HomeMy WebLinkAbout10-1755TO 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 Appellant
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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ATTORNEYS FOR
APPELLANT
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
LAMAR ADVERTISING, CO.
NO: 1D -1155 Oivi(Tew
Appellant
-VS-
ZONING HEARING BOARD OF THE
BOROUGH OF LEMOYNE,
Appellee
LAND USE APPEAL
NOTICE OF APPEAL
LAMAR ADVERTISING CO., (Lamar), by and through its attorneys of record, Gross
McGinley, LLP, files an Appeal from the Decision of the Zoning Hearing Board of the Borough
of Lemoyne ("BOARD"), Cumberland County, Pennsylvania, (the "Appellee"), and in support
thereof, states the following:
1. Lamar is a corporation having a principal place of business at 308 South Tenth
Street, Lemoyne, Cumberland County, Pennsylvania. O
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2. The premises subject to this Appeal is known as 100 Market Street, Lemoyne,
Cumberland County, Pennsylvania 17043 (sometimes referred to as "real property").
3. The record owner of the real property is William R. Grace, P.O. Box 301, New
Cumberland, PA 17070.
4. Lamar has entered into a Lease with the record owner for the purpose of erecting
an advertising sign.
5. The real property consists of 8172 square feet. It is part of a larger parcel of land
which is used for industrial purposes including industrial buildings utilizing tanker trucks, a
railroad, and heavy machinery.
6. On October 16, 2009, Lamar filed an application for a sign permit/zoning permit
with the Zoning Officer of the Borough of Lemoyne, which was denied for the stated reason that
the advertising sign failed to meet spacing requirements between signs under Section 1308.E.2 of
the Ordinance.
7. On or about December 8, 2009, Lamar filed an appeal with the Board seeking an
interpretation of the meaning of Section 1308.E.2 of the Ordinance, and in the alternative a
dimensional variance.
8. A hearing was held on January 5, 2010, after which the Board voted to deny
zoning relief
9. By letter dated March 8, 2010, the Board forwarded a copy of a written decision
purportedly dated February 16, 2010 through its solicitor. A copy of the said letter and decision
is attached hereto and incorporated herein by reference.
10. The real property is zoned I-Industrial under the Zoning Ordinance of the
Borough of Lemoyne (Ordinance).
2
H. The use which Lamar proposes is an "advertising sign", sometimes referred to as
a "billboard" which by definition is an "off-premise" sign. An advertising sign is defined under
Section 1303 of the Zoning Ordinance of the Borough of Lemoyne, as amended by Borough of
Lemoyne Ordinance No. 679 dated August 2009, Article 13 of the Ordinance entitled "signs"
(Ordinance) as follows:
"ADVERTISING SIGN - A sign intended for the posting or otherwise
displaying of information inviting attention to a product, service or cause located
on or off the lot or premises on which the sign is situated.... "
12. A "billboard" is defined under Section 1303 of the Ordinance as follows:
"BILLBOARD - See `off-premises' sign"
13. An "off-premise" sign is defined under Section 1303 of the Ordinance as follows:
"OFF-PREMISE SIGN - A sign that directs attention to a person, business,
profession, product, or activity not conducted on the same premises as the sign."
14. Lamar proposes that the sign utilize digital technology defined under Section
1303 of the Ordinance as an "electronic message center" (EMC) which is defined as follows:
"ELECTRONIC MESSAGE CENTER - A variable message sign with a
fixed or changing messuage display through electronic means. These signs include
Incandescent Lamp Displays, Light Emitting Diode (LED), or Liquid Crystal
Display (LCD)."
15. An EMC is a permitted use in the I-Industrial Zoning District under Section
1303.) of the Ordinance.
16. Lamar demonstrated compliance with all applicable provisions of the Ordinance,
and there is no dispute that the proposed advertising sign meets all of the requirements of the
Ordinance, including those provisions dealing with electronic message centers (EMC), which are
permitted under Section 1305.) of the Ordinance.
3
17. The only reason cited by the Zoning Officer for the Borough of Lemoyne to deny
Lamar's request to erect an advertising sign is Section 1308.E.2 of the Ordinance. Section
1308.E states as follows:
"Off-premises signs shall be located a minimum of 500 feet from either
another off-premises signs that is greater than 75 square feet in area (measured
along the nearest edge of the pavement between points directly opposite the signs
along the same side of the travel wa ) or a designated historic district or structure"
(Emphasis supplied)
18. The essential issue presented by the within appeal is an interpretation of Section
1308.E.2 of the Ordinance.
