Township of Exeter v. ZONING HEARING BD. OF EXETER TOWNSHIP
911 A.2d 201
Pa. Commw. Ct.
2006
Check Treatment

*1 Accordingly, the order of the trial court

is affirmed.

Judge SIMPSON concurs in the result

only.

ORDER NOW, day

AND 12th July,

the order of the Court of Common Pleas of

Lancaster is affirmed.

TOWNSHIP OF EXETER

ZONING HEARING BOARD OF

EXETER TOWNSHIP and Displays,

Land Inc.

Appeal Supervisors of: Board of

of Exeter

Commonwealth Pennsylvania. Court of

Argued Sept. 2006.

Decided Nov.

Reargument Denied Dec. *2 FRIEDMAN, Judge, and

BEFORE: JUBELIRER, Judge, and COHN McCLOSKEY, Judge. Senior Judge BY Senior OPINION McCLOSKEY. Supervi- Township Board of Exeter (Board from appeals Supervisors),

sors Pleas of Common of the Court decision (trial court), affirming a of Berks Zoning Hearing Board of of the decision (ZHB) portion that a Exeter (Township) Sign Ordi- Township’s Exeter unconstitutionally exclusionary. nance was reverse. We early Land Dis- Between 2003 (LD) applications Inc. filed eleven plays, permits to Township, requesting with the signs at various erect off-site Township. Each locations consisting proposed application signage or 672 feet of either 300 approximate- height a total per side and application feet. Each ly forty-four Ordinance, based denied a directional or any side of prohibits which exceeding twenty- from feet, prohibits also and which five In- signs in Commercial freestanding exceeding a zoning districts dustrial twenty-five feet. height chal- appeal petitions LD filed five Sign Ordi- validity lenges to the Bellwoar, Springs, Chester Andrew J. nance, disposi- for consolidated which were appellant. for LD hearings, the ZHB. At tion before un- Sign Ordinance was argued that the appellee, for Essig, Wyomissing, Paul T. exclusionary because the constitutionally of Exeter Town- Hearing Board in Sec- contained of the restrictions effect ship. and b. of the tion 105.2.a Reading, ap- prohibition a de facto Fitzpatrick, F. constitute Charles challenge LD’s regard, In this boards.1 Displays, Inc. pellee, Land of all area on one side a. The total state: The Sections issue 1. frontage facing any one street placed or Signs in Commercial Permitted hun- premises not exceed one any one shall Zoning Districts. and Industrial except case of in the dred addition, signs may erected and building housing than one commer- more and Industrial Commercial maintained in use. cial or industrial Districts, provided that: alia, on, was based inter the assertion that constituted a de facto exclusion and went industry billboard standards are 300 on to that a challenger observe successful frame) (including trim and granted to a ordinance must be *3 square feet and national advertisers requested municipality relief unless the will not contract or twenty- advertise on proves proposed as use will be five foot billboards. injurious public safety and Casey Zoning Hearing welfare. See ZHB, At hearings before LD 219, Township, Board Warwick 459 Pa. of presented testimony Joyce, of Tim (1974). 328 A.2d 464 heavy Because of the Vice-President, LD’s and Hayes, John a congestion, traffic intensive commercial de- consultant in the industry. velopment, driving numerous distractions ZHB condensed testimony this as follows: and aesthetic concerns on Rte. essentially [B]illboards are rental prop- ZHB determined that billboards would be erty ... business relies permitted to a size not exceeding 300 uniform and printing to accommo- frame), (including trim and but advertisers, date especially national ad- permitted no new billboards would be vertisers. The standards con- along either side of Rte. 422 between primarily sist of the two sizes mentioned Shelbourne Road and municipal bound- above 672 square [300 ary Borough line with St. Lawrence Having standard feet]. sizes facilitates northwest. purchase structure and preparation placement of adver- Supervisors The Board of appealed tising A material. size that must and, in extremely opinion, limited comply Sign with the Ordinance is not trial court affirmed. Super The Board of an acceptable the outdoor appeals visors now to this Court.2 advertising industry. widely recognized It is that zon 3). opinion at page ing Pennsylvania enjoy ordinances in countered, The Township arguing that constitutionality of presumption and validi Sign Ordinance governing reflected the ty, party challenging and the one bears body’s definite concerns for safety heavy proving burden of otherwise. Ma along highly congested highway that ex- cioce v. Zoning Hearing Board the Bor of perienced Further, numerous accidents. (Pa. Baldwin, ough 850 A.2d 882 Township’s Assistant Officer Cmwlth.2004), petition allowance produced a photographs number of evi- denied, appeal 581 Pa. 863 A.2d 1150 dencing presence of conforming signs (2004). In pre order to overcome this along Rte. 422 advertising nearby onsite or constitutionality, sumption challeng businesses. er must demonstrate that the ordinance Citing the case of Borough legitimate excludes an otherwise Inc., Media, v. Patrick Outdoor challenger use. Unless the demonstrates (1985), Pa.Cmwlth. 496 A.2d 427 in question completely that the ordinance use, ZHB concluded that effectively legitimate or excludes a evidence, any b. The area of one side of di- tional the standard of review is rectional or shall not ex- the ZHB committed an of law whether error twenty-five ceed Valley View Civic abused discretion. Adjustment, Association v. Board of In an from land use decision 501 Pa. 462 A.2d 637 any where the trial court does not take addi- Thus, on we must carry appeal, failed its burden. first de challenger has correctly termine whether the con total or exclusion prove To effective heavy that LD use, cluded met the burden of can permitted challenger show that the proving Sign Ordinance uncon jure or the ordinance is either de de presented LD regard, stitutional. this facto testimony Joyce Hayes. and Mr. Mr. jure A de exclusion exists where testimony The crux was that the ordinance, face, totally on its bans a signs is far larg size of standard Macioce, use. 850 A.2d legitimate by than that er allowed Ordi Partnership, (citing Pittsburgh APT Ltd. *4 testimony, nance. Based this on Twp. Butler 196 F.3d County, v. Penn City, as decision in well as Court’s Dickson Cir.1999)). (3d. A de facto exclusion 475 opinions, other trial court went a use on permits exists where ordinance to conclude that on face, prohibit acts to applied its but when constituted de facto exclusion bill municipality. Id. the use boards. Maeioce, noted, the chal In the court “[i]f on our Based review record as is able to that the ordi lenger establish law, case precedential well as we cannot question, excludes the use in the same conclusion. While the tes- reach locality then shifts the state or burden to Joyce Hayes and timony of Messrs. re- zoning demonstrate ordinance ‘to importance flects the of uniform in public, to relationship

