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Appeal of Bartkowski Inv. Group, Inc.

Commonwealth Court of Pennsylvania

December 8, 2014

Appeal of the Bartkowski Investment Group, Inc. From the Decision of the Zoning Hearing Board of Haverford Township Dated March 1, 2012. Appeal of: Bartkowski Investment Group, Inc

Argued,  September 11, 2014

Page 231

Marc B. Kaplin, Blue Bell, for appellant.

James J. Byrne, Jr., Kelly S. Sullivan, Media, for appellee Township of Haverford.

Michael G. Crotty, Chester Springs, for appellees Sandra Donato, Mark Capriotti, Michelle Collier, Margaret Murr.

William E. Malone, Jr., Media, for appellee Zoning Hearing Board of Haverford Township.

BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge.

OPINION

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BROBSON, JUDGE

Before the Court is an appeal from a decision by the Court of Common Pleas of Delaware County (trial court), which reversed in part a decision of the Zoning Hearing Board of Haverford Township (ZHB) on the substantive validity challenge of Appellant Bartkowski Investment Group, Inc. (BIG) to the Haverford Township (Haverford) zoning ordinance (ZO). The trial court held tat Haverford failed to justify a municipality-wide exclusion of billboards in its zoning ordinance. Nonetheless, the trial court found substantial evidence in the record to support the ZHB's determination that health, safety, and welfare concerns justified rejection of BIG's proposed billboards in Haverford. For the reasons set forth below, we will affirm the trial court in part, but will remand the matter to the trial court for additional proceedings.

I. BACKGROUND

On or about February 19, 2009, BIG filed applications with the ZHB, seeking approval to construct several billboards in Haverford. In those applications, BIG raised substantive validity challenges to the ZO based upon the alleged municipality-wide exclusion of billboards. Although the original applications proposed the construction of billboards on six sites in Haverford, only four sites are currently at issue: (1) 2040 West Chester Pike, (2) 1157 West Chester Pike, (3) 658 Lancaster Avenue, and (4) 600 Lancaster Avenue.

The ZHB conducted a series of twenty-seven hearings on the applications, between May 7, 2009 and February 2, 2011. We briefly summarize the pertinent testimony the ZHB deemed credible. Haverford's Deputy Chief of Police, John Viola, testified regarding a report he prepared of accidents occurring on West Chester Pike and Lancaster Avenue over a three-year period. In that time period, twenty-one " reportable" accidents occurred and sixty-one " non-reportable" accidents occurred on a stretch of Lancaster Avenue in Haverford, and 190 reportable accidents and 570 non-reportable accidents occurred on a stretch of West Chester Pike in Haverford. (R.R. at 1149a-52a; 1155a-56a; 1154a.) A total of six of the accidents that occurred on Lancaster Avenue and West Chester Pike involved pedestrians. (R.R at 1155a-56a.) During that three-year period, Haverford Police issued thirty-nine traffic citations along the one and one half mile stretch of Lancaster Avenue in Haverford and 3,369 citations along West Chester Pike. (R.R. at 1155a-56a.)

Chief Viola also testified regarding specific traffic concerns relating to 2040 West Chester Pike. Chief Viola testified that the area around this location has high traffic volume and poor traffic flow because of vehicles attempting to merge into one lane

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in order to access the Blue Route or head west on West Chester Pike. (R.R. at 1159a.) Chief Viola also noted that there are bus stops on both the east and west sides of West Chester Pike near the proposed billboard locations, which generate pedestrian traffic, despite the lack of a pedestrian crossing. (R.R. at 1160a.)

Haverford offered the testimony of Jerry Wachtel, C.P.E, who the ZHB accepted as an expert in the fields of human factors, ergonomics, and engineering psychology. (Finding of Fact (FF) 110, 111, April 23, 2010 video deposition transcribed in original record at 32.) Mr. Wachtel observed that West Chester Pike is a " partial control of access" roadway, that is, one that limits the manner of access to and from the roadway. ( Id. at 66-67.) West Chester Pike has a median barrier that separates the east and west bound lanes of traffic. ( Id.) Mr. Wachtel observed that numerous pedestrian crossings, intersections, driveways, traffic signals, and a shoulder lane used by buses for periodic stops make complete access control unavailable on the portion of West Chester Pike. ( Id.) Mr. Wachtel testified that such roadways that have only partial access control are less safe than roadways that have full control of access. ( Id. at 67-68.) With regard to the stretch of Lancaster Pike where BIG proposes to erect its billboards, Mr. Wachtel testified that the area of roadway has no control of access. ( Id. at 68.) There is no central median separating eastbound and westbound traffic. ( Id.)

