its discretion or committed an error of law. Pirillo v. Vanco, 74 A.3d 366, 368 n.5
(Pa. Cmwlth. 2013), appeal denied, 87 A.3d 322 (Pa. 2014).
       6
          CCO also argues that the Township failed to carry its burden to prove CCO was not
entitled to site-specific relief. Because the first issue is dispositive, we need not address this
argument.
       7
          CCO appealed to the trial court, which concluded CCO did not have standing to appeal
the decision of the zoning hearing board. CCO then appealed to this Court, and we affirmed the
trial court, holding that CCO had obtained all the relief it sought in its validity challenge and,
therefore, lacked standing to appeal because it was not an aggrieved party. In re Chester Cnty.
Outdoor, LLC, 64 A.3d 1148, 1152 (Pa. Cmwlth. 2013).



                                                 4
that it was entitled to site specific relief and that only the trial court could grant the
requested relief. CCO argued, as it does here, that because it was a successful
challenger to a zoning ordinance, it was entitled to site-specific relief which only
the trial court could grant.        This Court, by adoption of the trial court’s
Pa. R.A.P. 1925(a) opinion, held that CCO was not entitled to site-specific relief
from the trial court. Rather, it must instead file the appropriate applications with
Penn Township. As the trial court explained:
                    Plaintiff successfully challenged § 1800.G of the
             Penn Township zoning ordinance. Accordingly, that
             section of the zoning ordinance is no longer an
             impediment to plaintiff’s use of 27 Commerce Boulevard
             in Penn Township. Nevertheless, plaintiff does not appear
             to have made application for any use of that property. In
             this case, plaintiff seeks a declaration that only the Court
             of Common Pleas can determine the form of relief to be
             awarded to a party who successfully challenges a
             provision of a zoning ordinance.            We believe the
             plaintiff’s position is clearly incorrect. In a zoning appeal
             in which an applicant has successfully challenged a
             provision of a zoning ordinance and in which appeal the
             applicant sought site specific relief, the court of common
             pleas is empowered to grant relief. But where, as here, an
             applicant sought relief from a zoning hearing board and
             obtained all the relief which it sought, the court no longer
             has jurisdiction to grant any relief. We know of no reason
             why—and plaintiff has pointed to no reason—plaintiff
             cannot now make application to Penn Township for a use
             of 27 Commerce Boulevard, unfettered by the previous
             § 1800.G of the zoning ordinance.
                    And plaintiff has cited no authority for the
             proposition that only this court could grant relief. In fact,
             under the facts of this case, this court could not grant any
             relief. There has never been and there is not now pending
             before the court any proposed use of the site in question.
             Pursuant to Section 1006–A of the Municipalities
             Planning Code, 53 P.S. § 11006–A(c), and as logic
             dictates, in order for the court to order a proposed use

                                            5
             approved, in whole or in part, the proposed development
             or use must have “been described by the landowner
             through plans and other materials submitted to the
             governing body, agency or officer of the municipality
             whose action or failure to act is in question on the
             appeal.” Ibid. We know of no case and plaintiff has not
             cited to us any case in which a court has ordered
             approved, in whole or in part, a use for a site for which no
             application was ever made to the relevant authority and
             for which the plans for such use have never been seen by
             anyone, including the court.
Chester County Outdoor, LLC v. Bd. of Supervisors of Penn Twp., (No. 13-05944,
C.C.P. Chester County, filed October 10, 2013), slip op. at 4 (attached to Penn
Township).
             Here, CCO is in a virtually identical procedural posture:          CCO
successfully challenged a zoning ordinance without simultaneously requesting
site-specific relief and then filed a declaratory judgment action for site-specific
relief without ever submitting the proposed plans to the appropriate municipal
authority. CCO offers no basis upon which to distinguish the instant case from
Penn Township, but instead argues that we decided Penn Township incorrectly,
again arguing that the municipality lacks the authority to grant site-specific relief
under these factual circumstances. As we held in Penn Township, “not only do[es
the trial court] not have exclusive jurisdiction [it] do[es] not have any jurisdiction
at all to review plans or applications which have never been submitted to the
appropriate authority for consideration.” Penn Township, attached opinion of the
trial court at 5. We find Penn Township persuasive and decline to re-examine the
issue here. Because the instant case is indistinguishable from Penn Township, the




                                          6
trial court did not err in directing CCO to submit its request for site-specific relief
to the appropriate municipal authorities.8
              For the reasons discussed above, the order of the trial court is hereby
affirmed.




                                    P. KEVIN BROBSON, Judge




       8
         To the extent CCO contends that it will not receive a fair hearing before the ZHB, we
note that submitting a plan for the placement of a billboard on the Property to the ZHB for
review and approval is merely the first step. If CCO is displeased with the ZHB’s decision on
the proposal, CCO could then appeal the matter to the trial court. See Section 1002-A of the
MPC, 53 P.S. § 11002-A. On appeal, the trial court may elect to receive additional evidence and
review the case de novo. See Section 1005-A of the MPC, 53 P.S. § 11005-A.



                                              7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chester County Outdoor, LLC,          :
                        Appellant     :
                                      :
            v.                        :   No. 29 C.D. 2015
                                      :
Board of Supervisors of               :
East Pikeland Township                :


                                    ORDER


            AND NOW, this 4th day of September, 2015, the order of the Court
of Common Pleas of Chester County is hereby AFFIRMED.




                             P. KEVIN BROBSON, Judge
