Posted by: Patricia Salkin | November 11, 2014

PA Appeals Court Holds that Requested Sign Variance was More than De Minimus and Upholds Denial of Replacement of Non-Conforming Sign with a Bigger Sign

Adams Outdoor Advertising, LTD (Adams) filed an application with the ZHB seeking relief from the isolation requirements of Section 090–090.C, either through the grant of a variance or a determination that the Proposed Billboard was permitted as of right because it was replacing a pre-existing, non-conforming use. Adams appealed from the Zoning Hearing Board of the Township of Middle Smithfield’s (ZHB) Order imposing one-sided and square footage limitations, and the Board of Supervisors of the Township of Middle Smithfield’s (Supervisors) Order denying its conditional use application. John Petrizzo, a neighboring landowner who was granted party status, appealed the ZHB’s Order to the extent that it allowed Adams to replace the Existing Billboard with a one-sided, 35 foot tall, 300 square foot digital sign. The trial court reversed the determination of the ZHB that granted Adams’ request in part, and affirmed the decision of the Supervisors, which had denied Adams a conditional use permit for its Proposed Billboard.

Adams appealed from the trial court decision which consolidated three land use appeals relating to Adams’ request to replace a preexisting non-conforming bill board (Existing Billboard) with a larger, double-sided, digital billboard (Proposed Billboard). Adams argued that: (1) the ZHB exceeded its jurisdiction by ruling on the merits of Adams’ conditional use application; (2) the ZHB erred in denying zoning relief for the Proposed Billboard because the Middle Smithfield Township Zoning Ordinance (Zoning Ordinance) specifically permits such signs, thereby making it no more non-conforming than the Existing Billboard; and (3) the ZHB properly granted a de minimis variance and the trial court erred in reversing that decision. Adams also argued that the Supervisors erred in denying a conditional use permit for the Proposed Billboard because the Zoning Ordinance specifically permits such signs, thereby making it no more non-conforming than the Existing Billboard, and the ZHB granted some relief from the violated provisions of the Zoning Ordinance.

Although the ZHB determined that the Proposed Billboard was more non-conforming than the Existing Billboard, the ZHB granted a de minimis dimensional variance so long as the Proposed Billboard was single-sided, and did not exceed 35 feet in height or 300 square feet in sign area. The ZHB imposed the condition based upon its conclusion that the addition of a second side, which increased the signage square footage from 240 square feet to 576 square feet, was a significantly greater level and degree of offense to the isolation requirements than a single-sided sign with 300 square feet. The court noted that a zoning hearing board may impose reasonable conditions on the grant of a variance, and resultantly concluded that the ZHB ruled only on Adams’ request for zoning relief and did not, as Adams asserted, address the merits of the conditional use permit. Furthermore, denying the expansion of a billboard that nearly doubled the square footage of advertising space that was already encroaching on the isolation requirements between that billboard, other billboards, residences and residential districts was not inconsistent with the Zoning Ordinance’s apparent intent to limit the expansion of pre-existing, non-conforming billboards. Accordingly, the court rejected Adams’ contention that the ZHB erred in its interpretation of Section 090–140.B. Because the deviations approved by the ZHB were not small or trifling, the court concluded that the ZHB abused its discretion in granting Adams a de minimis variance for a single-sided, 35 foot high, digital, 300 square foot sign. The trial court’s denial of Adam’s request was thereby affirmed.

Petrizzo v Zoning Hearing Board of the Middle Smithfield Township, 2014 WL 4956350 (PA Cmmwlth 10/3/2014)

The opinion can be accessed at: http://www.pacourts.us/assets/opinions/Commonwealth/out/28CD14_10-3-14.pdf


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