In re Appeal of Autohaus Lancaster Inc.

4 Pa. D. & C.4th 69, 1989 Pa. Dist. & Cnty. Dec. LEXIS 150
CourtPennsylvania Court of Common Pleas, Lancaster County
DecidedFebruary 13, 1989
Docketno. 1768 of 1988
StatusPublished
Cited by1 cases

This text of 4 Pa. D. & C.4th 69 (In re Appeal of Autohaus Lancaster Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lancaster County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Appeal of Autohaus Lancaster Inc., 4 Pa. D. & C.4th 69, 1989 Pa. Dist. & Cnty. Dec. LEXIS 150 (Pa. Super. Ct. 1989).

Opinion

GEORGELIS, J.,

Before the court is the appeal of Autohaus Lancaster Inc. from the decision of the Manheim Township Zoning Hearing Board, which decision directed Autohaus to remove a Volkswagen vehicle from the roof of its property. Manheim Township has intervened, and, along with Autohaus, has filed a brief. Oral argument having been heard, the appeal is ready for disposition. For the reasons stated below, it will be denied, and the decision of the board will be affirmed.

FACTS

The facts, relevant to the disposition of this appeal and as found by the board, are the following. [70]*70Autohaus is an automobile dealership, which is located on property it owns at 1373 Manheim Pike in the township, Lancaster County. That property is located in a business district B-4 zone in the township.

The portions of the township’s Zoning Ordinance no. 1987-30, which regulate signs and which are relevant to this appeal, became effective on November 9, 1987. On February 25, 1988, Autohaus had a Volkswagen vehicle on the roof of its building and thereby above the budding’s roof line. On that same date, Autohaus was issued a notice of violation, directing it to remove that vehicle because it constituted, pursuant to the ordinance, a sign that impermissibly projected above the budding’s roof line in violation of section 1706-A(4) of the ordinance.

On March 1, 1988, Autohaus filed an application appealing the notice on the grounds, inter alia, that: the vehicle does not constitute a sign; section 1706-A(4) is inapplicable; the use of the vehicle constitutes a non-conforming use; and the ordinance is unconstitutionady vague and overbroad. A hearing on that application was held before the board on April 4, 1988. Autohaus has placed different vehicles at the same location on the roof of its budding since approximately February 23, 1967, and, to accommodate the weight of those vehicles, it has reinforced the roof of the budding with a 30’ x 60’ x 4” concrete and steel slab. The vehicles are parked, one at a time, on the slab, do not overhang the sides of the budding and are approximately six feet away from the edge of the budding.

Authohaus’s purpose for so placing the vehicles is to identify its business as a Volkswagen dealership, and, in addition to the vehicles, it has a sign, which was attached some time in 1981, and a Volkswagen [71]*71logo on the roof of the building. Other than the notice of violation, no one has complained to Autohaus about the placement of the vehicles on the roof.

Since February 1967, Autohaus has changed the vehicles, with the use of a crane, originally once per month and now once every three months. Except for when the vehicles are being changed, there generally is no period of time when there is not a vehicle on the roof.

With these findings of fact, the board concluded that: (a) the vehicles placed on the roof are signs, within the meaning of the ordinance; (b) the vehicles are attached to the building; (c) section 1706-A(4) of the ordinance is applicable and Autohaus is in violation of that section because the vehicles project above the roof line; (d) Autohaus has the burden of proving that its use of the vehicles constitutes a legal and non-conforming use and has failed to meet that burden; (e) Autohaus has the burden of proving the relevant provisions of the ordinance are unconstitutional and has failed to meet that burden; and (f) the relevant provisions of the ordinance are not unconstitutionally vague or broad.

Having drawn those conclusions, the board denied Autohaus’s application and directed it to stop placing vehicles on the roof of its building. From that denial, Autohaus filed a timely appeal, placing the matter before this court.

DISCUSSION

The parties had agreed by stipulation that Autohaus’s appeal presents eight issues for our determination. At oral argument, Autohaus abandoned one of those issues, leaving the following seven:

[72]*72(A) Whether the vehicles are signs, as defined by the township’s ordinance.

(B) Whether placing the vehicles on the roof violates section 1706-A(4) óf the ordinance.

r (C) Whether the township is equitably estopped from enforcing the ordinance as to Autohaus.

(D) Whether the use of the vehicles has nonconforming status.

(E) Whether the definition of a sign in the ordinance is unconstitutionally vague and over-broad. - ''

(F) Whether the ordinance is in violation of the United States Constitution’s First Amendment as an unreasonable restriction of free speech.

(G) Whether the ordinance is an invalid exercise of police power in that it fails to promote the public health, safety and welfare and in that the regulations are not substantially related to the purposes of the ordinance.

We will address each of these issues individually. We note at the onset that our scope of review in this appeal, since the record has been made before the board and since no additional evidence was presented before us, is limited to determining whether the board committed an abuse of discretion or an error of law. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 554-5, 462 A.2d 637, 639-40 (1983).

Issue A

Are the Vehicles Signs?

To address this issue, our attention is first directed to section 1701 of the ordinance which defines a sign as: '

“[A]ny identification, description, illustration or device, illuminated or non-illuminatied, which is [73]*73visible from any public place ánd which directs attention to a product, service, place, activity, person, institution, business or solicitation ...”

Autohaus contends that the vehicles are not signs within this definition and argues that interpreting the definition to include them, as signs would lead to the result that all vehicles on Autohaus’s lot would be signs and would require permits, pursuant to another section of the ordinance. The township argues that Autohaus’s position ignores the portion of the definition which requires attention to be directed to a product or place of business. It further contends that, even though vehicles on a dealer’s lot may have the incidental effect of attracting business,- they are not placed there for that purpose.

We agree „with the township and note that thé board found, based on the testimony of Autohaus’s witness, that the purpose of placing the vehicles on the roof is to identify Autohaus’s business as a Volkswagen dealership. Autohaus asks us to find the language of the definition ambiguous, construe it strictly and interpret it in its favor. We believe the language in the definition is clear, and we have no difficulty including the vehicles within the ordinance’s definition- either as “identifications” or as “devices.” Webster’s Seventh New Collegiate Dictionary (1963) defines “identification,” inter alia, as “evidence of identity” and defines “device,” inter alia, as “a piece of equipment or a mechanism designed to serve a spécial purpose” or perform a special function.”

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Related

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Bluebook (online)
4 Pa. D. & C.4th 69, 1989 Pa. Dist. & Cnty. Dec. LEXIS 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-appeal-of-autohaus-lancaster-inc-pactcompllancas-1989.