Mr. Wachtel classified signage into three general categories, in order of importance: (1) official (government-erected) signage; (2) on-premises advertising signage; and (3) off-premises advertising signage. ( Id. at 77.) All, according to Mr. Wachtel, have the potential to distract drivers. ( Id. at 84.) Mr. Wachtel opined, however, that the proposed off-site signs-- i.e., the billboards--of the dimensions proposed by BIG " have the potential to be more distracting than [the] typical on-premises sign." ( Id. at 85, 93.) Mr. Wachtel related his general concerns about the proposed billboards' dimensions relative to the proposed locations on along West Chester Pike and Lancaster Avenue. With respect to each location, he identified specific conditions that presented challenges to drivers, requiring a heightened degree of attentiveness to the roadway and traffic. ( Id. at 95-119.)

Haverford offered the testimony of Thomas J. Comitta as an expert regarding the development of land planning, zoning, and land development ordinances. (R.R. at 1343a.) The ZHB accepted his testimony as credible for the purpose of providing an opinion regarding the impact of the proposed billboards on the " scenic, historic, and aesthetic values of Haverford." (FF no. 150.) Mr. Comitta testified that the placement of the proposed billboards " would increase the incompatibility between massive billboards sitting on top of roofs of buildings that are highly visible and the normative streetscape environment and the character that I have known for the last 55 years" (R.R. at 1406a) and would be incompatible with the goals and objectives of Haverford's comprehensive plan (R.R. at 1464a).

Mr. Comitta testified that the proposed billboards were inconsistent with the character of the Haverford Historic District, an area from which the billboards would be visible, and that the billboards would have an adverse impact on Haverford's historic and scenic environment. (R.R. at 1406a-07a.) As to the billboard BIG proposes to erect at 658 Lancaster Avenue, Mr. Comitta offered several reasons why the proposed billboard at that site would have an adverse impact on the historic and scenic

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environment, including, inter alia, the following: (1) the disproportionate size and scale of the billboard when compared to existing buildings and streetscape; (2) close proximity of the billboard to and visibility from residential neighborhoods and a neighborhood commercial environment; (3) the billboard violates several aspects of the Haverford Comprehensive Plan; (4) the billboard cannot be buffered or screened; (5) the billboard is an " undesirable land use" ; (6) the billboard does not comply with other ZO provisions; and (7) " it is unlike anything else in the viewshed and should not be permitted in historical and residential neighborhoods." (R.R. at 1461a-67a.)

With regard to the billboard BIG proposes to erect at 600 Lancaster Avenue, Mr. Comitta testified that the billboard is too close to the billboard BIG proposes to erect at 658 Lancaster Avenue and would adversely affect the preservation of the scenic, historic, and aesthetic environment of the area. (R.R. at 1469a.) Mr. Comitta also testified regarding the billboards BIG proposes to erect on West Chester Pike. Mr. Comitta opined that those proposals were inappropriate for many of the same reasons he found the use inappropriate for Lancaster Avenue and that they are incompatible with the land uses in those locations and out of character with the surrounding neighborhoods. (R.R. at 1475a.) Finally, Mr. Comitta testified that billboards of the size proposed would have an adverse effect on the scenic, historic, and aesthetic values of the environment of Haverford. (R.R. at 1483a.)