19. The Zoning Officer interpreted Section 1308.E.2 of the Ordinance as requiring
500 feet spacing between signs on both sides of the roadway or what is often referred to as a
"radial" basis as opposed to spacing along the same side of the roadway, or what is often referred
to as a "linear" basis.
20. For ease of description, spacing of signs on both sides of the street will be
described herein as "radial" spacing, and spacing along the same side of the street will be
described as "lineal" spacing.
21. The Board rendered an interpretation of Section 1308.E-2 of the Ordinance
compelling a setback of 500 feet on a "radial" basis.
22. A near identical provision of Section 1308.E-2 was contained in prior editions of
the Zoning Ordinance of the Borough of Lemoyne, and was applied on a "linear" basis rather
than a "radial" basis.
23. Other municipalities having similar zoning provisions have interpreted such
provisions on a "linear" basis as opposed to a "radial" basis.
4
24. Lamar offered to present evidence to the Board on the interpretation by the
Pennsylvania Department of Transportation (PennDOT) as set forth in its regulations on a
provision identical to Section 1308.E.2 of the Ordinance, but the Board refused to receive any
evidence dealing with the same.
25. Lamar sought to introduce the testimony of a representative of PennDOT on the
manner in which it applied a provision in the Pennsylvania Outdoor Advertising Act of 1971
containing an identical provision as that of Section 1308.E.2 of the Ordinance, but the Board
refused to receive any evidence dealing with the same.
26. Lamar intends to file a Petition to request the Court to receive additional evidence
which the Board refused to receive on the issue of interpretation of identical provisions by other
governmental entities.
27. The application of Section 1308.E.2 of the Ordinance by the Board renders certain
terms meaningless, and if applied as suggested by the Board, then there would not be any setback
requirement between signs on the same side of the street.
28. The Board committed an error of law by failing to apply Section 603.1 of the
Municipalities Planning Code, (MPC) 53 P.S. Section 603.1 which states as follows:
"Section 603.1. Interpretation of Ordinance Provisions. - In interpreting the
language of zoning ordinances to determine the extent of the restriction upon the use
of the property, the language shall be interpreted, where doubt exists as to the
intended meaning of the language written and enacted by the governing body, in
favor of the property owner and against any implied extension of the restriction."
29. The Board erred by failing to apply the "strict construction" rule articulated in
decisional law which requires that the landowner be given the benefit of the least restricted use
and enjoyment of his land, and any ambiguities be resolved in favor of the broadest use possible
of land.
5
30. The Board erred in failing to grant zoning relief s requested by Lamar.
31. Section 908.9 of the Pennsylvania Municipalities Planning Code, (MPC), 53 P.S.
10908.9 requires that the Board render a written decision forty-five (45) days after the hearing
before the Board.
32. Section 908.10 of the MPC, 53 P.S. 10908.10 requires that a decision be mailed to
a zoning appellant the day after it is rendered.
33. Given the failure of the Board to provide a copy of the decision to the zoning
appellant, and its attorney, until March 8, 2010 Lamar questions whether or not there was a
written decision prepared by the Board and signed within forty-five (45) days.
34. Lamar believes that it is entitled to a deemed decision in its favor, and will petition
the Court to take the testimony of the Board members to determine the date upon which the
decision was signed.
35. Lamar believes, and therefore avers, that the action of the Board in denying
zoning relief is arbitrary, and capricious, and an abuse of discretion, and the Board committed
errors of law for reasons heretofore stated, as well as the following:
(a) the Board committed an error of law in the interpretation of Section
1308.E-2 of the Ordinance;
(b) the Board failed to apply appropriate criteria and standards to the extent
section 1308.E.2 of the Ordinance is ambiguous; and
(c) such other reasons as shall be advanced at the time of briefing and
argument.
WHEREFORE, the Applicants respectfully requests this Honorable Court to grant the
within appeal from the February 16, 2010, decision of the Board for the reason that it constitutes
6
an abuse of discretion, is arbitrary and capricious and the product of a mistake of law, and to
award Lamar appropriate zoning relief, including a "deemed" decision in its favor, and direct that
a sign/zoning permit issue.
