Tredyffrin Outdoor, LLC v. ZHB of Tredyffrin Twp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tredyffrin Outdoor, LLC, :

Appellant :

:

v. : No. 1305 C.D. 2021

:

Zoning Hearing Board of :

Tredyffrin Township : Submitted: October 28, 2022

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE CEISLER FILED: May 5, 2023

Appellant Tredyffrin Outdoor, LLC (Outdoor) appeals from the Court of

Common Pleas of Chester County’s (Common Pleas) October 19, 2021 order, which

denied Outdoor’s land use appeal. Through that order, Common Pleas affirmed

Appellee Zoning Hearing Board of Tredyffrin Township’s (Board) October 24, 2019

Decision, which denied Outdoor’s appeal of the Township zoning officer’s denial of

Outdoor’s application for an advertising sign permit, as well as its substantive

validity challenge to former Section 208-131 of Tredyffrin Township’s (Township)

Zoning Ordinance.1 After thorough review, we reverse in part and affirm in part.

I. Background

[Outdoor] is the lessee of property known as 1819 East

Lancaster Avenue, [in] Paoli, Pennsylvania [(Property)].

[Board’s Decision, Findings of Fact (F.F.) ¶¶3, 11-13.]

1

Tredyffrin Township Zoning Ordinance of 1939, Chester County, Pa., as amended

(1939). Subsequent to Outdoor’s appeal to the Board and its substantive validity challenge, the

Township’s Board of Supervisors substantially revised and replaced Section 208-131 when it

enacted Ordinance HR-437 on August 17, 2020.

The Property is located at the corner of Route 30 and

Route 252 in the C-1 and Advertising Sign Overlay

District in the Township. [On the Property is] an existing

advertising sign [(Sign)]. [Id., F.F. ¶4.] The Sign is a vinyl

wrap advertising sign and was erected approximately [70]

years ago. [Id., F.F. ¶¶10, 21.] It is [8] feet tall, [136]

square feet in size[,] and [is] single[-]faced. [Id., F.F. ¶¶16,

19-20.] In 1974, the Sign was recognized as non-

conforming [regarding the Zoning Ordinance’s then-

applicable regulations]. [Id., F.F. ¶22.]

In 2004, the Township[’s Board of Supervisors] adopted

Ordinance HR-329 [(HR-329)]. HR-329, with the

exception of Section III, was codified at [former Zoning]

Ordinance § 208-131 . . . [, which ]established the

Advertising Sign Overlay District [(Overlay District)] . . .

[and] permit[ed] advertising signs within the Overlay

District by conditional use. [Id., F.F. ¶¶23-26; former

Zoning Ordinance § 208-131.A.] Pursuant to the [former

Zoning] Ordinance, any such advertising signs shall not

exceed [15] feet in height or [136] square feet in area.

[Former Zoning Ordinance] § 208-131[.B]. The number of

advertising signs on any parcel is limited to one. []Id.[]§

208-131.C[].

Three . . . properties are located within the Overlay

District: the . . . Property and two other parcels[. Id. § 208-

131.A]. The other parcels also contain advertising signs.

The parcel located at 750 Bear Hill Road has a double-

faced billboard with each face being more than three . . .

times the area of the Sign and taller than the limitation in

[former Section] 208-131. [See Reproduced Record (R.R.)

at 244a-50a.] The parcel located at 21 Lancaster Avenue

in Devon has seven billboards of varying heights and

sizes, each taller and larger than the Sign. [See id. at 251a-

61a.] Notwithstanding the above, the advertising signs on

all of the various parcels were allowed to remain as[-]is

and “by right.” [Former Zoning Ordinance § 208-131.C.]

In [December] 2018, Outdoor sought [permission] to

modernize the method of changing [advertising] copy on

the Sign [by filing a zoning permit application

(Application) with the Township]. [See R.R. at 184a-

203a.] It proposed replacing the vinyl wrap with installed

changeable LED lights. [Board’s Decision, F.F. ¶¶35, 39-

2

57.] The Sign’s area and height would remain the same.

[Id., F.F. ¶¶ 35-39]. . . . A little over a month later, the

Township’s Zoning Officer issued a denial letter[. R.R. at

236a-37a].

Common Pleas Decision Sur Appeal at 1-3. Therein, the zoning officer explained

that, per the terms of the Zoning Ordinance, the Sign qualified as a freestanding

advertising sign,2 but not a changeable copy sign,3 and could not be approved

because, contrary to the requirements of the Zoning Ordinance, Outdoor’s

modernized Sign would be internally lit and would flash when it displayed images.

R.R. at 236a-37a.

Outdoor appealed the zoning officer’s denial to the Board on several bases.

