[J-5-2022] [MO: Wecht, J.] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
IN RE: APPEAL OF THE APRIL 24, 2018 : No. 80 MAP 2021 DECISION OF THE CHARLESTOWN : TOWNSHIP ZONING HEARING BOARD : Appeal from the Order of DENYING THE CHALLENGE OF : Commonwealth Court at No. 826 CD CHARLESTOWN OUTDOOR, LLC TO THE : 2019 dated January 21, 2021, VALIDITY OF THE ZONING : reconsideration denied March 15, ORDINANCE'S EXCLUSION OF : 2021, Affirming the Order of the OUTDOOR ADVERTISING BILLBOARDS : Chester County Court of Common : Pleas, Civil Division, at No. 2018- : 05282-ZB dated June 13, 2019. APPEAL OF: CHARLESTOWN : OUTDOOR, LLC : ARGUED: March 8, 2022
DISSENTING OPINION
JUSTICE MUNDY DECIDED: August 16, 2022 In 2004, Charlestown Township (“Township”), a municipality in Chester County,
passed an ordinance (“the Ordinance”) that permitted billboards within the B-1 zoning
district subject to a set-back requirement of not less than five feet nor more than thirty
feet from the edge of the Pennsylvania Turnpike (“Turnpike”). Subsequent to the
enactment of the Ordinance, the Pennsylvania Department of Transportation
(“PennDOT”) constructed a Turnpike interchange in the Township. A PennDOT
regulation bars the erection of billboards within five hundred feet of an interchange. The
combined set-back restrictions of the Ordinance and the PennDOT regulation resulted in
the effective exclusion of billboards from the entirety of the Township. Despite this
effective exclusion, the Majority holds that the Ordinance is not exclusionary because it
finds that it is not the Ordinance, but rather the PennDOT regulation, that precludes the
erection of billboards. In so finding, the Majority holds that a de facto exclusionary challenge must be decided solely by reference to the restrictions imposed by the
language of the challenged zoning ordinance. Maj. Op. at 18. I cannot agree and,
therefore, dissent.
“This Court has repeatedly recognized that ‘[p]roperty owners have a
constitutionally protected right to enjoy their property[.]’” Township of Exeter v. Zoning
Hearing Bd. Of Exeter Twp., 962 A.2d 653, 659 (Pa. 2009) (quoting In re: Realen Valley
Forge Greenes Associates, 838 A.2d 718, 727 (Pa. 2003)). We have also recognized
that this constitutionally protected right “may be reasonably limited by zoning ordinances
that are enacted by municipalities pursuant to their police power, i.e., governmental
actions taken to protect or preserve the public health, safety, morality, and welfare.” Id.
(quoting In re: Realen Valley, 838 A.2d at 727). While municipalities can exercise their
police power to reasonably limit property owners’ constitutionally protected rights, a
zoning ordinance that excludes a legitimate use of land may be found unconstitutionally
exclusionary. Billboards have consistently been recognized as a legitimate business use,
and as such cannot be excluded from the entirety of a municipality without justification.
See e.g. Exeter, 962 A.2d at 660 (“[S]ince billboards are not objectionable per se, a
blanket prohibition on billboards without justification cannot pass constitutional muster.”
(footnote omitted)); Norate Corp. v Zoning Board of Adjustments of Upper Moreland, 207
A.2d 890, 896 (Pa. 1965).
Challenges asserting a zoning ordinance is unconstitutionally exclusionary fall into
one of two categories. An ordinance that, by its explicit terms, excludes a particular use
is considered de jure exclusionary. On the other hand, an ordinance is deemed de facto
exclusionary when it appears on its face to permit a use, but subject to such conditions
that the use cannot be accomplished. Exeter, 962 A.2d at 657. The Ordinance here
facially permits billboards in the B-1 zoning district while excluding them from other zoning
[J-5-2022] [MO: Wecht, J.] - 2 districts within the Township. As such this case involves a de facto exclusionary
challenge. While on its face the Ordinance permits the erection of billboards in the B-1
district, after construction of the interchange, the PennDOT regulation effectively bars the
placement of billboards in the district.1 The ultimate result is that billboards, a legitimate
business use, are completely excluded from the entire Township. Thus, the Ordinance
is de facto exclusionary.
