Sign of the Times? Property Owner Cooked by Borough’s Sign Regulations

August 2011Newsletters In the Zone

When a business or property owner is seeking to install a new business sign or update an existing or outdated sign, it is extremely important to review the local sign regulations applicable to the property and determine the usual interpretation of those provisions by the zoning official of the municipality. Sign regulations can vary significantly, but even similar sign regulations can be interpreted differently, and sometimes inconsistently, by the governing bodies of a municipality.

An interesting interpretation of a local sign ordinance was at issue in the recent Commonwealth Court case of Richard Gulan and Tina Gulan v. Zoning Hearing Board of East Berlin Borough and East Berlin Borough, 1616 C.D. 2010 (PA.Cmwlth. June 22, 2011), in which the Commonwealth Court affirmed the decision of the Court of Common Pleas and the East Berlin Borough Zoning Hearing Board that a barbeque smoker/cooker located on the street in front of Gulan’s business was a sign that violated the borough zoning ordinance. In Gulan, the property owners operated a barbeque restaurant within the Borough of East Berlin, Adams County. The restaurant served chicken and pit beef barbeque, which was prepared on the premises. The chicken was cooked in an outdoor smoker/cooker, which was located on the sidewalk in front of the business along State Route 234 (also known as West King Street). The business has a free-standing sign mounted on a pole that hung over the sidewalk and a temporary A-frame sign placed adjacent to the front sidewalk. The smoker/cooker, which was on wheels for easy transport, was placed along the sidewalk in the front of the business.

Under the East Berlin Borough zoning ordinance, a business is limited to two business signs at the property. The borough zoning officer determined that although the smoker/cooker did not have lettering or pictures advertising the business, the smoker/cooker was a sign that promoted the business and, therefore, three signs were located upon the premises in violation of the ordinance.

At the zoning hearing, Gulan testified he used the smoker/cooker to prepare chicken barbeque every day as a part of his regular business and the location of the smoker/cooker allowed him to observe inside of the restaurant through the front window to monitor operations. Despite this testimony, the zoning hearing board determined the location of the smoker/cooker on the sidewalk in front of the business was in plain view of the public and was intended to bring attention to the business and/or convey information to the general public. Thus, the zoning hearing board determined the smoker/cooker fell within the definition of a “Billboard, Advertising Sign, or Poster Panel” as those terms are defined in the ordinance, and the property was in violation.

In the appeal to the Court of Common Pleas, the court took no additional evidence but reviewed the record before the zoning hearing board. Based upon the record, the Court of Common Pleas agreed with the zoning hearing board that the smoker/cooker was a “structure, demonstration or display” within the meaning of a “Sign” under the ordinance since it was placed conspicuously to draw attention to the business. The court also relied upon the testimony of a witness who testified at the zoning hearing that Gulan told him two years earlier the smoker/cooker was intended for advertising purposes only.

Since the Court of Common Pleas took no additional evidence, the Commonwealth Court’s scope of review was limited to determining whether the zoning hearing board committed an abuse of discretion or an error of law. Under this standard, the Commonwealth Court found no abuse or error and affirmed the decisions of the Court of Common Pleas and the East Berlin Borough Zoning Hearing Board that the smoker/cooker was a sign at the premises in violation of the ordinance.

This decision underlines the importance of reviewing and considering the specific terms of the applicable sign regulations and the interpretation of those regulations by the local municipality. While the court did not address the issue, it would be interesting to know whether the zoning officer’s initial decision was based more upon the nature of the use of the smoker/cooker rather than the specifics of the sign regulations. Either way, as a business or property owner seeking to improve an existing sign or install/construct a new sign, it is important to be aware of the regulations the municipality will apply to your property and the interpretations it has regularly applied to those regulations.

For more information, please contact Loren D. Szczesny at 610.397.7967 or [email protected].