Submitted,
BY:
V IU K F. CAVACINI, ESQUIRE
A ey I.D. #08136
33 South 7' Street, P.O. Box 4060
Allentown, PA 18105
(610) 820-5450 (Phone); (610) 820-6006 (Fax)
Attorneys for Appellant
Date: N?o Z,p \ p
W:\WDOX\CLIENTS\6mar\LEMOYNE\00310586.DOC
7
MAILING ADDRESS:
P. O. HOX 168
LEMOYNE, PA 17043-0166
E-MAIL: LawAndespnol.com
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 10 h 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. 4nes&"
le
Enclosure
A
w
IN RE:
APPLICATION OF LAMAR ADVERTISING
BEFORE THE ZONING HEARING
BOARD OF LEMOYNE
NO. 1 OF 2009
DECISION
The Lamar Company (hereinafter "Applicant") filed 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.
FACTS
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.
CONCLUSIONS Of LAW
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:
1. 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 fad, 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-
11
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.
Bruce Barnes
Member of Board
J Wooditch
Member of Board
Scar ett Sheaffer
Member of Board
Date:/ 4?- f itp 7 C
-5-
BLED-0i-',-i E
r THE Fr7TF40N.7TAFY
TO 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 Appellant
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
2010 MAID I I P11 1: 2s
ATTORNEYS FOR
APPELLANT
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
LAMAR ADVERTISING, CO.
NO: t 0-1'155 (21v i l -Erm
Appellant
LAND USE APPEAL
-vs-
ZONING HEARING BOARD OF THE
BOROUGH OF LEMOYNE,
Appellee
PRAECIPE FOR APPEARANCE
TO THE PROTHONOTARY:
Kindly enter my appearance for Appellant, LAMAR ADVERTISING CO., in the above case.
GROSS INLEY, LLP
BY:
VICTOR F. CAVACINI, ESQUIRE
ATTORNEY FOR APPELLANT
33 SOUTH 7TH STREET
P.O. Box 4060
ALLENTOWN, PA 18105-4060
PHONE: (610) 820-5450
DATED: MARCH \0 2010, FAX: (610) 820-6006
I.D. # 08136
W:\WDOX\CLIENTS\LAMAR\LEMOYNE\00310685.DOC
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
LAMAR ADVERTISING, CO
Vs. No. 10-1755 CIVIL TERM
ZONING HEARING BOARD
OF THE BOROUGH OF LEMOYNE
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA) :
SS.
COUNTY OF CUMBERLAND)
TO: ZONING HEARING BOARD OF THE BOROUGH OF LEMOYNE
We, being willing for certain reasons, to have certified a certain action between
LAMAR ADVERTISING, CO. pending before you, do command you that the record of
the action aforesaid with all things concerning said action, shall be certified and sent to
our judges of our court of Common Pleas at Carlisle, within (20) days of the date hereof,
together with tliis writ; so that we may further cause to be done that which ought to be
done lccordial to die laws and Constitution of this Commonwealth.
WITNES$, The Honorable KEVIN A. HESS, P.J. our said Court, at Carlisle, PA., the
11 T" day of.MARCH, 2010.
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PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540
MAY ° 3 2010
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
LAMAR ADVERTISING, CO.
NO: 2010-1755-CIVIL TERM
Appellant
-vs-
ZONING HEARING BOARD OF THE
BOROUGH OF LEMOYNE,
Appellee
-and-
BOROUGH OF LEMOYNE,
Intervenor
ORDER
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AND NOW, this / ~` day of 2010, upon
consideration of the foregoing petition, it is hereby ordered that:
(1) a rule is issued upon the Appellee, Zoning Hearing Board of the Borough of
Lemoyne and Intervenor, Borough of Lemoyne, to show cause why the appellant, Lamar
Advertising Co., is not entitled to the relief requested;
(2) the Appellee, Zoning Hearing Board of the Borough of Lemoyne and Intervenor,
Borough of Lemoyne, shall file an answer to the petition within Z ~ days of this date:
(3) the petition shall be decided under Pa. R.C.P. No. 206.7;
(4) depositions shall be completed within days of this date; `y
(5) argument shall be held on ~~ , SID in Courtroom No. ~_
LAND USE APPEAL
of the Cumberland County Court House; and
(6) notice of the entry of this Order shall be provided to all interested parties by the
Appellant, Lamar Advertising Co.