1 The Majority contends that “it is not the zoning ordinance, but rather the statewide
regulation, that precludes” billboards in the B-1 zoning district. Maj. Op. at 2. However,
it is not solely the Ordinance that bars the erection of billboards. Rather, it is the
combination of the setback requirements in the Ordinance and the PennDOT regulation
that result in the inability to place billboards in the B-1 zoning district. Before the Zoning
Hearing Board, the Township’s Planning Expert testified that a portion of the B-1 district
lay situated outside of the five-hundred-foot radius of the interchange subject to PennDOT
regulation but also outside the thirty-foot setback required in the Ordinance. N.T.,
1/29/17, at 24-25, 41-42. Consequently, but for the Ordinance’s set back restrictions, a
billboard could be placed in the B-1 district without running afoul of the PennDOT
regulation. The Ordinance and the PennDOT regulation together effectively exclude
billboards from the B-1 district and, by extension, the Township as a whole. The Majority
dismisses this combined effect of the Ordinance and the PennDOT regulation out of hand
because, in its view, “[o]ur precedent resolves exclusionary zoning challenges by
examining the terms of the challenged zoning ordinance itself, not the combined effect of
overlapping state-wide regulations.” Id. at 18 n.50. But this Court has never directly
addressed the question of what role “overlapping state-wide regulations” play when
considering a de facto exclusionary challenge.
[J-5-2022] [MO: Wecht, J.] - 3 The Majority ignores this reality and instead focusses solely on the explicit
language of the Ordinance. Maj. Op. at 18. In the Majority’s view “[w]hen a prohibition
or impossibility arises by virtue of something other than the ordinance, it cannot be said
that the ordinance is the cause of that impossibility or, consequently, that it is
exclusionary.” Id. Unlike de jure exclusionary challenges, however, a de facto
exclusionary challenge is not focused on the language of the challenged ordinance.
Rather, a de facto challenge is focused on the effect of the application of the ordinance.
In considering such a challenge, courts should look beyond the language of the ordinance
and determine if a legitimate property use is effectively barred from the jurisdiction. In
these situations, it is imperative to consider the interplay between the challenged
ordinance and any other governmental regulations that restrict how property owners may
exercise their property rights. Otherwise, municipalities may fashion their zoning
ordinances in a manner which combines with other governmental regulations to achieve
a result the municipalities could not constitutionally achieve on their own, i.e., the
complete exclusion of legitimate uses from their jurisdictions.
The Majority observes that the PennDOT regulation that combines with the
Free access — add to your briefcase to read the full text and ask questions with AI
[J-5-2022] [MO: Wecht, J.] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
IN RE: APPEAL OF THE APRIL 24, 2018 : No. 80 MAP 2021 DECISION OF THE CHARLESTOWN : TOWNSHIP ZONING HEARING BOARD : Appeal from the Order of DENYING THE CHALLENGE OF : Commonwealth Court at No. 826 CD CHARLESTOWN OUTDOOR, LLC TO THE : 2019 dated January 21, 2021, VALIDITY OF THE ZONING : reconsideration denied March 15, ORDINANCE'S EXCLUSION OF : 2021, Affirming the Order of the OUTDOOR ADVERTISING BILLBOARDS : Chester County Court of Common : Pleas, Civil Division, at No. 2018- : 05282-ZB dated June 13, 2019. APPEAL OF: CHARLESTOWN : OUTDOOR, LLC : ARGUED: March 8, 2022
DISSENTING OPINION
JUSTICE MUNDY DECIDED: August 16, 2022 In 2004, Charlestown Township (“Township”), a municipality in Chester County,
passed an ordinance (“the Ordinance”) that permitted billboards within the B-1 zoning
district subject to a set-back requirement of not less than five feet nor more than thirty
feet from the edge of the Pennsylvania Turnpike (“Turnpike”). Subsequent to the
enactment of the Ordinance, the Pennsylvania Department of Transportation
(“PennDOT”) constructed a Turnpike interchange in the Township. A PennDOT
regulation bars the erection of billboards within five hundred feet of an interchange. The
combined set-back restrictions of the Ordinance and the PennDOT regulation resulted in
the effective exclusion of billboards from the entirety of the Township. Despite this
effective exclusion, the Majority holds that the Ordinance is not exclusionary because it
finds that it is not the Ordinance, but rather the PennDOT regulation, that precludes the
erection of billboards. In so finding, the Majority holds that a de facto exclusionary challenge must be decided solely by reference to the restrictions imposed by the
language of the challenged zoning ordinance. Maj. Op. at 18. I cannot agree and,
therefore, dissent.
“This Court has repeatedly recognized that ‘[p]roperty owners have a
constitutionally protected right to enjoy their property[.]’” Township of Exeter v. Zoning
Hearing Bd. Of Exeter Twp., 962 A.2d 653, 659 (Pa. 2009) (quoting In re: Realen Valley
Forge Greenes Associates, 838 A.2d 718, 727 (Pa. 2003)). We have also recognized
that this constitutionally protected right “may be reasonably limited by zoning ordinances
that are enacted by municipalities pursuant to their police power, i.e., governmental
actions taken to protect or preserve the public health, safety, morality, and welfare.” Id.
(quoting In re: Realen Valley, 838 A.2d at 727). While municipalities can exercise their
police power to reasonably limit property owners’ constitutionally protected rights, a
zoning ordinance that excludes a legitimate use of land may be found unconstitutionally
exclusionary. Billboards have consistently been recognized as a legitimate business use,
and as such cannot be excluded from the entirety of a municipality without justification.
