Judges Opinions, — October 4, 2017 10:00 — 0 Comments

David Horst v. Zoning Hearing Board of Jackson Township and Jackson Township No. 2016-01292

Civil Action-Municipal Law-Land Use-Zoning-Nonconforming Use-Variance-Unnecessary Hardship-Billboard-LED Message Sign
David H. Horst (“Appellant”) filed an appeal from the decision of the Zoning Hearing Board of Jackson Township (“Zoning Hearing Board”) in which the Zoning Hearing Board denied his request for a permit to replace an existing billboard on his property advertising off-premises businesses illuminated by floodlights, which was permitted pursuant to a nonconforming use existing prior to the adoption of the Jackson Township Zoning Ordinance, with a digital LED electronic message sign that would advertise seven (7) to eight (8) businesses on each side of the sign continuously, as well as his alternate request for a variance.
1.  Where the trial court takes no additional evidence in a zoning case, the scope of review is whether the zoning hearing board committed an abuse of discretion or an error of law.  An abuse of discretion is present when a zoning board’s findings are not supported by substantial evidence.  Substantial evidence exists when a board issues an opinion that sets forth the essential findings of fact and sufficiently shows that the board’s action was reasoned rather than arbitrary.
2.  Jackson Township Zoning Ordinance § 27-1307 provides that any sign erected, constructed or placed before the effective date of the Ordinance that does not confirm to the applicable provisions of the Ordinance is a nonconforming sign, which shall not be replaced, relocated or otherwise changed until approval is obtained in accordance with the Ordinance.  Section 26-1607(A) of the Ordinance provides that a nonconforming sign shall not be replaced, altered, relocated or reconstructed except to bring the sign into total compliance with the provisions of the Ordinance.
3.  The burden on an applicant seeking a variance is a heavy one, and the reasons for the grant of a variance must be substantial, serious and compelling.
4.  To obtain a variance, an applicant must establish: (1) the existence of unique physical conditions of the property; (2) a variance is necessary to enable reasonable use of the property; (3) the asserted hardship was not self-inflicted; (4) a grant of a variance will not alter the essential character of the neighborhood, substantially impair the appropriate use or development of adjacent properties or be detrimental to the public welfare; and (5) the requested variance represents a minimum variance and a least possible modification of the regulation that will afford relief.
5.  In order to establish unnecessary hardship to warrant the grant of a variance, an applicant must demonstrate that the property cannot be used for a permitted purpose, the cost to conform the property for a permitted purpose is prohibitive or the property has no value for a permitted purpose.
6.  The fact that a land owner wants to do more with his or her land in addition to the use that presently exists is not a sufficient to constitute unnecessary hardship unique to that piece of land.
7.  The decision of the Zoning Hearing Board contains substantial evidence to support the finding that the nature of the proposed sign would involve a greater departure from the type of billboard permitted by the Ordinance and greatly alter the present non-conforming use of the billboard, as the decision indicated that the Ordinance does not allow off-premises billboards in a commercial district, the number of off-premises advertisers under the proposed sign would increase from one (1) to up to seven (7) or eight (8) advertisers per side for projected total of fourteen (14) advertisers and nearly the entire face of the proposed sign would be illuminated from within for twenty-four (24) hours per day, thereby appearing more imposing and less visually appealing than the existing billboard and potentially could increasing the danger of driver distraction.
8.  The decision of the Zoning Hearing Board to deny the requested variance is supported by substantial evidence, as Appellant presented no evidence of unique physical conditions peculiar to his property that created a hardship or the property has no value under its permitted purposes, Appellant already makes a profit through the use of the existing billboard and Appellant uses the property upon which the billboard is located for two (2) other business ventures.
L.C.C.C.P. No. 2016-01292, Opinion by John C. Tylwalk, President Judge, February 16, 2017.
Thomas Harlan, Esquire, for Appellant David H. Horst
Keith Kilgore, Esquire, for Appellee Zoning Hearing Board of Jackson Township
Paul Bametzreider, Esquire, for Intervenor Jackson Township
IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CIVIL DIVISION NO. 2016-01292

DAVID H. HORST, Appellant
v.
ZONING HEARING BOARD OF JACKSON TOWNSHIP, Appellee
And
JACKSON TOWNSHIP, Intervenor

ORDER OF COURT

AND NOW, this 16th day of February, 2017, upon of consideration of the Appeal of the Decision of the David H. Horst to the Decision of the Zoning Hearing Board of Jackson Township, the Briefs submitted by the parties, and Oral Argument, it is hereby Ordered that the appeal is DENIED and said Decision is AFFIRMED.