bears a substantial industry, simply is not the billboard it ” Id., health, safety, and welfare.’ to support sufficient a conclusion that the (citations omitted). A.2d at 888 Sign Ordinance is unconstitutional. For and the ZHB has purposes, all intents equally recognized It is well industry to control allowed standards local long proper signs have been considered nor conditions. This is neither suitable zoning authori subjects regulation for satisfactory result. ties, regulation subject to with such Further, ZHB’s we believe the reliance arbitrary it not requirement be City misplaced. Dickson on Dickson discriminatory and must bear reasonable application City, appellee filed an for relationship morals wel building permit an “off-site” to erect Refining the community. fare of Atlantic borough’s property. on its The zon- board Marketing Corporation v. Board signs to be ing ordinance allowed erected Township, 147 York Pa. Commissioners of only manufacturing in dis- commercial or 418, 608 A.2d 592 The Cmwlth. signs, gross The not to have tricts. were authority rigorous can zoning establish ob (com- square of more than 100 surface size, jective in for standards its ordinance (manu- district) or 150 mercial signs placement, materials or coloration district) and, additionally, facturing were is mini that their offensiveness to insure only or call permitted to advertise atten- possible. Signage much as Id. mized as professional the commercial or ac- tion to utilizing objective stan these being conducted direct- tivities which were they are rea upheld where dards will ly premises on the where was clearly permissible to sonably related erected. objectives maintaining the aesthetics of City in filed an safety appellee The Dickson fostering public area building permit for a erect a pass application through preventing the distraction property. foot ing motorists. note, however, that the order application appellee was refused and the We must from is the ... order which applied appealed then for curative amendment. exceptions Borough’s dismissed borough’s application challenged This sustaining ... the trial court’s order grounds on the it excep- These appellee]. [the excluded out- unconstitutionally “off-site” specifically not the trial tions did contest door and that ruling limitations court’s the size repre- and 150 feet size restriction ‘de facto’ ban. an unconstitutional were sented an de facto of out- illegal exclusion such, properly this issue has not As been ar- advertising signs. part door As of its waived. preserved and is therefore gument, appellee stressed that City, 496 A.2d at 430. sign produced Accordingly, to that the ZHB the extent proposition cited Dickson The borough appellee’s appli- denied the that sign standards somehow but, cation on appeal, the trial court sus- ordinances, in sign control size limitations *5 request. tained Upon appeal, the further Furthermore, it in error.3 was also be- this Court in appellee held had cause LD has not shown the effective ex- fact proof by showing met its of burden legitimate use, clusion of it has not met total ban of “off site” within advertising and the order of the trial court burden However, the borough. bor- because the is therefore reversed.4 ough bring failed to forward sufficient and valid prohibition, reasons for the held we ORDER that it failed to show that the ordinance NOW, November, this 1st of day AND relationship bore a order of of the Court Common Thus, general morals and welfare. County of Berks Pleas is reversed. court City held the ordi- nance “off prohibiting advertising site” was Judge DISSENTING OPINION BY unreasonable and invalid. FRIEDMAN.