First, it lodged a substantive validity challenge4 against former Section 208-131, on

the basis that it regulated signage in the Township in a manner that was unconnected

to protecting the public welfare and, thus, exceeded the Township’s constitutionally

2

At the time of Outdoor’s Application, the Zoning Ordinance defined “freestanding sign”

as “[a] sign which is self-supporting upon the ground or which is supported by means of poles,

pylons or standards in the ground. A freestanding sign is not attached to a building, except by

secondary supports such as guy wires.” Former Zoning Ordinance § 208-6. In addition, it defined

“advertising sign” as “[a] sign which directs attention to a business, commodity, service or

entertainment conducted, sold or offered elsewhere than upon the property on which the sign is

located. An advertising sign shall include a commercial billboard.” Id. Section 208-6’s definitions

for various kinds of signs were substantially revised and replaced when the Township’s Board of

Supervisors enacted Ordinance HR-437 on August 17, 2020.

3

Likewise, at the time of Outdoor’s Application, the Zoning Ordinance defined

“changeable copy sign” as “[a] sign on which message copy can be changed through use of

attachable letters, numerals or graphics or by switching of lamps. A changeable copy sign shall

not be considered to be an animated sign.” Former Zoning Ordinance § 208-6.

4

Section 916.1 of the Pennsylvania Municipalities Planning Code (MPC) authorizes

landowners to “challenge the [substantive] validity of an ordinance or map or any provision thereof

which prohibits or restricts the use or development of land in which he has an interest[.]” Act of

July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L. 1329, 53 P.S.

§ 10916.1.

3

granted police power.5 See R.R. at 173a-174a. Second, Outdoor maintained that the

zoning officer had erroneously determined that the Sign did not qualify as a

changeable copy sign. Id. at 176a. Third, it asserted that, even if the sign was not a

changeable copy sign, the zoning officer had incorrectly interpreted the Zoning

Ordinance as prohibiting internal sign illumination. Id. at 176a-177a. Finally,

Outdoor claimed that the zoning officer had wrongly concluded that the Sign would

flash when it displayed images and was consequently barred by the Zoning

Ordinance. Id. at 177a.6

The Board held hearings regarding Outdoor’s substantive validity challenge

and its appeal on May 29, 2019, July 9, 2019, and July 25, 2019. Thereafter, on

October 24, 2019, the Board issued its Decision, through which it unanimously

denied the substantive validity challenge and affirmed the zoning officer’s denial of

Outdoor’s Application. In doing so, the Board noted that the zoning officer had

reversed his initial conclusion that the Sign did not constitute a changeable copy

sign, but agreed with him that the Sign was nevertheless barred because it would

flash by “chang[ing] instantaneously, every six . . . seconds, to different lit images,”

and would be internally illuminated. Decision, F.F. ¶¶62-69; id. Conclusions of Law

(C.L.) ¶¶16-24; id., Discussion at 14-18. Additionally, the Board rejected Outdoor’s

substantive validity challenge, reasoning that former Section 208-131 had merely

legalized preexisting, non-conforming signs in a uniform manner across the three

properties in the Overlay District and did not treat those properties in an arbitrary or

5

“Police power controls the use of property by the owner, for the public good, its use

otherwise being harmful[.]” Appeal of White, 134 A. 409, 411 (Pa. 1926).

6

Outdoor also challenged the Township’s $10,000 fee for applicants who wished to make

substantive validity challenges to its ordinances. R.R. at 174a.

4

discriminatory way. See id., F.F. ¶¶71-78; id., C.L. ¶¶25-34; id., Discussion at 19-

22.7

Outdoor then appealed to Common Pleas, which took no additional evidence

and, on October 19, 2021, affirmed the Board’s Decision in full. This appeal to our

Court followed shortly thereafter.

II. Discussion

Outdoor presents several arguments in support of its position that reversal of

Common Pleas’ order is warranted, which we summarize and reorder as follows.8

First, the Board improperly denied Outdoor’s substantive validity challenge.

Outdoor claims that former Section 208-131 accorded signage rights in the Overlay

District based not upon some uniform standard that came within the Township’s

authority to protect the public health, safety, and welfare; instead, in Outdoor’s view,

the Township arbitrarily awarded such rights based only on what signs were already

in the Overlay District prior to its creation, which renders former Section 208-131

7

The Board did grant Outdoor’s substantive validity challenge to the aforementioned

$10,000 filing fee, and issued a recommendation that “the Township review and revise as

appropriate the filing fee as part of its adoption of the 2020 fee schedule resolution.” Decision,

Order ¶4; see also id. F.F. ¶¶79-86; id., C.L. ¶¶35-37; id., Discussion at 22-23. The Board’s ruling

on this point was not appealed by either Outdoor or the Township and had no bearing on Common

Pleas’ handling of Outdoor’s appeal, or on our disposition of this matter.

