In Re: Apr. 24 Dec. Apl of: Charlestown Outdoor ( 2022 )

[J-5-2022] [MO: Wecht, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE: APPEAL OF THE APRIL 24, 2018 : No. 80 MAP 2021
DECISION OF THE CHARLESTOWN :
TOWNSHIP ZONING HEARING BOARD : Appeal from the Order of
DENYING THE CHALLENGE OF : Commonwealth Court at No. 826 CD
CHARLESTOWN OUTDOOR, LLC TO THE : 2019 dated January 21, 2021,
VALIDITY OF THE ZONING : reconsideration denied March 15,
ORDINANCE'S EXCLUSION OF : 2021, affirming the Order of the
OUTDOOR ADVERTISING BILLBOARDS : Chester County Court of Common
: Pleas, Civil Division, at No. 2018-
: 05282-ZB dated June 13, 2019.
APPEAL OF: CHARLESTOWN :
OUTDOOR, LLC : ARGUED: March 8, 2022
DISSENTING OPINION
JUSTICE BROBSON DECIDED: August 16, 2022
I respectfully dissent. In my view, Charlestown Township (Township) Zoning
Ordinance 125-2004 (Zoning Ordinance) is invalid as it relates to billboard use because
67 Pa. Code § 445.4 preempted the Zoning Ordinance pursuant to Section 603(b) of the
Pennsylvania Municipalities Planning Code (MPC),1 when the Department of
Transportation (DOT) completed construction of the interchange in 2011. As a result, the
Zoning Ordinance does not permit billboard use anywhere within the Township. Given
that the Township is part of a multimunicipal comprehensive plan and the participating
municipalities have not adopted a joint municipal zoning ordinance, Section 916.1(h) of
the MPC, 53 P.S. § 10916.1(h)2 is implicated.
1 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10603(b).
2 Added by the Act of December 21, 1988, P.L. 1329.
Section 916.1(h) provides a defense to a substantive validity challenge where a
municipality is part of a multimunicipal comprehensive plan and the use at issue is
available in a participating municipality’s zoning district. The Township’s Zoning Hearing
Board (ZHB) and the Court of Common Pleas of Chester County (common pleas) both
concluded in the instant matter that Section 916.1(h) precluded the substantive validity
challenge of Charlestown Outdoor, LLC (Outdoor). Although Outdoor preserved an issue
relative to Section 916.1(h) on appeal to the Commonwealth Court, the Commonwealth
Court did not reach this issue. Accordingly, I would vacate the Commonwealth Court’s
decision on the ground that the Zoning Ordinance is preempted and, therefore, invalid as
it relates to billboard use and remand for the Commonwealth Court to assess whether the
Zoning Ordinance is exclusionary relative to Section 916.1(h).
I. MPC and Conflict Preemption
The MPC is enabling legislation that empowers municipalities to provide for the
general welfare of its constituents by “guid[ing] uses of land and structures, type and
location of streets, public grounds and other facilities” and by “protecting amenity,
convenience, future governmental, economic, practical, and social and cultural facilities,
development and growth, as well as the improvement of governmental processes and
functions.” Section 105 of the MPC, 53 P.S. § 10105; Wilson v. Plumstead Twp. Zoning
Hearing Bd., 936 A.2d 1061, 1064 (Pa. 2007). To achieve that purpose, the MPC
authorizes municipalities, inter alia, to enact and enforce zoning ordinances.
Sections 601 and 603 of the MPC, 53 P.S. §§ 10601, 10603. Such authority, however,
is not limitless. Rather, a municipality’s power to regulate through zoning ordinances may
be forestalled under the MPC3 where other federal or state regulation is in effect.
3 53 P.S. §§ 10101-11202.
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Specifically, Section 603(b) of the MPC,4 provides, in pertinent part, that “[z]oning
ordinances, except to the extent that . . . regulation of other activities are preempted by
other [f]ederal or [s]tate laws[,] may permit, prohibit, regulate, restrict and determine: . . .