BY THE COURT:
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LAMAR AD ERTISING CO.,
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ZONING HE G BOARD
OF THE BO OUGH OF
LEMOYNE, '~,
Appelleee
And
BOROUGH ~F LEMOYNE,
Intervenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -LAW
NO. 10-1755 CIVIL
LAND USE APPEAL
IN IRE: PETITION FOR LEAVE TO TAKE ADDITIONAL EVIDENCE
ORDER
AND NiOW, this 4 ` day of July, 2010, the petition of the appellant, Lamar
Advertising Company, to offer additional evidence is GRANTED to the extent that it may
supplement the record with depositions referenced during the argument held this date. This
order is entered with the understanding that nothing herein is intended to alter our standard of
review in this base. In addition, this order is entered without prejudice to the appellee and
intervenor to object to said depositions on the grounds of relevance.
BY THE COURT,
~ Victor F. Cava ini, Es uire
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For the Appell~nt
./ Samuel L. An s, Esquire
For the Appell e
~zabeth Snov r, Esquire
For the Interve or
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in triplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for t% ne4,
Argument Court.) o
_-----------___-_------------------------------------------- --------tea
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CAPTION OF CASE -'1F
(entire caption must be stated in full) -a 70 o
LAMAR ADVERTISING CO., Appellant _ --4 C7
M -n
vs. C:) M
ZONING HEARING BOARD OF THE BOROUGH OF -,
LEMOYNE, Appellee, and BOROUGH OF LEMOYNE, "-_
Intervenor No 2010-1755 CIVIL Term
1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to
complaint, etc.):
ZONING APPEAL
2. Identify all counsel who will argue cases:
(a) for plaintiffs:
Victor F. Cavacini, Esq. Gross McGinley, LLP, 33 S. 7th St., Allentown, PA 18101
(Name and Address)
(b) for defendants:
Samuel L. Andes, Esq., 525 N. 12thSt., Box 168, Lemoyne, PA 17043, Atty. for Lemoyne
(Name and Address)
Michael J. Cassidy, Esq., Box 109 Lemoyne, PA 17043, Atty. for Borough of Lemoyne
3. 1 will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date: Friday, February 18, 2011.
ture
VICTOR F. CAVACINI, ESQUIRE
Print your name
Appellant
January 9, 2011 Attorney for
Date:
INSTRUCTIONS:
1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR
(not the Prothonotary) before argument.
2. The moving party shall file and serve their brief 12 days prior to argument.
3. The responding party shall file their brief 5 days prior to argument.
4. If argument is continued new briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) after the case is relisted.
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in triplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next
Argument Court.)
- - ------- - - -- - ---- - - -----
CAPTION OF CASE c-y
(entire caption must be stated in full)
-v a
--i
LAMAR ADVERTISING CO., Appellant =m f i M--,_'
VS.
ACA
- t CJ
,
ZONING HEARING BOARD OF THE BOROUGH OF D
a -n
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LEMOYNE, Appellee and BOROUGH OF LEMOYNE, c .
Intervenor No 2010-1755 CIVIL -, rm- IT1
-? W ?
1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to
complaint, etc.):
ZONING APPEAL
2. Identify all counsel who will argue cases:
(a) for plaintiffs:
Victor F. Cavacini, Esq., Gross McGinley, LLP, 33 S. 7th St., Allentown, PA 18101
(Name and Address)
Samuel L. Andes, Esq., 525 N. 12th St., Box 168, Lemoyne, PA 17043, Atty. for ZHB
(b) for defendants:
Michael J. Cassidy, Esq., Box 109, Lemoyne, PA 17043, Atty. for Borough of Lemoyne
(Name and Address)
3. 1 will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date: Friday, March 25, 2011
ature
I/Victor F. Cavacini, Esquire
Print your name
Lamar Advertising Co., Appellant
Date: February 4, 2011 Attorney for
INSTRUCTIONS:
1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR
(not the Prothonotary) before argument.
2. The moving party shall file and serve their brief 12 days prior to argument.
3. The responding party shall file their brief 5 days prior to argument.
4. If argument is continued new briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) after the case is relisted.
T
LAMAR ADVERTISING CO.,
Appellant,
V.
ZONING HEARING BOARD
OF THE BOROUGH OF
LEMOYNE,
Appellee
and
BOROUGH OF LEMOYNE
Intervenor.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 10-1755 CIVIL c ,
3
,rn rn?
-vim
r ?