Haverford also presented the testimony of David Pennoni, an expert in the field of engineering, who testified regarding the ramifications of structural problems and possible collapse of the proposed billboards. Mr. Pennoni testified that there have been three recorded tornados in the Township and that winds associated with tornadoes may cause concern for excessive wind load that could affect billboards. (R.R. at 1205a.) Mr. Pennoni testified regarding potential safety issues relating to falling billboards. For example, with regard to the billboard BIG proposes to erect at 2040 West Chester Pike, Mr. Pennoni testified that if the billboard, parts of the billboard, or ice on the billboards were to fall, the debris would impact travel along West Chester Pike and a parking lot that serves commercial buildings near the billboard. (R.R. at 1209a-10a.) Mr. Pennoni testified that the failure of or falling parts from the billboard proposed to be located at 1330 West Chester Pike could adversely affect overhead utility lines. (R.R. at 1214a-15a.) With regard to the billboard proposed at 658 Lancaster Avenue, Mr. Pennoni testified that the failure or collapse of a billboard at that location could impact travel on Lancaster Avenue and a building located below the proposed billboard structure, as well as have an adverse impact on an alleyway and utility wires that run along the alleyway behind commercial shops located on Lancaster Avenue. (R.R. at 1220a-22a.) As to the billboard BIG proposes to erect at 600 Lancaster Avenue, Mr. Pennoni testified that the failure of the billboard at that location could affect a residential area, overhead power and communication lines, and commercial establishments located along Lancaster Avenue. (R.R. at 1224a-26a.)

On February 16, 2012, the ZHB issued an oral decision denying BIG's substantive validity challenge. A written decision, containing 226 findings of fact and 29 conclusions of law, followed on or about March 1, 2012 (ZHB Decision). The ZHB relied in great part on the testimony and opinions of Messrs. Wachtel, Comitta, and Pennoni.[1]

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The Board rejected BIG's claim that the ZO was invalid because it prohibited billboards. Though finding that the ZO prohibits " billboards," the ZHB held that it does not prohibit all non-accessory outdoor advertising signs. (ZHB Decision at 44, Conclusion of Law No. 13.) According to the ZHB, for BIG to prevail on its substantive validity challenge, BIG was required to establish that the ZO prohibited all non-accessory outdoor advertising signs, and not just billboards. ( Id.)

The ZHB alternatively concluded that even if the ZO improperly excludes billboards, Haverford demonstrated that health and safety concerns support the prohibition of BIG's proposed billboards. In its conclusion of law 18, the ZHB reflected on the evidence relative to the stretches of roadway between proposed billboard locations. ( Id. at 45-46.) The ZHB found that the evidence demonstrated that the proposed billboards and proposed sites were not appropriate based on " public health, safety and welfare goals of traffic safety and community aesthetics." ( Id. at 47.) The ZHB also determined that the billboards would constitute a second primary use on the single lots upon which BIG proposes to erect the signs, and that provisions of the ZO prohibit second primary uses on single lots. Finally, the ZHB determined that the proposed billboards, individually, violated various provisions of the ZO. ( Id. at 47-48.)

BIG sought the trial court's review of the ZHB Decision pursuant to Article X-A of the Municipalities Planning Code (MPC), governing land use appeals.[2] Haverford and a group of residents (Residents) intervened to oppose BIG's appeal. The Township of Lower Merion (Lower Merion), which shares a border with Haverford close to the proposed billboard sites, also intervened to oppose BIG's land use appeal. The trial court did not take any evidence, relying instead on the record created before the ZHB. By order dated May 1, 2013, the trial court established a briefing schedule and set a date for oral argument.

In its principal brief to the trial court, BIG challenged the ZHB's determination that the ZO was not unconstitutionally exclusionary as to billboards. In the event that the trial court agreed with BIG on this issue, BIG requested that the trial court exercise its authority under Section 1006-A(c) of the MPC, which provides:

If the court finds that an ordinance or map, or a decision or order thereunder, which has been brought up for review unlawfully prevents or restricts a development or use which has been described by the landowner through plans and other materials submitted to the governing body, agency or officer of the municipality whose action . . . is in question on the appeal, it may order the described development or use approved as to all elements or it may order it approved as to some elements and refer other elements to the governing body, agency or officer having jurisdiction for further proceedings, including the adoption of alternative restrictions, in accordance with the court's opinion and order.

BIG specifically asked the trial court to conduct a hearing to determine " the measure

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of site-specific relief BIG is entitled to as the successful challenger of the [ZO]." (Certified Record (C.R.) No. 26 at 27 (emphasis added).)

