This post was authored by Matthew Loescher, Esq.
Charlestown Township, a municipality in Chester County, enacted a zoning ordinance that permits outdoor, off-premises advertising signs in a particular district. A statewide regulation concerning roadside billboards promulgated by the Pennsylvania Department of Transportation (“PennDOT”) had the practical effect of barring that use. The property owner Charlestown Outdoor, LLC appealed the decision of the township zoning board, which denied the property owner’s challenge to the validity of the township’s zoning ordinance that permitted the construction of billboards in the zoning district. The Court of Common Pleas, Chester County, affirmed the zoning board’s decision finding that the ordinance was not de facto exclusionary. The property owner appealed, and the Commonwealth Court confirmed.
At the outset, the court noted that as this was a de facto challenge, in order to overcome the presumption of constitutionality, Outdoor would have to demonstrate that, as applied, the Zoning Ordinance “appears to permit a use, but under such conditions that the use cannot in fact be accomplished.” Outdoors contended that the Zoning Ordinance and Section 445.4(b)(2)(i) of PennDOT’s regulations together precluded the construction of billboards in the Township, which resulted in a de facto exclusion. The court found that Outdoor did not establish that billboards were excluded because the Township imposed a condition that, as applied, prohibited billboards: the Township zoned for billboards in the B-1 zoning district, and PennDOT’s regulation effectively precluded billboards in that district.
The court found that the permitted use was not made impossible by the application of the Zoning Ordinance, there was nothing restrictive in the Zoning Ordinance to servers, and Outdoors would not be able to erect a billboard on the property due to PennDOT’s regulatory 500-foot interchange setback requirements. Because PennDOT’s regulation, rather than the Zoning Ordinance, was the source of the exclusion, the ordinance was not de facto exclusionary.
In Re Appeal of the April 24, 2018 Decision of the Charlestown Township Zoning Hearing Board Denying the Challenge of Charlestown Outdoor, LLC, 280 A. 3d 948 (PA 8/16/2022)