Opinion
No. 578 C.D. 2012
11-29-2012
Appeal of The Bartkowski Investment Group, Inc., From The Decision Of The Zoning Hearing Board of Springfield Township Dated April 12, 2011 Appeal of: The Bartkowski Investment Group, Inc.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
The Bartkowski Investment Group, Inc. (Applicant) appeals from the Delaware County Common Pleas Court's (trial court) March 30, 2012 order denying Applicant's land use appeal. Applicant essentially presents two issues for this Court's review: (1) whether Section 143-101(5) of the Springfield Township (Township) Zoning Ordinance (Ordinance) is invalid for totally excluding billboards without proving a substantial relationship to the public health, safety, morality, or general welfare, and (2) whether the trial court erred by not concluding that Applicant is a successful challenger entitled to site-specific relief. We reverse in part, and affirm in part.
Applicant is a corporation engaged in the business of outdoor advertising. Applicant entered into lease agreements with the owners of six properties in the Township, intending to construct two-sided 672 square foot billboards on the properties. On December 8, 2008, Applicant filed an application with the Township's Zoning Hearing Board (ZHB) alleging that the Ordinance is invalid and unconstitutional because it imposes a de jure total exclusion of billboards from the municipality. Applicant had originally requested variances and special exceptions from certain ordinances, however, those requests were subsequently withdrawn. See Notes of Testimony (N.T.) April 23, 2009 at 89; see also N.T. February 24, 2011 at 30.
On March 16, 2009, the ZHB commenced hearings on Applicant's application. On March 24, 2011, after 16 days of hearings, the ZHB denied Applicant's application. On April 12, 2011, the ZHB filed findings of fact, conclusions of law, and a decree stating: "this Board finds that the Township has met its burden of proof to show that the proposed billboards pose a danger to the public safety and the general welfare of [the Township]." Appellant's Br., ZHB's Op. at 119. On May 9, 2011, Applicant appealed to the trial court. On March 30, 2012, the trial court affirmed the ZHB's decision. Applicant appealed to this Court.
"[O]ur standard of review in a zoning case, where the Court of Common Pleas has taken no additional evidence, is limited to determining whether the zoning hearing board abused its discretion or committed an error of law." Zoning Hearing Bd. of Sadsbury Twp. v. Bd. of Supervisors of Sadsbury Twp., 804 A.2d 1274, 1278 (Pa. Cmwlth. 2002).
Applicant first argues that the Ordinance is invalid for totally excluding billboards. Specifically, Applicant contends that billboards are a legitimate land use which cannot be excluded from the Township without sufficient justification.
The Ordinance states in pertinent part: "A. Prohibited signs. It is unlawful to erect or maintain the following signs . . . (5) Outdoor advertising billboards." Ordinance, § 143-101(A)(5). The Pennsylvania Supreme Court has explained:
[N]otwithstanding the presumed validity of zoning ordinances:
[t]he constitutionality of zoning ordinances which totally prohibit legitimate businesses . . . from an entire community should be regarded with particular circumspection; for unlike the constitutionality of most restrictions on property rights imposed by other ordinances, the constitutionality of total prohibitions of legitimate businesses cannot be premised on the fundamental reasonableness of allocating to each type of activity a particular location in the community.
Twp. of Exeter v. Zoning Hearing Bd. of Exeter Twp., 599 Pa. 568, 580-81, 962 A.2d 653, 660 (2009) (quoting Exton Quarries, Inc. v. Zoning Bd. of Adjustment of W. Whiteland Twp., 425 Pa. 43, 59, 228 A.2d 169, 179 (1967)) (citations and footnote omitted) (emphasis added). Here, it is undisputed that the Ordinance completely excludes billboards as a use. See Respondent's Br. at 7. The record does not reveal that the Township presented sufficient evidence to the ZHB to substantiate its high burden that there exists justification for a Township-wide billboard prohibition. Rather, the Township's evidence and the ZHB's findings and determinations were limited to a 1.3 mile stretch of land within the Township.
Therefore . . . '[a] zoning ordinance which totally excludes a particular business from an entire municipality must bear a more substantial relationship to the public health, safety, morals and general welfare than an ordinance which merely confines that business to a certain area in the municipality.'
