HomeMy WebLinkAbout99-1990 civilCHANCELLOR MEDIA WHITECO ·
OUTDOOR CORPOtLA'I-ION
Appellant
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UPPER ALLEN TOWNSHIP
ZONING HEARING BOARD
Appellee
IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
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·NO. 99-1990 CIVIL TERM
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IN RE' APPELLANT'S APPEAL OF ZONING HEARING BOARD'S DECISION
BEFORE HOFFER, P.J., OLER, GUIDO, JJ..
OPINION AND ORDER OF COURT
AND NOW, this
day of DECEMBER, 1999, the decision of the Upper
Allen Township Zoning Hearing Board is AFFIRMED and the appeal therefrom is
DISMISSED.
By the
Edward E. Guido, J.
Lawrence R. Wieder, Esquire
For the Appellant
Dusan Bratic, Esquire
For the Appellee
William E. Miller, Jr., Esquire
For Intervenor, Upper Allen Township
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CHANCELLOR MEDIA WHITECO: IN THE COURT OF COMMON PLEAS OF
OUTDOOR CORPORATION · CUMBERLAND COUNTY, PENNSYLVANIA
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UPPER ALLEN TOWNSHIP ·NO. 99-1990 CIVIL TERM
ZONING HEARING BOARD ·
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1N RE' APELLANT'S APPEAL OF ZONING HEARING BOARD'S DECISION
BEFORE HOFFER, P.J., OLER, GUIDO, JJ.
OPINION AND ORDER OF COURT
Chancellor Media Whiteco Outdoor Corporation (hereinafter "Appellant") has a
lease agreement which would allow it to erect a billboard on a parcel of property located
in Upper Allen Township, Cumberland County Pennsylvania (hereinafter "Property").
The owners of the Property operate an automobile repair shop on the premises and
display a sign thereon advertising that business.
Appellant applied for a permit to erect a billboard on the Property. The
application was denied by the township zoning officer on the basis that only one sign is
allowed on the premises pursuant to § 245-63 of the Zoning Ordinance.~ Appellant filed
an appeal to the zoning hearing board. It argued that the sign advertising the on-
premises business of the owner should not be counted pursuant to the language of § 245-
63(B)(7) of the Zoning Ordinance. Appellant further argued that if § 245-69(B)(7) is not
interpreted as it suggests, the result would be a de facto exclusion of billboards from the
~ It was also denied on the basis that the proposed sign exceeded the
height restrictions set forth in the Ordinance. However, it is now
conceded by all parties that the height of the sign is no longer an
issue.
99- 1990 CIVIL TERM
township. Therefore, the Ordinance would be unconstitutional.
The zoning heating board rejected Appellant's arguments. This timely appeal
followed. The township has intervened and, along with Appellant, has filed a brief and
argued its position before this Court. The matter is now ready for disposition.
DISCUSSION
Where an appeal is taken from a decision of the zoning hearing board, without an
independent taking of evidence at this level, our scope of review is limited to whether the
board abused its discretion or made an error of law and whether its necessary findings are
supported by substantial evidence. Rushford v. Zoning Board of Adjustment of
Pittsburgh, 81 Pa. Commonwealth 274 473 A.2d 719, (1984), 53 P.S. {} 11005-A. In the
instant case we are satisfied that the action of the zoning hearing board was appropriate.
Interpretation of the Ordinance.
Appellant argues that a reading of the Ordinance, § 245-63, in conjunction with §
245-69(B)(7) would allow the erection of both an on-premises and off-premises sign on
the Property. While the argument is seductive, it does not stand up to close scrutiny.
The relevant portions of the Zoning Ordinance provide as follows:
§ 245-63. Number restricted.
Except for an Industrial Park Zoning District (see {} 245-71), a property owner
may erect and maintain only one (1) sign (of any type) per lot or parcel,
except in cases of double street frontage on two (2) public ways, in which case
each street frontage may have one (1) sign (of any type). No more than one
(1) sign shall be mounted to the supporting structure of any ground pole sign.
A double-faced sign shall count as a single sign.
§ 245-69. Off premises advertising signs.
99-1990 CIVIL TERM
An off-premises advertising sign shall be a sign which co~tains a message
unrelated to a business or profession conducted on the premises where such
sign is located or which is unrelated 'to a commodity, service ¢,c entertainment
sold or offered on the premises where such sign is located,
A. Such signs are permitted only in the IN District.
B. In addition to the provisions of §{} 245-63 and 245-65, such signs are
subject to the following restrictions'
(7) Official and on-premises signs shall not be counted nor shall
measurements be made from them for purposes of determining space
requirements.
Appellant's position is that the language contained in § 245-69(B)(7) must be read as two
separate thoughts. "Official and on-premises signs shall not be counted" is one thought
and "nor shall measurements be made from them in determining space requirements" is
another. If that is the case, then the on-premises sign advertising the owner's business
should not be counted as a sign for purposes of determining the number of signs allowed
under § 245-63 of the Ordinance. Therefore, Appellant argues, it should be allowed to
erect a billboard on the Property.
The township argues that the phrase "official and on-premises signs shall not be
counted" applies to the spacing requirements and not the number of signs on the
premises. We are persuaded by this argument. Reading the ordinance as a whole, it is
clear that § 245-69(B)(5) and (6) deal with spacing requirements between signs and that §
245-69(B)(7) is an extension and clarification of those sections. Furthermore, as
Appellant pointed out to the zoning hearing board, and in its brief to this Court,
99- 1990 CIVIL TERM
§ 245-69(B)(7) is taken almost verbatim from the "Outdoor Advertising' Control Act.''2
The section from which it was taken deals exclusively with "Spacing of signs''3 and not
number of signs. Therefore, we are satisfied that the zoning hearing board correctly
interpreted the Ordinance as allowing only one sign on the Property.