BY THE COURT:

JOHN C. TYLWALK, P.J.

 
APPEARANCES:
THOMAS HARLAN, ESQUIRE   FOR DAVID H. HORST
HENRY & BEAVER

KEITH KILGORE, ESQUIRE   FOR ZONING HEARING BOARD
SPITLER, KILGORE & ENCK, PC     OF JACKSON TOWNSHIP

PAUL BAMETZREIDER, ESQUIRE  FOR JACKSON TOWNSHIP
REILLY WOLFSON

OPINION, TYLWALK, P.J., FEBRUARY 16, 2017.
Appellant David H. Horst (“Appellant”) filed this land use appeal from the decision of the Zoning Hearing Board of Jackson Township (“ZHB”) which denied his petition for a permit to replace an existing billboard on his property with a digital LED message sign and his alternative request for a variance.  We have been presented with the record of the ZHB and the parties have filed Briefs in support of their respective positions.  We conducted Oral Argument on the appeal, but took no further evidence.   The appeal of the Decision of the ZHB is presently before us for disposition.
Appellant is the owner of a parcel of real estate located at 398 West Lincoln Avenue (Route 422) in Jackson Township.  A V-shaped vinyl 10’ by 20’ billboard is presently located on the property.  The billboard contains off-premise advertising on one hundred per cent of the sign area and is illuminated at night by flood lights which are controlled by a timer.   It is a non-conforming use/structure which was in existence prior to the adoption of the Jackson Township Zoning Ordinance.
Appellant submitted an application for a permit to replace the existing billboard with a 10’ by 20’ digital LED electronic message sign with Zoning Officer Gene Meade.   After Meade denied the application, Appellant sought administrative review by the ZHB.  In the alternative, Appellant requested a variance.  A hearing was conducted by the ZHB on June 15, 2016.  At the conclusion of the hearing, Appellant’s petition was denied.  The ZHB subsequently issued a written decision which included findings of fact, conclusions of law, and decision on July 28, 2016.  Appellant filed this appeal requesting that we overturn the decision of the ZHB.
In a case where the trial court takes no additional evidence in a zoning case, the scope of review is whether the zoning hearing board committed an abuse of discretion or an error of law.  Ruprecht v. Zoning Harind Board of Hampton Township, 680 A.2d 1214 (Pa. Commw. 1996), appeal denied 699 A.2d 737 (Pa. 1997).  An abuse of discretion is present when the zoning board’s findings are not supported by substantial evidence.  Bernie Enter v. Hilltown Township Zoning Hearing Board, 657 A.2d 1364 (Pa. Commw. 1995), allocator denied 666 A.2d 1058 (Pa. 1995).  Substantial evidence exists when a board issues an opinion which sets forth the essential findings of fact and sufficiently shows that the board’s action was reasoned rather than arbitrary.  Lando v. Springettsbury Township Zoning Hearing Board of Adjustment, 286 A.2d 924 (Pa. Commw. 1972).  If a board’s decision is legally sound and supported by substantial evidence, it must be upheld.  D’Amato v. Zoning Board of Adjustment of City of Philadelphia, 585 A.2d 580 (Pa. Commw. 1991); 53 P.S. §11005-A.
Off-site billboards are permitted in the Agricultural (A-2) and the Industrial (I-1) Zoning Districts, but not the Commercial (C ) Zoning District, pursuant to Section 27-1608 of the Jackson Township Zoning Ordinance (“Ordinance”):
§27-1608.  Off-premise Billboards:  High Intensity Agricultural and
Industrial Districts
Off-premise billboards and advertising sign boards may be erected and maintained in the A-2 High Intensity Agricultural and the I-1 Industrial Districts, provided the total display area of all signs shall not exceed 20 square feet for each 10 feet of road frontage, and the total display area of any sign shall not exceed 200 square feet in area, and any electric message display shall not exceed more than 50% of the total area of the billboard or sign.  Said signs shall not be placed less than 100 feet apart nor within 100 feet of existing billboards or advertising sign boards.  No sign or portion thereof shall be located closer than 25 feet to the road right-of-way and shall not exceed 35 feet in height measured from the ground.
Ordinance, §17-1608.
Section 27-1301(D) of the Ordinance defines non-conforming use:
Uses of structures or land and structures in combination which were lawful [prior] to the passage or amendment of this Chapter but which would be prohibited, or restricted under the terms of this Chapter or future amendment, and are hereinafter referred to as non-conforming…
Ordinance, Section 27-1301(D).  With regard to proposed changes to a non-conforming use, Section 27-1305 provides:
§27-1305.  (Non-Conforming Uses of Structures or Land and Structures in Combination)