2 3 g
LAND USE APPEAL °
IN RE: APPEAL FROM THE DECISION OF THE ZONING HEARING BOARD OF THE
BOROUGH OF LEMOYNE
ORDER
AND NOW, this Z. C* day of May, 2011, upon consideration of the within Appeal from
the Decision of the Zoning Hearing Board of the Borough of Lemoyne, Cumberland County,
Pennsylvania, and following oral argument, it is hereby ordered that the Appeal is GRANTED,
and the findings of the Zoning Hearing Board of the Borough of Lemoyne are REVERSED.
Appellant is hereby awarded a decision in its favor, and the Zoning Hearing Board of the
Borough of Lemoyne is directed to issue a sign/zoning permit to Appellant for property leased
by it at 100 Market Street, Lemoyne, Cumberland County, Pennsylvania 17043.
BY THE COURT,
Walor F. Cavacini I ESL
"3amuei L. Andes, Est,
M iehoal .1. N551dy, Est
14141-
A. Hess, P.J.
OOP
0iS6
LAMAR ADVERTISING CO.,
Appellant,
V.
ZONING HEARING BOARD
OF THE BOROUGH OF
LEMOYNE,
Appellee
and
BOROUGH OF LEMOYNE
Intervenor.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 10-1755 CIVIL
: LAND USE APPEAL
IN RE: APPEAL FROM THE DECISION OF THE ZONING HEARING BOARD OF THE
BOROUGH OF LEMOYNE
HESS, P.J., May 9, 2011.
OPINION and ORDER
Appellant, Lamar Advertising Co. (hereinafter "Lamar"), has appealed a decision of the
Zoning Hearing Board of the Borough of Lemoyne which upheld a denial of Lamar's application
for a sign permit for certain property it leases within the Borough. The application was denied
after the Lemoyne Zoning Officer determined that the proposed sign did not comply with the
distance and spacing requirements of Section 1308 of the Zoning Ordinances of the Borough of
Lemoyne. From that determination, Lamar has filed the instant appeal.
The facts of this appeal are not in dispute. Appellant is Lamar Advertising Co., a
Pennsylvania corporation with a principal place of business located at 308 South Tenth Street,
Lemoyne, Cumberland County, Pennsylvania 17043. Appellee is the Zoning Hearing Board of
the Borough of Lemoyne (hereinafter "Zoning Hearing Board"), and Intervenor is the Borough
of Lemoyne. On October 16, 2009, Lamar filed a sign permit application requesting a zoning
permit to erect an outdoor advertising sign on certain real property that it leases at 100 Market
2
Street, Lemoyne, Cumberland County, Pennsylvania 17043. The Lemoyne Zoning Officer
denied Lamar's sign permit application after determining that the proposed outdoor advertising
sign failed to comply with the distance and spacing requirements of Section 1308.E.2 of the
Lemoyne Borough Zoning Ordinance as set forth in Chapter 27, Article 13, of the Code of
Ordinances for the Borough of Lemoyne. Lamar filed a timely appeal of the decision of the
Zoning Officer to the Zoning Hearing Board.
Following a hearing held on January 5, 2010, the Board upheld the Zoning Officer's
denial of the sign permit application. By decision dated February 16, 2010, the Zoning Hearing
Board agreed with the Zoning Officer and cited a violation of Section 1308.E.2 of the Lemoyne
Borough Sign Ordinance as the correct reason for the denial. Section 1308.E.2 provides, in
pertinent part, as follows:
E. Off-premises signs and billboards...
2. Off-premises signs shall be located a minimum of 500 feet from either
another off-premises sign that is greater than 75 square feet in area (measured
along the nearest edge of the pavement between points directly opposite the signs
along the same side of the travel way) or a designated historic district or structure.
(Code of Ordinances for the Borough of Lemoyne, Chapter 27, Article 13, Section 1308.E.2).
It is the position of the Zoning Hearing Board that Lamar's proposed off-premises
outdoor advertising sign cannot satisfy the setback requirements set forth in Section 1308.E.2,
since another off-premises outdoor advertising sign greater than 75 square feet in area is located
316.59 feet away from Lamar's proposed sign. That sign, however, is on the opposite side of the
street. The Board interprets the Ordinance as imposing the 500 feet setback restriction on all
signs irrespective of the side of the street on which the existing sign is located. It is the position
of Lamar that the Ordinance provides for a setback or spacing requirement of 500 feet to be
imposed as to off-premises signs located along the "same side of the travel way;" that is, the
3
setback requirement applies to signs located on the same side of the street and not signs on the
opposite side of the street. Lamar, therefore, has asked us to address the merits of its assignment
of error that the Board committed an abuse of discretion and an error of law in interpreting the
Ordinance as it did. After careful consideration, we are satisfied that Lamar's interpretation of
the Ordinance is correct.
