HomeMy WebLinkAbout10-1756TO ALL PARTIES:
I DO HEREBY CERTIFY THAT THE WITHIN
IS A TRUE AND CORRECT COPY OF THE
ORIGINAL FILED IN THIS ACTION.
BY:
Victor F. Cavacini, Esquire
Attorneys for Plaintiff
GROSS McGINLEY, LLP
BY: VICTOR F. CAVACINI, ESQUIRE
ATTORNEY I.D. # 08136
33 South Seventh Street PO Box 4060
Allentown, PA 18105
610-820-5450
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0 THE
20101'„; I I P111 1: 29
UiNaY
ATTORNEYS FOR
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
LAMAR ADVERTISING, CO.
NO: 16 - 175(o
0,-vit fern
Plaintiff
-vs-
BOROUGH OF LEMOYNE, a municipal entity
ZONING HEARING BOARD OF THE
BOROUGH OF LEMOYNE, a municipal body
and ROBERT IHLEIN, Zoning Officer of the
Borough of Lemoyne
Defendants
NOTICE
IN MANDAMUS
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST
THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION
WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE
SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN
ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR
OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED
THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A
JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT
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FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR
ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY
LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
1-800-990-9108
717-249-3166
GROSS )GIcGINLEY, LLP
BY:
VICTOR F. CAVACINI, ESQUIRE
Attorney I.D. # 08136
AttomS for Plaintiff
33 S. 7 St., PO Box 4060
Allentown, PA 18105-4060
Phone: 610-820-5450
Fax: 610-820-6006
Date: March \? 2010
2
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
LAMAR ADVERTISING, CO.
Plaintiff
-vs-
BOROUGH OF LEMOYNE, a municipal entity
ZONING HEARING BOARD OF THE
BOROUGH OF LEMOYNE, a municipal body
and ROBERT IHLEIN, Zoning Officer of the
Borough of Lemoyne
Defendants
NO: lD_ `-7S6 t wI
IN MANDAMUS
COMPLAINT IN MANDAMUS
1. Plaintiff, LAMAR ADVERTISING, CO., is a corporation in the business of
outdoor advertising, and has its principal office located at 308 South Tenth Street, Lemoyne,
Cumberland County, Pennsylvania.
2. Defendant, BOROUGH OF LEMOYNE, (Lemoyne), is a municipal entity,
having its principal office located at 510 Herman Avenue, Lemoyne, Cumberland County,
Pennsylvania.
3. Defendant, BOROUGH OF LEMOYNE ZONING HEARING BOARD, (Board),
is a municipal body having its principal office located at 510 Herman Avenue, Lemoyne,
Cumberland County, Pennsylvania, and an interested party.
3
4. Defendant, ROBERT IHLEIN, (Ihlein) is the Borough of Lemoyne Zoning
Officer, and he can be served at 510 Herman Avenue, Lemoyne, Cumberland County,
Pennsylvania, and is the municipal official having the authority and duty to issue a permit to
Lamar for reasons set forth herein.
5. On October 16, 2009, Lamar filed an application for a sign permit/zoning permit
with the zoning officer along with required documentation seeking to erect an advertising sign at
premises known as 100 Market Street, Lemoyne, Cumberland County, Pennsylvania.
6. By letter dated November 10, 2009, the Zoning Officer, Robert lhlein (Ihlein)
denied issuance of a sign permit/zoning permit for the purported reason that the proposed
billboard does not meet the requirements of Section 1308.E.2 of the Lemoyne Borough Sign
Ordinance (Ordinance) regarding required setback between signs.
7. On or about December 8, 2009, Lamar filed an appeal to the Zoning Hearing
Board of the Borough of Lemoyne seeking a favorable interpretation of Section 1308.E.2 of the
Ordinance, and in the alternative, a dimensional variance.
8. On January 5, 2010, the Board held a hearing at which time Lamar offered
evidence in support of its zoning appeal.
9. The Borough of Lemoyne appeared at the hearing to oppose Lamar's request for
zoning relief.
10. The Board issued a written opinion dated February 16, 2010 which was
transmitted by a cover letter from its solicitor dated March 8, 2010. A copy of the said letter and
Decision are attached hereto as an Exhibit.
4
11. Section 908.9 of the Pennsylvania Municipalities Planning Code, 53 P.S. 10908.9
(MPC) requires that a zoning hearing board render a written decision within forty-five (45) days
after the last hearing.
