In Re: Appeal of the April 24, 2018 Decision of the Charlestown Twp. ZHB ~ Appeal of: Charlestown Outdoor, LLC ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of the April 24, 2018 :
Decision of the Charlestown Township:
Zoning Hearing Board Denying the :
Challenge of Charlestown Outdoor, :
LLC to the Validity of the Zoning : No. 826 C.D. 2019
Ordinance’s Exclusion of Outdoor : Argued: June 8, 2020
Advertising Billboards :
:
Appeal of: Charlestown Outdoor, LLC :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: January 21, 2021
Charlestown Outdoor, LLC (Applicant) appeals from a June 13, 2019 Order
of the Court of Common Pleas of Chester County (common pleas), denying
Applicant’s appeal and thereby affirming a Decision by the Zoning Hearing Board
of Charlestown Township (Board), which rejected Applicant’s validity challenge to
the Charlestown Township (Township) Zoning Ordinance (Ordinance) on the basis
it excluded outdoor advertising billboards from within the limits of the Township.
On appeal, Applicant argues there is a de jure exclusion of outdoor advertising
billboards because there are no zoning districts within the Township that permit such
billboards. To the extent a zoning district does exist in which outdoor advertising
billboards are permitted, Applicant contends there is a de facto exclusion of such
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
billboards because there is no location that would comply with both the Ordinance’s
requirements and state law and regulations. Applicant further argues that the
Township’s failure to provide for outdoor advertising billboards is not excused by
the Township’s participation in a multimunicipal comprehensive plan in which other
member municipalities have provided for billboard sites within a reasonable
geographical area. Lastly, Applicant contends the Township did not satisfy its
burden of showing a substantial relationship between the exclusion of outdoor
advertising billboards and the public health, safety, morality, or welfare. Because
the Ordinance is not exclusionary, either on its face or in effect, we discern no error
and, accordingly, affirm.
I. BACKGROUND
A. Zoning Ordinance Challenge
Applicant has a leasehold interest in a portion of 3317 Phoenixville Pike,
Charlestown Township, Chester County (Property), upon which Applicant plans to
construct an outdoor advertising billboard. The Property is located in a Business 1
or B-1 zoning district near an interchange to the Pennsylvania Turnpike. On May 1,
2017, Applicant filed a challenge with the Board alleging the Ordinance is de jure
and/or de facto exclusionary of outdoor advertising billboards and is therefore
unconstitutional and invalid. Two hearings were held on the substantive validity
challenge.
Thomas J. Comitta (Planning Expert) testified as an expert witness for the
Township at the first hearing, in relevant part, as follows. Planning Expert served
as a planning consultant for the Township for 44 years and has drafted more than 50
zoning ordinances for various municipalities. (Reproduced Record (R.R.) at 19a.)
2
In 2004, the Township amended its zoning map to change the district that had been
zoned Limited Industrial 2 or LI-2 to B-1. (Id. at 20a-22a.) At the same time the
zoning map was amended, the Ordinance was amended to reflect that the LI-2 zoning
district was eliminated and replaced by the B-1 zoning district. (Id. at 22a-23a.)
Planning Expert actually prepared the text amendment. (Id. at 23a.) According to
Planning Expert, the Ordinance originally provided that outdoor advertising
billboards were permitted in the LI-2 zoning district, but the Ordinance, as amended,
now allows for outdoor advertising billboards to be erected in the B-1 zoning district.
(Id. at 22a-23a.) The Township introduced a copy of the Ordinance as amended,
which reflects references to the LI-2 zoning district being struck through and
replaced with reference to the B-1 zoning district. (Ex. T-3.) Planning Expert
testified that a bound copy of the Ordinance that is available for purchase at the
Township building, excerpts of which were also introduced, does not reflect that
change. (R.R. at 22a, 24a-25a; Ex. T-3.) Planning Expert also explained that the
amendment was originally codified correctly, but when the prior company that
handled the codification ceased operating, its replacement did not codify the
amendment correctly. (R.R. at 24a-25a.) As a result, the online version is also
wrong. (Id.) Despite the codification error, Planning Expert testified outdoor
advertising billboards are permitted in the B-1 zoning district. (Id. at 24a.) He
further testified on direct examination that an outdoor advertising billboard could be
constructed in compliance with state regulations on a small triangular portion of the
B-1 zoning district. (Id. at 26a-27a.) On cross-examination, when asked whether
an outdoor advertising billboard could be constructed in the B-1 zoning district that
complies with both state regulations and Ordinance requirements, Planning Expert
responded “no.” (Id. at 44a-45a.)
3
Planning Expert also testified that the Township is a member of a regional
comprehensive plan, specifically, the Phoenixville Regional Comprehensive Plan,
which the Township adopted in 2008. (Id. at 29a.) Planning Expert developed a
chart listing the six member municipalities, including the Township; the zoning
districts where billboards are permitted within those municipalities; and the distance
from the Property to those districts. (R.R. at 31a-32a; Ex. T-5, R.R. at 147a.) In
Planning Expert’s opinion, the districts in the other municipalities are within the
relevant trade area and, therefore, within a reasonable geographical distance. (R.R.
at 36a-37a.) When asked whether the member municipalities’ zoning ordinances
were generally consistent with the Phoenixville Regional Comprehensive Plan,
Planning Expert responded “yes.” (Id. at 41a.) Upon cross-examination, Planning
Expert acknowledged that these other sites were not located along the Pennsylvania
Turnpike, as the Property is. (Id. at 46a.)
At the second hearing, Applicant presented the testimony of Michael T.
Gillespie, Jr., who has 18 years of advertising experience and advises clients as to
siting and viability of outdoor advertising locations (Advertising Expert), and
Timothy Earle, director of real estate development for Catalyst Outdoor Advertising,
of which Applicant is a wholly owned subsidiary (Director). Advertising Expert
testified, in relevant part, as follows. The location standards upon which Planning
Expert relied relate to retail shopping centers and strip malls, not outdoor advertising
billboards. The primary determinant for placement of outdoor advertising billboards
is the amount of vehicular traffic along a proposed site. Advertising Expert
disagreed with Planning Expert’s opinion that the various zoning districts identified
within the Phoenixville Region that permit billboards are reasonably sufficient
because Route 23 and Route 113, along which those zones are located, “are very
4
different roads altogether than the Pennsylvania Turnpike.” (Id. at 69a-70a.)
