Lamar Advertising Co. v. Forward Twp ZHB ~ Appeal of: Forward Twp (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lamar Advertising Company Forward Township Zoning Hearing Board : : : : : : Appeal of: Forward Township : v. BEFORE: No. 1496 C.D. 2007 Argued: February 11, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: March 5, 2008 Forward Township appeals from the order of the Court of Common Pleas of Allegheny County that granted site specific relief to remedy the de jure exclusion of billboards. In directing such relief, common pleas required compliance only with the prohibition against the sign s projecting over a public right of way. The Township contends that, while its zoning ordinance does exclude billboards, thus entitling the applicant to relief, the sign must be located on the site so as not to project into the front yard established by the setback provision generally applicable in the relevant zoning district. We agree and, therefore, reverse. Lamar Advertising Co. applied for a building permit to erect a two sided billboard on land along State Route 51 located in the B-1 Business District. Lamar proposed to mount the sign on a single pole placed at least 50 feet from the road right-of-way in compliance with the front yard setback applicable in the B-1 District. However, the sign, with a lower edge 18 feet above ground, would extend toward the road over the front yard. The zoning officer denied the application on the ground that the ordinance prohibits the use. Lamar appealed to the zoning hearing board (ZHB), challenging the ordinance as exclusionary and requesting site specific relief. Before the ZHB, the parties stipulated that the ordinance is exclusionary, the 50-foot front yard setback is a reasonable restriction,1 and the sign intrudes into the airspace above the front yard setback area. The ZHB failed to render its decision within 45 days after the conclusion of the last hearing, as required under Section 916.1(c)(6) of the Municipalities Planning Code (MPC),2 as amended, 53 P.S. ยง 10916.1(c)(6). In contrast to the well known deemed approval provisions in the MPC, Section 916.1(c)(7) provides that in the context of a substantive validity challenge, if the ZHB, or governing body as the case may be, 1 Before the ZHB, Lamar s attorney stipulated, in pertinent part, as follows: The fifth is the setbacks for the B-1 Zoning District relevant to this case are 50-foot front yard setback, and a 20-foot side yard setback. The sixth is Lamar stipulates that it will move the pole, as shown on the site plan . . . to meet the 20-foot side yard and the 50-foot front yard setback requirements. The seventh is the setbacks in the B-1 District are reasonable. The eighth is the bottom of the proposed sign face . . . is 18 feet above grade, and if the sign face touched the ground, it would intrude on the front yard area. Notes of testimony of December 15, 2005, at 19-20. 2 Act of July 31, 1968, P.L. 805, added by the act of December 21, 1988, P.L. 1329. 2 fails to render a timely decision, a denial shall be deemed to have occurred. A few days before the ZHB eventually rendered its decision denying site specific relief, Lamar proceeded with an appeal to common pleas from the deemed denial. Without taking additional evidence, common pleas considered the Township s contention that, while Lamar is entitled to erect the sign on the lot, insofar as the sign falls within the definition of structure, Lamar must fully comply with the general front yard setback applicable to all structures located in the B-1 District, that is, the sign cannot project over the prescribed front yard area. Common pleas rejected this contention and ruled that pursuant to Section 305, which applies specifically to a sign, billboard or exterior graphical display, Lamar need only comply with the restriction in Section 305.4(c) that, [s]igns shall not project over public right-of-way. Based on the stipulation that the ordinance excluded billboards and on the conclusion that the proposed billboard satisfies the applicable dimensional regulation, common pleas reversed the deemed denial and awarded site specific relief. Thereafter, the Township filed the present appeal, reasserting its contention that Lamar must place the sign so that no portion of it encroaches into the 50-foot setback.3 In general, when de jure exclusion of a legitimate use results in the substantive invalidity of a municipality s zoning ordinance, the sole remedy is to allow the use somewhere in the municipality and equity dictates that this opportunity fall to the successful litigant. Adams Outdoor Adver., Ltd. v. Borough of Coopersburg Zoning Hearing Bd., 625 A.2d 768, 770 (Pa. Cmwlth. 1993). Hence, when a landowner prevails in challenging the validity of an ordinance on 3 Because this contention calls into question the proper interpretation of the ordinance, an issue of law, review in common pleas and in our court is plenary. 3 the ground that it is exclusionary, relief must be site specific, that is, the landowner is entitled to proceed with his plans so long as the site is suitable and the plans conform to reasonable preexisting regulations such as those related to size and setbacks. See J.B. Steven, Inc. v. Bd. of Comm rs of Wilkins Twp., 654 A.2d 135, 139 (Pa. Cmwlth. 1995). In the present case, the only issue is whether a prohibition against any structure encroaching over the front yard applies so as to mandate that the entire sign, not just the support pole, be set back 50 feet from the front lot line. Section 207.2 of the Zoning Ordinance, in pertinent part, provides that [a]ll structures, whether attached to the principal structure, or not, and whether open or enclosed, including porches, balconies or platforms above normal grade level, shall not project into any minimum front, side, or rear yard. The Ordinance, in pertinent part, defines structure as [a]nything constructed or erected, the use of which requires a fixed location on the ground or attachment to something having a fixed location on the ground . . . . and, in pertinent part, defines sign as a structure including . . . billboards . . . . The proposed billboard clearly qualifies as a structure under these definitions and, therefore, is restricted from encroaching in any manner into the front yard established by the 50-foot setback. In excusing compliance with Section 207.2, common pleas concluded that the regulations pertaining to on-premises signs in Section 305.4 of the Ordinance governed the placement of the billboard applying the principle of statutory construction that the specific controls the general. Specifically, the court applied subsection 305.4(c), which establishes only that business signs shall not project over public right-of-way. We would agree with the trial court s analysis if subsection 305.4(c) applied to billboards. However, as the Township accurately points out, subsection 305.4 applies specifically to on-premises business signs and 4 not to off-premises billboards such as that at issue here. Hence, the applicable restriction on encroachment into the front yard is the absolute ban on such encroachment pertaining generally to structures. Accordingly, we must reverse. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lamar Advertising Company Forward Township Zoning Hearing Board : : : : : : Appeal of: Forward Township : v. No. 1496 C.D. 2007 ORDER AND NOW, this 5th day of March 2008, the order of the Court of Common Pleas of Allegheny County is hereby REVERSED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge
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