Posted by: Patricia Salkin | July 10, 2011

PA Appeals Court Finds Smoker/Cooker Outside of Restaurant is a Sign

Owners of a barbeque restaurant, Mr. and Mrs. Gulan, appeal a decision against them by the Court of Common Pleas of Adams County, affirming a decision of the East Berlin Borough Zoning Hearing Board (hereinafter “Board”).  The Board had decided that a smoker/cooker, placed on the sidewalk in front of the Gulans’ restaurant, was a sign, and because it was on the sidewalk within the right-of-way it violated §507(1) of the East Berlin Borough Zoning Ordinance.  This provision prohibited signs within “established right-of-way of any street.” 

Robert Thaeler, the zoning officer for East Berlin, responded to complaints about the Gulans’ signage by reviewing the relevant zoning provisions and viewing the property’s signs.  Thaeler saw three signs at the property – a free standing sign hanging over the sidewalk, an A-frame temporary sign on the Gulans’ property next to the sidewalk, and the smoker/cooker on the sidewalk adjacent to the curb.  Thaeler issued a violation notice, and the Board conducted a hearing a few months later.  While Thaeler admitted there were no letters or pictures on the smoker, he had assumed it was used to promote the Gulans’ restaurant.  Gulan testified that he cooked chicken in the smoker every day, and that he liked to have the smoker in that location because he could see into the restaurant when he was out at the smoker, and could see the smoker from inside the restaurant to monitor the meat when he was working at the register.  

The Board had previously held that devices or structures could be considered “signs” within the meaning of the ordinance.  Here, they determined the smoker/cooker fell into its definition, which included a “demonstration” or “display” that “promote[d] the interests of any . . . business when the same is in view of the general public.”  A resident of East Berlin also testified that he had spoken to Mr. Gulan about the smoker/cooker because he was interested in whether his food was cooked outside, and Mr. Gulan told him it was “just a sign.”  The Zoning Board found that it “brings attention to the purpose of the business and conveys information to the general public,” and that there was substantial evidence in the record to conclude that the smoker/cooker was a sign and violated §507(1) because of its location on the sidewalk.  The common pleas court deferred to the Board as factfinder and affirmed the Board’s decision that resolved the conflict through the resident’s testimony about his conversation with Mr. Gulan.  On appeal, the Commonwealth Court of Pennsylvania found that because the common pleas court did not take any additional evidence, they could only review the decision for abuse of discretion or error of law, which they did not find.  Therefore, this court affirmed the common pleas court’s decision that the smoker/cooker was a sign within the meaning of §507(1) and the Gulans’ were in violation of said ordinance. 

Gulan v. Zoning Hearing Bd. of E. Berlin Borough, 2011 WL 2463755 (Pa. Commw. Ct. 6/22/2011) 

The opinion can be accessed at: http://www.pacourts.us/OpPosting/Cwealth/out/1616CD10_6-22-11.pdf


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