8

As Common Pleas took no additional evidence, our standard of review is limited to

determining whether the Board violated Outdoor’s constitutional rights, committed an error of law,

or abused its discretion. SSEN, Inc. v. Borough Council of Borough of Eddystone, 810 A.2d 200,

208 n.11 (Pa. Cmwlth. 2002). “An abuse of discretion occurs when [a local agency’s factual]

findings are not supported by substantial evidence in the record.” Coal Gas Recovery, L.P. v.

Franklin Twp. Zoning Hearing Bd., 944 A.2d 832, 838 (Pa. Cmwlth. 2008). “By ‘substantial

evidence’ we mean such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637, 640

(Pa. 1983) (citations omitted).

5

unconstitutional. Outdoor’s Br. at 13-17.9 Second, Outdoor maintains that the Board

abused its discretion, acted in an arbitrary and capricious manner, and committed an

error of law by affirming the zoning officer’s ruling that the Sign would flash when

in operation and, thus, was prohibited by the Zoning Ordinance. Id. at 40-47. Finally,

Outdoor similarly asserts that the Board abused its discretion, acted in an arbitrary

and capricious manner, and committed an error of law by affirming the zoning

officer’s ruling that the Zoning Ordinance bars internally illuminated signs. Id. at

27-39.

A. Substantive Validity of former Section 208-131 of the Zoning Ordinance

We agree with Outdoor that the Board abused its discretion, to the extent it

concluded that former Section 208-131 is substantively valid in toto.

Property owners have a constitutional right to enjoy their

property. U.S. CONST. amends. V, XIV; PA. CONST. art. I

§ 1. However, townships may place reasonable limits on

the right of private property owners to do what they wish

with their property by enacting zoning ordinances in

accordance with [each] township’s police powers to

protect the public health, safety, and welfare. Section 604

of the MPC, 53 P.S. § 10604; In re Realen Valley Forge

Greenes Associates, . . . 838 A.2d 718, 727-[]29 ([Pa.]

2003); Penn Street, L.P. v. East Lampeter [Twp.] Zoning

Hearing [Bd.], 84 A.3d 1114, 1134 (Pa. Cmwlth. 2014). A

zoning ordinance is presumed to be constitutional unless

the party challenging the ordinance demonstrates that the

ordinance is unreasonable, arbitrary, or not substantially

related to a township’s power to protect the public health,

safety, and welfare. Village of Euclid . . . v. Ambler Realty

Co., 272 U.S. 365 . . . (1926); BAC, Inc. v. [Bd.] of [Sup’rs]

of Millcreek [Twp.], . . . 633 A.2d 144, 146-147

([Pa.]1993); Keinath v. [Twp.] of Edgmont, 964 A.2d 458,

9

Outdoor also claims that HR-329 is substantively invalid, but, as HR-329 is simply a local

ordinance that was passed by the Township’s Board of Supervisors, which was codified in a

slightly modified way as former Section 208-131, Outdoor’s arguments regarding HR-329 are

simultaneously duplicative and irrelevant.

6

462 (Pa. Cmwlth. 2009); Fisher v. Viola, 789 A.2d 782,

785 (Pa. Cmwlth. 2001). In examining whether the

ordinance is a valid exercise of the police powers,

reviewing courts employ a substantive due process

analysis, balancing the public interest to be served by the

ordinance against the confiscatory or exclusionary impact

of the ordinance on individual property rights; however,

where the validity is debatable, it is the legislature’s

judgment that must control. Boundary Drive [Assocs.] v.

Shrewsbury [Twp. Bd.] of [Sup’rs], . . . 491 A.2d 86, 90

([Pa.] 1985); Penn Street, 84 A.3d at 1134.

Delchester Devs., L.P. v. Zoning Hearing Bd. of Twp. of London Grove, 161 A.3d

1081, 1091-92 (Pa. Cmwlth. 2017). “In other words, we must examine the

reasonableness of the restriction on land use in light of the deprivation of the

landowner’s freedom thereby incurred.” Penn Street, 84 A.3d at 1134.

Former Section 208-131, the Zoning Ordinance provision challenged by

Outdoor, reads as follows:

A. Freestanding advertising signs shall be permitted by

conditional use in an overlay district consisting of the

following parcels: 43-9M-160, [i.e., the Property,] 43-10-

11, [i.e., 750 Bear Hill Road,] and 43-11E-80[, i.e., 21

Lancaster Avenue]. Freestanding advertising signs are

also subject to the general standards prescribed in

[Section] 208-117 [of the Zoning Ordinance] and the

regulations of [Section] 208-123. In the event of a conflict

among [Section] 208-117, [Section] 208-123 and this

[Section], the most restrictive regulation shall prevail. The

applicant for conditional use approval for a freestanding

advertising sign shall have the burden of proving

compliance with all applicable criteria and regulations.

