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Township of Exeter v. Zoning Hearing Board of Exeter Township

January 22, 2009

TOWNSHIP OF EXETER
v.
ZONING HEARING BOARD OF EXETER TOWNSHIP AND LAND DISPLAYS, INC.
APPEAL OF: LAND DISPLAYS, INC.



Appeal from the Order of the Commonwealth Court entered at No. 2545 CD 2005, on November 1, 2006, reversing the order of the Court of Common Pleas of Berks County, Pennsylvania, at No. 05-: 13146, entered on November 21, 2005, affirming the decision of the Zoning Hearing Board of Exeter Township entered on August 15, 2005 911 A.2d 201 (Pa. Cmwlth. 2006).

The opinion of the court was delivered by: Mr. Chief Justice Castille

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, JJ.

ARGUED: May 12, 2008

OPINION

In this appeal, we consider a challenge to the substantive validity of a local zoning ordinance that prohibits signs from exceeding a size of 25 square feet. For the reasons that follow, we conclude that the Zoning Hearing Board of Exeter Township ("Board") did not err in determining that ordinance is a de facto exclusion of billboards. Accordingly, we reverse the order of the Commonwealth Court and remand this matter to the Commonwealth Court for further proceedings consistent with this Opinion.

Appellant Land Displays, Inc. ("Land Displays") is in the outdoor advertising business. Land Displays erects billboards on real estate it leases. Between 2003 and 2005, Land Displays submitted applications to Appellee Township of Exeter ("Township") for permits to erect billboards on several parcels of property located in commercial or industrial zoning districts on or near U.S. Route 422 in the Township. The proposed billboards were off-site advertising signs, consisting of either 300 or 672 square feet of signage per side. The Township denied Land Displays' permit applications on the basis that the proposed billboards did not comply with the 25-square-foot size restriction set forth in Section 105.2 of the Exeter Township Sign Ordinance of 1996 ("Ordinance"), as amended on September 5, 2007.*fn1

Section 105.2 regulates the signs permitted in the Township's commercial and industrial areas and states in pertinent part:

105. Signs Permitted in Commercial and Industrial Zoning Districts * * * *

2. In addition, signs may be erected and maintained in Commercial and Industrial Zoning Districts, provided that:

a. The total area on one side of all signs placed or facing any one street frontage of any premises shall not exceed one hundred (100) square feet except in the case of a building housing more than one commercial or industrial use.

b. The area of any one side of a directional or advertising sign shall not exceed twenty-five (25) square feet.

Exeter Township, Berks County, Pennsylvania, Ordinance 400 (Sept. 5, 2007). Section 102.1 of the Ordinance defines an "Advertising Sign" as "[a] sign which directs attention to business, commodity, service or entertainment conducted, sold, or offered elsewhere than upon the premises where the sign is displayed." Id. In addition, Section 102 provides that the "Area of a Sign" includes "all lettering, wording and accompanying designs and symbols, together with background, whether open or closed, on which they are displayed," but not "any supporting framework and bracing which is incidental to the display itself." Id. There is no dispute that Section 105.2 of the Ordinance applies to billboards.

On October 14, 2003, March 11, 2005, and April 18, 2005, Land Displays filed five appeal petitions with the Board under Section 916.1 of the Pennsylvania Municipalities Planning Code ("MPC"). See 53 P.S. § 10916.1.*fn2 In its appeal petitions, Land Displays included a challenge to the substantive validity of Section 105.2 of the Ordinance. Land Displays alleged that Section 105.2 deprived it of constitutional property rights and interests without due process of law by operating as a de facto exclusion of billboards. Focusing on the 25-square-foot limitation on sign size in Section 105.2, Land Displays asserted that since national advertising industry standards set billboard size at either 300 or 672 square feet, Section 105.2 effectively banned billboards as a form of outdoor advertising in the Township. By agreement of the parties, Land Displays' appeal petitions were consolidated.

The Board held evidentiary hearings on the appeal petitions and on August 15, 2005, the Board issued its opinion and order. In its opinion, the Board highlighted the evidence the parties presented on the issue of Section 105.2's validity. The Board observed that Land Displays supported its assertion that Section 105.2 amounts to a de facto exclusion of billboards with testimony that billboards are uniformly sized at 300 or 672 square feet under national advertising industry standards; that standardized billboards facilitate the purchase of sign structure and the preparation of advertising material; and that a 25-square-foot sign is not an acceptable standard in the outdoor advertising industry.*fn3

The Board next observed that the Township supported its contention that Section 105.2 does not exclude billboards from the Township with photographs of existing 25-square-foot advertising signs in the Township and justified Section 105.2's enactment by the Township with testimony that the regulation addressed the Township's concerns for aesthetics and traffic safety along U.S. Route 422. The Board then made the following findings: that Section 105.2 is part of the Ordinance;*fn4 that as a result of the sign size limitation in Section 105.2, the Ordinance excludes billboards as a permitted use in the Township; that the industry standard for minimum billboard size is 300 square feet; that U.S. Route 422 is a heavily traveled four-lane highway in the Township, with speed limits that vary from 40 to 55 miles per hour; that only the southern portion of U.S. Route 422 is posted at 55 miles per hour; that U.S. Route 422's reduced speed zone areas abut areas of varying degrees of commercial development; that the credible evidence establishes that the maximum reasonable size for billboards in the Township is 300 square feet; that the Ordinance's other sections contain reasonable regulations on billboards; and that any billboard Land Displays proposes to erect must comply with all of the Ordinance's sign regulations, except as affected by the Board's decision. The Board made no findings as to whether Section 105.2's exclusionary effect on billboards throughout the Township was validated by the Township's concerns for aesthetics and traffic safety along U.S. Route 422.

The Board went on to note that a successful challenger to a zoning ordinance is entitled to site-specific relief, but that such relief may be subjected to reasonable regulation. Id. at 8, citing, e.g., Casey v. Zoning Hearing Bd. of Warwick Twp., 328 A.2d 464 (Pa. 1974). Upon reviewing Land Displays' billboard proposals, the testimony of Land Displays' witnesses who conceded that national industry standards do not address local concerns, and the evidence the Township introduced regarding conditions along U.S. Route 422, the Board concluded that billboards not exceeding 300 square feet in size would be ...


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