B.  Any non-conforming use of premise may, as a special exception, be changed to another non-conforming use provided the Zoning Hearing Board, either by general rule or by making a finding in a specific case, shall find that the proposed use is equally appropriate or more appropriate conditions and safeguards in accordance with this chapter.
Ordinance, Section 27-1305(B).     With particular regard to signs, Section 27-1307 of the Ordinance provides:
Any sign erected, constructed, or placed before the effective date of this Chapter 27 which does not conform to the applicable provisions of Part 16 of this Chapter 27 is a non-conforming sign.  No such sign shall be replaced, relocated, or otherwise changed until approval is obtained in accordance with the requirements of Part 16 of this Chapter.
Ordinance, Section 27-1307.  Section 26-1607(A) of the Ordinance provides that “[a] non-conforming sign shall not be replaced, altered, relocated, or reconstructed except to bring the sign into total compliance with the Provisions of this Chapter.”  Ordinance, Section 27-1607(A).
An applicant must establish the following five elements to obtain a variance:  (1) the existence of unique physical conditions of the property, (2) a variance is necessary to enable a reasonable use of the property, (3) the asserted hardship was not self-inflicted, (4) a grant of a variance will not alter the essential character of the neighborhood, substantially impair the appropriate use or development of adjacent properties, or be detrimental to the public welfare; and (5) the requested variance represents a minimum variance and a least possible modification of the regulation that will afford relief.  53 Pa.C.S.A. §10910.2(a).  The burden on an applicant seeking a variance is a heavy one and the reasons for granting one must be substantial, serious, and compelling.  Singer v. Philadelphia Zoning Board of Adjustment, 29 A.3d 144, 149 (Pa. Commw. 2011).  An applicant must prove that an unnecessary hardship will result if the variance is denied and that the proposed use is not contrary to the public interest.  Valley View Civic Association v. Zoning Board of Adjustment, 462 A.2d 637 (Pa. 1983).   In order to establish unnecessary hardship to warrant the grant of a variance, an applicant must demonstrate that the property cannot be used for a permitted purpose, that the cost to conform the property for a permitted purpose is prohibitive, or that the property has no value for a permitted purpose.  Allegheny West Civil Council, Inc. v. Zoning Board of Adjustment of City of Pittsburgh, 689 A.2d 225 (Pa. 1997).
At the hearing, Appellant testified that he owns a .7 acre plot of land which runs along Route 422 in Jackson Township.  He currently has a double-sided vinyl V-shaped 10’ by 20’ billboard on his property.  It is roughly 30’ high and can be viewed by cars traveling both east and west on Route 422.  At that point in the highway, the speed limit is 45 miles per hour.  The road has one lane heading in each direction, with a middle lane for turning.  He estimated that the sign sits back fifteen to twenty feet from the roadway.  Appellant has two other businesses located on the property – a memorial company which runs along the full length and 31 storage units which are off to one side.
The sign is located on the extreme eastward end of Horst’s property.  The property is located in a Commercial zoning district and is surrounded by various local businesses, such as a sub shop, auto sale lot, gas stations, and a sign company.  Seven years ago, Appellant had a smaller sign on the property and the ZHB allowed him to install the larger billboard which is currently there.  In order to change the ads on the billboard, a person must climb up a ladder and apply the ad to the face of the structure.  The ads contain both letters and symbols and cover the entire sign.  Each side of the billboard is illuminated at night with a floodlight on a timer.  At the time of the hearing, the advertisements on the sign were for a local nursery and a local business, JRM Pallets.
Appellant explained that the proposed sign would be a 10’ by 20’ electronic digital billboard which would be lit up internally with LED lights.  The manufacturer of the sign is a company named Watchfire.  The structure itself would be the same size as the current billboard and the message (lettering and symbols) would cover an area of 9’ by 19’.   The figures would be static and the ads would contain no animation.  Seven ads per side would be displayed for intervals of seven to eight seconds, for a possible total of fourteen advertisers at any given time.