According to Advertising Expert, the Pennsylvania Turnpike averages 50,000
vehicles per day, consisting of national, regional, and local traffic, whereas the state
routes would have less than half the amount of traffic, consisting of mostly local
traffic. (Id. at 70a.) In Advertising Expert’s opinion, those locations are not
reasonable geographical locations for billboards. (Id. at 73a.)
Director testified, in relevant part, as follows. Although the chart prepared by
Planning Expert identifies districts within East Pikeland Township and Schuylkill
Township, both of which are member municipalities of the Phoenixville Regional
Comprehensive Plan, billboards are only permitted in those districts by special
exception. (Id. at 87a.) When the restrictions from within the member
municipalities’ zoning ordinances are applied, the area available to locate a billboard
further shrinks. (Id. at 91a-93a.) According to Director, there is no location for
billboards in East Pikeland Township and Schuylkill Township when the respective
ordinances’ restrictions are applied. In Phoenixville Borough, Director identified
three locations where a billboard could be erected that would comply with that
municipality’s ordinance, but they were all located far off a roadway in a location
he would not recommend. (Id. at 95a-97a.) Director further testified that as of the
date of his testimony, February 12, 2018, the online version of the Ordinance still
reflected that outdoor advertising billboards were only permitted in the LI-2 zoning
district, which no longer existed. (Id. at 98a.) Upon cross-examination, Director
testified that he could not say whether an existing ground sign could be removed to
allow for a billboard; his review of areas where billboards are permitted was limited
to the conditions as they existed at the time of his review. (Id. at 105a.)
5
B. Board’s Decision
Based upon the evidence presented, the Board issued its Decision on April 24,
2018, denying Applicant’s challenge. As to Applicant’s argument that the
Ordinance was de jure exclusionary, the Board found that the Ordinance was
amended in 2004, whereby the LI-2 zoning district was repealed and replaced by,
among other districts, a B-1 zoning district. (Board Decision, Finding of Fact (FOF)
¶ 7.) The Board further found that when the company that handled the codification
of the Township’s Ordinance changed, the amendment was not entirely included in
the current codification. (Id. ¶ 8.) In consideration of the Charlestown Township
Planning Commission minutes from April 2017, which Applicant appended to its
brief to the Board, wherein Planning Expert indicated that the Ordinance needs to be
updated because it still reflects the LI-2 zoning district as the location for billboards,
the Board found that, based upon the context of the statement, Planning Expert was
referring to the printed Ordinance available for purchase at the Township building.
(Id. ¶ 9.) Because the Board found the Ordinance was amended, as Planning Expert
testified, to replace the LI-2 zoning district with the B-1 zoning district, and
billboards are permitted in the B-1 zoning district, the Board concluded there was
no de jure exclusion. (Board Decision, Conclusion of Law ¶ 1.)
The Board also rejected Applicant’s argument that the Ordinance was de facto
exclusionary. In reaching this result, the Board found that the Ordinance was
amended in December 2004 and the Turnpike slip ramp was not constructed for at
least another five years. (FOF ¶ 16.) Because the interchange was not in existence
at the time the B-1 zoning district was created, the Board, while acknowledging the
state regulation prohibiting billboards within 500 feet of an interchange, found the
condition was not imposed by the Township. (Id. ¶¶ 17, 19-20.) The Board also
6
found Planning Expert testified that there is a small portion within the B-1 zoning
district that falls outside the 500-foot regulatory area. (Id. ¶ 21.)
Finally, the Board found that the Township adopted the Phoenixville Regional
Comprehensive Plan in 2008, and the six member municipalities have zoning
ordinances that are generally consistent with that plan. (Id. ¶¶ 22, 25-26.) The Board
further found that those municipalities allow billboards within certain zoning
districts that are within a reasonable geographical area, approximately four to five
miles, of the Township’s B-1 zoning district. (Id. ¶¶ 27-30, 32.) Therefore, the
Board found that, under Section 916.1(h) of the Pennsylvania Municipalities
Planning Code2 (MPC), 53 P.S. § 10916.1(h), it could consider these other areas
outside of the Township and conclude that the Ordinance was not exclusionary. (Id.
¶¶ 23, 32.)
Accordingly, the Board denied both of Applicant’s substantive validity
challenges.
2
Act of July 31, 1968, P.L. 805, as amended, added by Section 99 of the Act of December
21, 1988, P.L. 1329, 53 P.S. § 10916.1(h), which provides:
Where municipalities have adopted a multimunicipal comprehensive plan . . . but
have not adopted a joint municipal ordinance . . . 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 geographical area and
shall not limit its consideration to the application of the zoning ordinance of the
municipality whose zoning ordinance is being challenged.
Id.
7
C. Common Pleas Opinion and Order
Applicant appealed the Board’s Decision to common pleas, which took no
additional evidence.3 Upon review of the record and consideration of the parties’
briefs, common pleas denied Applicant’s appeal and affirmed the Board’s Decision.
Common pleas found the Board did not err in finding there was a codification error,
which was not attributable to the Township. (Common pleas’ Opinion (Op.) at 7.)
Therefore, the Ordinance was not de jure exclusionary.
As for the issue of whether the Ordinance is de facto exclusionary, common
pleas found this issue was “waived because the parties have provided no authority
directly on point with this issue and because [the Pennsylvania Department of
Transportation (Department)] was not joined as a necessary party to this action.”
(Id. at 9-10.) Common pleas stated that even if it had jurisdiction over this issue,
Applicant could not prevail because, at the time the Ordinance was amended, the
slip ramp that has now triggered the Department’s regulation prohibiting billboards
within 500 feet of same was not yet constructed. (Id. at 10.) Citing this Court’s
decision in Montgomery Crossing Associates v. Township of Lower Gwynedd, 758
A.2d 285 (Pa. Cmwlth. 2000), common pleas explained that when the Ordinance
was enacted, billboards could have been constructed in the B-1 zoning district, and
it was the intervening construction of the slip ramp that now prohibits the use of
billboards. (Common pleas’ Op. at 10.) Common pleas stated that to conclude the
Ordinance is exclusionary under such circumstances “would lead to the absurd result
of creating an ongoing, impractical[] obligation for the Township to rezone and
3
Because common pleas took no additional evidence, common pleas’ review was, as is
ours, limited to determining whether the Board erred as a matter of law or abused its discretion.