12. Section 908.10 of the Pennsylvania Municipalities Planning Code, 53 P.S.
10908.10 (MPC) requires that a copy of the decision be "delivered to the applicant personally or
mailed to him not later than the day following its date."
13. Given the failure of the Board to provide a copy of the decision to the zoning
appellant, and its attorney, until March 8, 2010 gives rise to a question as to whether or not there
was a written decision prepared by the Board and signed within forty-five (45) days.
14. Neither the applicant nor the applicant's counsel received a copy of the decision
prior to receipt of the letter sent by the attorney for the Board dated March 8, 2010 which was
received March 9, 2010.
15. Lamar believes, and avers that the Board did not execute the written decision on
February 16, 2010, but rather on a date beyond the forty-five (45) days and required by Section
908.9 of the MPC.
15. The Board violated Section 908.10 of the MPC by its failure to deliver a copy to
the applicant personally or by mail not later than the day following the issuance of a written
decision.
16. Lamar lacks an adequate remedy at law to compel the Defendants to issue
appropriate permits to permit erection of the billboard.
17. Lamar believes that it is entitled to a "deemed" decision for the failure of the
Defendants to issue a sign permit/zoning permit to erect an advertising sign at premises known
as 100 Market Street, Lemoyne, Cumberland County, Pennsylvania.
5
18. Lamar anticipates that the Defendants will refuse to issue said permits unless
compelled by judicial decree.
19. Lamar files the within Complaint in Mandamus requesting the issuance of
appropriate permits to erect the said advertising sign.
WHEREFORE, Plaintiff requests that this Court order the Defendants to issue to
Plaintiff the permits required to construct the advertising sign which is the subject of and as set
forth in the zoning appeal referred to herein.
BY:
VICTOR F. CAVACINI, ESQUIRE
Attorney I.D. # 08136
33 South 7 h Street, PO Box 4060
Allentown, PA 18105-34060
Phone: 610-820-5450
Fax: 610-820-6006
Attorneys for Plaintiff
6
VERIFICATION
I, VICTOR F. CAVACINI, ESQUIRE, hereby state and verify that the Verification of an
authorized representative of Plaintiff, LAMAR ADVERTISING, CO., cannot be obtained within
the time allowed for filing of PLAINTIFF'S COMPLAINT IN MANDAMUS. Therefore,
pursuant to Pa.R.C.P. 1024, I am authorized to make this Verification on behalf of the Plaintiff,
and the facts set forth in the foregoing PLAINTIFF'S COMPLAINT IN MANDAMUS are true
and correct based upon my knowledge, belief and information provided to me by Plaintiff.
I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A.
§4904, relating to unsworn falsification to authorities.
VICTOR F. CAVACINI, ESQUIRE
Attorney for Plaintiff,
Lamar Advertising Co.
Dated: March \ 0 2010
W:\WDOX\CLIENTS\Iamar\LEMOYNE\00310718.DOC
7
MAILING ADDRESS:
P. O. HOX lee
LEMOYNE, PA 17043-Glee
E-MAIL: Lav1And0W0ao1-C0W
SAMUEL L. ANDES
ATTORNEY AT LAW
525 NORTH TWELFTH STREET
P. O. BOX 168
LEMOYNE, PENNSYLVANIA 17043
8 March 2010
Victor Cavacini, Esquire
33 South 7`h Street
P.O. Box 4060
Allentown, PA 18105
Andy Rebuck, Vice President
Lamar Advertising
308 South le Street
Lemoyne, PA 17043
Dear Mr. Cavacini and Mr. Rebuck:
TELEPHONE
(717) 761.5361
FAX
(717) 761-1435
I enclose a copy of the decision of the Lemoyne Zoning Hearing Board which I originally
mailed in mid-February. I mailed it to Mr. Cavacini's address in Allentown and it was returned
by the post office marked "no such number."
Hopefully this decision will reach each of you now by mail.
Sincerely,
L. S4ne s
l e
Enclosure
IN RE: )
APPLICATION OF LAMAR ADVERTISING )
K
BEFORE THE ZONING HEARING
BOARD OF LEMOYNE
NO. 1 OF 2009
The Lamar Company (hereinafter "Applicant") flied an appeal to the determination of
the Borough Zoning Officer that its application for a building permit to erect and maintain an
outdoor advertising sign did not comply with the Lemoyne Zoning Ordinance, and particularly
Section 1308.E.2 of said Ordinance. Applicant also requested a variance from the provisions of
the Zoning Ordinance. After proper advertising and notice, a hearing was held before the
Zoning Hearing Board on the evening of 5 January 2010. Following taking of testimony and
consideration of exhibits and argument by Applicant and others, including the Borough of
Lemoyne which appeared at the hearing to oppose Applicant's appeal, the Zoning Hearing
Board denied the appeal of Applicant and denied Applicant's alternative request for a variance.