Documents and plans necessary to establish compliance

shall be submitted to the Township with the conditional

use application.

B. Signs shall not exceed 136 square feet in area and signs

and their supporting structure shall not exceed 15 feet in

height, except that signs existing on the parcels listed in

Subsection A above on the effective date of this section

that are larger and/or higher may continue as uses by right.

7

C. No more than one freestanding advertising sign may be

erected on a lot, either alone or with another principal use

or uses, except that signs in excess of one existing on the

parcels listed in Subsection A above on the effective date

of this section may continue as uses by right.

D. Signs may be externally lit: Lighting shall comply with

the Illuminating Engineering Society of North America’s

(“IESNA”) recommended practices and criteria contained

in the [IESNA] Lighting Handbook, including but not

limited to criteria for “full cutoff” fixtures. Fixtures shall

be equipped with or be capable of being back-fitted with

light-directing devices such as shields, visors or hoods

when necessary to redirect offending light distribution. All

fixtures shall be aimed to illuminate the advertising copy

only. All lighting shall be aimed, located, designed, fitted

and maintained so as not to present a hazard to drivers or

pedestrians by impairing their ability to safely traverse and

so as not to project or reflect light onto a neighboring use

or property. If adjacent to residential zoning districts, the

signs shall be lit only from dusk to 12:00 midnight. All

lighting fixtures shall be equipped with devices which

automatically extinguish the lighting at 12:00 midnight.

Former Zoning Ordinance § 208-131. Former Section 208-131 also includes the

following, relevant note:

Editor’s Note: Effect on existing advertising signs. . . .

HR-329 also provided that:

“A. Notwithstanding the provisions of [Section]

208-131 . . . , advertising signs on the parcels

identified above existing as of the effective date of

this ordinance may be continued and shall not be

deemed nonconforming as to use, dimension or

other requirement made effective by the enactment

of this ordinance.

B. For the purpose of regulation and enforcement,

the Code Enforcement Officer shall make and

maintain a list of all advertising signs on the parcels

identified above existing as of the effective date of

this [Zoning O]rdinance. The list shall be filed in

8

the office of the Code Enforcement Office and used

to assure compliance with this ordinance.”

Id.

Former Section 208-131 establishes uniform conditional use regulations

regarding the permissible size and height of freestanding advertising signs, as well

as regarding the number of such signs allowed on each parcel in the Overlay District.

While regulations of this nature are constitutionally permissible, what is not is the

carve-out former Section 208-131 created for preexisting signs in the Overlay

District, which legalized those signs and declared them to be, in their then-current

form, permissible by right. This carve-out cannot be deemed to have a substantial

relationship to the Township’s police power, as it was predicated not upon the

physical specifics of the preexisting signs, or upon whether those signs comported

with the Township’s general determinations regarding what sort of signs should be

allowed in the Overlay District; rather, former Section 208-131’s designation of

certain signs as allowed by right was based entirely upon whether those signs were

already in place at the time that former Section 208-131 was codified into the

Township’s Zoning Ordinance. This categorical distinction is arbitrary and, thus,

constitutionally impermissible.

This, however, does not mean that former Section 208-131 must be deemed

substantively invalid as a whole.

In general, a statute or ordinance may be partially valid

and partially invalid, and if the provisions are distinct and

not so interwoven as to be inseparable, the courts should

sustain the valid portions. Saulsbury v. Bethlehem Steel

[Co.], . . . 196 A.2d 664, 666, 667 ([Pa.] 1964). In

determining the severability of a statute or ordinance, the

legislative intent is of primary significance. Id. The

legislating body must have intended that the act or

ordinance be separable, and the statute or ordinance must

be capable of separation in fact. Id. Thus, the valid portion

9

of the enactment must be independent and complete

within itself. Id.

Pa. Indep. Waste Haulers Ass’n v. Twp. of Lower Merion, 872 A.2d 224, 228 n.16

(Pa. Cmwlth. 2005). Furthermore,

[t]he possible severability of provisions of the ordinance

is always germane because the Statutory Construction Act

of 1972, at 1 Pa. C.S. § 1925, provides:

“The provision of every statute shall be severable.

If any provision of any statute or the application

thereof to any person or circumstance is held

invalid, the remainder of the statute, and the

application of such provisions to other persons or

circumstances, shall not be affected thereby, unless

the Court finds that the valid provisions of the

statutes are so essentially and inseparably connected

with, and so depend upon, the void provision or

application, that it cannot be presumed the General

Assembly would have enacted the remaining valid

provisions without the void one; or unless the court

finds that the remaining valid provisions, standing

alone, are incomplete and are incapable of being

executed in accordance with the legislative intent.”