The Dickson court on then went respectfully majority I dissent. re- The reject borough’s argu- “alternative verses a decision of the of Common Court that, ment” in event it was determined (trial court), Pleas of Berks which that the total of “off advertising ban site” (ZHB) affirmed the Board Hearing unconstitutional, it properly could still of Township’s (Township) holding Exeter regulate of the size billboards. Address- Township’s Sign uncon- Ordinance ing portion the borough’s argument, of stitutionally The ma- excludes billboards. the Court stated: jority Sign holds Ordinance does place larger 3. We signs note that de facto exclusion is if in the shown tive for LD Town- but, permits an ordinance a use on its face ship, do such financial interests not render applied, prohibits when the use Sign Clearly, Ordinance Here, municipality. Macioce. record governed by Sign the area Ordinance is reflecting photographs contains a of number being reasonably purposes per- used advertising signs that meet the size restric- mitted. (R.R. Sign tions set forth in Ordinance. 531a-537a). signs fact that exist is That these light holding, of not our we will address evidence, itself, is no in and that there remaining issues in this raised on Sign exclusion in the Ordinance. While it action. certainly economically would more lucra- 206 have held many Courts occasions that

not exclude billboards dealing regulation per- with Sign because the Ordinance Township munici within a signs and billboards are advertising signs are mits off-site power. Corporation, Norate pality’s police billboards.1 industry-standard than smaller 417 reasons, Adjustment, agree. I cannot Inc. v. Board following For the (1965). However, 397, 207 A.2d Pa. 890 permits The court held that an ordi supreme has our signs commercial advertising off-site advertising prohibiting all off-site (ZHB’s op. districts. and industrial id., unreasonable, and that signs 1.) However, one any area of side at with flash prohibiting signs all may not exceed twen- Ap patently unreasonable. ing lights is feet, area of all ty-five square and the total Co., R. Auto. 423 Ammon Smith peal of any any premis- facing one street on (1966). Moreover, A.2d Pa. not exceed 100 feet. es pro has held that an ordinance this court industry-standard minimum billboard is Am hibiting revolving signs all is invalid. (ZHB’s 4, Findings at op. Zoning Board Corporation Hess erada 3.) Fact, Thus, ZHB found that No. Adjustment, Pa.Cmwlth. industry- all Ordinance excludes A.2d 787 billboards from the Fact, 2.) validity of challenging person No. Once op. Findings of ordinance to- shows that the an ordinance Property a constitutional owners have business,2 type tally particular bans a *6 property. right enjoyment to the of their id., the must establish sign, municipality Bedminster Developers, & M Inc. v. C total by the public purpose served Board, 573 Pa. Township Hearing Shomo, 5 Pa. Derry Borough ban.3 (2002). However, a munic- 820 A.2d In oth- 289 A.2d 513 Cmwlth. may right by limit that ipality reasonably words, may totally ex- a municipality er to zoning a enacting pursuant only type if the a certain clude i.e., police power municipality’s power, municipality particu- that establishes health, public safety, morali- protect to public injurious is to type lar owners ty Property and welfare. Id. health, safety, morality or welfare. zoning ordinance challenge validity of Here, Sign Ordi- Township the Exeter ordinance is by showing industry-standard unreasonable, excludes or not substantial- arbitrary, (ZHB’s Findings at e.g., op. power, by billboards. ly police related 2.) found, Fact, However, No. showing that ordinance is by the presented testimony based Thus, reviewing to determine 3.In ordinance majority that an off-site believes validity, generally employ does not meet a substantive courts is nevertheless bill- standards for billboards balancing inquiry, involving process due board. rights against public in- properly owner police protect. power that the seeks terest indicates 2. The evidence the record Developers. & M A conclusion C a rental business that determina- is valid ordinance necessitates printing relies uniform by public purpose served tion that 3.) (ZHB’s op. at accommodate advertisers. outweighs property adequately Thus, industry-standard bill- the exclusion of they with their rights to do see fit owners' as Township is the exclusion from Exeter boards property. Id. type particular of rental business. (1) Township, industry-standard that: greater than

boards feet would injurious public safety; to the

industry-standard along billboards erected

either side of Route between Shelb- boundary

ourne Road and the line between Township Borough St. Lawrence injurious public safety.

would be 11.) Thus, op. at Township

could properly industry-standard exclude greater

billboards than and could properly ex- industry-standard

clude all billboards specified location along Route 422

within Because the ZHB

provides industry-standard billboards

in way protects welfare, morality and I see no error analysis.

in the ZHB’s

Accordingly, unlike the majority, I

would affirm.

Cynthia ROBERTSON, Appellant

HENRY CLAY TOWNSHIP ZONING Henry

HEARING BOARD and

Clay Township. Pennsylvania.

Commonwealth Court of

Argued Oct.

Decided Nov.