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Smith v. Hanover Zoning Hearing Board

Commonwealth Court of Pennsylvania

October 16, 2013

Joshua Smith t/a Advert Sign Solutions, Appellant
v.
Hanover Zoning Hearing Board

Argued: September 9, 2013

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION

JAMES GARDNER COLINS, Senior Judge

Joshua Smith, t/a Advert Sign Solutions (Applicant), appeals from an order of the York County Court of Common Pleas (Trial Court) that affirmed the Hanover Borough Zoning Hearing Board's (Board) denial of his applications for permits to erect two billboards on properties in Hanover Borough (Borough). We affirm.

I. BACKGROUND

In November 2011, Applicant filed applications for permits to erect two digital LED illuminated billboards on separate properties on Carlisle Street (State Route 94) in the Borough. (810 Carlisle Street Sign Application, November 28, 2011 (810 Carlisle Application), Certified Record (C.R.) at 1-2, 101-08; 1225 Carlisle Street Sign Application, November 21, 2011 (1225 Carlisle Application), C.R. at 4-5, 103, 110-19.) Each proposed billboard would be two-sided, 35 feet high and would have 242 square feet in sign area on each side. (810 Carlisle Application, C.R. at 103; 1225 Carlisle Application, C.R. at 112.) One of the billboards was to be located in the Borough's Local Business zoning district at 810 Carlisle Street and would have digital LED on one side and a static display on the other side. (810 Carlisle Application, C.R. at 103.) Applicant estimated that the cost of construction for this billboard was $110, 000. (Id.) The second billboard was to be located in the Borough's Shopping Center district at 1225 Carlisle Street and would have digital LED display on both sides with an estimated cost of construction of $180, 000. (1225 Carlisle Application, C.R. at 112.) Applicant, the owner of an outdoor advertising company, did not own either parcel but had entered into easement agreements with the property owners. (Minutes of January 16, 2012 Board Meeting (1/16/12 Minutes) p. 15, C.R. at 43; 810 Carlisle Application, C.R. at 102; 1225 Carlisle Application, C.R. at 111.)

The Hanover Borough Zoning Ordinance (Zoning Ordinance) does not permit billboards at the proposed sites in the Local Business and Shopping Center districts. Instead, the Zoning Ordinance permits "advertising sign[s], " defined as any "sign which directs attention to a business, product, service, or activity, sold or conducted at a location other than upon the premises where the sign is located, " only in the Heavy Industry zoning district. (Zoning Ordinance, Art. XXI §§ 140-114—140-116, C.R. at 318-21; Hanover Borough Sign Ordinance of 1975 (Sign Ordinance) § 102, C.R. at 334-36.) The Zoning Ordinance limits billboard signs to a maximum size of 300 square feet and a maximum height of 25 feet for free-standing billboards. (Zoning Ordinance, Art. XXI § 140-116, C.R. at 320-21; Sign Ordinance §§ 102, 106, 107.3(A), C.R. at 334-36, 343-45.) The Zoning Ordinance permits "business sign[s], " defined as any "sign which announces or directs attention to a business, product, service, or activity sold or conducted on the premises where such sign is located, " in both the Local Business and Shopping Center districts with a maximum height of 25 feet for free-standing business signs. (Id.)

On November 29, 2011, the Borough's Code Enforcement Officer denied both applications on the grounds that the proposed signs were not permitted in the Local Business and Shopping Center districts. (Denial Letters, C.R. at 3, 6.) Applicant appealed the permit denials to the Board, arguing that the billboards were a permitted accessory use and that the Zoning Ordinance unconstitutionally excluded billboards from the Borough. (Appeal Letter, December 20, 2011, C.R. at 7-8.)