Greenwood Twp. v. KEFO, Inc., 416 A.2d 583, 586 (Pa. Cmwlth. 1980); see id.

(“Rules of statutory construction are applicable to statutes and ordinances alike.”).

In this instance, there is no question that the Township’s Board of Supervisors

intended any offending portions of Section 208-131 to be severable from the rest.

Section V of HR-329 is titled “Severability” and reads as follows:

If any sentence, clause, section or part of this Ordinance is

for any reason found to be unconstitutional, illegal or

invalid, such unconstitutionality, illegality or invalidity

shall not affect or impair any of the remaining provisions,

sentences, clauses, sections or parts hereof. It is hereby

declared as the intent of the Board of Supervisors that this

Ordinance would have been adopted absent said

provisions, sentences, clauses, sections or parts.

10

R.R. at 206a. This language unmistakably evinces the Board of Supervisors’ clear,

unambiguous intent to render Section 208-131 severable in whole or in part.

Furthermore, the offending portions of Section 208-131, i.e., those declaring

preexisting signs within the Overlay District to be permissible by right without

regard to their quantity or physical particulars, have no effect upon the viability of

the remaining parts. Therefore, we conclude that the only substantively invalid

pieces of Section 208-131 are as follows: Subsection B and Subsection C, but only

insofar as those subsections state that preexisting signs in the Overlay District are

allowed by right; and Subsection A of the Editor’s Note, which states that those signs

should not be considered as nonconforming.

The substantive invalidity of these subsections is ultimately of no help to

Outdoor. Indeed, the practical effect of our holding on this point is that the signs on

the properties located at 750 Bear Hill Road and 21 Lancaster Avenue, which exceed

the Zoning Ordinance’s size, height, and/or number restrictions, are simply

transformed into, or returned to their previous existence as, nonconforming uses.

A lawful nonconforming use is a use that predates the

enactment of a prohibitory zoning restriction. The right to

continue a lawful nonconforming use is afforded the

constitutional protections of due process. As such, a

property owner’s right to continue a legal nonconforming

use is an interest that runs with the land, so long as the use

is not abandoned.

Sowich v. Zoning Hearing Bd. of Brown Twp., 214 A.3d 775, 785 (Pa. Cmwlth.

2019) (internal citations omitted). As for the Sign, it fully complies with former

Section 208-131’s restrictions and, thus, has been made into an authorized, by right

use of the Property. See Decision, F.F. ¶77; id., Discussion at 20; id., C.L. ¶30. This

did not impinge upon Outdoor’s ability to keep the Sign in its preexisting state and,

as a result, legalized a nonconforming use in an entirely constitutional manner. See

11

Pennridge Dev. Enterprises, Inc. v. Volovnik, 624 A.2d 674, 677 (Pa. Cmwlth. 1993)

(“[S]ince a nonconforming use is not entitled to greater rights that those afforded a

conforming use, [a landowner] cannot be disadvantaged by having its

nonconforming use converted to a permitted use.”); see id. at 676 (a municipality

acts in an unconstitutional manner if it enacts an ordinance that eliminates a

nonconforming use without also proving just compensation to the affected

landowner); accord Warner Co. v. Zoning Hearing Bd. of Tredyffrin Twp., 612 A.2d

578, 585 (Pa. Cmwlth. 1992). Accordingly, the remaining, substantively valid

provisions of former Section 208-131 still fully govern the Sign.

B. The Meaning of “Flash”

Furthermore, this partial invalidation of former Section 208-131 does not

affect the propriety of the Board’s determination that the modified Sign would flash

while in operation and, thus, was prohibited by former Section 208-123 of the

Zoning Ordinance.10 “The interpretation of a statute or ordinance presents this Court

with a pure question of law, which is generally subject to plenary review.” Kohl v.

New Sewickley Twp. Zoning Hearing Bd., 108 A.3d 961, 968 (Pa. Cmwlth. 2015).

Like statutes, the primary objective of interpreting

ordinances is to determine the intent of the legislative body

that enacted the ordinance. See 1 Pa. C.S. § 1921; Bailey

v. Zoning Bd. of Adjustment of City of Phila., . . . 801 A.2d

492 ([Pa.] 2002); Malt Beverages Distribs. Ass’n v. Pa.

Liquor Control Bd., 918 A.2d 171 (Pa. Cmwlth. 2007) . . .

. In pursuing that end, we are mindful that a statute’s plain

language generally provides the best indication of

legislative intent. Id. Thus, statutory construction begins

with examination of the text itself. Id.

In reading the plain language of a statute, “[w]ords and

phrases shall be construed according to rules of grammar

The Township’s Board of Supervisors substantially revised and replaced former Section

10

208-123 when it enacted Ordinance HR-437 on August 17, 2020.