Appellant stated that he would purchase a program to run the boards and he and his wife would do the designs.  With the program, changes to ads could be made by computer in a few minutes and would not require anyone to perform any physical labor. The brightness of the sign would be controlled by the program so that it would be automatically dimmed to a nighttime level that would be within Township limits and not distract drivers.
Appellant planned to market the ads to clients in the immediate area.
He suggested that the proposed sign would be a benefit to the surrounding community because it would be less expensive for small local businesses to place ads than is possible with the present billboard.  He explained that many small businesses are unable to pay $750.00 to $1,000.00 per month for a regular billboard, but would be able to afford a smaller amount to run an ad on this type of sign.  In addition, seasonal businesses would not have to commit for a one-year period and would be able to run an ad only during the time of year when they are operational.  Appellant stated that he would also make one free 7-second segment on one side of the sign available to local churches and volunteer organizations to advertise their special events.  He added that the Township could also advertise events, such as leaf collections, and the space could be used for Amber Alerts and other public emergencies, with the advantage that pertinent information could be posted within minutes.
John Carter (“Carter”), an account manager with Watchfire, also testified at the hearing on Horst’s behalf.   Carter explained that the proposed sign would have no animation and be limited to static images.  A sequence of approximately eight consecutive ads would run on each side of the sign for seven and a half seconds per message.  He estimated that a driver passing by at 45 miles per hour would be likely to see only one or two ads.   Carter had observed the proposed site and felt that the placement of the sign would not create any type of distraction to drivers.
Carter explained that the purpose of the digital billboard such as the one proposed by Horst is to provide a community message board for use by local businesses.  It is less costly to post ads than on conventional billboards, with even one-day postings being possible.   The cabinet of the sign would be 10’ by 20’, like the existing sign, and the viewing size would be 9’ by 19’.  The illumination on the sign would be one hundred per cent.  He explained that anything smaller would create more of a driving hazard because motorists would have to focus on the sign for a longer period of time to read the message.
Appellant also presented the testimony of Howard Horst (“Horst”), the owner of Horst Signs in Myerstown.   Horst’s business sells off-premise signs and electronic message centers for on-premise and other signs.  He had helped Appellant install the sign which is presently on the property and had been requested to do the same with the proposed sign.  The existing structure would be removed and replaced with the digital billboard and supporting structure.  Horst voiced his belief that the sign would be beneficial to small local businesses due to the expense and inconvenience of advertising on conventional billboards.
Intervenor Jackson Township (“Township”) presented the testimony of Gene Meade, the Township zoning officer, zoning administrator, and code enforcement officer.  Meade testified that the Ordinance was amended in 2014 to limit the LED technology to a maximum of 50 per cent of the sign because the supervisors had determined that this was the appropriate level for the Township highways based on speed limit and proximity to the road.  In designating the limit, the Township had given consideration to zoning ordinances from various municipalities and had consulted with an expert.  The decision to limit the illumination to 50 per cent of the sign was based on aesthetics and the potential for driver distraction.  Meade also explained the reason for the Ordinance’s differentiation between on-premise and off-premise advertising.  When a driver passes an on-premise advertisement, he concentrates solely on what is being advertised and does not have to attempt to catch the details of the name and address of the business since that information is readily apparent.  In contrast, with off-premise advertisements, the driver must try to catch not only the subject of the ad, but also the name and location of the off-premise business.
Meade noted that the present billboard is non-conforming under the Ordinance as it runs ads for businesses which are not located on the premises and the property is located within the commercial district of the Township.  He acknowledged that the proposed sign would be in compliance with the NIT requirement of the Ordinance.   However, he had denied the permit because Appellant had indicated he wanted to have the entire sign lit up in LED, which would be in violation of the 50 per cent illumination limitation.