Williams Holding Grp., LLC v. Bd. of Supervisors of W. Hanover Twp., 101 A.3d 1202, 1211 n.8
(Pa. Cmwlth. 2014).
8
update[] its [] Ordinance every time an intervening condition not caused by the
Township occurred.” (Id.)
Finally, common pleas found the Ordinance was neither de jure nor de facto
exclusionary based upon the Township’s adoption of the Phoenixville Regional
Comprehensive Plan. Common pleas recognized there was conflicting testimony
from the parties’ respective witnesses as to what was a reasonable geographical area,
but noted that the Board credited Planning Expert’s testimony that the zoning
districts identified in the other member municipalities permitting billboards were
within a reasonable geographical area to the Township’s B-1 zoning district. (Id. at
7-8, 10-11.) Accordingly, common pleas denied Applicant’s appeal and affirmed
the Board’s Decision. Applicant now appeals to this Court.4
II. PARTIES’ ARGUMENTS
A. Applicant’s Arguments
On appeal, Applicant raises four issues:5 (1) whether the Ordinance is de jure
exclusionary of outdoor advertising billboards; (2) whether the Ordinance is de facto
exclusionary of outdoor advertising billboards due to the government regulations
and other restrictions in the Ordinance; (3) whether the Township can invoke Section
4
Upon filing its notice of appeal, common pleas ordered Applicant to file a statement of
errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure, Pa.R.A.P. 1925(b), which Applicant did, wherein Applicant raised the same issues
currently before the Court. On August 8, 2019, common pleas issued an Order in Lieu of Rule
1925(a) Opinion (Rule 1925(a) Order), in which common pleas noted that it had already
adequately addressed the issues of de jure and de facto exclusion and the applicability of Section
916.1(h) of the MPC, and, therefore, it would not write again separately on those issues. As for
Applicant’s argument that the “Board abused its discretion and committed an error of law in failing
to find that the Township failed to satisfy its burden,” common pleas found that issue was too
vague to permit meaningful review. (Rule 1925(a) Order at 3-4.)
5
Applicant’s arguments have been reordered for ease of discussion.
9
916.1(h) of the MPC as a defense to preclude a finding of exclusion based upon its
participation in the Phoenixville Regional Comprehensive Plan, in which other
member municipalities permit billboards within a reasonable geographical area of
the Township’s B-1 zoning district; and (4) whether the Township satisfied its
burden of showing a substantial relationship between the exclusion and public
health, safety, morality, and welfare.
With regard to whether the Ordinance is de jure exclusionary, Applicant
argues that the Ordinance only permits outdoor advertising billboards in an LI-2
zoning district, of which there are none. Applicant argues that despite the testimony
of Planning Expert that the Ordinance was amended in 2004, the Ordinance at the
time Applicant filed its zoning challenge did not reflect any change to allow outdoor
advertising billboards in the B-1 zoning district. According to Applicant, the
Township has been aware that the Ordinance does not reflect the alleged amendment
since at least 2017 when Planning Expert brought it to the Planning Commission’s
attention. Applicant contends that the minutes from that meeting show the
Ordinance was not updated and the Board’s finding that Planning Expert was
referring to the copy of the Ordinance available for purchase and not the official
Ordinance is without support in the record.
Applicant also argues that the Ordinance is de facto exclusionary because it is
impossible to comply with both state regulations governing the placement of
billboards near interchanges and the Ordinance’s requirements regarding location.
Applicant asserts that the Ordinance requires billboards to be constructed a
minimum of 5 feet and a maximum of 30 feet from the Pennsylvania Turnpike right-
of-way, and state regulations prohibit a billboard to be constructed within 500 feet
of an interchange. When these requirements are taken into consideration, Applicant
10
argues a billboard cannot be lawfully constructed in the B-1 zoning district.
Applicant contends that the Board “wrongfully gave credence” to Planning Expert
who testified there was a small area in the B-1 zoning district that falls outside the
500-foot requirement because, on cross-examination, Planning Expert
acknowledged that there is no place that satisfied both the state and local
requirements. (Applicant’s Brief (Br.) at 14.)
Applicant next asserts that the Board erred in finding that the Township was
not at fault for any exclusion that resulted from the construction of the slip ramp
because it was constructed long after the Ordinance was enacted. Applicant argues
that the Township’s reliance on Montgomery Crossing and Kaiserman v. Springfield
Township, 348 A.2d 467 (Pa. Cmwlth. 1975), is misplaced because those cases
involved development of other permitted uses on the land, whereas here the land
remains undeveloped. In short, there is not an existing use that could be demolished
to make room for a billboard because the state regulations foreclose such
development in that area. According to Applicant, “[t]he issue is whether ‘in
application’ the use is excluded, not whether there was an intent to exclude.”
(Applicant’s Br. at 17 (emphasis omitted).) Applicant asserts the Township could
have amended its Ordinance in light of the regulations and construction of the slip
ramp but has not done so.
In addition, Applicant argues that the Township cannot invoke Section
916.1(h) of the MPC as a defense to the substantive validity challenges. Applicant
argues that mere participation in a multimunicipal comprehensive plan is not
enough; rather a municipality must show that each member municipality adopted
generally consistent ordinances and the availability of the use in the other
municipalities is within a reasonable geographic area. Here, Applicant contends, the
11
Township presented no evidence to satisfy these requirements except for Planning
Expert’s “blanket conclusory statement.” (Id. at 25.) Applicant argues that such
evidence is insufficient under Gorsline v. Board of Supervisors of Fairfield
Township, 186 A.3d 375 (Pa. 2018). Applicant points out there is no discussion of
billboards in the Phoenixville Regional Comprehensive Plan, and each member
municipality separately zoned for billboards, which evidences that there was no joint
plan for billboard placement. Applicant asserts Section 916.1(h) was intended to
protect against validity challenges when there is “good planning,” but the
Township’s argument that the mere existence of a multimunicipal plan without any
evidence of planning goes against the purpose of the provision. (Id. at 30.)