In a zoning hearing board appeal where the trial court takes no additional evidence, the
standard of review is limited to determining whether the board abused its discretion or
committed an error of law. C & M Developers, Inc. v. Bedminster Township Zoning Hearing
Board, 573 Pa. 2, 14, 820 A.2d 143, 150 (2002) (citing Crown Communications v. Zoning
Hearing Board of Glenfield, 550 Pa. 266, 705 A.2d 427, 430 (1997)). In this appeal, Lamar filed
a Petition Seeking Leave to Offer Additional Evidence pursuant to Section 1005-A of the
Pennsylvania Municipalities Planning Code. (Petition Seeking Leave to Offer Additional
Evidence, filed May 5, 2010). On July 9, 2010, we entered an Order permitting Lamar to
introduce certain additional evidence to supplement the record with the understanding that our
standard of review would not be altered. (Order, Jul. 9, 2010). As a result, our review of the
Board's decision will be whether or not it abused its discretion or committed an error of law. An
abuse of discretion is established where the decision is not supported by substantial evidence.
One Meridian Partners LLP v. Zoning Board of Adjustment of City of Philadelphia, 867 A.2d
706, 707-708 (Pa. Cmwth. 2005). Substantial evidence is evidence that a reasonable mind might
accept as adequate to support the reached conclusion. Id.
Zoning ordinances and regulations are to be construed in a manner which will "preserve
rather than constrict the landowner's use of his land." Board of Supervisors of Upper Merion
Township v. McDonald's Corp., 91 Pa. Cmwlth. 299, 304, 497 A.2d 264, 266 (Pa. Cmwlth.
4
1985). Zoning ordinances should be construed in a sensible manner which provides the "least
restrictive use of land consistent with the zoning ordinance's terms." Id.; Phillips v. Zoning
Hearing Board of Montour Township., 776 A.2d 341 (Pa. Cmwlth. 2001). The Pennsylvania
Supreme Court has held also that "`zoning ordinances are to be liberally construed to allow the
broadest possible use of land"' and that "`zoning ordinances are to be construed in accordance
with the plain and ordinary meaning of their words."' Light of Life Ministries, Inc. v. Cross
Creek Township, et. al, 560 Pa. 462, 467, 746 A.2d 571, 573 (2000) (quoting Upper Salford
Township v. Collins, 542 Pa. 608, 610-12, 669 A.2d 335, 336-37 (1995)). Although not
expressly applicable to zoning ordinances, the Statutory Construction Act of 1972, 1 Pa.C.S.
§§1501-1991, has been used and applied by reviewing courts when examining ambiguous
ordinances. See Lench v. Zoning Board of Adjustment of City of Pittsburgh, 13 A.3d 576, 579
(Pa. Cmwlth. 2011). Therefore, "[w]ords and phrases of local ordinances shall be construed
according to the rules of grammar and according to their common and approved usage." Tobin v.
Radnor Township Board of Supervisors, 597 A.2d 1258, 1264 (Pa. Cmwlth. 1991). Where there
is uncertainty regarding the common understanding of language in an ordinance, "any doubt
must be resolved in favor of the landowner and the least restrictive use of the land." Id. (citing
Appeal of Mt. Laurel Racing Association, 458 A.2d 1043, 1044-45 (1983)). Furthermore, "it is
an abuse of discretion for a zoning hearing board to narrow the terms of an ordinance and further
restrict the use of property." Phillips, 776 A.2d at 343 (citing In re Appeal of Shirk, 114 Pa.
Cmwlth. 493, 539 A.2d 48 (1988)).
