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HomeMy WebLinkAbout2006-6396 Civil SUTLIFF ENTERPRISES, INC., APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, APPELLEE V. TOWNSHIP OF SILVER SPRING, INTERVENER 06-6396 CIVIL TERM IN RE: LAND USE APPEAL BEFORE BAYLEY. J. AND EBERT. J. OPINION AND ORDER OF COURT Bayley, J., March 1, 2007:-- On July 10, 2006, the zoning officer of Silver Spring Township received the following letter from Sutliff Enterprises, Inc.: I write to you requesting a written determination as to whether the use of portable searchlights on [6462 Carlisle Pike, Mechanicsburg and 6515 Carlisle Pike, Mechanicsburg] would or would not be permissible under the Silver Spring Township Zoning Ordinance. It is proposed that portable searchlights be utilized periodically at both the Sutliff Hummer and Saturn of Carlisle Pike dealership locations in Silver Spring Township. The lights will not be permanently mounted as fixtures on either property. The purpose of the searchlights would be to call attention generally to the business locations and on occasion to specific promotional sales and events. I request that in issuing your determination as to whether the proposed use of searchlights as described above is permissible under the Zoning Ordinance, that your consideration and determination specifically address, but not be limited to, whether or not the use constitutes a "sign" under the 06-6396 CIVIL TERM Township's Zoning Ordinance. (Emphasis added.) On July 13, 2006, the zoning officer responded: In reference to your July 10, 2006 letter requesting a determination regarding portable searchlights being utilized periodically at both Sutliff Hummer and Saturn of Carlisle Pike, in Silver Spring Township. It is my determination that searchlights are not permitted. I have enclosed for your review Section 313 Outdoor Signs, of the Silver Spring Township Zoning Ordinance. (Emphasis added.) Sutliff Enterprises, Inc., filed an appeal of the zoning officer's determination to the Silver Spring Township Zoning Hearing Board. On October 4, 2006, following a hearing, the Board issued a written decision denying the appeal. Defendant then filed a notice of land use appeal in this court. Silver Spring Township intervened. The issues were briefed and argued on January 24, 2007. Our standard of review is whether the Zoning Hearing Board committed an error of law or abused its discretion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550 (1983). In the present case, where there are no factual disputes, the issue is whether the Zoning Hearing Board made an error of law in interpreting the Township Zoning Ordinance. A zoning hearing board's interpretation of its own zoning ordinance is entitled to great weight and deference. City of Hope v. Sadsbury Township Zoning Hearing Board, 890 A.2d 1137 (Pa. Commw. 2006). In interpreting the provisions of a zoning ordinance, courts are to give the terms their plain, ordinary meaning with any doubt in favor of the landowner and the least restrictive use of land. Kissell v. Ferguson Township Zoning Hearing Board, 729 A.2d 194 (Pa. Commw. 1999). -2- 06-6396 CIVIL TERM The portable searchlights in question consist of a towable trailer with four searchlights which oscillate in a pattern to illuminate the sky. Article A-1 Section 112 of the Silver Spring Township Zoning Ordinance defines a sign as a "device for visual communication that is used to bring the subject to the attention of the public, but not flags or other insignia of any government, fraternal, or similar organization." (Emphasis added.) The Zoning Hearing Board concluded: 2. The Board finds that portable searchlights used in connection with a commercial enterprise are intended to communicate. The very reason for using the lights is to attract attention and to communicate the message that a special event is taking place at the location where the lights originate. Accordingly, the Board finds that lights are signs. 3. Section 383.2.8 of the ordinance prohibits signs which are rotating or oscillating. The Zoning Officer found, and the Board concurs that the searchlights fall with this prohibition. Further, the same section requires the floodlights or spotlights to be shielded so no light is transmitted to other properties or to public rights-of-way. The very nature of the searchlight is to direct its beam off site. Sutliff argues that beams of light from its searchlights are not a sign because there is no information or subject brought to attention by the light. It maintains that the Zoning Hearing Board committed an error of law by finding that its portable searchlights are a sign prohibited, (1) by Section 313.2.8 of the Ordinance, which provides: "The following are expressly prohibited: A. Animated, sequential, flashing, rotating, or oscillating signs. . .," and (2) the section in the Ordinance (actually 313.2.6, not 313.2.8) which provides: Signs may be interior lighted with non-glaring lights, or may be illuminated by floodlights or spotlights that are shielded so there is no direct light transmitted to other properties or public rights-of-way. In In re appeal of Autohaus Lancaster, Inc., 4 PaD. & CAth 69 (1989), an automobile -3- 06-6396 CIVIL TERM dealership, by the use of a crane, placed a Volkswagen on the roof of the business to identify it as a Volkswagen dealership. The Township maintained that the vehicle on the roof was a "sign" which otherwise could not be placed there under the Township zoning ordinance. Autohaus contended that the vehicle on its roof was not a sign which the ordinance defined as: "[A]ny identification, description, illustration or device, illuminated or non-illuminated, which is visible from any public place and which directs attention to a product, service, place, activity, person, institution, business or solicitation. . . ." (Emphasis added.) The Court of Common Pleas of Lancaster County, dismissing an appeal of the dealership from an order directing that it remove the vehicle from its roof, concluded "That the purpose of placing the vehicle on the roof is to identify Autohaus's business as a Volkswagen dealership, and as such, constituted a sign as defined by the township ordinance."1 (Emphasis added.) In the present case, as in Autohaus where the issue was whether the purpose of placing the Volkswagen on the roof of the dealership constituted a sign, not whether a Volkswagen itself was a sign, the issue is whether plaintiff's stated purpose of using the portable searchlights at its automobile dealerships to "call attention generally to the business locations and on occasion to specific promotional sales and events," constitutes a sign, not whether the portable searchlight device is itself a sign. Because the use of searchlights, like automobiles, can have different purposes, it is how they are used that determines whether 1 The Commonwealth Court of Pennsylvania at 130 Pa. Commw. 31 (1989), agreed with the analysis in the trial court opinion, and affirmed on the basis of that opinion. -4- 06-6396 CIVIL TERM they are a sign. The Silver Spring Township Zoning Hearing Board did not make an error of law when it determined that the unshielded oscillating beams of the portable searchlights that are to be transmitted away from the dealership properties to call attention "generally to the business locations and on occasion to specific promotional sales and events" constitutes a sign because the purpose of the device is for visual communication to be used to bring the automobile dealership to the attention of the public. Such a sign is not allowed under the Township Ordinance. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of March, 2007, the within land use appeal, IS DISMISSED. By the Court, Edgar B. Bayley, J. Keith O. Brenneman, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055 For Plaintiff Steven A. Stine, Esquire 23 Waverly Drive Hummelstown, PA 17036 For Township of Silver Spring :sal -5- SUTLIFF ENTERPRISES, INC., APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SILVER SPRING TOWNSHIP ZONING HEARING BOARD, APPELLEE V. TOWNSHIP OF SILVER SPRING, INTERVENER 06-6396 CIVIL TERM IN RE: LAND USE APPEAL BEFORE BAYLEY. J. AND EBERT. J. ORDER OF COURT AND NOW, this day of March, 2007, the within land use appeal, IS DISMISSED. By the Court, Edgar B. Bayley, J. Keith O. Brenneman, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055 For Plaintiff Steven A. Stine, Esquire 23 Waverly Drive Hummelstown, PA 17036 For Township of Silver Spring 06-6396 CIVIL TERM :sal -2-