This Decision is issued in support of the decision announced at that hearing.
FA
1. Applicant operates outdoor advertising facilities throughout Central
Pennsylvania and other locations. It has operated such business for more than ten years and
has a significant presence in Central Pennsylvania and within the Borough of Lemoyne.
2. Applicant has obtained a lease with William R. Grace for property located on
the southeastern corner of the intersection of Third and Market Streets in the Borough of
Lemoyne. The lease permits Applicant to erect an outdoor advertising sign or a so-called
"billboard" at that location.
3. Applicant testified that it intended to build a double-sided sign and that the
portion of the sign facing to the west, which would be visible to east-bound vehicles traveling
on Market Street, would be electronically improved to provide lighting-enhanced advertising.
-1-
4. Applicant's surveyor, Charles R. Cook, testified that the closest billboard to
the east of the proposed billboard, and on the south side of Market Street, would be 837.7 feet
away from the closest point on the proposed billboard.
5. There was no testimony about the billboards located on the south side of Market
Street to the east of the proposed billboard.
6. There is a billboard located on the north side of Market Street. Mr. Cook
testified that, that billboard, measuring at a point on the south side of Market Street directly
opposite from the billboard on the north side of Market Street, was located 316.5 feet east of
the east of the location of the proposed billboard.
7. Applicant offered no testimony in support of its claim for a variance. There
was no testimony about an undue hardship imposed upon Applicant by any unusual or unique
feature of the property on which Applicant intended to erect the billboard. There was no
testimony in support of the other requirements for a variance set out in the Zoning Ordinance.
• • •q
A. Applicant's proposed billboard does not comply with Section 1308 E 2 of the
Zoning Ordinance because it would be located within 500 feet or less of another billboard.
B. The decision of the Zoning Office is confirmed and approved. Applicant's appeal
from that decision is DENIED.
C. Applicant is not entitled to a variance under the terms of the Lemoyne Zoning
Ordinance or the law of Pennsylvania. Accordingly, Applicant's request for a variance is
DENIED.
DISCUSSION
The provision of the Zoning Ordinance at issue provides as follows:
No billboard or sign shall be placed within five hundred (500) feet of any
off-premises advertising sign which is greater than seventy-five (75) square feet in
area, measured along the nearest edge of the pavement between the points
directly opposite the signs along the same side of the travel way.
Applicant contends the above language restricts billboard signs only on the same side of
the street. That is, applicant contends that the restriction prohibits billboard signs within five
hundred feet of each other only if they are on the same side of the traveled street. Applicant
-2-
offered no explanation or argument as to whether the restriction applied to billboards located
on the opposite side of the street.
Applicant sought to bolster its argument by introducing evidence of interpretations of
similar language made by the Pennsylvania Department of Transportation in its regulation of
billboards. Applicant also sought to offer into evidence examples of other municipalities in the
Central Pennsylvania area that interpret similar language in their zoning ordinances in the same
way as the interpretation advanced by Applicant here. Finally, Applicant argued that the
Borough of Lemoyne could not make the interpretation it did in this instance because, in prior
cases, it had not made a similar interpretation of its prior ordinance.
The Borough of Lemoyne, on the other hand, supported the conclusion and
determination of its Zoning Officer. The Borough argued that the language in the Ordinance
referring to "the same side of the traveled way" only controlled the means of measuring
distance and did not restrict the provisions of that section to apply only to billboards located on
the same side of the street. The Borough contended that the proper interpretation of the
Zoning Ordinance language would be that any billboard, located on either side of the street,
could not be within five hundred (500) feet of any other billboard, located on either side of the
street and that the measurement of five hundred (500) feet was to be made on the same side of
the street as the new billboard to be installed. The Zoning Officer in his testimony explained
that, in making that interpretation of the language or the ordinance, he proceeded as follows:
t. He identified the location of the proposed location of the new
billboard on the south side of Market Street and found a point on the south curb
line of Market Street directly opposite the proposed location of the new billboard.
2. He located an existing billboard on the north side of Market Street and
located a point on the south curb line of Market Street directly opposite the
existing billboard.