[s]ize, height, bulk, location, erection, construction, repair, maintenance, alteration,
razing, removal and use of structures.” A “structure,” as defined by the MPC, includes
“any man-made object having an ascertainable stationary location on or in land or water,
whether or not affixed to the land.” Section 107 of the MPC, 53 P.S. § 10107. This
definition inarguably includes billboards. Thus, a municipality’s zoning ordinance may
regulate the use, location, or erection of billboards pursuant to Section 603(b) unless such
ordinance is preempted by federal or state law.
Relevant here, the conflict preemption doctrine is applicable where “simultaneous
compliance with both [a] local ordinance and [a] state statute is impossible” or where the
local enactment “stands as an obstacle to the execution of the full purposes of the statute.”
Hoffman Mining Co., Inc. v. Zoning Hearing Bd. of Adams Twp., Cambria Cnty., 32 A.3d
587, 594 (Pa. 2011). Indeed, “[t]he [conflict] preemption doctrine establishes a priority
between potentially conflicting laws enacted by various levels of government. Under this
doctrine, local legislation cannot permit what a state statute or regulation forbids or
prohibit what state enactments allow.” Huntley & Huntley, Inc. v. Borough Council of the
Borough of Oakmont, 964 A.2d 855, 862 (Pa. 2009). Where such conflict exists, the
conflicting aspect of the local ordinance is rendered invalid. See Hoffman, 32 A.3d at 594.
Nonetheless, “[w]here an ordinance conflicts with a statute, the will of the municipality as
expressed through an ordinance will be respected unless the conflict between the statute
and the ordinance is irreconcilable.” Id. (quoting City Council of Bethlehem v. Marcincin,
4Section 603 of the MPC, titled “Ordinance provisions,” generally concerns what zoning
ordinances may regulate, contain, and must provide, both individually and in relation to a
multimunicipal comprehensive plan.
[J-5-2022] [MO: Wecht, J.] - 3
515 A.2d 1320, 1326 (Pa. 1986)). Further, a municipality may enact “additional
regulations in aid and furtherance of the purpose of the general law as may seem
appropriate to the necessities of the particular locality and which are not . . .
unreasonable.” Id. at 595. Accordingly, only where there is such material conflict
between a state and local enactment, and the local enactment does not reasonably
further the purpose of the state law, will the conflict preemption doctrine apply and render
the local enactment invalid. See id.The conflict preemption doctrine applies equally to state regulations enacted in
furtherance of state statutes. See UGI Utils., Inc. v. City of Reading, 179 A.3d 624, 629
(Pa. Cmwlth. 2017) (“Preemption is not limited to state statutes; both state statutes and
state regulations may preempt local ordinances.”). For example, in UGI Utilities, the
Commonwealth Court found that a municipality’s zoning ordinance conflicted with
regulations promulgated by the Pennsylvania Public Utility Commission (PUC) because
the ordinance stood as an obstacle to the express purpose of the PUC’s regulations that
utilities maintain discretion in the location of gas meters in historic districts. As a result of
the conflict, the Commonwealth Court held that the PUC’s regulations preempted the
zoning ordinance, and the court enjoined the municipality from enforcing it. UGI Utils.,
179 A.3d at 630-32.
Similarly, in Liverpool Township v. Stephens, 900 A.2d 1030 (Pa. Cmwlth. 2006),
the Commonwealth Court found that a municipality’s zoning ordinance imposed
requirements that conflicted with and exceeded the standards imposed by regulations
promulgated by Pennsylvania’s Department of Environmental Protection (DEP) pursuant
to the Solid Waste Management Act.5 Because the ordinance imposed geological
5 Act of July 7, 1980, P.L. 380, 35 P.S. §§ 6018.101-.1003, repealed insofar as
inconsistent with the Low-Level Radioactive Waste Disposal Act, Act of February 9, 1988,
P.L. 380, 35 P.S. §§ 7130.101-.905. See 35 P.S. § 7130.905(b).
