Adams Outdoor Adv. V. Zoning Hearing Bd.

• Decision Date: 18 October 2006
• Citation: 909 A.2d 469
• Parties: ADAMS OUTDOOR ADVERTISING, LP., Appellant v. ZONING HEARING BOARD OF SMITHFIELD TOWNSHIP.
• Court: Pennsylvania Commonwealth Court

909 A.2d 469

ADAMS OUTDOOR ADVERTISING, LP., Appellant v. ZONING HEARING BOARD OF SMITHFIELD TOWNSHIP.

Commonwealth Court of Pennsylvania.

Argued September 14, 2006.

Decided October 18, 2006.

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James V. Fareri, Stroudsburg, for appellant.

Jennifer Harlacher Sibum, Stroudsburg, for appellee.

BEFORE: COLINS, President Judge, and LEADBETTER, Judge, and SIMPSON, Judge.

OPINION BY Judge SIMPSON.

In this zoning appeal, we are asked whether the Court of Common Pleas of Monroe County (trial court) erred in affirming a decision of the Zoning Hearing Board of Smithfield Township (ZHB) that required Adams Outdoor Advertising, L.P. (Applicant) to remove two off-premises advertising billboards it leases. Applicant raises several validity challenges to a zoning ordinance provision that requires removal of commercial advertising signs on property where land development is proposed. Because the ZHB and the trial court properly rejected these challenges, we affirm.

Gerald Gay (Landowner) owns a 7.7-acre tract of land at the intersection of State Route 209 and Business Route 209 in Marshalls Creek, Smithfield Township, Monroe County (Subject Property). The Subject Property lies in the Township's C-1 Commercial Zoning District.

At present, the only structures on the Subject Property are two off-premises advertising billboards¹ that Applicant leases from Landowner. In October 2001, the parties executed their first lease for the billboards for a five-year term; a second five-year lease was executed in June 2004.

In 2000, prior to execution of the first lease, Landowner submitted a preliminary land development plan to the local governing body in order to construct an office complex on the Subject Property. The local governing body approved the preliminary plan with conditions. The plan is currently pending before the local governing body while Landowner attempts to obtain a highway occupancy permit from the Pennsylvania Department of Transportation.

In May 2004, Landowner applied for a zoning permit to perform "site alteration" work on the Subject Property in order to "ESTABLISH A USE." Reproduced Record (R.R.) at 3a. The Township's zoning officer issued the permit subject to the condition that the two off-premises advertising billboards leased by Applicant be removed within 30 days as required by Section 504(13)(H) of the Ordinance. That Section states:

13. Commercial Advertising Signs. Commercial advertising signs,[²] outdoor advertising structures, or billboards which advertise products or businesses not connected with the site on which they are located shall be permitted and regulated as separate uses on undeveloped property in the commercial and industrial districts, except as otherwise provided under the establishment of sign plazas.

H. Where an existing commercial advertising sign exists on a property proposing land development or alterations or enlargement of an existing use, said sign shall be removed.

Id. (Emphasis added.)

Applicant appealed the zoning officer's issuance of the permit to the ZHB, challenging the condition that required removal of the billboards. It asserted:

[Applicant] seeks to continue use of [the] existing billboard [sic] until such time, if ever, as [L]andowner receives a certificate of occupancy for a proposed land development. [Applicant] has existing contract rights to maintain the billboard [sic] and should not be compelled to remove the billboard [sic] until such time, if ever, as [L]andowner actually completes construction on the property in question.

Certified Record, Item No. 12. Applicant sought an interpretation of the Ordinance in its favor by the ZHB or, in the alternative, a variance, to continue its use of the billboards until Landowner completed construction on the Subject Property. Id. A hearing ensued before the ZHB.

At the hearing, counsel for Applicant asserted the issue before the ZHB centered on an interpretation of Section 504(13)(H) of the Ordinance. Applicant argued the Township could not require removal of the billboards until Landowner received a certificate of occupancy pursuant to a land development plan approved by the Township. Alternatively, Applicant maintained, based on its lease with Landowner, it had a contractual right to maintain the billboards until Landowner completed construction and received a certificate of occupancy.