Following briefing and oral argument, the trial court issued a Decision on December 23, 2013. (C.R. No. 32.) The Decision contained findings of fact, which, for the most part, aligned with some of the ZHB's factual findings. The trial court also set forth its standard of review and its view of the legal standard governing the relief sought by BIG. In its analysis, the trial court, however, gave weight to the ZHB's acknowledgement, noted above, that the ZO effectively excluded billboards " of the dimension and physical configuration" that BIG requested. ( Id. at 23.) Nonetheless, it concluded that Haverford presented sufficient evidence to support the ZHB's decision that BIG's proposed billboards--measuring 14' by 48', for a total of 672 square feet--were not suitable for the proposed sites. " As such," the trial court held, " the March 1, 2012 decision of the ZHB is affirmed to the extent that the billboards proposed by [BIG] were not suitable for the proposed sites." ( Id. at 24 (emphasis added).)

On or about January 6, 2014, BIG filed a timely notice of appeal, challenging the trial court's Decision. The trial court directed BIG to file a statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). BIG filed its statement on or about January 27, 2014, raising the following errors:

1. The Court committed an error of law and/or abused its discretion in determining that the findings of fact contained in the [ZHB's] decision were supported by substantial evidence.
2. The Court committed an error of law and/or abused its discretion in failing to conclude that the [ZO] excludes all billboards.
3. The Court committed an error of law and/or abused its discretion in failing to conclude that the record does not provide adequate justification to support the total exclusion of all billboards from Haverford Township.
4. The Court committed an error of law and/or abused its discretion in failing to conclude that the [ZO]'s total exclusion of billboards is unconstitutional.
5. The Court committed an error of law and/or abused its discretion in determining that the [ZHB] had jurisdiction to determine BIG's entitlement to site-specific relief.
6. The Court committed an error of law and/or abused its discretion in determining that the [ZHB] was justified in denying BIG any site-specific relief based upon the Township's evidence concerning billboards of one specific size.
7. The Court committed an error of law and/or abused its discretion in failing to determine that BIG, as a successful challenger of [an] unconstitutionally exclusionary zoning ordinance, is entitled to some measure of site-specific relief.

(C.R. No. 37.) On or about March 5, 2014, the trial court issued an opinion, presumably pursuant to Pennsylvania Rule of Appellate Procedure 1925(a) (1925(a) Opinion). But short of setting forth the issues raised by BIG in its statement, the opinion merely recasts the trial court's earlier Decision, without specifically addressing each of the foregoing issues: " [T]he March 1, 2012 decision of the ZHB was affirmed to the extent that the billboards proposed by BIG were not suitable for the proposed sites." (1925(a) Opinion at 22.)

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II. DISCUSSION

Section 916.1 of the MPC[3] authorizes a landowner to challenge the validity of a local ordinance on substantive grounds. The landowner may pursue that substantive validity challenge in one of two fora: (1) before the local zoning hearing board, or (2) before the governing body ( e.g., board of supervisors, council, board of commissioners, etc.) by filing a request for a curative amendment. Section 916.1(a) of the MPC. Here, BIG chose to challenge the validity of the ZO before the ZHB and not by seeking a curative amendment from the governing body. Where a zoning hearing board hears a substantive validity challenge, the MPC provides:

Based upon the testimony presented at the hearing or hearings, the governing body or the zoning board, as the case may be, shall determine whether the challenged ordinance or map is defective, as alleged by the landowner. . . . If a challenge heard by a zoning hearing board is found to have merit, the decision of the zoning hearing board shall include recommended amendments to the challenged ordinance which will cure the defects found. In reaching its decision, the zoning hearing board shall consider the amendments, plans and explanatory material submitted by the landowner and shall also consider:
(i) the impact of the proposal upon roads, sewer facilities, water supplies, schools and other public service facilities;
(ii) if the proposal is for a residential use, the impact of the proposal upon regional housing needs and the effectiveness of the proposal in providing housing units of a type actually available to and affordable by classes of persons otherwise unlawfully excluded by the challenged provisions of the ordinance or map;
(iii) the suitability of the site for the intensity of use proposed by the site's soils, slopes, woodlands, wetlands, flood plains, aquifers, natural ...

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