Validity of the Ordinance.
As a general rule a zoning ordinance which is exclusionary or unduly restrictive
cannot pass constitutional muster. Surrick v. Zoning Hearing Board of Upper Providence
Township, 476 Pa. 182, 382 A.2d 105 (1977). Additionally, as Appellant correctly points
out, our Commonwealth Court has held that
Billboards are regarded as a legitimate business use of property in
Pennsylvania and may be regulated but not excluded by any local zoning
ordinance.
J.B. Steven, Inc. v. Wilkins Township, 654 A.2d 135 (Pa. Commonwealth 1995).
In the instant case Appellant contends that billboards have been effectively
excluded from the township. Its reasoning can be summarized as follows. The
Ordinance only allows billboards to be erected in the IN District. (hereinafter "industrial
district"). However, billboards are economically feasible only in high traffic areas where
they can be seen from well traveled roadways. While there are numerous locations in the
2 36 P.S. § 2718.101 et seq.
3 36 P.S. § 2718.105 is entitled "Control criteria for size, spacing and
lighting". Section 2718.105(b) provides in relevant part as follows:
(2) Spacing of signs:
(iv) Official and "on premise" signs...shall not be counted
nor shall measurements be made from them for purposes of
determining spacing requirements.
99-1990 CIVIL TERM
industrial district that meet those criteria, no owner would allow a billboard on his
property if it would preclude him from erecting a sign to advertise his own business.
Additionally, while there are numerous undeveloped lots in the township that will be
suitable once the road network is complete, it would not make economic sense to forego
putting a business on the property in order to erect a billboard.
The law on this issue was aptly summarized by the zoning heating board as
follows:
The Commonwealth Court has said, "A de facto exclusion is established
where an ordinance permits a use on its face, but when applied acts to prohibit
the use throughout the municipality." Hersh v, Zoning Heating Board of
Marlborough Township, 90 Pa. Commonwealth Ct. 15, 23,493 A.2d 807, 811
(1985). The Court has further said, "When a challenger alleges that there is de
facto exclusionary zoning, it carries, the heavy burden of showing [such an
exclusion]. Henley v. Zoning Hearing Board of West Fallowfield Township,
155 Pa. Commonwealth Ct. 306, 312, 625 A.2d 132, 135 (1993). Finally, the
Court has said, "A zoning ordinance is presumed valid and constitutional, and
the applicant alleging its unconstitutionality has a heavy burden to prove its'
invalidity." Hersh v. Zoning Hearing Board of Marlborough Township, 90
Pa. Commonwealth Ct. 15, 23,493 A.2d 807, 811 (1985).4
We agree with the board that Appellant has not met the heavy burden of proof necessary
to have the Ordinance declared to be unconstitutional.
In the first instance, we are not convinced that Appellant has shown that
billboards cannot be erected on parcels used by other businesses. Section 245-72 of the
Ordinance provides'
§ 245-72. Signs permitted in all districts without permit.
Signs listed in this section are permitted in all zones and shall not require
licenses or stickers, and they shall not be counted when calculating the
number of signs on a premises ....
Decision of Zoning Hearing Board, p. 7.
99-1990 CIVIL TERM
A. Signs displaying the name and address of a resident, but not including any
commercial advertising of not more than two (2) square feet in a sign area if
single-faced nor more than four (4) square feet if double-faced.
D. Bulletin boards for public, charitable or religious institutions when located
on the premises thereof and with a sign area of no more than twenty-five (25)
square feet if single-faced nor more than fifty (50) square feet if double-faced
and if used exclusively for noncommercial announcements.
Under the terms of the Ordinance the industrial district provides for many permitted uses,
and allows numerous others by special exception, which could make do with a sign
which would qualify under § 245-72(A). These uses include, to name just a few,
business services, contractor's office and storage, personal service establishment,
warehousing and storage. These are not the types of concerns that rely on walk-in
business. Additionally, other permitted uses such as hospital, fire station and public
building would qualify for signs under both § 245-72(A) and (D). In all of the examples
set forth above, a billboard would also be permitted on the premises.
Furthermore, even if every owner of every premises in the industrial district felt it
necessary to erect an on-premises sign of the type not described in § 245-72, Appellant
has still not met its burden. Section 245-63 allows two (2) signs on parcels with frontage
on two (2) public ways. There is no logical reason why one could not be an on-premises
sign and the other a billboard. In addition, that Section allows for a double face sign to
count as one sign. The on-premises business could use one side to identify itself with the
other side being used for off-premises advertising.
We are satisfied that the township has fulfilled its constitutional obligation by
providing for billboards as a permitted use in the industrial district. Homstein Enterprises
v. Board of Supervisors of Fork Township, 165 Pa. Commonwealth 162, 644 A.2d 284
99-1990 CIVIL TERM
(1994). In the instant case the industrial district is aptly suited for billboards. Much of
the land located therein borders on major roadways, including the Pennsylvania
Turnpike, U.S. Route 15 and Pennsylvania Route 114. Our Constitution, and the case
law interpreting it, requires that local zoning ordinances may not exclude legitimate uses
of property from the municipality. It does not require that the municipality guarantee the
user will make a particular profit.
For the reasons set forth above we will enter the order that follows.
ORDER
AND NOW, this 13TH day of DECEMBER, 1999, the decision of the Upper
Allen Township Zoning Hearing Board is AFFIRMED and the appeal therefrom is
DISMISSED.
By the Court,
Lawrence R. Wieder, Esquire
/.s/Edward E. Guido
Edward E. Guido,J.
Dusan Bratic, Esquire
William E. Miller, Jr., Esquire