Driscoll v. Zoning Bd. of Adjustment, 2018 Pa. Commw. LEXIS 782 (December 27, 2018)

An appeal becomes moot where the zoning permit application at issue is abandoned and the limited exceptions to the mootness doctrine do not apply.
Case Details:

Applicant applied for a permit to erect a non-accessory sign on property (Property) owned by the City.   Pursuant to its Zoning Code (Code), the City issued Applicant a permit for the sign (Permit).  Appellants appealed the issuance of the Permit to the City’s Zoning Board of Adjustment (ZBA).  Appellants argued the Code provisions under which the Permit was issued were “unfinished, defective, and in conflict with other sections of the [Code].”  The ZBA affirmed the issuance of the Permit and Appellants appealed to the Court of Common Pleas.  Applicant subsequently withdrew and abandoned the Permit and then filed a motion to quash Appellants’ appeal on the basis it was moot because Applicant had abandoned the Permit.  The trial court agreed and determined, further, that none of the exceptions to the mootness doctrine applied to the case.  Appellants then appealed to the Commonwealth Court.

Per the Commonwealth Court, the mootness doctrine “requires that an actual case or controversy be in existence ‘at all stages of review, not merely at the time the complaint is filed.’”  An “actual case or controversy” exists where: (1) there is a real, not just hypothetical, legal controversy; (2) the controversy “affects an individual in a concrete manner so as to provide the factual predicate for a reasoned adjudication”; and (3) the parties are sufficiently adverse such that the adjudicatory body can reach a resolution of the matter.  There are three exceptions to the mootness doctrine, but their applicability is rare.  A court will still consider a moot case if: (1) “the conduct complained of is capable of repetition yet evading review”; (2) the case “involves questions important to the public interest”; or (3) one party will “suffer some detriment” if the case is not decided.

In Applicant’s case, the Court determined there no longer was an actual case or controversy because Applicant had withdrawn and abandoned the Permit and, therefore, was no longer permitted to erect the sign.  Further, the first exception did not apply because of the appeal process in place for permits.  Per the Court, “[w]here parties may avail themselves of an appeals process, this Court has held that, although the issues underlying the appeal may be likely to recur, the issues are not likely to escape judicial review.”  With respect to the second exception, the Court stated that “the public importance exception is very rarely applied” and determined that it did not apply in this case.  In general, the second exception applied to cases involving a “concrete harm to society,” such as educational subsidies for public schools, voter registration, and due process rights for students before being suspended.  Appellants’ aesthetic concerns and tenuous concerns regarding blight and property values did not adversely affect life, liberty, or property at a level sufficient to make the second exception applicable.  Appellants did not invoke the third exception.  Accordingly, the Court affirmed the trial court’s order.



Date of Decision: 12/27/18

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