Finally, Applicant asserts that, contrary to common pleas’ conclusion, it did
not waive its argument related to whether the Township met its burden of proof in
this matter. Applicant argues that it has asserted throughout the litigation that the
Township did not show a substantial relationship between the exclusion of billboards
and the health, safety, morality, or welfare of the public. Applicant states that once
it met its burden of showing the Ordinance was exclusionary, the burden shifted to
the Township, and here, the Township presented no evidence to support its position.
For the foregoing reasons, Applicant asks the Court to reverse common pleas’
Order and remand the matter for common pleas to fashion site-specific relief.
B. Township’s Arguments
The Township responds that its Ordinance is neither de jure nor de facto
exclusionary. The Township asserts it presented a copy of the Ordinance showing
it was properly amended to reflect the change from LI-2 to B-1 and the company
responsible for publishing the Ordinance on its website erred. Because the
12
Ordinance allows for outdoor advertising billboards in the B-1 zoning district, the
Ordinance is not de jure exclusionary, the Township maintains.
The Township further asserts that the Ordinance is not de facto exclusionary.
It cites Montgomery Crossing for the proposition that an exclusionary challenge
cannot be based upon property within a designated zone being used for something
else in the meantime. It argues there is no “ongoing obligation to rezone for a certain
use when vacant land is developed for another purpose.” (Township’s Br. at 15-16.)
Here, the Township contends the Ordinance, as amended, was adopted in December
2004, and construction on the interchange/slip ramp did not begin until March 2011.
Therefore, the Township argues the Ordinance is not de facto exclusionary.
Next the Township argues that it is part of the Phoenixville Regional
Comprehensive Plan along with five other municipalities. As a result, the Township
argues, the Board had to consider whether billboards were permitted by those other
municipalities. The Township points to Planning Expert’s testimony that there are
multiple other sites within a reasonable geographical area of less than five miles of
the B-1 zoning district where billboards are permitted. As for Applicant’s attempt
to challenge Planning Expert’s testimony as incompetent, the Township argues
Gorsline is distinguishable because there the expert gave conflicting testimony.
Finally, the Township argues that Applicant waived its right to seek site-
specific relief by not raising it before the Board. Therefore, in the event the Court
determines the Ordinance is exclusionary, the Township argues Applicant is not
entitled to site specific relief.
Based upon the foregoing, the Township asks the Court to affirm common
pleas’ Order.
13
III. DISCUSSION
A. General Legal Principles
As a preliminary matter, as stated by the Supreme Court, “billboards are not
objectionable per se.” Township of Exeter v. Zoning Hearing Bd. of Exeter Twp.,
962 A.2d 653, 660 (Pa. 2009). Billboards have been recognized as a legitimate use
of property, and, while they may be regulated, billboards cannot be entirely excluded
from a municipality through its zoning ordinance. Adams Outdoor Advert., LP v.
Zoning Hearing Bd. of Smithfield Twp., 909 A.2d 469, 477 (Pa. Cmwlth. 2006).
“Zoning ordinances that exclude uses fall into one of two categories—de jure or de
facto.” Township of Exeter, 962 A.2d at 659. A de jure exclusion exists if the
“ordinance[,] on its face[,] totally excludes a use.” Id. In contrast, a de facto
exclusion exists if, when applied, the ordinance effectively acts to prohibit a use that
is otherwise permitted. Id.
Generally, a municipality’s zoning ordinance is entitled to a presumption that
it is constitutionally valid. Interstate Outdoor Advert., L.P. v. Zoning Hearing Bd.
of Warrington Twp., 39 A.3d 1019, 1024 (Pa. Cmwlth. 2012). To overcome this
presumption, the party challenging the ordinance bears a heavy burden to show the
ordinance completely or effectively excludes an otherwise legitimate use. Id. The
mere fact that an ordinance does not specifically address a use does not necessarily
mean the ordinance is invalid. Caln Nether Co., L.P. v. Bd. of Supervisors of
Thornbury Twp., 840 A.2d 484, 491 (Pa. Cmwlth. 2004). Rather, we must consider
whether the proposed use falls within a specifically provided for use. Id. “When a
proposed use can be considered within another zoning classification or, where the
zoning ordinance is broad enough to encompass the proposed use, there is no de jure
exclusion.” Id. In addition, if an ordinance conditionally permits a use as a special
14
exception, it is not de jure exclusionary. Kratzer v. Bd. of Supervisors of Fermanagh
Twp., Juniata Cnty., 611 A.2d 809, 814 (Pa. Cmwlth. 1992). In examining whether
a proposed use is covered by an ordinance, “we are mindful that ordinances are to
be construed expansively, affording the landowner the broadest possible use and
enjoyment of his or her land.” Atiyeh v. Bd. of Comm’rs of the Twp. of Bethlehem,
41 A.3d 232, 236 (Pa. Cmwlth. 2012).
Whether an “ordinance is exclusionary is a question of law, reviewable by this
Court.” Wimer Realty, LLC v. Township of Wilmington, 206 A.3d 627, 640 (Pa.
Cmwlth. 2019). Courts examine whether an ordinance is exclusionary using a two-
step analysis:
[F]irst [we] consider whether the challenging party has overcome the
presumed constitutionality of an ordinance by showing it excludes [the
proposed use] as a use. If we determine the challenger has done so, we
then consider whether the municipality has salvaged the ordinance by
presenting evidence to show that the exclusionary regulation bears a
substantial relationship to the public health, safety, morality, or welfare.
Township of Exeter, 962 A.2d at 661. Only if a challenger rebuts the presumption
that the ordinance is valid does the burden shift to the municipality to demonstrate
that the exclusion promotes the public health, safety, morality, and welfare. Atiyeh,
41 A.3d at 236.
Finally, it bears emphasis that the Board is the exclusive judge of the
credibility of witnesses and the weight to be afforded to evidence. Taliaferro v.
