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RAYMOND DAIKELER AND BERT C. DAIKELER v. ZONING BOARD ADJUSTMENT MONTGOMERY TOWNSHIP (03/19/71)

decided: March 19, 1971.

RAYMOND DAIKELER AND BERT C. DAIKELER, TRADING AND DOING BUSINESS AS DAIKELER ASSOCIATES
v.
ZONING BOARD OF ADJUSTMENT OF MONTGOMERY TOWNSHIP, MONTGOMERY COUNTY, PENNSYLVANIA



Appeal from the decision of the Court of Common Pleas of Montgomery County, Civil Action -- Law, No. 68-12380, in case of Raymond Daikeler, et al., t/d/b/a Daikeler Associates v. Zoning Board of Adjustment. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.

COUNSEL

Edward J. Hardiman, with him Pearlstine, Salkin, Hardiman, Robinson, Hunn & Meinzer, for appellant.

John P. Knox, with him Curtis Wright, and Stefan Timoney, Knox & Avrigian, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer, and Barbieri (who has since been appointed to the Supreme Court of Pennsylvania and did not participate in the decision). Opinion by Judge Crumlish, Jr. Dissenting Opinion by President Judge Bowman.

Author: Crumlish

[ 1 Pa. Commw. Page 447]

This Court by virtue of the Appellate Jurisdiction Act of 1970 has before it an appeal from the Court of Common Pleas of Montgomery County which sustained the Montgomery Township Board of Adjustment.

The contention advanced by appellants is that an ordinance which purports to regulate the use of off-premises advertising signs in a township but does in fact arbitrarily and unreasonably prohibit the use is therefore unconstitutional. We agree.

Appellants, a partnership doing business as Daikeler Associates, operate a service station and automotive center (repair shop) on a highway in a limited industrial district in the Township. Daikeler was given a permit to erect two off-site "directional" signs, the first of which reads: "Esso 1/2 mile Last Esso on Right Before 309 Expressway"; the second: "Esso 1076 feet Last Esso on Right Before 309 Expressway". After they had been erected, Daikeler was notified by the Township that it was in violation of Section 903 of the Ordinance and ordered their removal. An appeal to the Zoning Board of Adjustment alleging the unconstitutionality of the Ordinance, Article 9, Sections 900-904, followed by a hearing, resulted in an order sustaining the Township. This was affirmed by the court below.

[ 1 Pa. Commw. Page 448]

Article 9, Section 903, regulating the use of signs in limited industrial districts, permits the following signs and no others, reading: "A. Any permitted sign, provided that the use to which it refers is permitted in the District and is on the same premises therewith. B. Directory signs listing the names of industries within the District, . . . C. Signs advertising the sale or rental of real estate on which they are located, . . . D. Signs in connection with a laboratory, for advertising of business conducted, products sold or manufactured on the premises, . . .". Neither Section 903 nor Sections 900, 902 or 904 which regulate the use of signs in the other zoning districts permit the use of off-premises advertising signs.

We agree with Judge Ditter that related to the issue herein resolved is Article 8 of the same ordinance which while specifying the only permitted uses within the "Limited Industrial" district excludes advertising signs as a permitted use in that district. Also related to the issue are Articles 4 through 7 of the ordinance which exclude advertising signs from the permitted uses in all other districts. These articles in the absence of Article 9, when taken together create a township-wide sign prohibition.

The authority of a township to establish township-wide use prohibitions is not in dispute, Exton Quarries, Inc. v. Zoning Board of Adjustment, 425 Pa. 43, 56, 228 A.2d 169 (1967). But that authority must be limited so that it does not infringe upon the Constitutional rights of its citizens.

Recognizing the danger, our Supreme Court sixty-five years ago, struck down an ordinance of the City of Chester specifically prohibiting all signs within that City. "(The City) had no power to enact an ordinance, common to a whole city and without regard to particular conditions existing in designated or zoned districts,

[ 1 Pa. Commw. Page 449]

    forbidding citizens to erect billboards on their own property . . .", Liggett's Petition, 291 Pa. 109, 116, 139 A. 619 (1927), discussing Bryan v. City of Chester, 212 Pa. 259, 61 Atl. 894 (1905). Recently, although recognizing the trends to liberalize or broaden the scope of a municipality's power in zoning affairs, the Supreme Court held a "blanket prohibition" to be too general, broad and unreasonable. In Norate Corp. v. Zoning Bd. of Adjustment, 417 Pa. 397, 207 A.2d 890 (1965), where a sign ordinance prohibited all off-site advertising "anywhere in the township", the Court held the regulation to be "patently unreasonable and invalid" because it attempted to regulate "without any regard for the districts set up under the Zoning Ordinance," 417 Pa. at 407; see also, Ammon R. Smith Auto Co. Appeal, 423 Pa. 493, 233 A.2d 683 (1966), which held an ordinance to be unconstitutional where it prohibited all flashing signs in the municipality.

Bryan and Norate both have held that in passing an ordinance which would call for total prohibition, a municipality must take into consideration the "conditions existing in the designated or zoned districts" or it cannot survive the challenge of unconstitutionality. The Zoning Board of Adjustment and the court below must determine whether the municipality did so. This Court in determining the ...


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