See e.g. Exeter, 962 A.2d at 660 (“[S]ince billboards are not objectionable per se, a
blanket prohibition on billboards without justification cannot pass constitutional muster.”
(footnote omitted)); Norate Corp. v Zoning Board of Adjustments of Upper Moreland, 207
A.2d 890, 896 (Pa. 1965).
Challenges asserting a zoning ordinance is unconstitutionally exclusionary fall into
one of two categories. An ordinance that, by its explicit terms, excludes a particular use
is considered de jure exclusionary. On the other hand, an ordinance is deemed de facto
exclusionary when it appears on its face to permit a use, but subject to such conditions
that the use cannot be accomplished. Exeter, 962 A.2d at 657. The Ordinance here
facially permits billboards in the B-1 zoning district while excluding them from other zoning
[J-5-2022] [MO: Wecht, J.] - 2 districts within the Township. As such this case involves a de facto exclusionary
challenge. While on its face the Ordinance permits the erection of billboards in the B-1
district, after construction of the interchange, the PennDOT regulation effectively bars the
placement of billboards in the district.1 The ultimate result is that billboards, a legitimate
business use, are completely excluded from the entire Township. Thus, the Ordinance
is de facto exclusionary.
1 The Majority contends that “it is not the zoning ordinance, but rather the statewide
regulation, that precludes” billboards in the B-1 zoning district. Maj. Op. at 2. However,
it is not solely the Ordinance that bars the erection of billboards. Rather, it is the
combination of the setback requirements in the Ordinance and the PennDOT regulation
that result in the inability to place billboards in the B-1 zoning district. Before the Zoning
Hearing Board, the Township’s Planning Expert testified that a portion of the B-1 district
lay situated outside of the five-hundred-foot radius of the interchange subject to PennDOT
regulation but also outside the thirty-foot setback required in the Ordinance. N.T.,
1/29/17, at 24-25, 41-42. Consequently, but for the Ordinance’s set back restrictions, a
billboard could be placed in the B-1 district without running afoul of the PennDOT
regulation. The Ordinance and the PennDOT regulation together effectively exclude
billboards from the B-1 district and, by extension, the Township as a whole. The Majority
dismisses this combined effect of the Ordinance and the PennDOT regulation out of hand
because, in its view, “[o]ur precedent resolves exclusionary zoning challenges by
examining the terms of the challenged zoning ordinance itself, not the combined effect of
overlapping state-wide regulations.” Id. at 18 n.50. But this Court has never directly
addressed the question of what role “overlapping state-wide regulations” play when
considering a de facto exclusionary challenge.
[J-5-2022] [MO: Wecht, J.] - 3 The Majority ignores this reality and instead focusses solely on the explicit
language of the Ordinance. Maj. Op. at 18. In the Majority’s view “[w]hen a prohibition
or impossibility arises by virtue of something other than the ordinance, it cannot be said
that the ordinance is the cause of that impossibility or, consequently, that it is
exclusionary.” Id. Unlike de jure exclusionary challenges, however, a de facto
exclusionary challenge is not focused on the language of the challenged ordinance.
Rather, a de facto challenge is focused on the effect of the application of the ordinance.
In considering such a challenge, courts should look beyond the language of the ordinance
and determine if a legitimate property use is effectively barred from the jurisdiction. In
these situations, it is imperative to consider the interplay between the challenged
ordinance and any other governmental regulations that restrict how property owners may
exercise their property rights. Otherwise, municipalities may fashion their zoning
ordinances in a manner which combines with other governmental regulations to achieve
a result the municipalities could not constitutionally achieve on their own, i.e., the
complete exclusion of legitimate uses from their jurisdictions.
The Majority observes that the PennDOT regulation that combines with the
Ordinance in the case sub judice became applicable in the Township after the Township
enacted the Ordinance. It further recognizes that this case does not involve “a situation
where a municipality zoned for a particular use in a district subject to statewide regulations
that already precluded that use.” Id. at 18 n.20. Nevertheless, the respective timing of
the enactment of the regulation and ordinance does not impact the language of the
ordinance, which is the only consideration the Majority finds relevant. If PennDOT
constructed the interchange in the Township prior to the Township’s enactment of the
Ordinance the regulation would still bar the placement of billboards within five hundred
feet of the interchange and the Ordinance would still only permit billboards in the B-1
[J-5-2022] [MO: Wecht, J.] - 4 district. Under the Majority’s analysis the prohibition on billboards would still arise “by
virtue of something other than the ordinance[.]” Id. at 18. The Majority’s holding sets the
stage for municipalities in the Commonwealth to manipulate the zoning process to
exclude unpopular property uses from their jurisdictions by relying on preexisting
regulations. This will have an impact beyond commercial property uses such as
billboards and may restrict uses such as low-income housing or drug and alcohol
treatment facilities.
I respectfully dissent.
[J-5-2022] [MO: Wecht, J.] - 5