Darby Twp. Zoning Hearing Bd., 873 A.2d 807, 811 (Pa. Cmwlth. 2005). Therefore,
we may not substitute our “interpretation of the evidence for that of the . . . [B]oard.”
Id. As we have previously stated “we cannot, as super zoning boards . . . , impose
our preferences upon local municipalities.” Eighteenth & Rittenhouse Assocs. v.
Zoning Bd. of Adjustment, 364 A.2d 973, 975 (Pa. Cmwlth. 1976).
15
With the above principles in mind, we turn to the issues here.
B. De Jure Exclusion
We begin with Applicant’s argument that the Ordinance, on its face, does not
provide for a location for outdoor advertising billboards. This argument is premised
on the fact that the Ordinance, at least as available to the public, provides that
outdoor advertising billboards are only permitted in the LI-2 zoning district, of
which there are none. The Township maintains it amended its Ordinance in 2004 to
reflect the replacement of the LI-2 zoning district with the B-1 zoning district, which
is where outdoor advertising billboards are permitted. However, the Township
maintains the company that handles codification of its ordinances erred when it
codified this Ordinance.
Simply, if the Ordinance does not provide for a location for outdoor
advertising billboards, it would be invalid as de jure exclusionary. Here, though, the
Board credited the testimony and evidence presented by the Township that supports
its claim that the Ordinance does, in fact, provide for outdoor advertising billboards
but, because of a codification error, it does not appear that way. Planning Expert
testified that he personally prepared the amendment to the Ordinance in 2004. (R.R.
at 22a.) The Township introduced, in support of this testimony, a copy of the
Ordinance showing references to the LI-2 zoning district struck through and replaced
by the B-1 zoning district, and Planning Expert explained that the other version of
the Ordinance was from a bound copy available for purchase. (Id.; Ex. T-3.) In
addition, in response to a request by Applicant for a signed copy of the Ordinance,
the Township introduced a copy of the Ordinance signed by the Township’s Board
of Supervisors dated December 20, 2004, wherein it states that reference to the LI-2
16
zoning district was being deleted and replaced by the B-1 zoning district. (Ex. T-
10, R.R. at 155a-88a.) Therefore, there is substantial evidence of record to support
the Board’s conclusion that the Township did properly amend its Ordinance but, due
to a codification error, the copies available to the public do not reflect this change.
We understand Applicant’s and the public’s potential confusion given what is
available online and for purchase is incorrect. However, the Ordinance as adopted
is the controlling document, and it provides that outdoor advertising billboards are
permitted in the B-1 zoning district. This Court has previously examined issues with
codification in In re Appeal of Tenet HealthSystems Bucks County, LLC, 880 A.2d
721 (Pa. Cmwlth. 2005). In that case, Tenet sought nunc pro tunc relief to file a tax
assessment appeal based upon an error in Purdon’s Statutes, which provided for a
different time period to appeal than the statute itself. The trial court denied nunc pro
tunc relief, and we affirmed. We explained that the Pennsylvania Consolidated
Statutes are the “official codifications enacted by the General Assembly,” whereas
Purdon’s is “the unofficial codification and annotation of Pennsylvania’s Pamphlet
Laws” and is published by West Publishing Company. Tenet HealthSystems, 880
A.2d at 725. We further explained that “[e]ven our rules of court require that the
official editions of statutes be used, i.e., the pamphlet laws.” Id. at 726. Here, the
Ordinance that was adopted by the Board of Supervisors is the controlling document,
similar to the pamphlet laws enacted by the state legislature. The fact that a third-
party commercial publisher codified the Ordinance incorrectly does not reflect on
the Township.
We similarly cannot fault the Township for the codification error of the
company that publishes the Township’s ordinances. The Township properly
amended the Ordinance. The original company responsible for codification
17
correctly did so, but through no fault of the Township, the company that replaced
the original company did not.
As for Applicant’s argument that the Board misinterpreted evidence,
specifically Planning Commission minutes that show the Ordinance was not
amended, we disagree. The minutes in question state:
[Planning Expert] stated that the [] Ordinance refers to district “LI” in
regards to billboards. There is no longer an LI zone in the Township.
Therefore, the Ordinance needs to be updated to refer to the proper
district. It should say “IO” [Industrial Office6]. [Someone] will initiate
this change for the Township.
(April 11, 2017 Planning Commission Minutes appended to Applicant’s Brief to the
Board.)
The Board found that “the context of [Planning Expert]’s statement supports
a finding that he meant the printed ordinance for purchase by the public and not the
enacted . . . Ordinance . . . .” (FOF ¶ 9.) While true that the minutes are silent as to
which “Ordinance” Planning Expert was referring, coupled with his testimony that
the bound copy available for purchase was incorrect, we cannot say that the Board’s
interpretation is incorrect.
In summary, Planning Expert’s testimony, coupled with the exhibits
introduced by the Township, provide substantial evidence to support the Board’s
finding that the Ordinance was, in fact, amended in 2004 to permit billboards in the
B-1 zoning district. Therefore, the Board did not err in concluding that the
Ordinance is not de jure exclusionary.
6
According to the signed Ordinance, introduced as Township Exhibit T-3, when the
Ordinance was amended in 2004, the LI District was replaced by the Industrial/Office/Business or
I/O/B Districts, wherein the former LI-2 District became the B-1 District.
18
C. De Facto Exclusion
Applicant further argues that the Ordinance constitutes a de facto exclusion
because compliance with requirements in both state regulations and the Ordinance
yields no location within the B-1 zoning district in which an outdoor advertising
billboard can be constructed.
Pennsylvania enacted the Outdoor Advertising Control Act of 19717 (Act),
which sets forth standards for the erection and maintenance of outdoor advertising
devices located adjacent to the interstate and primary road systems within the
Commonwealth. Pursuant to the Act, the Department promulgated regulations
governing outdoor advertising devices. At issue here is Section 445.4(b)(2)(i) of the
Department’s regulations, which provides, in pertinent part, that no sign “may be
erected adjacent to or within 500 feet of an interchange or safety rest area, measured
along the interstate or limited access primary from the beginning or ending of
pavement widening at the exit from or entrance to the main-traveled way.” 67 Pa.
Code § 445.4(b)(2)(i).
