Bartkowski Inv. Grp. v. Bd. of Comm'rs of Marple Twp. , PICS Case No. 14-0152 (Pa. Commw. Jan. 28, 2014) Green, J. (8 pages).

COURTS OF COMMON PLEAS

The Legal Intelligencer

LAND USE AND PLANNING

Zoning Ordinance • Jurisdiction • Appeals

Bartkowski Inv. Grp. v. Bd. of Comm'rs of Marple Twp. , PICS Case No. 14-0152 (Pa. Commw. Jan. 28, 2014) Green, J. (8 pages).

Case should be remanded for zoning board to determine substantive challenge to validity of ordinance. Grant of motion should be affirmed.

BIG applied to zoning board for permits to erect billboards on land in Marple Township. While the applications were pending, board enacted a new ordinance to supersede that under which BIG was proceeding. The prior ordinance prohibited billboard advertising anywhere in the township; BIG erroneously believed that it fit within an exception to the ordinance. Subsequently, zoning board denied BIG's applications under the new ordinance.

More than 30 days after the ordinance became effective, BIG filed a complaint and procedural challenge, arguing that the ordinance was ineffective because township failed to record it within one month of its passage as required by §1502 of the First Class Township Code, and requesting an order directing township to issue BIG the billboard permits. Township moved for summary judgment as to both the complaint and the procedural challenge.

The court granted township's motions as BIG's complaint and procedural challenge—filed more than 30 days after the intended effective date of the ordinance—was untimely under §5571.1(e) of the Municipalities Planning Code.

The Commonwealth Court upheld summary judgment on BIG's procedural challenge, but reversed the grant of summary judgment on the complaint. BIG's request for declaratory relief turned on when, or if, the ordinance became effective (§1502 of the First Class Township Code) and not on whether it was invalid (§5571.1(e) of the Municipalities Planning Code). The court remanded for the trial court to determine the claim under §1502.

Township moved for stay and remand to the zoning board because BIG's complaint challenged the validity of zoning ordinances. The court granted the motion. BIG appealed, arguing that the lower court erred by remanding the action to the zoning board.

In its Rule 1925 opinion, the trial court requested that its decision be affirmed. Declaratory relief, it pointed out, is not available with respect to any proceeding within the exclusive jurisdiction of the tribunal other than a court. The Municipalities Planning Code vests the zoning board with exclusive jurisdiction to hear and render final adjudication on substantive challenges to the validity of land use ordinances.