12

and according to their common and approved usage.” 1 Pa.

C.S. § 1903(a). Further, every statute shall be construed, if

possible, to give effect to all its provisions so that no

provision is “mere surplusage.” 1 Pa. C.S. § 1921(a).

Where the words in an ordinance are free from all

ambiguity, the letter of the ordinance may not be

disregarded under the pretext of pursuing its spirit. 1 Pa.

C.S. § 1921.

Thus, if we determine the ordinance provision at issue is

unambiguous, we must apply it directly as written.

Bowman v. Sunoco, Inc., . . . 65 A.3d 901 ([Pa.] 2013); see

1 Pa. C.S. § 1921(b). However, if we deem the language

of the ordinance ambiguous, we must then ascertain the

legislative body’s intent by statutory analysis, wherein we

may consider numerous relevant factors. Id. An ambiguity

exists when language is subject to two or more reasonable

interpretations and not merely because two conflicting

interpretations may be suggested. Adams Outdoor Adver.,

L.P. v. Zoning Hearing Bd. of Smithfield Twp., 909 A.2d

469 (Pa. Cmwlth. 2006).

Tri-Cnty. Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488, 509-10 (Pa.

Cmwlth. 2014). “With respect to zoning matters, undefined terms are given their

plain meaning, and any doubt is resolved in favor of the landowner and the least

restrictive use of the land.” Kohl, 108 A.3d at 968. Additionally,

we note the . . . well-settled principle that a zoning hearing

board’s interpretation of its own zoning ordinance is

entitled to great weight and deference. Smith v. Zoning

Hearing Bd., 734 A.2d 55, 57 (Pa. Cmwlth. 1999) . . . .

Such deference is appropriate because a zoning hearing

board, as the entity charged with administering a zoning

ordinance, possesses knowledge and expertise in

interpreting that ordinance. Id. at 58.

Risker v. Smith Twp. Zoning Hearing Bd., 886 A.2d 727, 731 (Pa. Cmwlth. 2005).

“Similarly, ‘because [a township’s zoning officer] is charged with the administration

and execution of the [ordinance], his interpretation of the ordinance is entitled to

deference and should not be disregarded unless shown to be clearly erroneous.’”

13

Kohl, 108 A.3d at 968 (quoting McIntyre v. Bd. of Sup’rs of Shohola Twp., 614 A.2d

335, 337 (Pa. Cmwlth. 1992)).

Former Section 208-123.G of the Zoning Ordinance reads, in relevant part, as

follows: “No signs which flash . . . shall be permitted.” Former Zoning Ordinance §

208-123.G. As the Zoning Ordinance does not define “flash,” we consequently turn

to the dictionary for guidance. Like the Board, we note that Merriam-Webster

defines “flash” in relevant part, as:

2

a: to cause the sudden appearance of (light)

....

c[:]

(1): to cause (light) to reflect

(2): to cause (something) to reflect light [,

e.g.,] flash a mirror

(3): to cause (a lamp) to flash

d: to convey by means of flashes of light

3

a: to make known or cause to appear with great

speed[, e.g.,] flash a message on the screen[.]

Flash, Merriam-Webster, https://www.merriam-webster.com/dictionary/flash (last

visited May 4, 2023); see Decision, Discussion at 18. Additionally, we recognize

that the Board made the following, relevant factual findings:

46. The advertisements on the proposed sign will change

every six . . . seconds. [Board Hearing, Tr.,] 5/29/19 at 38.

47. The proposed sign will be capable of changing more

rapidly than every six . . . seconds if the software lock is

bypassed. [Id.] at 59.

48. When the propose[d] sign switches from one

advertisement to the next advertisement, the computer will

send a signal to the [Sign’s] LED modules to change the

entire sign face. [Id.] at 38-39, 41-42.

14

49. The transition from one advertisement to the next

advertisement will be instantaneous. [Id.] at 51, 57, 85.

Decision, F.F. ¶¶46-49. Given these findings, and the generally understood meaning

of “flash,” we cannot conclude that the Board committed an error of law when it

determined that the modified Sign would flash when in operation and, thus, that it

was prohibited by former Section 208-123 of the Zoning Ordinance.

III. Conclusion

In accordance with the foregoing analysis, we reverse Common Pleas’

October 19, 2021 order in part and affirm it in part.11

____________________________

ELLEN CEISLER, Judge

11

Due to our disposition of this appeal, we need not reach Outdoor’s remaining argument

challenging the Board’s conclusion that former Section 208-131 prohibits internally illuminated

signs.

