Zoning; De Facto Exclusion Following Enactment of Ordinance  

In Re: Apr. 24 Decision of Charlestown Township Zoning Hearing Bd., 2021 WL 208215 (Pa. Cmwlth.) (unreported), allocatur granted Nov. 3, 2021, appeal docket 80 MAP 2021

The Zoning Hearing Board of Charlestown Township (Board) rejected Charlestown Outdoor, LLC’s (Applicant) validity challenge to the Charlestown Township (Township) Zoning Ordinance (Ordinance) on the basis it effectuated a de facto exclusion of outdoor advertising billboards from within the limits of the Township. Commonwealth Court summarized the background of the exclusion as follows:

Pennsylvania enacted the Outdoor Advertising Control Act of 19717 (Act), which sets forth standards for the erection and maintenance of outdoor advertising devices located adjacent to the interstate and primary road systems within the Commonwealth. Pursuant to the Act, the Department promulgated regulations governing outdoor advertising devices. At issue here is Section 445.4(b)(2)(i) of the Department’s regulations, which provides, in pertinent part, that no sign “may be erected adjacent to or within 500 feet of an interchange or safety rest area, measured along the interstate or limited access primary from the beginning or ending of pavement widening at the exit from or entrance to the main-traveled way.” 67 Pa. Code § 445.4(b)(2)(i).

In addition, the Ordinance imposes further restrictions on location providing, in pertinent part: “Outdoor advertising billboards shall be located only a minimum of [5] feet and a maximum of 30 feet from the Pennsylvania Turnpike east-west travel lanes right-of-way.” (Ordinance § 27-1405.13.B, R.R. at 125a.)

The parties do not appear to dispute that, when both sets of location restrictions are applied, there is no place within the B-1 zoning district where an outdoor advertising billboard can be constructed. Although Planning Expert testified on direct examination that there is a small area where one could construct a billboard and still comply with the 500-foot state requirement, on cross-examination, Planning Expert admitted that area would be outside the Ordinance’s location requirements. (R.R. at 26a-27a, 44a-45a.)

Slip op. at 19-20. The applicant argued that there is a de facto exclusion of outdoor advertising billboards as there are no zoning districts within the Township that permit such billboards because, to the extent a zoning district does exist in which outdoor advertising billboards are permitted, there is no location that would comply with both the Ordinance’s requirements and state law and regulations following the Turnpike’s construction of a slip ramp in the Township. The Township countered that its Ordinance is not constitutionally invalid because following the Ordinance’s enactment in 2004, the Pennsylvania Turnpike’s construction of a slip ramp, over which the Township had no control, was responsible for effectively zoning outdoor advertising billboards out of the B-1 zoning district. In support, the Township relied on Montgomery Crossing Associates v. Township of Lower Gwynedd, 758 A.2d 285 (Pa. Cmwlth. 2000) for the proposition that an exclusionary challenge cannot be based upon property within a designated zone being used for something else in the meantime and there is no “ongoing obligation to rezone for a certain use when vacant land is developed for another purpose.” The Township further relied on Kaiserman v. Springfield Township, 348 A.2d 467 (Pa. Cmwlth. 1975) in which Commonwealth Court concluded that:

While it may be inherently discriminatory for a township to totally exclude a use from its borders, we fail to see the analogy by which we could reason that a legitimately appropriated area for a specific use which has been saturated is in the same posture as a total prohibition of that use within a municipality.

Slip op. at 22, quoting Kaiserman, 348 A.2d at 471. Applicant responded that this case is distinguishable from Montgomery Crossing and Kaiserman because those cases involved development of other permitted uses on the land, whereas here the property is vacant.

Commonwealth Court began its analysis by noting that its examination of the substantive validity of an ordinance is “based upon conditions as they existed at the time of an ordinance’s enactment on other occasions.” Slip op. at 22.  While the court acknowledged that Montgomery Crossing and Kaiserman involved the intervening use of the land through development on the land itself, the court “discern[ed] no reason why the same logic should not apply when construction on an adjacent property forecloses development of the subject property,” reasoning that:

Neither situation is attributable to the actions of the municipality; it was the acts of third parties that prevented development. Here, contrary to the minority’s view, the Ordinance itself does not prevent the construction of an outdoor advertising billboard in the Township; it is the Act and the Department’s regulations, coupled with the subsequent construction of the slip ramp, that does. Because the Township has no control over what statutes the General Assembly passes or what regulations a Commonwealth agency promulgates, the resulting effect of those statutes or regulations cannot be impugned to the Township.