3. He then measured the distance, along the south curb line of Market
Street, between the two points he located on the curb line. The distance he
found, using the method described above, was 320 feet.
The distance found by the Zoning Officer as to the difference between the proposed billboard
and the one on the north side of Market Street corroborated by Applicant's expert, Charles R.
-3-
Cook, R.S., who testified, on cross examination, that he had measured a distance using the
zoning officer's method and found the distance, measured on the south curb line of Market
Street, between the points opposite the proposed billboard and the existing billboard on the
north side of Market Street, to be 316.59 feet.
The Zoning Hearing Board finds that the arguments of Applicant are misplaced. First,
actions or decisions made by prior zoning officers of the Borough of Lemoyne are not
precedential and are not binding upon the Borough. That is particularly true where no review
of those actions was undertaken by the Borough. Put another way, prior errors by zoning
officers need not be repeated. Moreover, Applicant cannot successfully argue that the Borough
of Lemoyne is estopped from asserting the proper interpretation of the ordinance because the
applicant has suffered no prejudice because of past interpretations of the ordinance by prior
zoning officers. '
Similarly, interpretations of their own regulations by other agencies, including the
Pennsylvania Department of Transportation, are not binding upon the Borough of Lemoyne or
this Board. The purpose of this Board is to interpret Lemoyne's ordinances. The purpose of
Lemoyne's Zoning Ordinance may, in fact, be entirely different than the reasons for
interpretations made by the Pennsylvania Department of Transportation or other local
municipalities. Simply put, this Board is not bound by interpretations made by others of their
regulations for reasons unknown to this Board.
The Board finds that the interpretation made by the Zoning Officer is correct and, at a
minimum, is reasonable and rational. The Board finds that the decision of the Zoning Officer,
to measure the distance between all signs or billboards in the vicinity, not just those on the same
side of the street, represents a logical application of the language of the Zoning Ordinance.
Keeping in mind the purpose of the Zoning Ordinance, to prevent unnecessary clutter and.
Paragraph 4 of the sign location lease between Applicant and William R. Grace,
the property owner (Applicant's Exhibit 4) gives Applicant the unfettered right to cancel
the lease if Applicant is prevented from constructing or maintaining a sign on the
property "by reason of any final governmental law, regulation, subdivision or building
restriction, order or other action." Thus, Applicant will suffer no prejudice if its
application is denied.
-4-
disruption by billboards, the interpretation made by the Zoning Officer is logical. Accordingly,
this Board sees no reason to disturb that determination or to overrule it. Accordingly, the
Applicant's appeal from the decision of the Zoning Officer Is DENIED.
Finally, Applicant introduced no evidence in support of its claim for a variance. It
offered no evidence of a unique feature to the property which prevented its reasonable
development, no evidence of a hardship imposed upon applicant by the interpretation of the
Zoning Ordinance, and none of the other requirements of a variance set out in the Zoning
Ordinance. Accordingly, Applicant's request for a variance is DENIED.
CONCLUSION.
This Board finds that the interpretation of the Zoning Ordinance made by the Zoning
Officer is correct and DENIES Applicant's appeal. The Applicant having offered no evidence in
support of its request for a variance, the Board denies that request as well.
1
r
Bruce Barnes
Member of Board
J Wooditch
Member of Board
,a A 10/A,
56
Scar ett 5hcaffer
Member of Board
Date: / 1Q. 17kb Z=•n
-5-
GROSS McGINLEY, LLP ATTORNEYS FOR
BY: VICTOR F. CAVACINI, ESQUIRE Plaintiff
ATTORNEY I.D. # 08136
33 South Seventh Street PO Boa 4060
Allentown, PA 18105
610-820-5450
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
LAMAR ADVERTISING, CO.
NO: 10 - I'Ma
01,vil-Tem
Plaintiff
-vs-
BOROUGH OF LEMOYNE, ZONING
HEARING BOARD OF THE BOROUGH
OF LEMOYNE, and ROBERT IHLEIN,
Zoning Officer of the Borough of Lemoyne
Defendants
C7 a '
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a -n
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'T_7 S;['
PRAECIPE FOR APPEARANCE
TO THE PROTHONOTARY:
Kindly enter my appearance for Plaintiff, LAMAR ARVERTISING CO., in the above case.
,LLP
BY:
DATED: MARCH `O 2010.
