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Home My WebLink About2010-1755 LAMAR ADVERTISING CO., : IN THE COURT OF COMMON PLEAS OF Appellant, : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : CIVIL ACTION - LAW ZONING HEARING BOARD : No. 10-1755 CIVIL OF THE BOROUGH OF : LEMOYNE, : Appellee : : and : : BOROUGH OF LEMOYNE : Intervenor. : LAND USE APPEAL IN RE: APPEAL FROM THE DECISION OF THE ZONING HEARING BOARD OF THE BOROUGH OF LEMOYNE ORDER AND NOW, this 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 A. Hess, P.J. LAMAR ADVERTISING CO., : IN THE COURT OF COMMON PLEAS OF Appellant, : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : CIVIL ACTION - LAW ZONING HEARING BOARD : No. 10-1755 CIVIL OF THE BOROUGH OF : LEMOYNE, : Appellee : : and : : BOROUGH OF LEMOYNE : Intervenor. : LAND USE APPEAL IN RE: APPEAL FROM THE DECISION OF THE ZONING HEARING BOARD OF THE BOROUGH OF LEMOYNE OPINION and ORDER HESS, P.J., May , 2011. 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 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 A. Hess, P.J. Victor F. Cavacini, Esquire For Appellant Samuel Andes, Esquire For Appellee Michael J. Cassidy, Esquire For Intervenor :rlm 8