15

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tredyffrin Outdoor, LLC, :

Appellant :

:

v. : No. 1305 C.D. 2021

:

Zoning Hearing Board of :

Tredyffrin Township :

ORDER

AND NOW, this 5th day of May, 2023, it is hereby ORDERED:

1. The Court of Common Pleas of Chester County’s (Common

Pleas) October 19, 2021 order is REVERSED IN PART, with regard to its

affirmance of Appellee Zoning Hearing Board of Tredyffrin Township’s

(Board) denial of Appellant Tredyffrin Outdoor, LLC’s (Outdoor)

substantive validity challenge to former Section 208-131 of Tredyffrin

Township’s Zoning Ordinance, but only as to the portions of former

Subsections 208-131.B and .C that state that preexisting signs in Tredyffrin

Township’s Advertising Sign Overlay District are allowed by right, and as to

former Subsection A of Section 208-131’s Editor’s Note;

2. Common Pleas’ October 19, 2021 order is AFFIRMED IN

PART, as to its affirmance of the remaining parts of the Board’s substantive

validity challenge denial and of the Board’s determination that Outdoor’s

proposed modified advertising sign would flash and, thus, was barred by

former Section 208-123 of the Zoning Ordinance.

____________________________

ELLEN CEISLER, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tredyffrin Outdoor, LLC, :

Appellant :

:

v. : No. 1305 C.D. 2021

: Submitted: October 28, 2022

Zoning Hearing Board of :

Tredyffrin Township :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

CONCURRING AND DISSENTING OPINION

BY SENIOR JUDGE LEAVITT FILED: May 5, 2023

Respectfully, I dissent in part and concur in part.

Tredyffrin Outdoor, LLC (Lessee) applied to Tredyffrin Township

(Township) for a permit to replace the face of its existing outdoor vinyl-wrapped

changeable copy sign1 with a digital changeable copy sign. At the hearing before

the Township’s Zoning Hearing Board (Zoning Board), Lessee presented the

testimony of Jesse White, a representative of the manufacturer of digital billboards,

to explain their construction and operation. White explained that a digital image of

the advertisement is transmitted to a computer inside the billboard, which translates

the data to a display on the billboard. Zoning Board Adjudication at 7, Finding of

Fact (F.F.) No. 42. The software allows Lessee to determine the schedule for an

1

At the time of Lessee’s application, the Township’s Zoning Ordinance defined “changeable copy

sign” as “[a] sign on which message copy can be changed through use of attachable letters,

numerals or graphics or by switching of lamps. A changeable copy sign shall not be considered

to be an animated sign.” TREDYFFRIN TOWNSHIP ZONING ORDINANCE OF 1939 (Zoning

Ordinance), as amended, former §208-6(B)(5); Reproduced Record at 263a (R.R. __).

advertisement, including its run time. The software does not allow the display of an

animated image, and while it allows the operator to choose the run time, it must run

at least six seconds. Zoning Board Adjudication at 8, F.F. No. 47. The transition

from one image to another is “instantaneous” not gradual. Zoning Board

Adjudication at 8, F.F. No. 49.

The Zoning Board denied Lessee’s application for the stated reasons

that its proposed digital billboard will use internal illumination and will flash. The

Zoning Board construed the Zoning Ordinance in effect at the time Lessee submitted

its application to prohibit billboards that have either feature. The Zoning Board’s

construction violates well-established statutory construction principles.

As to flashing signs, former Section 208-123(G) of the Zoning

Ordinance stated, in part, as follows:

No mobile signs, bench signs, vehicle signs, permanent

sidewalk, sandwich or A-frame signs, animated signs or other

than time and temperature signs, or signs that emit smoke, vapor

or noise shall be permitted. No signs which flash, move, rotate,

oscillate or which outline the rooflines, doors, windows or wall

edges by illuminated tubing or strings of lights for advertising

purposes shall be permitted.

Former ZONING ORDINANCE §208-123(G) (emphasis added). The term “flash” is

not defined in the Zoning Ordinance. Accordingly, we “give undefined terms their

plain, ordinary meaning.” Adams Outdoor Advertising, LP v. Zoning Hearing Board

of Smithfield Township, 909 A.2d 469, 483 (Pa. Cmwlth. 2006).

Using the dictionary, the majority defines flash as “to cause the sudden

appearance of (light),” “to cause (light) to reflect,” “to convey by means of flashes

of light” or “to make known or cause to appear with great speed[, e.g.,] flash a

message on a screen[.]” Tredyffrin Outdoor, LLC v. Zoning Hearing Board of

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Tredyffrin Township (Pa. Cmwlth., No. 1305 C.D. 2021, filed May 5, 2023), slip op.

at 14 (quoting Merriam-Webster, https://www.merriam-

webster.com/dictionary/flash). “Flash” is such a “plain” and “ordinary” word that

to resort to the dictionary seems unnecessary. Nevertheless, using the guidance of

“sudden appearance of light,” one can say that lightning, often accompanied by

thunder, meets the definition of “flash.” Likewise, lightning bugs are said to “flash.”

