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Interstate Outdoor Advertising, L.P v. Zoning Hearing Board of Warrington Township

March 13, 2012

INTERSTATE OUTDOOR ADVERTISING, L.P., APPELLANT
v.
ZONING HEARING BOARD OF WARRINGTON TOWNSHIP



The opinion of the court was delivered by: Dan Pellegrini, President Judge

Argued: February 14, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY

PRESIDENT JUDGE PELLEGRINI

Interstate Outdoor Advertising, L.P. (Interstate) appeals from an order of the Court of Common Pleas of Bucks County (trial court) affirming the Zoning Hearing Board (Board) of Warrington Township's (Township) finding that the Township Zoning Ordinance's (Ordinance) off-premises advertising sign provisions did not result in a de facto exclusion of billboards within the Township. Finding no error of law or abuse of discretion by the Board, we affirm.

Interstate applied for permits to construct a two-sided, 50-foot high, 672 square-foot billboard on each of two lots it leases on Easton Road (Route 611) in the Township's C-2 Commercial District. The Township's Zoning Officer (Zoning Officer) denied Interstate's applications because, pursuant to Section 2210.B of the Ordinance,*fn1 off premises signs are only permitted in the Planned Industrial One and Two (PI-1 and PI-2) Districts, can be no more than 50 square feet in area and 25 feet in height, and must comply with various setback limitations. Interstate appealed to the Board, arguing that the provisions of Section 2210.B(2) of the Ordinance created a de facto exclusion of billboards in the Township and seeking site-specific relief based upon the plans it had submitted.

To demonstrate that the Ordinance resulted in a de facto exclusion of billboards, Interstate called several witnesses*fn2 but its core testimony was from its Chief Operating Officer, Jeffrey Gerber (Gerber), who testified about the purpose of billboards and the size and traffic requirements to make them commercially viable.*fn3 As to the size of billboards, Gerber testified that the industry-standard size was 14 feet by 48 feet, or 672 square feet, which he stated was the size necessary to convey a message to passing motorists. He elaborated on the need for this size, stating:

They [Billboards] may just say [a company's name], but will have some type of artwork or something that will enhance that brand name.[i]t can be enhanced by artwork, it can be enhanced by text, and it varies, depending upon what the advertiser wants.it's all part of a message that is much different than what an on-premise sign can be, hence, the need for the size.

(February 3, 2009 Hearing Transcript at 61-62). Gerber went on to explain that on-premises signs can be smaller because "[t]he purpose of an on-premise sign is site identification. It's logo recognition; it's name recognition. Its purpose is not to convey a message." Id. at 32-33. With respect to the Ordinance's height restriction, Gerber testified that a maximum height of 25 feet would greatly diminish the visibility of billboards to passing motorists. Given the need for size and height, Gerber opined that the Ordinance's area and height restrictions would preclude an off-premises sign from effectively functioning as a billboard. He further stated that, even if it were possible to convey a commercial message on a sign of that size, the Ordinance's setback requirements would render such a sign unusable. Id. at 34.

In opposition, the Township presented the testimony of Victor DePallo (DePallo), a licensed landscape architect and land use planner whose company had been hired by the Township to conduct a study of Route 611. DePallo testified that, based upon that study, he made the recommendation that off-premises outdoor advertising signs should not be located along Route 611. DePallo stated that there were two primary reasons for his recommendation:

The first being just the size of the traditional billboard is too large for the coordinated or intimate style of signage that we saw being developed along the corridor. The second is the potential for a safety concern by the varying sizes, locations of the sign along the corridor. . [I]t's my opinion that when you have signage that is at varying heights and setbacks, et cetera, that it could become a distraction to a driver and thereby with that distraction could pose a safety hazard.

(February 10, 2009 Hearing Transcript at 15-16). DePallo opined that the Ordinance's area, height and setback requirements for off-premises outdoor advertising signs were reasonable, based on his review of other ordinances as well as his professional background. With regard to the sign dimensions proposed by Interstate, DePallo stated that they seemed large, explaining:

I think the size of the signage can be directly proportional to its visibility along the Corridor where it has been shown and I have seen 50 square foot signs set back 100 feet are very readable, therefore it's my opinion 672 square feet, while bigger, isn't necessarily better.

Id. at 20. After examining a computer-generated depiction of Interstate's proposed billboard, DePallo opined that the billboard seemed "out of scale, very large and very high.and an example of how the size and the location of the sign could potentially be a distraction to a driver, and therefore, a safety concern." Id. at 21-22. DePallo also disagreed with Gerber's distinction between ...


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