In addition, the Ordinance imposes further restrictions on location providing,
in pertinent part: “Outdoor advertising billboards shall be located only a minimum
of [5] feet and a maximum of 30 feet from the Pennsylvania Turnpike east-west
travel lanes right-of-way.” (Ordinance § 27-1405.13.B, R.R. at 125a.)
The parties do not appear to dispute that, when both sets of location
restrictions are applied, there is no place within the B-1 zoning district where an
outdoor advertising billboard can be constructed. Although Planning Expert
testified on direct examination that there is a small area where one could construct a
billboard and still comply with the 500-foot state requirement, on cross-examination,
7
Act of December 15, 1971, P.L. 596, as amended, 36 P.S. §§ 2718.101-2718.115.
19
Planning Expert admitted that area would be outside the Ordinance’s location
requirements.8 (R.R. at 26a-27a, 44a-45a.)
Instead, the Township argues, in part, that its Ordinance is not constitutionally
invalid because at the time it was enacted in 2004, the slip ramp that now precludes
construction of an outdoor advertising billboard in the B-1 zoning district was not
yet constructed and its subsequent construction should not render the Ordinance
exclusionary. In support of this argument, the Township cites to our decision in
Montgomery Crossing. In that case, a developer filed an application for a curative
amendment of the township’s zoning ordinance on the basis it excluded mobile home
parks.9 Montgomery Crossing, 758 A.2d at 286. The board of supervisors rejected
the curative amendment, finding, in relevant part, that mobile home parks are
permitted in the “E” Residential District, which comprises 45 acres of the township,
and at the time the ordinance was enacted, those acres were vacant, but since that
time, another permitted use, specifically apartments, was constructed. Id. at 289-90.
The court of common pleas reversed, concluding that it was more profitable to
construct 320 apartments than install 193 mobile homes. Id. at 290. On appeal, we
stated the court of common pleas erred in applying the wrong legal standard for a de
facto exclusion. Id. We stated “[t]he critical question is not whether one use is more
8
Applicant takes issue with the Board’s finding that Planning Expert “testified that there
is a small part of the B-1 zoning district outside the 500[-]feet [Department] prohibition that is
available for billboard use.” (FOF ¶ 21.) However, we note the finding only discusses the 500-
foot limitation imposed by the Department’s regulations. The finding is silent as to whether that
area can also comply with the Ordinance’s requirements. Therefore, we discern no error in this
finding. Furthermore, we note that this finding appears to have played no role in the Board’s
decision. As discussed more fully herein, the Board’s determination was based upon the
construction of the slip ramp after enactment of the Ordinance and the Township’s participation
in the Phoenixville Regional Comprehensive Plan.
9
Also at issue was whether the ordinance excluded certain commercial uses, the analysis
of which is not applicable here.
20
profitable, but rather whether the excluded use is so unprofitable in its permitted
zone as to be effectively excluded.” Id. Importantly here, we also stated that “if a
district containing available land has been zoned to permit a particular use, one may
not later base a claim that the use is excluded on the fact that the land has been used
for another purpose instead.” Id. at 290-91. We continued, “[i]n other words, there
is no ongoing obligation on the part of the township to rezone for mobile home parks
because the vacant land in the “E” Residential District was developed for
apartments.” Id. at 291. Accordingly, we found there was substantial evidence in
the record to support the board of supervisors’ determination that mobile home parks
were not excluded. Id.A quarter of a century earlier, we reached a similar conclusion in Kaiserman.
There, a developer challenged the township’s ordinance on the basis it resulted in a
de facto exclusion of apartments. The board of supervisors upheld the ordinance,
and the court of common pleas affirmed, as did this Court. We explained that since
1940, 408 acres of the township were zoned to permit multi-family dwellings in 4
different districts. Kaiserman, 348 A.2d at 470. At the time of the appeal, however,
there was no dispute that “no appreciable amount of vacant land remain[ed] to be
developed” in those districts because the area was developed for single-family
homes in the meantime. Id. at 469-70. We distinguished the facts in Kaiserman
from prior cases where the exclusion of a use “was accomplished by the zoning
ordinance [a]lone.” Id. at 470. We stated that the developer had not challenged that,
at the time the ordinance was enacted, the amount of land zoned for multi-family
dwellings was “a ‘token’ amount.” Id. Instead, we held that the developer was
asking the Court “to invalidate the [o]rdinance because it might be more
21
advantageous for [it] to develop the land [it] currently own[s] than to assemble
already developed land for [its] purposes.” Id. We stated:
While it may be inherently discriminatory for a township to totally
exclude a use from its borders, we fail to see the analogy by which we
could reason that a legitimately appropriated area for a specific use
which has been saturated is in the same posture as a total prohibition of
that use within a municipality.
Id. at 471 (quoting Appeal of Groff, 274 A.2d 574, 575 (Pa. Cmwlth. 1971)).
Accordingly, we agreed that the developer had not met its burden of showing the
ordinance excluded apartments. Id.We examine the substantive validity of an ordinance based upon conditions
as they existed at the time of an ordinance’s enactment on other occasions. In In re
Glen Loch Two Associates, L.P. (Pa. Cmwlth., No. 45 C.D. 2012, filed November
29, 2012),10 an applicant asserted a substantive validity challenge to an ordinance on
the basis it effectively excluded mobile home park development. The township
denied the challenge and a proposed curative amendment finding that, at the time
the ordinance was enacted in 1986, there were multiple areas that could have been
used for such development. On appeal, we affirmed the township’s decision. The
Court found that although one of the areas was rendered unavailable for development
after the Department condemned a large portion for construction of a bypass, “the
record d[id] not reflect that at the time of the adoption of the zoning ordinance in
1986 that this area was not available for development.” In re Glen Loch, slip op. at
15. We also noted that the record was devoid of any evidence that the Department
10
In re Glen Loch is an unreported panel decision of this Court, which may be cited for its
persuasive value pursuant to Rule 126(b) of the Pennsylvania Rules of Appellate Procedure,
Pa.R.A.P. 126(b), and Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§ 69.414(a).
22
condemned the property “prior to the enactment of the current zoning ordinance.”
Id. at 16 (emphasis in original).