Notably, in each case, the “flash” is preceded by some interval of darkness.

By contrast, Lessee’s proposed digital billboard will use continuous

light that changes color to effect a new static image.2 A change in copy does not

make a static copy image a “sign which flash[es].” Former ZONING ORDINANCE

§208-123(G). Notably, the Zoning Ordinance does not regulate the frequency of the

change for a “changeable copy sign.” Former ZONING ORDINANCE §208-6(B)(5);

R.R. 263a. Further, the Zoning Ordinance states that the “message copy can be

changed . . . by switching of lamps.” Id. Because the Zoning Ordinance authorizes

a change in copy to be effected by “lamps” and without any restriction on frequency,

the change itself cannot constitute a “flash.” Rather, it is the image itself that must

flash, just as lightning bugs flash.

In any case, Lessee’s application did not state that it intended to change

the digital image every six seconds, and the record does not establish the intended

frequency of change. White testified only that it could not physically change more

frequently than every six seconds. More importantly, the record establishes that the

digital image on the billboard is static and does not “flash.” Indeed, the image

transition cannot be perceived.

2

In 1939, this technology did not exist.

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The Zoning Board also found that former Section 208-131 of the

Zoning Ordinance prohibits any kind of internal illumination. It states as follows:

Signs may be externally lit. Lighting shall comply with the

Illuminating Engineering Society of North America’s

(“IESNA”) recommended practices and criteria contained in the

IESNA Lighting Handbook, including but not limited to criteria

for “full cutoff” fixtures . . . . All fixtures shall be aimed to

illuminate the advertising copy only. All lighting shall be aimed,

located, designed, fitted and maintained so as not to present a

hazard to drivers or pedestrians by impairing their ability to

safely traverse and so as not to project or reflect light onto a

neighboring use or property.

Former ZONING ORDINANCE §208-131(D) (emphasis added).3 The Zoning Board

construed this authorization for external lighting to constitute a prohibition of

internal illumination. The majority does not address this issue, characterizing it as

unnecessary because Lessee’s proposed digital sign will impermissibly “flash.”

The Zoning Board’s strained construction of former Section 208-

131(D) cannot be sustained.

First, it is inconsistent with the Zoning Ordinance provision authorizing

a billboard to change its copy by using “lamps.” Former ZONING ORDINANCE §208-

6(B)(5) (definition of “Signs, Changeable Copy”). A “lamp” can only be an internal

lighting source that will change the copy. Stated otherwise, former Section 208-

6(B)(5) implicitly authorizes internal illumination, at least for changeable copy

billboards.

3

Section 208-131(M)(2) of the current Zoning Ordinance, adopted after the submission of

Lessee’s application, expressly prohibits internally illuminated and digital changeable-copy sign

billboards. ZONING ORDINANCE §208-131(M)(2). See also https://ecode360.com/7117586 (last

visited May 4, 2023).

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Second, the Zoning Ordinance’s regulation of external lighting fixtures

does not implicitly state a prohibition of digital signs. It has been held that a zoning

ordinance provision that states: “[i]n each district, only such uses and uses accessory

and incidental thereto, as are hereinafter specified, will be permitted,” expresses a

prohibition of uses not listed. Silver v. Zoning Board of Adjustment, 112 A.2d 84,

87 (Pa. 1955). However, no comparable provision appears in the Township’s

Zoning Ordinance. Simply, silence cannot be construed as a prohibition. In

construing a zoning ordinance that restricts

the use of the property, the language shall be interpreted, where

doubt exists as to the intended meaning of the language written

and enacted by the governing body, in favor of the property

owner and against any implied extension of the restriction.

Section 603.1 of the Pennsylvania Municipalities Planning Code, Act of July 31,

1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L. 1329, 53

P.S. §10603.1 (emphasis added). Because there is doubt that former Section 208-

131(D) of the Zoning Ordinance prohibits internal illumination of billboards, the

Zoning Ordinance must be interpreted in favor of Lessee.

Several states have prohibited outdoor advertising signs. See, e.g., Me.

Rev. Stat. Ann. tit. 23, §1908 (West 1977). Unless and until Pennsylvania follows

this public policy initiative, outdoor advertising is a lawful use. Any restriction on

the use of property for digital billboards must be provided in clear terms, as has been

stated, without any doubt, in Section 208-131(M)(2) of the current Zoning

Ordinance.

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I agree with the majority on the substantive validity challenge.

However, I would reverse the trial court on the other two issues.

____________________________________________

MARY HANNAH LEAVITT, President Judge Emerita

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