PA Supreme Court Begins 2021 With Pair of Zoning Decisions

April 14, 2021

The Pennsylvania Supreme Court rarely accepts zoning and land use cases. But already in 2021, the Court has released two significant opinions in this arena.

The first case, Lamar Advantage GP v. City of Pittsburgh, concerns applicant’s desire to install a static, vinyl advertisement billboard over top of an existing digital sign structure. The second, PBS Coals v. PennDOT, concerns an alleged de facto taking due to depravation of access to coal reserves.

Electronic and Static Vinyl Billboards Case

In the case of Lamar Advantage v. City of Pittsburgh ZBA, the Court accepted review to determine whether the holding by the Commonwealth Court in this case (i.e., that a static vinyl advertising sign could replace an electronic advertising sign) was inconsistent with the holding in Lamar Advertising Co. v. ZBA of Monroeville, that static vinyl advertising signs and electronic advertising signs are so different that one could not simply replace the other without application for issuance of a new zoning and building permit. In the prior Lamar case, the applicant asserted that it had a right to modernize its existing billboards in that changing the sign face, from static to electronic, did not constitute a structural change that required site plan or conditional use approval. In that case, the Court found that Lamar failed to produce any evidence to substantiate that the signs were legal, nonconforming uses, and how that such change involves significant structural alterations. In this case, the Supreme Court found that Lamar’s display of the vinyl sign, over the electronic sign, required no structural alterations and, accordingly, did not require any zoning relief.

Interestingly, this case was decided, by a 4-3 vote, and like the prior Lamar case, was very fact-sensitive. I suspect that there will be many more cases involving the conversion of static billboards to electronic billboards and, over the next few years, applicants will need to carefully review the Zoning Ordinance and the factual history of the billboards to determine the required action an applicant should take prior to commencing this conversion work.

De Facto Taking Case

In PBS Coals, coal companies that owned and leased subsurface mineral rights (but not surface rights) over a large tract of land were cut off from any access to a public road from a particular parcel of land in their tract when PennDOT acquired a strip of land over an adjacent parcel that effectively landlocked the parcel. The coal companies filed a petition under Section 502(c) of the Eminent Domain Code alleging a de facto taking of their unmined coal estate in the parcel.

To prove a de facto taking, the Coal Companies were required to prove that PennDOT (a government actor) directly caused exceptional circumstances that substantially deprived the Coal Companies of the enjoyment and beneficial use of their coal estate. Whether the Coal Companies had enjoyment and beneficial use of their coal estate hinged on whether the Coal Companies could prove that they would be able to obtain a mining permit to extract the coal.

The Court of Common Pleas of Somerset County, after hearing evidence and argument, including testimony from expert witnesses from both sides about the feasibility of obtaining a mining permit to remove the coal, ruled that the there was no de facto taking of the coal estate because the “ability to obtain a surface mining permit […] [was] speculative and uncertain.”

On appeal, the Pennsylvania Supreme Court agreed with the trial court and held that the Coal Companies failed to satisfy their burden of proof under the de facto takings test because they had not proved that they were likely to obtain a mining permit, and therefore had not demonstrated that they possessed any enjoyment and beneficial use of their coal estate.

The Pennsylvania Supreme Court cited evidence, developed by the expert witnesses, that the trial court relied on to decide that a mining permit was not likely to be issued: lack of a wetland impact study, lack of an overburdening analysis, a high level of alkaline solution required to prevent acid runoff, and the existence of an endangered bat species on the parcel. The Pennsylvania Supreme Court concluded that this evidence supported the trial court’s ruling that the Coal Companies’ ability to obtain a mining permit was speculative and uncertain.

This recent Pennsylvania Supreme Court decision provides important guidance on de facto takings claims – particularly to the issue of whether a property owner has enjoyment and beneficial use of his or her property. Property owners whose use of their properties requires permitting or government approvals must be proactive to acquire permits and approvals before government action occurs. Otherwise, a potential takings claim may be stymied by a court’s finding that the property owner’s ability to obtain permits and approvals was speculative and uncertain at the time of the alleged de facto taking.

For more information as to zoning and land use cases in Pennsylvania, or the best way to convince the Pennsylvania Supreme Court to accept your case, please contact Robert W. Gundlach, Jr., Esquire, at [email protected] or 215-918-3636.