The Board held evidentiary hearings on Applicant's appeal from the sign permit denials on January 16, 2012 and February 20, 2012. At the hearings, Applicant testified regarding his applications and he also called two expert witnesses, John Caianiello and Jack Powell. Caianiello, a consultant for small to mid-size billboard companies, testified that the advertising revenue for a billboard is based on the amount of passing automobile traffic on a daily basis and the estimated daily number of cars that would pass a billboard in the Heavy Industry district was 3, 522. (1/16/12 Minutes pp. 24-26, C.R. at 51-54.) He opined that the Heavy Industry district was not an "economically practical" location for billboards, calculating that the income that the proposed billboards could generate in the Heavy Industry district was less than the installation and maintenance costs amortized over a ten-year period. (1/16/12 Minutes pp. 22-28 & Applicant Exhibit, C.R. at 50-56, 124.) Caianiello also testified that the size of Applicant's proposed billboards, 242 square feet, was smaller than billboard industry standards, which range from 288 square feet to 672 square feet. (1/16/12 Minutes pp. 29-31, C.R. at 57-59.)

Powell, an engineer, testified that a 35-foot billboard height is compatible with the speed limit at Applicant's proposed locations and does not create traffic hazards. (1/16/12 Minutes pp. 34-36, C.R. at 62-64.) Powell also opined that a 35-foot high billboard was not as high as roof-top signs authorized by the Zoning Ordinance, and that billboards would need to be higher than on-premises signs so that they would not overlap and could be more easily seen. (1/16/12 Minutes pp. 33, 36, C.R. at 61, 64.)

Borough Manager and Zoning Officer Barbara Krebs and Borough Code Enforcement Officer Richard Rorrer also testified at the ZHB hearings. Krebs testified that the Zoning Ordinance does not permit billboards in the zoning districts where Applicant sought to place his billboards, and that the estimated 3, 522 cars per day traffic in the Heavy Industry district, where billboards are a permitted use, amounts to over one-fifth the population of the Borough. (1/16/12 Minutes pp. 37-38, C.R. at 65-66.)

Rorrer testified that there are six existing billboards in the Borough, which are in the Manufacturing and Light Manufacturing districts and were likely non-conforming uses built before the adoption of the current Zoning Ordinance. (Minutes of February 20, 2012 Board Meeting (2/20/12 Minutes) pp. 5-6, 22, C.R. at 74-75, 91.) Rorrer described the stretch of Carlisle Street where the two billboards were proposed as very commercially oriented with a number of existing on-premises business signs. (2/20/12 Minutes pp. 6-10, C.R. at 75-79.)

At the conclusion of the second hearing, the Board voted two to zero to deny the applications. (2/20/12 Minutes p. 30, C.R. at 99.) The Board issued a written decision on March 19, 2012 outlining the reasons in support of the denial. (Board Decision, C.R. at 15-19.) Applicant appealed to the Trial Court on April 12, 2012, asserting that the Zoning Ordinance unconstitutionally restricted billboards, that the Board erred in finding that the billboards were not accessory uses, and that the Board's written decision violated the Sunshine Act.[1] (Notice of Appeal, C.R. at 22-26.)

The Trial Court issued an order on January 17, 2013 denying Applicant's appeal. The Trial Court held that Applicant did not sustain his burden of overcoming the presumption of constitutionality of the Zoning Ordinance's restriction of advertising signs to the Heavy Industry district because Applicant only submitted evidence regarding the particular type of billboards he proposed to erect and no evidence that the Zoning Ordinance restricts billboards generally. (Trial Court Op. at 5-11.) The Trial Court also found that Applicant had not met his burden of overcoming the presumption of constitutionality of the Zoning Ordinance's 25-foot height restriction because Applicant did not submit evidence why the height restriction was unreasonable or why 25-foot signs were impractical at the proposed location. (Trial Court Op. at 13-15.) Next, the Trial Court found that Applicant failed to present evidence regarding the current and proposed development of the Borough, and thus could not demonstrate a violation of the "fair share" principle based upon a partial exclusion of billboards within the Borough. (Trial Court Op. at 11-12.) ...


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