VICTOR F. CAVACINI, ESQUIRE
ATTORNEY FOR APPELLANT
33 SouTH 7T" STREET
P.O. Box 4060
ALLENTOWN, PA 18105-4060
PHONE: (610) 820-5450
FAx: (610) 820-6006
I.D. # 08136
IN MANDAMUS
W:\WDOX\CLIENTS\LAMAR\LEMOYNE\00310720.DOC
r
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DNISION -LAW
LAMAR ADVERTISING, CO.,
Plaintiff
vs.
BOROUGH OF LEMOYNE, a municipal entity,
ZONING HEARING BOARD OF THE
BOROUGH OF LEMOYNE, a municipal body
And ROBERT IHLEIN, Zoning Officer of the
Borough of Lemoyne,
Defendant
NO. 10-1756 -CIVIL T~RMq a
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IN MANDAMUS ~ =~
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PRAECIPE TO SUBSTITUTE VERIFICATION
TO THE PROTHONOTARY OF THE SAID COURTS:
Kindly substitute the attached Verification to be filed with the COMPLAINT IN
MANDAMUS in the above-captioned matter at No. 10-1756 -Civil Term which has been filed in
your office on March 11, 2010.
INLEY, LLP
BY:
V~ OR F. CAVACINI, ESQUIlZE
orney for Plaintiff
33 South 7th Street
P.O. Box 4060
Allentown, PA 18105-4060
(610) 820-5450
I.D. #08136
DATE: March 16, 2010
W:\W DOX\CLIENTS\lamar\I.EMOYNE\00311381.DOC
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
LAMAR ADVERTISING, CO.
Plaintiff
-vs-
BOROUGH OF LEMOYNE, a municipal entity
ZONING HEARING BOARD OF THE
BOROUGH OF LEMOYNE, a municipal body
and ROBERT IHLEIN, Zoning Officer of the
Borough of Lemoyne
Defendants
NO: 10-1756 - Civil Term
IN MANDAMUS
VERIFICATION
I, Andrew R. Rebuck, hereby state and verify that I am the General Manager /Vice
President of Lamar Advertising, that I am authorized to make this Verification on behalf of said
corporation, and that the facts set forth in the COMPLAINT IN MANDAMUS are true and
correct, based upon personal knowledge, information, and belief.
I understand that false statements herein are made subject to the penalties of 18 Pa.
C.S.A. Section 4904, relating to unsworn falsification to authorities.
LAMAR ADVERTISING
Date: Mracz~ ~ C 1 ~ 2~ ~ ~
ANDREW R. REBUCK
W:\WDOX\CLIENTS\lamar\LEMOYNE\00310990.DOC
LAMAR ADVERTISING CO.,
Plaintiff
vs.
BOROUGH OF LEMOYNE, a
municipal entity, ZONING
HEARING BOARD OF THE
BOROUGH OF LEMOYNE, a
municipal body, and ROBERT
IHLEIN, Zoning Officer of the
Borough of Lemoyne,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -LAW
NO. 10-1756 CIVIL
IN MANDAMUS
IN RE: PETITION FOR LEAVE TO TAKE ADDITIONAL EVIDENCE
ORDER
AND NOW, this Z~' day of May, 2010, at the request of counsel for the Zoning
Hearing Board of Lemoyne and with the concurrence of counsel for the plaintiff and counsel for
the Borough of Lemoyne, argument in the above matter set for June 17, 2010, is continued to
Thursday, July 8, 2010, at 2:30 p.m. in Courtroom Number 4, Cumberland County Courthouse,
Carlisle, PA.
BY THE COURT,
~•
Victor F. Cavacini, Esquire
For the Plaintiff
./ Michael J. Cassidy, Esquire
For Defendants, Borough of Lemoyne
and Robert Ihlein
Samuel L. Andes, Esquire
For Defendant, Zoning Hearing Board
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'David 1D. Buell e P Renee X Simpson
Prothonotary WM 15` Deputy Prothonota
rkS. Sohonage ESQ :.-A\
Irene E. Morrow
Solicitor 1750 2nd Deputy Prothonotary
Office of the Prothonotary
Cumberland County, cPennsy(vania
/1.5 :j CIVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 29TH DAY OF OCTOBER, 2013,AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE—THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH
PA R.C.P.230.2.
BY THE COURT,
DAVID D. BUELL
PROTHONOTARY
One Courthouse Square • Suite 100 • Carlisle, PA 17013 • (717)240-6195 • Fa.,(717)240-6573