Callowhill Ctr. Assocs., LLC v. Zoning Bd. of Adjustment, 2 A.3d 802 (Pa. Commw. Ct. 2010).
Res judicata barred issues previously litigated by the same property owner for the same property
Applicant sought a variance to erect non-accessory wall wrap advertising sign on a commercial building that was at approximately 75% occupancy. The application was approved by the Board of Adjustment. The Commonwealth Court upheld the trial court’s reversal of the Zoning Board of Adjustment’s decision. The Commonwealth Court held that the variance was not warranted because the property was occupied and was not, therefore, valueless. The Commonwealth Court also ruled that the Applicant’s argument that the zoning ordinance was unconstitutional was waived by the Applicant because it was not put forth before the Board of Adjustment.
Six years later, the Applicant again sought a zoning permit for essentially the same sign and the permit was denied. The Applicant appealed to the Board of Adjustment arguing a variance was warranted and that the sign code was unconstitutional. The Commonwealth Court upheld the Board of Adjustment’s denial because the permit was for essentially the same sign, the building was still occupied (approximately 65% occupancy), and because the record did not show any substantial changes in the circumstances. Consequently, the challenge, including the constitutional arguments that were waived in the original proceedings, was barred by the doctrine of res judicata since the issue previously was litigated.
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