The Township here argues that the subsequent construction of the slip ramp
to the Pennsylvania Turnpike, over which it had no control, is responsible for
effectively zoning outdoor advertising billboards out of the B-1 zoning district.
Applicant responds that these cases are distinguishable because in those cases, the
land that was zoned for a particular use was actually used for another permitted use,
whereas here, the Property is vacant. Although we agree that those cases involved
the intervening use of the land through development on the land itself, we discern
no reason why the same logic should not apply when construction on an adjacent
property forecloses development of the subject property. Neither situation is
attributable to the actions of the municipality; it was the acts of third parties that
prevented development. Here, contrary to the minority’s view, the Ordinance itself
does not prevent the construction of an outdoor advertising billboard in the
Township; it is the Act and the Department’s regulations, coupled with the
subsequent construction of the slip ramp, that does.11 Because the Township has no
control over what statutes the General Assembly passes or what regulations a
11
The minority relies upon an unreported panel decision of the Court, Habit OPCO v.
Borough of Dunmore (Pa. Cmwlth., No. 2312 C.D. 2010, filed April 21, 2011). In that case, the
landowner filed a substantive validity challenge to the borough’s zoning ordinance alleging
methadone treatment facilities were excluded from the borough. The ordinance there had certain
restrictions on how close such a facility could be to other types of uses. The Court held several of
the provisions of the ordinance were invalid as violative of the Americans with Disabilities Act,
42 U.S.C. §§ 12101-12213, and federal case law striking down similar provisions. Habit OPCO,
slip op. at 5. With regard to a provision in the ordinance requiring conditional uses, such as a
methadone treatment facility to be at least 1,000 feet from existing developments, based upon
precedent, we held the requirement was exclusionary. Id. at 8. Unlike Habit OPCO, though, it is
not solely a setback requirement in the Township’s Ordinance that precludes an outdoor
advertising billboard in the Township. Again, it is the Act and the Department’s regulations and
the subsequent construction of the slip ramp that does.
23
Commonwealth agency promulgates, the resulting effect of those statutes or
regulations cannot be impugned to the Township.
To hold otherwise would require a municipality to rezone based upon
another’s use of its land. We rejected imposing an “ongoing obligation” on a
municipality in Montgomery Crossing, 758 A.2d at 291, and, based upon the facts
of this case, we do the same here. See also Larock v. Bd. of Supervisors of Sugarloaf
Twp., 961 A.2d 916, 927 (Pa. Cmwlth. 2008) (citing Montgomery Crossing and
holding, in relevant part, that “[a] municipality should not necessarily be required to
designate a new area for mineral extraction where an established mineral extraction
zone within the township has been depleted”). Similar to In re Glen Loch, there is
no record evidence that the Department had already acquired or condemned the
property used for the slip ramp at the time the Township amended the Ordinance in
2004. Nor is there any evidence that the Township underwent a massive rewrite of
its Ordinance since the slip ramp was constructed that might prompt some sort of
obligation on its part to update its Ordinance in this regard, as well. The record
establishes that the Ordinance was enacted in 2004 and the slip ramp to the
Pennsylvania Turnpike was not constructed until at least five years later. (FOF ¶
16.) Thus, we find no error in the Board’s conclusion that the subsequent
construction of the slip ramp did not render the Ordinance de facto exclusionary.12
12
Given our disposition, it is unnecessary to reach Applicant’s arguments related to
whether Section 916.1(h) of the MPC applies or whether the Township met its burden of proving
a substantial relationship between the exclusion and the public’s health, safety, morality, or
welfare.
24
IV. CONCLUSION
Because Applicant has not met its heavy burden of showing the Ordinance
completely or effectively excludes the use of outdoor advertising billboards from the
Township, Applicant has not successfully rebutted the presumption that the
Ordinance is constitutionally valid. Interstate Outdoor Advert., 39 A.3d at 1024.
Having concluded the Ordinance is neither de jure nor de facto exclusionary, we
affirm the Order of common pleas, affirming the Board’s Decision.
_____________________________________
RENÉE COHN JUBELIRER, Judge
25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of the April 24, 2018 :
Decision of the Charlestown Township :
Zoning Hearing Board Denying the :
Challenge of Charlestown Outdoor, :
LLC to the Validity of the Zoning : No. 826 C.D. 2019
Ordinance’s Exclusion of Outdoor :
Advertising Billboards :
:
Appeal of: Charlestown Outdoor, LLC :
ORDER
NOW, January 21, 2021, the Order of the Court of Common Pleas of Chester
County, dated June 13, 2019, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of the April 24, 2018 Decision :
of the Charlestown Township Zoning Hearing :
Board Denying the Challenge of Charlestown :
Outdoor, LLC to the Validity of the Zoning :
Ordinance’s Exclusion of Outdoor Advertising :
Billboards :
: No. 826 C.D. 2019
Appeal of: Charlestown Outdoor, LLC : Argued: June 8, 2020
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
CONCURRING/DISSENTING OPINION
BY PRESIDENT JUDGE LEAVITT FILED: January 21, 2021
I agree with the majority that the Charlestown Township Zoning
Ordinance (Zoning Ordinance) is not de jure exclusionary because it permits outdoor
advertising billboards in the B-1 Zoning District. However, it is impossible to place
an outdoor billboard in that district. Respectfully, I dissent from the majority’s
holding that the Zoning Ordinance is not de facto exclusionary.
Charlestown Outdoor, LLC (Applicant) seeks to erect an outdoor
advertising billboard in Charlestown Township. The Zoning Ordinance requires
billboards to be located in the B-1 Zoning District and “a minimum of five feet and
a maximum of 30 feet from the Pennsylvania Turnpike east-west travel lanes right-
of-way.” TOWNSHIP OF CHARLESTOWN, PA., ZONING ORDINANCE §§27-1405.C and
27-1405.13.B. In 2011, the Commonwealth built a Turnpike interchange in the B-1
Zoning District. A regulation of the Pennsylvania Department of Transportation
prohibits the placement of outdoor advertising signs “adjacent to or within 500 feet
of an interchange” along an interstate, such as the Pennsylvania Turnpike. 67 Pa.