In its written decision denying Appellant’s request, the ZHB found that Appellant was not entitled to a variance because (1) it found no unique circumstances or conditions of the property which would create any unnecessary hardship, (2)  the property is capable of being developed in strict conformity with the Ordinance provisions, (3) any unnecessary hardship was created by Appellant, (4) if granted, the variance would confer on Appellant a special privilege that is denied by Ordinance to owners of land within the same zoning district, (5) the variance would be granted solely for financial reasons, and (6) if authorized, the variance would alter the essential character of the neighborhood.  It also found that the replacement of the existing billboard with the proposed sign would be an alteration which would increase its non-conformity.
After reviewing the record, we will uphold the decision of the ZHB.  We first note that the record contains substantial evidence to support the finding that the nature of the proposed sign would involve a greater departure from the type of sign permitted by the Ordinance than the one presently there. The Ordinance does not allow off-premise billboards at all in the commercial district.  On the existing structure, an ad for only one off-premise business can be placed on each side at a time and the message for that business remains the same for extended periods of time.  There is no flashing of lights, the lettering is constant, and the structure is simply illuminated in the dark by a timed spotlight shining from below.    With the proposed sign, the number of off-premise advertisers would vastly increase to up to seven or eight per side for a projected total of fourteen businesses.  The messages of the ads would run constantly and change to a different business every seven to eight seconds.  Nearly the entire face of the new structure would be lit up from within for twenty-four hours per day.
This evidence showed that the new sign would greatly increase and alter the present non-conforming use.   The proposed structure would be more imposing and less visually appealing than the existing billboard and could potentially increase the danger of driver distraction due to the constant change of messages.  This change would not bring the sign into compliance with the Ordinance and is not an “equally appropriate” or “more appropriate” use under Section 27-1305(B) of the Ordinance in consideration of the location and conditions of Appellant’s property.  Thus, we find no error in the ZHB’s determination.
We also find that the ZHB had substantial evidence to support its denial of a variance.  Appellant presented no evidence of any unique physical conditions peculiar to his property which create any hardship.  He failed to show that the property has no value for the purposes already permitted.  It is clear that, even without the variance, the property is still capable of being developed within the confines of the provisions of the Ordinance.   The existing billboard is a lawful non-conforming use through which Appellant makes a profit.  In addition, he uses the property for two other business ventures.   As the Township points out, “[j]ust because a person wants to do more with his or her land in addition to the use that is presently being used for is not a sufficient unnecessary hardship unique to that piece of land.”  Society Created to Reduce Urban Blight v. Zoning Board of Adjustment of City of Philadelphia, 771 A.2d 874, 878 (Pa. Commw. 2001).  Thus, the fact that the proposed sign might be more lucrative financially for Appellant does not establish the necessary hardship which would justify the grant of a variance.  The evidence presented at the hearing supported the ZHB’s determination that the proposed change would be solely for Appellant’s financial gain and that any hardship caused by the denial would be entirely due to Appellant’s own economic pursuits.
We are mindful of Appellant’s testimony as to the advantages the proposed sign would present to the local community with regard to the availability of cheaper advertising and a means of transmitting information of public emergencies and events.  However, the ZHB accepted Meade’s testimony that the format of the proposed sign presented a possible detriment to the public welfare by increasing the potential for driver distraction and was offensive to the aesthetics of the area.  The evidence supported these findings and we will not disturb them.
For these reasons, we will find no abuse of discretion on the part of the ZHB and will therefore affirm its decision.

 

 

 

 

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