In re Charlestown Outdoor, LLC

• Decision Date: 16 August 2022
• Docket Number: 80 MAP 2021
• Citation: 280 A.3d 948
• Parties: IN RE: Appeal of the April 24, 2018 Decision of the Charlestown Township Zoning Hearing Board Denying the Challenge of CHARLESTOWN OUTDOOR, LLC to the Validity of the Zoning Ordinance's Exclusion of Outdoor Advertising Billboards Appeal of: Charlestown Outdoor, LLC
• Court: Pennsylvania Supreme Court

280 A.3d 948

IN RE: Appeal of the April 24, 2018 Decision of the Charlestown Township Zoning Hearing Board Denying the Challenge of CHARLESTOWN OUTDOOR, LLC to the Validity of the Zoning Ordinance's Exclusion of Outdoor Advertising Billboards

Appeal of: Charlestown Outdoor, LLC

No. 80 MAP 2021

Supreme Court of Pennsylvania.

Argued: March 8, 2022
Decided: August 16, 2022

Blaine Robert Feinauer, Esq., Daniel Patrick Rowley, Esq., John C. Snyder, Esq., Saul Ewing Arnstein & Lehr LLP, for Charlestown Outdoor, LLC, Appellant.

William R. Hagner, Esq., for Charlestown Township Zoning Hearing Board, Appellee.

William R. Christman III, Esq., James E. McErlane, Esq., Mark Pryor Thompson, Esq., Scot Russel Withers, Esq., Lamb McErlane, PC, for Charlestown Township, Appellee.

BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

JUSTICE WECHT

Charlestown Township, a municipality in Chester County, enacted a zoning ordinance that permits outdoor, off-premises advertising signs (otherwise known as billboards) in a particular district. A statewide regulation concerning roadside billboards promulgated by the Pennsylvania Department of Transportation ("PennDOT") has the practical effect of barring that use. Charlestown Outdoor, LLC, ("Outdoor") seeks nonetheless to erect a billboard on property it leases in that zoning district. In pursuit of that objective, Outdoor filed a substantive validity challenge to Charlestown Township's ordinance, asserting that it is de facto exclusionary. "In a de facto exclusion case, the challenger alleges that an ordinance appears to permit a use, but

280 A.3d 952

under such conditions that the use cannot in fact be accomplished."¹ Here, it is not the zoning ordinance, but rather the statewide regulation, that precludes the proposed use. Accordingly, we hold that the challenged zoning ordinance is not de facto exclusionary. We affirm the Commonwealth Court's rejection of Outdoor's validity challenge.

I. Background

On December 20, 2004, the Board of Supervisors of Charlestown Township (the "Township") enacted Zoning Ordinance 125-2004 ("the Zoning Ordinance").² In addition to numerous other innovations, the Zoning Ordinance established the Business-1 ("B-1") zoning district in an area that had been zoned for limited industrial use. Before 2004, the Zoning Ordinance's predecessor provision had permitted billboards in that limited industrial use zoning district. As amended, the Zoning Ordinance allows billboards in this zoning district (now designated B-1), subject to a five-foot setback requirement.³ Billboards are not a permitted use anywhere else in the Township. Like the prior limited industrial use district, the present B-1 zoning district is adjacent to the Pennsylvania Turnpike.⁴

Several years later, in 2011, the Pennsylvania Department of Transportation ("PennDOT") constructed a new traffic interchange in the Township, with on and off ramps connecting Phoenixville Pike to the Turnpike. This brought into play certain statutory and regulatory provisions that were not germane at the time of the Zoning Ordinance's adoption. Specifically, in the Outdoor Advertising Control Act of 1971,⁵ the General Assembly established standards for the erection and maintenance of billboards located along interstate and primary road systems throughout the Commonwealth. PennDOT implemented that statute by promulgating regulations governing billboards adjacent to interstate and primary roads. Section 445.4(b)(2)(i) of these regulations prohibits billboards within 500 feet of an interstate interchange.⁶

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As applied to the Township, construction of the Phoenixville Pike ramp triggered Section 445.4(b)(2)(i), which effectively prohibits billboards anywhere in the B-1 zoning district.

Outdoor wishes to construct and maintain a billboard on a parcel that it leases along Phoenixville Pike in the Township ("the Property"). The Property is situated within the B-1 zoning district and borders the Turnpike. Section 445.4(b)(2)(i) of PennDOT's regulations prohibits the erection and maintenance of billboards on the Property due to its proximity to the Turnpike interchange.