It is clear that ordinances addressing the regulation of signs, billboards, and other outdoor advertising media are within the police power of a municipality. Thus, a zoning authority is empowered to regulate, inter alia, billboard size. Moreover, a municipality may divide the municipal area into districts and prohibit or regulate activities such as advertising in areas whose character is not consistent with that use. However, since billboards are not objectionable per se , a blanket prohibition on billboards without justification cannot pass constitutional muster.
The ZHB summarized its findings as follows:
In summary, this Board finds that Springfield Township has met its burden of proof with clear and convincing evidence that: [1] the 1.3 mile stretch of Baltimore Pike where the proposed billboards would be constructed is presently a highly trafficked road[;] [2] there are numerous dangerous conditions currently along Baltimore Pike which require a driver's complete and total attention while performing the driving task; [3] the proposed billboard would further complicate the driving task, placing the public at further risk of bodily injury and/or death, as well as additional property damage; [4] the proposed billboards would be the tallest structures on the 1.3 mile stretch of Baltimore Pike; [5] there is no way to adequately buffer the billboards to shield them from neighboring residences; [6] the neighboring residential properties will have a clear view of the billboards during the day and the light emanating from them during the evening hours; [7] the billboards will cause the neighboring residences both a personal and financial hardship; [8] regulating the billboards is a valid police power of Springfield Township; [9] protecting the neighboring residential properties that will be directly affected by the proposed billboards as well as pedestrians and the driving public who will be exposed to additional dangers due to greater driver distraction, are also valid police powers; [and] [10] all of the elements which were found in the [H.A. Steen Industries , Inc., d/b/a Steen Outdoor Advertising v. Zoning Hearing Board of Upper Providence (Pa. Cmwlth. No. 1224 C.D. 2008, filed December 24, 2009)] and [Exeter] cases exist along Baltimore Pike, therefore, this Board is bound by these decisions.Appellant's Br., ZHB Op. at 118-19. As stated in Exeter:
[O]ur analysis in a case like this one proceeds in two steps. With our limited standard of review in mind, we first consider whether the challenging party has overcome the presumed constitutionality of an ordinance by showing it excludes billboards as a use. If we determine the challenger
has done so, we then consider whether the municipality has salvaged the ordinance by presenting evidence to show that the exclusionary regulation bears a substantial relationship to the public health, safety, morality, or welfare.599 Pa. at 582, 962 A.2d at 661.
Because the Ordinance completely excludes billboards throughout the Township, Applicant has met the first step and overcome the presumed constitutionality of the Ordinance. With respect to the next step, whether the municipality has salvaged the Ordinance by presenting evidence to show that the exclusionary regulation bears a substantial relationship to the public health, safety, morality, or welfare, this Court notes that the cases cited by the ZHB as controlling do not address the issue that was presented to the ZHB. The Exeter Court only addressed the issue of whether the ordinance in that case was de facto exclusionary. Having concluded that it was, the Court stated that the next step would be to determine if there was a substantial relationship to the public health, safety, morality, or welfare, "[t]hat question, however, is not before us." Id., 599 Pa. at 585, 962 A.2d at 663. Similarly, this Court in Steen, only addressed the issue of whether Steen was entitled to erect his proposed signs since the zoning hearing board concluded the ordinance at issue was exclusionary, not whether the exclusion was justified. Thus, neither Exeter nor Steen addressed the issue currently before this Court.
Steen is an unpublished opinion and is, thus, not precedential. --------
Further, while the Township presented the testimony of numerous witnesses to prove that the total exclusion was justified, the majority of that evidence was specifically directed at the proposed locations where Applicant wished to erect its billboards. The Township presented the testimony of Detective Daniel McNeely (Detective McNeely); engineering psychology expert Jerry Wachtel, C.P.E. (Mr. Wachtel); resident Rose Grelis; Township Engineer Joseph Mastronardo, P.E. (Mr. Mastronardo); and land planning expert Thomas J. Comitta, AICP, RLA, ASLA (Mr. Comitta). Intervening neighbor Lesniak, Coulston & McKinney, LLC introduced testimony from Raymond McKinney. In addition, 47 Township residents made public comments in opposition to the proposed billboards.