[J-5-2022] [MO: Wecht, J.] - 4
standards that were stricter than DEP’s regulations, the Commonwealth Court concluded
that DEP’s regulations preempted the ordinance because local ordinances must not
“prohibit what state enactments allow.” Liverpool Twp., 900 A.2d at 1036-37 (quoting
Duff v. Northampton Twp., 532 A.2d 500, 504 (Pa. Cmwlth. 1987) (emphasis omitted),
aff’d, 550 A.2d 1319 (Pa. 1988)).
II. Analysis
a. Preemption
Here, the Zoning Ordinance, as amended in 2004, provides for billboard use in the
B-1 zoning district subject to a 5-foot setback. Billboards are not permitted elsewhere in
the Township. The Township’s authority to regulate billboard use stems from
Section 603(b) of the MPC, and, thus, the Zoning Ordinance is subject to the preemption
principles enumerated therein. DOT is “authorized to promulgate rules and regulations
governing outdoor advertising devices” pursuant to Section 6 of the Outdoor Advertising
Control Act of 1971,6 36 P.S. § 2718.106. The DOT regulation at issue here was
promulgated thereunder and provides, in pertinent part, that “no structure may be erected
adjacent to or within 500 feet of an interchange.” 67 Pa. Code § 445.4(b)(2)(i). In 2011,
DOT completed construction of an interchange directly adjacent to the B-1 zoning district,
which triggered application of 67 Pa. Code § 445.4(b)(2)(i).
Notably, the parties and the Majority agree that the imposition of DOT’s regulation
“effectively prohibits billboards anywhere in the B-1 zoning district.” (Majority Op.
at 3 (emphasis added).) Indeed, the Township and the Majority essentially take the
position that, despite that the erection of a billboard has been rendered impossible in the
B-1 zoning district by DOT’s intervening regulation, the Township simply bears no
constitutional responsibility to rezone or afford Outdoor site-specific relief.
6 Act of December 15, 1971, P.L. 596.
[J-5-2022] [MO: Wecht, J.] - 5
(See Appellee’s Br. at 13-14; Majority Op. at 18, 22.) Disregarding temporarily any relief
the Township may be required to afford Outdoor, which will be discussed in more detail
below, the Township and the Majority clearly concede in their position that DOT’s
regulation and the Zoning Ordinance irreconcilably conflict. Moreover, the Zoning
Ordinance does not further any “general purpose” of DOT’s regulation that would suggest
that it is otherwise permissible. To the contrary, the Zoning Ordinance clearly “permit[s]
what [the] state . . . regulation forbids”—i.e., the erection of a billboard within 500 feet of
a state interchange.7 Huntley, 964 A.2d at 862. Accordingly, because “simultaneous
compliance with both the local ordinance and the state [regulation] is impossible,” the
Zoning Ordinance as it relates to billboard use is preempted by DOT’s regulation and is
invalid. Hoffman, 32 A.3d at 594.
b. De Jure Exclusion and Section 916.1 of the MPC
The right to the enjoyment of private property in Pennsylvania is protected by
Article I, Section 1 of the Pennsylvania Constitution,8 and “governmental interference with
this right is circumscribed by the due process provisions of the Fifth and Fourteenth
Amendments to the United States Constitution.” Twp. of Exeter v. Zoning Hearing Bd. of
Exeter Twp., 962 A.2d 653, 659 (Pa. 2009) (quoting Hopewell Twp. Bd. of Supervisors v.
Golla, 452 A.2d 1337, 1341 (Pa. 1982)). A de jure exclusion occurs where a zoning
ordinance totally excludes a legitimate use of property. Id. While municipalities, pursuant
7 Section 13 of the Outdoor Advertising Control Act, 36 P.S. § 2718.113, further provides
that “[n]othing in this [A]ct shall be construed to abrogate or affect the provisions of any
lawful ordinance, regulation, or resolution which are more restrictive than the provisions
of this [A]ct.” (Emphasis added.) As noted, however, the Zoning Ordinance is more
permissive than DOT’s regulation in that the Zoning Ordinance permits what DOT’s
regulation forbids.
8 Article I, Section 1 of the Pennsylvania Constitution provides: “All men are born equally
free and independent, and have certain inherent and indefeasible rights, among which
are those of enjoying and defending life and liberty, of acquiring, possessing and
protecting property and reputation, and of pursuing their own happiness.”
