Driscoll v. Zoning Bd. of Adjustment of Phila.

201 A.3d 265
CourtCommonwealth Court of Pennsylvania
DecidedDecember 27, 2018
DocketNo. 124 C.D. 2018
StatusPublished
Cited by20 cases

This text of 201 A.3d 265 (Driscoll v. Zoning Bd. of Adjustment of Phila.) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Driscoll v. Zoning Bd. of Adjustment of Phila., 201 A.3d 265 (Pa. Ct. App. 2018).

Opinion

OPINION BY JUDGE BROBSON

Dena Driscoll and Jake Liefer (Appellants) appeal from an order of the Court of Common Pleas of Philadelphia County (common pleas), dated December 28, 2017. The order granted a motion to quash filed by the Zoning Board of Adjustment of the City of Philadelphia (ZBA), the City of Philadelphia (City), the City of Philadelphia Police Fire Auto Repair, Philadelphia Sign Company, and Bayberry Media New York, LLC (Bayberry) (collectively, Appellees), and dismissed Appellants' appeal from the ZBA's decision as moot. We now affirm.

This matter involves the Philadelphia Department of Licenses and Inspections' (L&I) issuance of a permit (Permit) for the erection of a non-accessory sign on property located at 1100 Wharton Street, Philadelphia, Pennsylvania (the Property). (Original Record (O.R.), Item No. 9 at 2-3.) The Property is owned by the City, and the Philadelphia Parking Authority (PPA) is the leaseholder of the Property. (Id. at 3.) Prior to the issuance of the Permit, PPA and Bayberry entered into a contract, allowing Bayberry to place a non-accessory sign on the Property. (Id. ) Philadelphia Sign Company applied for the Permit on behalf of Bayberry. (Id. ) L&I issued the permit pursuant to Philadelphia Zoning Code Section 14-905(15) (Ordinance). (Id. ) Appellants in this matter then filed an Application for Appeal to the ZBA, challenging the issuance of the Permit. (O.R., Item No. 7 at 57.) The ZBA conducted a *267public hearing on the appeal. (Id. at 7-50.) At the hearing, Appellants argued, inter alia , that the Ordinance under which the ZBA issued the Permit is unfinished, defective, and in conflict with other sections of the Philadelphia Zoning Code. (Id. at 3.)

The Ordinance provisions at issue provide:

(a) Purpose.
The sign requirements of this subsection (15) are intended to balance the public interest in maintaining a safe and attractive City; the interests of businesses and other entities in promoting their products, services and ideas; and the interests of the City and other governmental bodies in communicating public service and emergency messages on a city-wide basis through an integrated network of signage on municipal property.
(b) Applicability.
The provisions of this subsection (15) apply to all municipal property, defined as any land, building, or structure (i) that is owned by the City; or (ii) in which the City possesses rights sufficient to permit it to authorize the placement of a non-accessory sign on such land, building, or structure for six months or more.
(c) Non-Accessory Signs on Municipal Property.
No prohibition or regulation of non-accessory signs set forth in this Title shall apply to municipal property. In the event of any conflict between any provision of this subsection (15) and any other provision of this Zoning Code, the provisions of this subsection (15) shall control.
(d) Requirements.
The following requirements shall apply to any sign located on municipal property.
(.1) Maximum Size.
Reserved.
(.2) Maximum Height.
Reserved.
(.3) Sign Faces.
Reserved.
(.4) Embellishments.
Reserved.
(.5) Spacing.
Reserved.
(.6) Prohibited Locations.
Reserved.

Phila., Pa., Zoning Code § 14-905(15)(a)-(d) (2018).

After the conclusion of the hearing, the ZBA issued a decision denying the appeal. (O.R., Item No. 7 at 6.) In coming to its decision, the ZBA set forth a number of conclusions of law, including:

4. The Board acknowledges that validity challenges are not within its purview but notes that zoning ordinances are presumed to be valid and it is the challenger who bears the burden of proving invalidity. See, e.g., Southeastern Chester County Refuse Authority v. Zoning Hearing Bd. of London Grove Twp. , 898 A.2d 680 (Pa. Cmwlth. 2006) [, appeal denied , 591 Pa. 740, 921 A.2d 499 (2007) ].
5. [Counsel for Appellants] cited no authority supporting his arguments that failure to include specific size requirements, conflict with other Code sections, and/or the alleged failure to meet goals stated in the legislation's cover sheet are sufficient to invalidate the ordinance.

(O.R., Item No. 7 at 6.)

On May 24, 2017, Appellants appealed the decision of the ZBA to common pleas. (O.R., Item No. 2.) Bayberry, on October 25, 2017, sent a request to L&I, seeking to withdraw and abandon the Permit. (O.R., Item No. 9 at 13.) PPA also joined in this *268request.1 (Id. at 16.) Thereafter, Bayberry filed a motion to quash Appellants' appeal, arguing that the appeal was moot because the Permit had been abandoned. (Id. at 1-7.) By order dated December 28, 2017, common pleas granted Bayberry's motion to quash the appeal. (O.R., Item No. 13.) In its opinion in support of the order, common pleas explained the grounds for its decision to grant the motion to quash. (O.R., Item No. 15.) Common pleas determined that the appeal was moot because the City and Bayberry abandoned the Permit. (Id. at 4.) Further, common pleas did not find that the matter at the focus of the appeal is one of public importance or one that would evade judicial review, such that common pleas could review the issues presented in the appeal regardless of mootness. (Id. at 5.) Appellants now appeal to this Court. (O.R., Item No. 14.)

On appeal,2 Appellants argue that common pleas committed an error of law or abused its discretion by dismissing the appeal as moot, because the underlying issues are of public importance and are likely to recur but will evade judicial review.

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Bluebook (online)
201 A.3d 265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/driscoll-v-zoning-bd-of-adjustment-of-phila-pacommwct-2018.