Upper Southampton Township. v. Upper Southampton Township Zoning Hearing Board

934 A.2d 1162, 594 Pa. 58, 2007 Pa. LEXIS 2448
CourtSupreme Court of Pennsylvania
DecidedNovember 20, 2007
Docket41 MAP 2006
StatusPublished
Cited by15 cases

This text of 934 A.2d 1162 (Upper Southampton Township. v. Upper Southampton Township Zoning Hearing Board) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Upper Southampton Township. v. Upper Southampton Township Zoning Hearing Board, 934 A.2d 1162, 594 Pa. 58, 2007 Pa. LEXIS 2448 (Pa. 2007).

Opinion

OPINION

Justice CASTILLE.

We granted review in this appeal from the Commonwealth Court to explore the question of whether the construction of billboards qualifies as “land development” for purposes of the Municipalities Planning Code, 53 P.S. § 10107 (“MPC”), and the Upper Southampton-Township Subdivision and Land Development Ordinance § 202 (“SALDO”), thereby authorizing a township to require land development approval before the billboards can be erected. We hold that the term “land development” does not encompass the construction of billboards and, therefore, we reverse the Commonwealth Court.

Appellant Clear Channel Outdoor proposed to erect six billboards on four lots in Upper Southampton Township, Bucks County, and entered into leases with the owners of the four lots, which were already being used for commercial purposes. The proposed billboards would be free-standing, V-shaped, double-sided signs measuring fourteen by forty-eight feet, attached to a single pole and illuminated by indirect lighting. The Township Ordinance prohibited the construction of any billboards in the Township, a limitation which Clear Channel and another billboard company successfully challenged in an unrelated matter. Baker v. Upper Southampton *61 Township Zoning Hearing Bd., 830 A.2d 600 (Pa.Cmwlth. 2003), appeal denied, 578 Pa. 690, 849 A.2d 1206 (2004).

After the conclusion of the Baker appeal, Clear Channel submitted separate applications for a sign permit and a building permit to the Township. The Township Zoning Hearing Officer rejected both applications, finding that the applications required the submission of land development applications pursuant to the SALDO. Clear Channel appealed to the Upper Southampton Township Zoning Hearing Board, which consolidated Clear Channel’s appeal with an appeal of another billboard company, Outdoor Partnership, L.L.C., involving the same issue, that is, whether a land development application was required for the construction of billboards. The Zoning Hearing Board held three hearings and rendered separate written decisions in the two appeals, finding in both instances that the proposed construction of billboards did not require land development approval and, therefore, the permits had been wrongly denied.

The Township appealed to the Court of Common Pleas of Bucks County. Again, the appeal was consolidated with that of Outdoor Partnership, as the two appeals involved identical issues. The court took no additional evidence and on January 10, 2005, the trial court reversed the Zoning Hearing Board, finding that the Board had misread the MPC and the relevant Township’s ordinances enacted under authority of the MPC.

The MPC’s definition of land development and that contained in the SALDO are consistent and nearly identical, with the MPC providing:

“Land development,” any of the following activities:
(1) The improvement of one lot or two or more contiguous lots, tracts or parcels of land for any purpose involving:
(i) a group of two or more residential or nonresidential buildings, whether proposed initially or cumulatively, or a single nonresidential building on a lot or lots regardless of the number of occupants or tenure; or
(ii) the division or allocation of land or space, whether initially or cumulatively, between or among two or more *62 existing or prospective occupants by means of, or for the purpose of streets, common areas, leaseholds, condominiums, building groups or other features.
(2) A subdivision of land.
(3) Development in accordance with section 503(1.1).

53 P.S. § 10107. 1 The trial court held that the erection of billboards on the subject properties, which contained existing commercial structures, constituted an allocation of land or space between two or more occupants under subsection (l)(ii) of this definition, and therefore, fell within the MPC and SALDO definitions of land development. The court opined that the proposed construction lacked the “unity in the ownership or use of the properties” that would defeat a zoning authority’s claim that the proposed use constituted land development. Instead, the court found that “a new use, belonging to and operated by a new and different entity ... will be established on land already owned, occupied and used by another.” Trial Ct. Op. at 11. In a supplemental opinion filed after Clear Channel appealed to the Commonwealth Court and submitted its Statement of Matters Complained of on Appeal, the court expanded on this conclusion as follows:

[T]he inescapable conclusion remains the same. Each of the parcels which are the subject of this litigation will be allocated between the owners and/or leasehold occupants of the commercial buildings which already exist on each parcel and [Clear Channel] — who will erect substantial structures, each of which will occupy a definite and unchanging portion of the parcel. [Clear Channel] will have significant legal rights to use that fixed location to the exclusion of any conflicting use or user. Each fixed sign location will have a use entirely distinct and independent from the uses already existing on these properties.

Supplemental Op. at 4.

The Commonwealth Court affirmed in a published opinion, agreeing with the trial court that the allocation of land to the *63 construction of billboards constituted land development within the meaning of the MPC and the SALDO. Upper Southampton Township v. Upper Southampton Township Zoning Hearing Board, 885 A.2d 85 (Pa.Cmwlth.2005). The court contrasted the situation sub judice with prior decisions in which it had held that the expansion of capacity of an existing antenna or pole did not constitute land development because there was no allocation of land involved. See Marshall Township Bd. of Supervisors v. Marshall Township Zoning Hearing Bd., 717 A.2d 1 (Pa.Cmwlth.1998); Tu-Way Tower Co. v. Zoning Hearing Bd. of Township of Salisbury, 688 A.2d 744 (Pa.Cmwlth. 1997). Further, the court pointed to cases where it had found that the allocation of land to a specific purpose fell within the meaning of land development. See Lehigh Asphalt Paving and Construction Co. v. Board of Supervisors of East Penn Township, 830 A.2d 1063 (Pa.Cmwlth.2003); White v. Township of Upper St. Clair,

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Bluebook (online)
934 A.2d 1162, 594 Pa. 58, 2007 Pa. LEXIS 2448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/upper-southampton-township-v-upper-southampton-township-zoning-hearing-pa-2007.