[J-5-2022] [MO: Wecht, J.] - 6
to their police power, may reasonably limit billboard use through zoning ordinances to
protect or preserve public health, safety, welfare, and morality, “billboards are not
objectionable per se, [and] a blanket prohibition on billboards without justification cannot
pass constitutional muster.” Id. at 659-60 (footnote omitted).
This principle was exemplified in Appeal of Girsh, 263 A.2d 395 (Pa. 1970), where
this Court concluded that a zoning ordinance that did not provide for apartments
anywhere within a township was unconstitutional, despite that the zoning ordinance did
not explicitly prohibit apartments, and the landowner that challenged the ordinance could
have obtained a variance to build an apartment building. Girsh, 263 A.2d at 396-99. In
so doing, this court likened the matter to the reasoning set forth in Exton Quarries, Inc. v.
Zoning Board of Adjustment of West Whiteland Township, 228 A.2d 169 (Pa. 1967), that
“[t]he constitutionality of zoning ordinances which totally prohibit legitimate businesses
from an entire community should be regarded with particular circumspection.” Girsh,
263 A.2d at 397 (quoting Exton, 228 A.2d at 179).
Based on the foregoing principles, it would appear that the Zoning Ordinance is de
jure exclusionary of billboards, at least to the extent we examine zoning districts whose
municipalities are not part of a multimunicipal comprehensive plan. This is because the
Zoning Ordinance is invalid as it relates to billboard use in the B-1 zoning district, and the
parties agree that the Zoning Ordinance does not permit billboard use elsewhere in the
Township. The Township also has not set forth any reasons pertaining to the preservation
of public health, safety, welfare, or morality to justify the total exclusion of billboard use.
See Exeter, 962 A.2d at 659. Rather, the Township’s sole contention is that forcing
municipalities to constantly rezone as a result of intervening state or federal regulation is
overly burdensome and unworkable. While that may be true, in my view it does not justify
the total exclusion of a legitimate use in a municipality.
[J-5-2022] [MO: Wecht, J.] - 7
Thus, we must consider Section 916.1(h) of the MPC, which provides:
Where municipalities have adopted a multimunicipal comprehensive plan
pursuant to Article XI[9] but have not adopted a joint municipal ordinance
pursuant to Article VIII-A[10] and all municipalities participating in the
multimunicipal comprehensive plan have adopted and are administering
zoning ordinances generally consistent with the provisions of the
multimunicipal comprehensive plan and a challenge is brought to the validity
of a zoning ordinance of a participating municipality involving a proposed
use, then the zoning hearing board or governing body, as the case may be,
shall consider the availability of uses under zoning ordinances within the
municipalities participating in the multimunicipal comprehensive plan within
a reasonable geographic area and shall not limit its consideration to the
application of the zoning ordinance on the municipality whose zoning
ordinance is being challenged.
(Emphasis and footnotes added). Accordingly, this provision establishes a potential
defense to a substantive validity challenge where a municipality participates in a
multimunicipal comprehensive plan and the use at issue is available “within a reasonable
geographic area” in a participating municipality’s zoning district. 53 P.S. § 10916.1(h);
see also In re Petition of Dolington Land Grp., 839 A.2d 1021, 1028 (Pa. 2003) (observing
that Section 916.1(h) requires broadened perspective concerning availability of land uses
under challenged zoning provisions and multimunicipal comprehensive plan).
Presently, the Township adopted the Phoenixville Comprehensive Regional Plan
(Plan) in 2008, which is a multimunicipal comprehensive plan enacted pursuant to
Article XI of the MPC. (Appellant’s Br., Ex. C, ZHB Decision at 4.) Schuylkill Township,
Phoenixville Borough, East Pikeland Township, West Pikeland Township, and West
Vincent Township also participate in the Plan and make up the Phoenixville Regional
9 Article XI of the MPC, pertaining to intergovernmental cooperative planning and
implementation agreements, is set forth at 53 P.S. §§ 11101-11107.
10Article VIII-A of the MPC, pertaining to joint municipal zoning, is set forth at 53 P.S.
