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APPEAL R.C. MAXWELL COMPANY FROM DECISION WARMINSTER TOWNSHIP ZONING HEARING BOARD. R.C. MAXWELL COMPANY (10/06/88)

decided: October 6, 1988.

APPEAL OF R.C. MAXWELL COMPANY FROM DECISION OF WARMINSTER TOWNSHIP ZONING HEARING BOARD. R.C. MAXWELL COMPANY, APPELLANT


Appeals from the Orders of the Court of Common Pleas of Bucks County, in cases in In Re: Appeal of R.C. Maxwell Company From Decision of Warminster Township Zoning Hearing Board, Nos. 86-03962-09-5 and 86-03963-11-5.

COUNSEL

David H. Moskowitz, for appellant.

Stephen B. Harris, Harris and Harris, for appellee.

Judges Craig and Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Doyle. This decision was reached prior to the resignation of Judge MacPhail.

Author: Doyle

[ 120 Pa. Commw. Page 252]

R.C. Maxwell Company (Maxwell) appeals from two orders of the Court of Common Pleas of Bucks County, which affirmed decisions of the Warminster Township Zoning Hearing Board (Board) denying Appellant variances to erect two billboards in Warminster Township (Township). The appeals have been consolidated for argument in this court. We affirm.

Maxwell is in the outdoor advertising business. In 1985, Appellant leased two parcels of land in the Township in order to erect two billboards, which would have carried both commercial and non-commercial advertising. One parcel is located at the intersection of Street and Jacksonville Roads, while the other is at the corner of Street Road and Hardman Lane. Both parcels are zoned C-Commercial and are currently being used as gas stations.

At the Jacksonville Road location Maxwell wished to erect a double faced, free-standing, off-premises billboard

[ 120 Pa. Commw. Page 253]

    twenty feet tall, with a sign area twelve feet high by twenty-five feet wide, a total sign area of 300 square feet. This size billboard would require a size variance, since Section 1802(2)(b)(1) of the Township zoning ordinance limits the sign area of off-premises signs, such as billboards, to 200 square feet.

The Hardman Lane billboard would also be a double-faced, free-standing, off-premises billboard with a twelve foot by twenty-five foot sign area, but would sit atop a twenty foot tall pole, making the billboard thirty-two feet in height. This billboard would not only require a size variance because of its nonconformity with Section 1802(2)(b)(1), but also a height variance, since Section 1802(2)(b)(5) limits the height of off-premises signs to thirty feet.

Subsequently, Maxwell applied to the Board for required special exceptions to allow it to erect the billboards, and variances from the size and height requirements. After a hearing, the Board found that Maxwell had not demonstrated its entitlement to the variances, nor had it shown that it had satisfied the requirements of either of the two Township special exception regulations, Sections 1806 and 2205 of the Township zoning ordinance. The common pleas court affirmed the Board's decision without taking additional evidence. This appeal followed.*fn1

Maxwell's first two arguments, regarding the special exception, turn on whether Section 1806(3) of the Township zoning ordinance improperly shifts the burden of

[ 120 Pa. Commw. Page 254]

    proof to Maxwell regarding the need to show detriment to the public health, safety or welfare. Maxwell's first contention is that Section 1806(3) shifts the burden of proof to it regarding the need to prove detriment to the public health, safety and welfare. It contends this burden shifting constitutes an insurmountable burden for an applicant to satisfy and, thus, constitutes a de facto exclusion of billboards from the Township. See Serafini v. Taylor Borough Council, 36 Pa. D. & C. 3d 339 (1985). Maxwell's second contention is that this alleged shifting of the burden of proof is violative of our decision in Bray v. Zoning Board of Adjustment, 48 Pa. Commonwealth Ct. 523, 410 A.2d 909 (1980). To better understand Appellant's contentions, it is helpful to review the steps necessary to erect a billboard in the Township.

Section 1801(9) of the Township zoning ordinance requires anyone wishing to erect an off-premises sign, such as a billboard, to obtain a special exception. Section 2205(c) of the ordinance sets out the general requirements and standards applicable to all special exceptions, and directs the Board to grant a special exception only if it determines, inter alia , the proposed use and location would be:

(2) in the best interest of the Township, the convenience of the Community, the public welfare, and be a substantial improvement to the property in the immediate vicinity;

(4) in conformance with all applicable requirements of this Ordinance ;

The Zoning Hearing Board may impose whatever conditions regarding layout, circulation, and performance it deems necessary to insure that any ...


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