Detective McNeely testified as to the character of Baltimore Pike, including a large volume of pedestrian traffic, pedestrians exiting SEPTA busses and crossing five lanes of traffic, and pedestrians crossing Baltimore Pike between crosswalks. Detective McNeely further testified as to the volume of automobile and traffic accidents on Baltimore Pike. See N.T. March 25, 2010 at 11-24. Mr. Wachtel testified with regard to his investigation of the proposed billboards and the sites where they would be located. He testified that, in his expert opinion:
[T]he signs as proposed given their location, their size, their height, the distance from which they can be seen are detrimental to traffic safety because they will impose excessive demands on the driver's attention pattern, they will distract drivers, and that distraction can lead drivers to make errors on a road such as Baltimore Pike which demands careful driver attention to the driver task.N.T. April 22, 2010 at 77. Mr. Mastronardo testified regarding the fall zones and collapse zones of the proposed billboards. He further testified that he did not believe that the proposed billboards were safe because, although designed to withstand 90 m.p.h. winds, the Township had experienced higher winds in the past, and the proposed billboards were not far enough from other structures to prevent damage from their collapse. Lastly, he testified that, in his expert opinion, the billboards are "not suitable for the application in [the Township]." N.T. May 27, 2010 at 79.
Mr. Comitta testified that the size of the billboards, as proposed, was inappropriate for the surrounding neighborhood, given that surrounding structures are no more than 35 feet in height, and would negatively impact nearby residential neighborhoods, that the billboards could not be buffered or screened from nearby residential neighborhoods due to their height, and that the billboards would be inconsistent with the Township's Comprehensive Plan and the Baltimore Pike Green Boulevard Plan. Lastly, he testified that, in his expert opinion, he did not "believe there would be any places that would be appropriate" in the Township for the proposed billboards. N.T. September 23, 2010 at 34.
Notwithstanding the above testimony, there is no evidence directed at the entire Township. Moreover, the testimony, as stipulated by the parties, concerned billboards sized 672 square feet, the proposed size of Applicant's billboards, when the Ordinance expressly prohibits all billboards and the definition of billboard is absent from the Ordinance. The Township's concerns would be more aptly addressed through regulating billboards as opposed to prohibiting billboards unless there is substantial justification. In addition, as stated above, the majority of the evidence was directed to the specific locations and size of the proposed billboards.
The one exception was Mr. Comitta's testimony that there would be no other place within the Township that would be appropriate for billboards like those proposed. This single statement was the basis for the ZHB's finding that "there is no place in [the Township] that would be appropriate for the proposed billboards." Appellant's Br., ZHB's Op. at 89. Clearly, this single unsubstantiated conclusion is not sufficient to justify a prohibition of all billboards throughout the entire Township. "[T]he constitutionality of a zoning ordinance which totally excludes a legitimate use must be highly scrutinized and, thus, such ordinance must bear a more substantial relationship to a stated public purpose than a regulation which merely contains a use to a certain zoning district." Adams Outdoor Adver., Ltd. v. Hanover Twp. Zoning Hearing Bd., 633 A.2d 240, 245 (Pa. Cmwlth. 1993). Without testimony regarding billboards of other dimensions, and specific evidence regarding how a prohibition of billboards is justified in each zoning district within the Township, the Township cannot meet its burden. Accordingly, this Court holds that Section 143-101(5) of the Ordinance is unconstitutional for totally excluding billboards from the entire municipality and that the Township did not prove a substantial relationship between the exclusion and the public health, safety, morality, or general welfare.
Applicant next argues that the trial court erred by not concluding that Applicant is a successful challenger entitled to site-specific relief. Particularly, Applicant contends that where there is a total exclusion, the sole remedy is granting site-specific relief. We disagree. "[A]pproval of a [successful] challenger's plan is not automatic but must be predicated on the suitability of the proposed site and various health and safety considerations . . . ." Id., 633 A.2d at 245.
Here, while the Township did not present sufficient evidence to justify a total exclusion, it did present sufficient evidence to show that the proposed sites were not suitable for the proposed billboards. Accordingly, this Court holds that the trial court did not err when it concluded that although Applicant is a successful challenger, it is not entitled to site-specific relief.
For all of the above reasons, the portion of the trial court's order finding that the Ordinance is valid is reversed, and the portion of the trial court's order finding that Applicant is not entitled to site-specific relief is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 29th day of November, 2012, the portion of Delaware County Common Pleas Court's March 30, 2012 Order (Order) finding that Section 143-101(5) of the Springfield Township Zoning Ordinance is valid is reversed, and the portion of the Order finding that The Bartkowski Investment Group, Inc. is not entitled to site-specific relief is affirmed.
/s/_________
ANNE E. COVEY, Judge