In determining whether a zoning hearing board has correctly interpreted its own
ordinance, we bear in mind that courts ordinarily grant deference to a zoning board's
understanding of that ordinance because, generally, "governmental agencies are entitled to `great
5
weight' in their interpretation of legislation they are charged to enforce." Broussard v. Zoning
Board of Adjustment of City of Pittsburgh, 589 Pa. 71, 81, 907 A.2d 494, 500 (2006) (citing
Federal Deposit Ins. Corp. v. Board of Finance and Revenue, 368 Pa. 463, 471, 84 A.2d 495,
499 (1951)). This general rule, however, must be balanced with the additional principle that
when dealing with an ambiguous provision of a zoning ordinance, a reviewing court must
construe the terms of the ordinance "in favor of the property owner and against any implied
extension of restrictions." Piecknick v. South Strabane Township. Zoning Hearing Board, 607
A.2d 829, 835 (Pa. Cmwlth. 1992) (citing Salisbury Township Appeal, 114 Pa. Commonwealth
Ct. 493, 539 A.2d 48 (1988)). Furthermore, while the words of the ordinance control its
meaning and application, and effect must be given to all relevant provisions, when faced with
ambiguous wording in an ordinance, those ambiguities are also traditionally construed in favor of
the landowner. Lench v. Zoning Board of Adjustment of City of Pittsburgh, 13 A.3d 576, 579
(Pa. Cmwlth. 2011).
Bearing in mind the foregoing, Section 1308.E.2 is, on its face, ambiguous and strangely
worded. Initially, it is clear that the Ordinance provides for a setback or spacing requirement of
500 feet to be applied as to proposed off-premises signs which are greater than 75 square feet in
area. The contention in this appeal is whether that setback requirement applies to signs on the
same side of the street or signs on either side of the street. The phrase, in parenthesis, which
follows the setback requirement operates to provide a methodology by which that setback
requirement is to be measured. Construing the Ordinance to allow the broadest possible use of
land and in accordance with the plain and ordinary meaning of the words, we believe that the
parenthetical provides that the spacing requirement is to be 1) measured along the nearest edge
6
of the pavement; and 2) between points directly opposite the signs along the same side of the
travel way.
The first element of the methodology provides that the setback requirement is to be
measured along the nearest edge of the pavement. This serves as the starting point for assessing
the distance between the signs, and it prevents radial spacing measurements; that is, the
measurement is not to be taken simply between one sign and the other as if a string were tied
between them. Instead, the measurement is to be taken along the nearest edge of the pavement.
The second element requires the measurement to be taken between points directly
opposite the signs along the same side of the travel way. The Zoning Hearing Board would have
us separate out the "along the same side of the travel way" into a third prong, and, therefore, it
would become its own element of the analysis. We will construe the words of the Ordinance in
accordance with their apparent plain and ordinary meaning and in accordance with rules of
grammar. It appears that "along the same side of the travel way" is not a separate and distinct
element; rather, it is to be read in conjunction with the rest of the phrase. "Along the same side
of the travel way" immediately follows the word "signs." The measurement is to be taken
between points directly opposite the signs along the same side of the travel way. It appears,
therefore, that a precondition to the application of Section 1308.E.2 is that the signs be along the
same side of the travel way; that is, the signs must be along the same side of the street.
We conclude that the Zoning Hearing Board's denial of Lamar's permit was the product
of a mistake of law. The proposed sign was 316.58 feet away from an existing sign, but was to
be erected on the opposite side of the street. Since the proposed sign was intended to be erected
on the opposite side of the street, the setback requirement of 500 feet does not bar its
construction. The Borough of Lemoyne is certainly able to change or amend the zoning
7
ordinance as it has done in the past. However, we are constrained to construe the current statute
to allow the broadest possible use of land and in a manner which provides the least restrictive use
of land consistent with the zoning ordinance's terms.
ORDER
AND NOW, this 24' day of May, 2011, upon consideration of the within Appeal from
the Decision of the Zoning Hearing Board of the Borough of Lemoyne, Cumberland County,
Pennsylvania, and following oral argument, it is hereby ordered that the Appeal is GRANTED,
and the findings of the Zoning Hearing Board of the Borough of Lemoyne are REVERSED.
Appellant is hereby awarded a decision in its favor, and the Zoning Hearing Board of the
Borough of Lemoyne is directed to issue a sign/zoning permit to Appellant for property leased
by it at 100 Market Street, Lemoyne, Cumberland County, Pennsylvania 17043.
BY THE COURT,
Kevin Hess, P.J.
Victor F. Cavacini, Esquire
For Appellant
Samuel Andes, Esquire
For Appellee
Michael J. Cassidy, Esquire
For Intervenor
:rlm
8