Code §445.4(b)(2)(i).1 As a result of these state and local restrictions, it is unlawful
to erect an outdoor advertising billboard in the B-1 Zoning District or anywhere in
the Township. The Zoning Ordinance is, thus, exclusionary.2
A de facto exclusion of a legitimate business use exists where a zoning
ordinance purports to allow a use but, when applied, actually prohibits the use
throughout the municipality. De Angelo v. North Strabane Zoning Hearing Board,
208 A.3d 156 (Pa. Cmwlth. 2019). That is the case here. In actuality, the Zoning
Ordinance does not allow an outdoor billboard anywhere in the Township and, thus,
it is de facto exclusionary.
1
It states:
(b) Maintenance. A sign may not be erected or maintained inconsistent with the
following criteria:
***
(2) Spacing of signs. Spacing of signs shall include the following:
(i) Along the interstate system and limited access
highways on the primary system, no two sign
structures may be spaced less than 500 feet apart; and
outside the boundaries of cities of all classes and
boroughs, no structure may be erected adjacent to or
within 500 feet of an interchange or safety rest area,
measured along the interstate or limited access
primary from the beginning or ending of pavement
widening at the exit from or entrance to the main-
traveled way.
67 Pa. Code §445.4(b)(2)(i) (emphasis added).
2
Pennsylvania law requires a municipality to authorize all legitimate non-residential land uses
somewhere within its boundaries. Beaver Gasoline Company v. Zoning Hearing Board of
Borough of Osborne, 285 A.2d 501, 503-04 (Pa. 1971). Billboards are a legitimate use of property.
Township of Exeter v. Zoning Hearing Board of Exeter Township, 962 A.2d 653, 660 (Pa. 2009).
Therefore, although a municipality may reasonably regulate this legitimate use of the land, it may
not entirely exclude the use. Norate Corporation, Inc. v. Zoning Board of Adjustment of Upper
Moreland Township, 207 A.2d 890, 895 (Pa. 1965).
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The majority holds otherwise. It relies upon Montgomery Crossing
Associates v. Township of Lower Gwynedd, 758 A.2d 285 (Pa. Cmwlth. 2000), and
Kaiserman v. Springfield Township, 348 A.2d 467 (Pa. Cmwlth. 1975).
In Montgomery Crossing, the landowner challenged the zoning
ordinance as unlawfully excluding mobile home parks from the township. When
enacted, the zoning ordinance zoned approximately 45 acres of vacant land for
mobile home parks and apartment buildings. Over time, however, the land was
developed with apartments and not with mobile homes. This Court explained that
“if a district containing available land has been zoned to permit a particular use, one
may not later base a claim that the use is excluded on the fact that the land has been
used for another purpose instead.” 758 A.2d at 290. We rejected the landowner’s
claim that the zoning ordinance was exclusionary.
In Kaiserman, the township’s 1940 ordinance had zoned 408 acres of
vacant land for single-family and multi-family dwellings in one district. Over time,
the land was developed with single-family homes, not apartments. The landowners
filed a substantive validity challenge asserting that only a “token” amount of land
remained available for apartments. Kaiserman, 348 A.2d 469. This Court held that
where land appropriated for a “specific use [] has been saturated,” this does not
constitute a prohibition of that specific use. Id. at 471. We noted, for example, that
the landowner could demolish existing single-family homes and replace them with
apartments. This Court observed that where land is “full,” “courts should not require
that the municipality continually rezone land to apartment, commercial or trailer uses
in order to make land continuously available for these purposes.” Id. at 471 n.3
(citation omitted). Otherwise, the township would have to allow whatever vacant
land remains undeveloped to be “used for any purpose whatever,” and this “would
MHL-3
be the antithesis of that sound planning, which is the rationale for all zoning.” Id. at
471.
The holdings in Montgomery Crossing and Kaiserman are limited to
their facts. They establish that a zoning ordinance is not rendered exclusionary
where the municipality’s vacant land is developed with one permitted use and not
the other. These holdings are irrelevant because this is not a land saturation case.
There are no existing structures in the B-1 Zoning District that can be demolished,
as in Kaiserman, and replaced with a billboard. Applicant cannot demolish a
Turnpike interchange.
Effectively, the majority holds that under Montgomery Crossing, the
validity of a zoning ordinance is determined as of the date of its enactment. This
position was specifically rejected in Habit OPCO v. Borough of Dunmore (Pa.
Cmwlth., No. 2312 C.D. 2010, filed April 21, 2011) (unreported).3 In that case,
Habit OPCO challenged, in part, a provision in the zoning ordinance that required a
methadone clinic to be sited 1,000 feet from existing developments as de facto
exclusionary because there was no plot in the borough large enough to accommodate
that setback requirement. The borough argued that the validity of the zoning
ordinance should be judged at the time the ordinance was enacted, not presently.
Distinguishing Montgomery Crossing, this Court explained that “we have never
required a party alleging exclusionary zoning to affirmatively prove the challenged
ordinance was exclusionary when enacted.” Id., slip op. at 7. We further explained
that it was the setback requirements that made the zoning ordinance de facto
exclusionary, not the lack of vacant land. Likewise here, it is the setback
3
An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for
its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code §69.414(a).
MHL-4
requirements (both state and local) that render the Zoning Ordinance exclusionary
of outdoor billboards.
Whether a zoning ordinance is de facto exclusionary is determined in
the present, at the time the landowner seeks to develop the use that the zoning
ordinance purports to allow. Habit OPCO, slip. op. at 7. It is irrelevant that a zoning
ordinance may have been valid at the time of enactment. Land use regulation is an
ongoing exercise.4
Here, because outdoor billboards cannot be erected anywhere in the
Township, the Zoning Ordinance is de facto exclusionary. I would reverse the trial
court.
_____________________________________
MARY HANNAH LEAVITT, President Judge
4
Quoting Montgomery Crossing, the majority states that there is no “ongoing obligation” on a
municipality “to rezone.” Majority slip op. at 23. The majority untethers this quotation from its
factual context, i.e., whether a municipality must revise its zoning districts because vacant land
has become saturated with one permitted use and not the other. So long as a landowner can
redevelop a property in accordance with the permitted land use regulation, the answer is “no.”
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