In support of its appeal, Applicant presented the testimony of David Massie, one of its employees (Applicant's Representative). Applicant's Representative testified Applicant entered into a five-year lease with Landowner to rent the billboards in June 2004. He testified Applicant wished to maintain its use of the billboards until Landowner completed construction of his proposed use and received a certificate of occupancy. Applicant's Representative also testified, in another case involving a different parcel and a different billboard, the Township required Applicant to remove a billboard when the landowner submitted a land development plan, but the proposed development never occurred. As a result, he testified, Applicant lost its right to use the billboard. He acknowledged, however, Applicant did not submit a request to re-install the sign when the proposed development did not occur.

The Township Zoning Officer testified Landowner submitted a permit application in May 2004 seeking to perform site alteration work on the Subject Property. The Zoning Officer indicated he issued the permit "based upon alteration of the [Subject Property] consistent with the land development [plan] that [Landowner] previously submitted to the Township." ZHB Op. at 4.

Landowner testified, at present, he is performing only excavation work on the Subject Property and he has no current intention of constructing the office complex proposed in his preliminary land development plan. Landowner further testified that the billboards he leases to Applicant do not interfere with his excavation work on the Subject Property.

Ultimately, the ZHB issued a decision in which it rejected Applicant's appeal of the permit condition that required removal of the billboards. The ZHB first determined the clear language of Section 504(13)(H) of the Ordinance requires removal of an existing commercial sign on a property "proposing" land development. The ZHB further determined Landowner "proposed" land development here as evidenced by the fact he filed a land development plan, received preliminary approval for the plan, obtained a site alteration permit to begin developing the Subject Property consistent with the plan, and began excavation on the Subject Property that appeared consistent with the land development plan. Thus, the ZHB stated, "it [is] disingenuous of [Landowner] [to claim] that he now has no intention to construct any buildings on the [Subject Property]." ZHB Op. at 10.

Additionally, the ZHB rejected Applicant's argument that its lease with Landowner provided a contractual right that allowed it to use the billboards without regard to the provisions of the Ordinance. Specifically, the ZHB explained, "a lease or contract between private individuals cannot supercede the regulations of the [Ordinance]." Id. at 12.

Finally, the ZHB denied Applicant's variance request because Applicant did not prove unnecessary hardship would result if the variance was denied or that, because of any such hardship, the Subject Property could not be developed in conformity with the Ordinance.

Applicant appealed to the trial court, asserting the ZHB erred in applying Section 504(13)(H) of the Ordinance in a manner that results in a taking of its property without just compensation, infringes on its right to free speech, and selectively discriminates against properties on which off-premises advertising signs are located. Applicant also argued the ZHB erred in applying Section 504(13)(H) so as to require removal of the billboards where only excavation is performed on a property. Finally, Applicant asserted the ZHB erred in failing to interpret the ambiguous term "proposing" in Section 504(13)(H) in a manner most favorable to it.

Without accepting additional evidence, the trial court rejected these arguments and affirmed the ZHB. This appeal by Applicant followed.

On appeal,³ Applicant raises five issues. It asserts Section 504(13)(H) of the Ordinance: constitutes an unlawful attempt to amortize its lawfully existing advertising billboards; violates its right to equal protection; improperly restricts commercial speech; and, results in an unlawful taking of its property without just compensation. In addition, Applicant argues the term "proposing" in Section 504(13)(H) is ambiguous and, as a result, it must be interpreted in Applicant's favor.

I.

Relying on PA Northwestern Distributors, Inc. v. Zoning Hearing Board of Township of Moon, 526 Pa. 186, 584 A.2d 1372 (1991), Applicant first argues Section 504(13)(H) of the Ordinance, which requires removal of lawfully existing outdoor advertising signs, constitutes an illegal amortization provision. It asserts amortization provisions that require discontinuance of lawful nonconforming uses violate the Pennsylvania Constitution because such provisions result in a taking of one's property without just compensation.

Contrary to Applicant's assertions, Section 504(13)(H) of the Ordinance is not an amortization provision. "Stated in its simplest terms, amortization contemplates the compulsory termination of a nonconforming use at the expiration of a specified period of time, which period is equal to the useful economic life of the nonconformity." Nat'l Adver. Co. v. County of Monterey, 1 Cal.3d 875, 83 Cal.Rptr. 577, 464 P.2d 33, 37 n. 3 (1970) (Sullivan, J., dissenting) (emphasis added) (citing Katarincic, Elimination of Non-Conforming Uses, Buildings and Structures by Amortization-Concept Versus Law, 2 Duquesne L.Rev. 1. (1963)); see generally Annotation, Validity of Provisions for...