§§ 10801-a-10821-a.
[J-5-2022] [MO: Wecht, J.] - 8
Planning Committee.11 In rejecting Outdoor’s substantive validity challenge, the ZHB
concluded, inter alia, that these participating municipalities have independent zoning
ordinances that are generally consistent with the Plan. (Id. at 5.) Further, the ZHB
explained that Schuylkill Township, Phoenixville Borough, and East Pikeland Township
all permit billboard use roughly within 5 miles from the Township’s B-1 zoning district,
which was sufficient for the ZHB to hold that billboard use was permitted by the
municipalities “within a reasonable geographic area” pursuant to Section 916.1(h) of
the MPC. (Id. at 5-6.) Accordingly, the ZHB held that Outdoor’s substantive validity
challenge was precluded pursuant to Section 916.1(h). (Id.)
Outdoor appealed the ZHB’s decision to common pleas, challenging, inter alia, the
ZHB’s conclusion that Section 916.1(h) of the MPC precluded Outdoor’s substantive
validity challenge because billboard use was permitted by participating municipalities
within a reasonable geographic area of the B-1 zoning district. (Appellant’s Br., Ex. D,
Trial Ct. Op. at 4.) Common pleas affirmed the ZHB’s decision in this regard, however,
opining that the ZHB’s conclusion regarding Section 916.1(h) was adequately supported
by the testimony of the Township’s expert witness, which the ZHB chose to credit over
the expert witness offered by Outdoor. (Id. at 7-8, 10-11.)
Outdoor subsequently appealed to the Commonwealth Court, again arguing that
Section 916.1(h) of the MPC did not preclude its substantive validity challenge. Given
the Commonwealth Court’s disposition that the Zoning Ordinance was not exclusionary,
however, the Commonwealth Court found it unnecessary to reach the merits of Outdoor’s
appeal pertaining to Section 916.1(h). In re Appeal of the April 24, 2018 Decision of the
Charlestown Twp. Zoning Hearing Bd. (Pa. Cmwlth., No. 826 C.D. 2019, filed
11 See https://www.phoenixville.org/339/Phoenixville-Regional-Planning-Committee (last
visited, Aug. 15, 2022).
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Jan. 21, 2021), slip op. at 24 n.12 (“Given our disposition, it is unnecessary to reach
[Outdoor]’s arguments related to whether Section 916.1(h) of the MPC applies[.]”). In its
Petition for Allowance of Appeal filed with this Court, Outdoor similarly raised the issue
that Section 916.1(h) does not preclude its substantive validity challenge, but this Court
only granted allocatur on Outdoor’s issue as set forth by the Majority. Thus, because
Outdoor preserved this issue but the Commonwealth Court failed to reach it, I would
remand to the Commonwealth Court to consider whether Section 916.1(h) precludes
Outdoor’s substantive validity challenge.
III. Conclusion
Accordingly, for the reasons set forth above, I would hold that pursuant to
Section 603(b) of the MPC the Zoning Ordinance is preempted and, therefore, invalid as
it relates to billboard use because the Zoning Ordinance irreconcilably conflicts with
DOT’s regulation, 67 Pa. Code § 445.4(b)(2)(i). As a result, I would vacate the
Commonwealth Court’s opinion and order and remand the matter to the Commonwealth
Court for further consideration of Outdoor’s substantive validity challenge relative to
Section 916.1(h) of the MPC.12
12 I acknowledge that the parties did not brief or argue in relation to preemption or a de
jure exclusion. As noted above, however, the matter here stems from a clear and
undisputed conflict between a local zoning ordinance and a state regulation. Where such
a conflict exists, Section 603(b) of the MPC controls and resolves the conflict by
invalidating the local ordinance. This case only appears to involve a de facto exclusionary
ordinance challenge if we are willing to ignore the MPC and pretend that the local
ordinance allowing billboards is extant. I can no more ignore the MPC’s preemption
provision here than I could, in any matter, ignore controlling precedent because the
parties fail to cite it in their briefs.
[J-5-2022] [MO: Wecht, J.] - 10