To hold otherwise would require a municipality to rezone based upon another’s use of its land. We rejected imposing an “ongoing obligation” on a municipality in Montgomery Crossing, 758 A.2d at 291, and, based upon the facts of this case, we do the same here. See also Larock v. Bd. of Supervisors of Sugarloaf Twp., 961 A.2d 916, 927 (Pa. Cmwlth. 2008) (citing Montgomery Crossing and holding, in relevant part, that “[a] municipality should not necessarily be required to designate a new area for mineral extraction where an established mineral extraction zone within the township has been depleted”). Similar to In re Glen Loch [Two Associates, L.P. (Pa. Cmwlth., No. 45 C.D. 2012, filed November 29, 2012) (unreported)], there is no record evidence that the Department had already acquired or condemned the property used for the slip ramp at the time the Township amended the Ordinance in 2004. Nor is there any evidence that the Township underwent a massive rewrite of its Ordinance since the slip ramp was constructed that might prompt some sort of obligation on its part to update its Ordinance in this regard, as well. The record establishes that the Ordinance was enacted in 2004 and the slip ramp to the Pennsylvania Turnpike was not constructed until at least five years later. (FOF ¶ 16.)

Slip op. at 23-24. Thus, the court found no error in the Board’s conclusion that the subsequent construction of the slip ramp did not render the Ordinance de facto exclusionary.

In a dissenting and concurring opinion, President Judge Leavitt agreed that the Ordinance was not de jure exclusionary, but disagreed that the Zoning Ordinance is not de facto exclusionary, explaining that:

A de facto exclusion of a legitimate business use exists where a zoning ordinance purports to allow a use but, when applied, actually prohibits the use throughout the municipality. De Angelo v. North Strabane Zoning Hearing Board, 208 A.3d 156 (Pa. Cmwlth. 2019). That is the case here. In actuality, the Zoning Ordinance does not allow an outdoor billboard anywhere in the Township and, thus, it is de facto exclusionary.

Judge Leavitt further disagreed with the majority’s application of Montgomery Crossing and Kaiserman, opining that:

The holdings in Montgomery Crossing and Kaiserman are limited to their facts. They establish that a zoning ordinance is not rendered exclusionary where the municipality’s vacant land is developed with one permitted use and not the other. These holdings are irrelevant because this is not a land saturation case. There are no existing structures in the B-1 Zoning District that can be demolished, as in Kaiserman, and replaced with a billboard. Applicant cannot demolish a Turnpike interchange.

Slip op. at MHL-4. Judge Leavitt further challenged the majority’s quotation from Montgomery Crossing that there is no “ongoing obligation” on a municipality “to rezone,” slip op. at 23, explaining that:

The majority untethers this quotation from its factual context, i.e., whether a municipality must revise its zoning districts because vacant land has become saturated with one permitted use and not the other. So long as a landowner can redevelop a property in accordance with the permitted land use regulation, the answer is “no.”

Slip op. at MHL-5 n.4. Judge Leavitt would hold, contrary to the majority, that whether a zoning ordinance is de facto exclusionary “is determined in the present, at the time the landowner seeks to develop the use that the zoning ordinance purports to allow,” opining that: “It is irrelevant that a zoning ordinance may have been valid at the time of enactment. Land use regulation is an ongoing exercise.” Slip op. at MHL-5.

The Supreme Court granted allocatur limited to the following issue:

Did the Commonwealth Court err in holding that whether a zoning ordinance de facto excludes a legitimate business use – in this case outdoor billboards – is determined as of the time of enactment of the ordinance and does not consider the effect of other laws and regulations of other governmental bodies on the actual ability to locate that use as zoned by the municipality?


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