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Richard Gulan and Tina Gulan v. Zoning Hearing Board of

June 22, 2011


The opinion of the court was delivered by: Bernard L. McGINLEY, Judge

Argued: March 7, 2011



Richard Gulan (Gulan) and Tina Gulan (Mrs. Gulan) (collectively, the Gulans) appeal the order of the Court of Common Pleas of Adams County (common pleas court) that affirmed the decision of the East Berlin Borough Zoning Hearing Board (Board) that the smoker/cooker placed on the street in front of the Gulans' business was a sign and because it was placed on the sidewalk within the right-of-way it violated Section 507(1) of the East Berlin Borough Zoning Ordinance (Ordinance). *fn1

Mrs. Gulan owned property located at 507 West King Street in East Berlin, Pennsylvania where the Gulans operate a barbecue restaurant known as "Hog Wild." Gulan primarily operates the restaurant. Hog Wild serves chicken and pit beef barbecue. The chicken is prepared in an outdoor smoker/cooker parked in front of the business on the sidewalk along the curb of State Route 234 which is also known as West King Street.

Based on information received in April 2009, Robert Thaeler (Thaeler), the zoning officer for East Berlin Borough (Borough), investigated complaints about signage at 507 West King Street by reviewing the Ordinance provisions on signs and by visiting the property in May 2009. The three signs Thaeler examined were a free standing sign mounted on a pole which hung over the sidewalk, a temporary or A-frame sign, and the smoker/cooker parked on the sidewalk in front of the business. The A-frame was placed on the Gulans' property adjacent to the sidewalk. The smoker/cooker was parked on the sidewalk adjacent to the curb.

Thaeler issued a notice of violation dated June 26, 2009, to Mrs. Gulan. Sections 507(3) and 507(C) of the Ordinance limit a business to two business signs at the property. Although the notice alleged there were four signs, at the hearing, it was agreed that there were three signs. Section 507(K) of the Ordinance prohibits any temporary sign not listed specifically in Section 507(K)(3) of the Ordinance. The A-frame sign and the smoker/cooker were not listed as temporary sign uses.*fn2

The Board conducted a hearing on September 22, 2009. Thaeler testified that the smoker/cooker was located within the right of way in violation of Section 507(1). Notes of Testimony, September 22, 2009, (N.T.) at 15. Thaeler concluded that the smoker/cooker was a sign and was in violation of the Ordinance. N.T. at 17. On cross-examination, Thaeler admitted that no lettering or pictures were attached to the smoker/cooker and that the smoker/cooker was on wheels. N.T. at 30. Thaeler assumed that the smoker/cooker was used to promote the interest of Gulan's business. N.T. at 35. Thaeler also testified that the smoker/cooker had a "head with horns" attached to it. N.T. at 48.

Bob Clayton (Clayton) testified on behalf of East Berlin Borough, that he visited the restaurant in the summer of 2007, to have lunch. While there, he spoke to Gulan:

I asked him a question because I had an interest - I had seen the cooker outside. And while my lunch was being prepared, I asked him, Are you cooking outside? The reason I asked that question is because an organization that I belonged to wished to create a cooker and I needed some information about it.

And he said to me, No, that's just a sign, just an advertisement for this place. I said, I saw smoke. He says, Well, we have a little thing inside with just a little bit of wood to make smoke.

N.T. at 51.

Gulan testified that the smoker/cooker had no lettering or pictures on it. He cooked chicken in it every day. N.T. at 61; Reproduced Record (R.R.) at 4a.*fn3 Gulan was able to see what was happening inside the restaurant when he cooked outside. N.T. at 72; R.R. at 15a. On cross-examination, he stated he moved the smoker/cooker a couple of times to cook elsewhere. N.T. at 78; R.R. at 21a. Gulan cooked other meat in smokers behind the restaurant. Beef did not require as much supervision as chicken. Gulan explained the benefits of locating the smoker/cooker on the sidewalk:

I actually need to see inside from right there. I have a clear spot to see that my wife's okay inside. And from the big window . . . I can see when I'm inside on the register outside at my cooker, I can actually tell what the temperature is. I can see my dial all the way from the inside. Again, it gets used almost daily for ...

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