On May 1, 2017, Outdoor filed a challenge to the validity of the Township's Zoning Ordinance under Section 916.1(a)(1) of the MPC.⁷ Outdoor asserted that the Zoning Ordinance unlawfully de facto excludes billboards because, although the Zoning Ordinance permits billboards in the B-1 zoning district subject to the setback requirements of Section 27-1405.13.B, PennDOT's regulation precludes billboards in the entirety of that district. Because of this alleged de facto exclusion, Outdoor argued that the Zoning Ordinance was invalid and unconstitutional, and it sought site-specific relief authorizing it to construct a billboard on the Property.^{8 ,9}

Following two hearings, the Charlestown Township Zoning Hearing Board ("the Board") denied Outdoor's challenge. Because the 500-foot prohibition that barred construction of billboards along the Turnpike in the B-1 zoning district was not imposed by the Township, but by PennDOT, the Board held that the Zoning Ordinance was not de facto exclusionary.¹⁰

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Outdoor appealed the Board's decision to the Court of Common Pleas. Outdoor argued that the Township has an obligation to provide for billboards as a permitted use in a viable area of the Township and had failed to do so. To the extent that the Zoning Ordinance appeared to permit billboards but failed to provide a zoning district in which that use was permitted, Outdoor argued that it was de facto exclusionary.

On June 13, 2019, the Common Pleas Court affirmed without taking additional evidence. The court rejected Outdoor's argument, finding no error of law in the Board's conclusion that the Zoning Ordinance was not de facto exclusionary. The trial court initially found this issue waived because the parties provided no authority on point and because PennDOT was not joined as a necessary party to the action. On the merits, the trial court held that it was the PennDOT regulation, not the Zoning Ordinance, that precluded the otherwise permitted use. The trial court relied upon Montgomery Crossing Association v. Township of Lower Gwynedd , in which the Commonwealth Court held that "if a district containing available land has been zoned to permit a particular use, one may not later base a claim that the use is excluded on the fact that the land has been used for another purpose instead."¹¹ The trial court explained that, when the Township enacted the current iteration of the Zoning Ordinance in 2004, billboards could have been constructed in the B-1 zoning district. It was the intervening construction of the PennDOT ramp, and the application of PennDOT's regulation, that prohibited the use of billboards. To conclude that the Zoning Ordinance was exclusionary would, according to the trial court, "lead to the absurd result of creating an ongoing, impractical[ ] obligation for the Township to rezone and update its Zoning Ordinance every time an intervening condition not caused by the Township occurred."¹²

Outdoor appealed to the Commonwealth Court, which affirmed in an unpublished memorandum.¹³ Outdoor argued to the Commonwealth Court that there was a de facto exclusion of billboards under the Zoning Ordinance because there was no location in the Township that could accommodate a billboard and simultaneously comply with PennDOT's regulation. Outdoor asserted that the Township was obligated to amend its Zoning Ordinance to accommodate PennDOT's regulation following the construction of the Turnpike ramp.

In addition to Montgomery Crossing , the Commonwealth Court considered Kaiserman v. Springfield Township , 22 Pa.Cmwlth. 287, 348 A.2d 467 (1975), as well as its unreported decision in In re Glen Loch Two Associates, L.P. , 2012 WL 8655008, 45 C.D. 2012 (Pa. Cmwlth. Nov. 29, 2012). Kaiserman , like Montgomery Crossing , declined to find a zoning ordinance de facto exclusionary where the ordinance permitted a particular use, but the available land was later developed with other permitted uses. Glen Loch likewise rejected an argument that the zoning code was de facto exclusionary because it permitted

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a particular use in a zoning district that was vacant when the zoning ordinance was enacted but, at the time of the challenge, no longer contained any available land. Applying these cases, the Commonwealth Court examined the substantive validity of the Zoning Ordinance "based upon conditions as they existed at the time of [the] ordinance's enactment."¹⁴

When the Zoning Ordinance was enacted in 2004, there was no Turnpike ramp at Phoenixville Pike, and no impediment to placing a billboard in the B-1 zoning district (subject to the Zoning Ordinance's setback requirement). According to the Commonwealth Court, it was not the Township's Zoning Ordinance that prevented the construction of a billboard in the B-1 zoning district, but rather the subsequent construction of the Turnpike ramp, the Outdoor Advertising Control Act, and PennDOT's regulation. The Commonwealth Court declined to attribute the acts of the General Assembly or the regulations of PennDOT to the Township. To hold otherwise would, according to the Commonwealth Court, "require a municipality to rezone based upon another's use of its land."¹⁵ The court declined to impose such an ongoing obligation on municipalities.

Judge Leavitt dissented, opining that the combined effect of the Zoning Ordinance and PennDOT's regulation made it unlawful to erect a billboard in the B-1 zoning district or anywhere else in the Township, a circumstance that operated to render the Zoning Ordinance de facto exclusionary. Rather than applying the land saturation cases of Montgomery Crossing , Kaiserman , and Glen Loch , Judge Leavitt relied upon the unreported decision in Habit OPCO v. Borough of Dunmore , 2011 WL 10858496, 2312 C.D. 2010 (Pa. Cmwlth. Apr. 21, 2011). In Habit OPCO , the Commonwealth Court held...