America First Enterprises, LLP & Middlesex Twp. v. Middlesex Twp. ZHB ~ Appeal of: Middlesex Twp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

America First Enterprises, LLP, :
and Middlesex Township :
:
v. : No. 1440 C.D. 2018
:
Middlesex Township Zoning :
Hearing Board :
:
Appeal of: Middlesex Township :

America First Enterprises, LLP, :
and Middlesex Township :
:
v. : No. 1466 C.D. 2018
: Argued: October 4, 2019
Middlesex Township Zoning :
Hearing Board :
:
Appeal of: America First :
Enterprises, LLP :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: January 5, 2021

America First Enterprises, LLP (AFE) and Middlesex Township
(Township) cross-appeal from the order of the Court of Common Pleas of Butler
County (trial court) affirming the decision of the Middlesex Township Zoning

1
The decision in this case was reached before January 4, 2021, when President Judge
Leavitt served as President Judge.
Hearing Board (ZHB). The ZHB’s July 27, 2017 decision purportedly granted in
part, and denied in part the validity challenge filed by AFE to the Township’s
zoning ordinance (Zoning Ordinance), which contains conflicting provisions
regulating billboards. See Reproduced Record (R.R.) at 28a-212a. AFE seeks site-
specific relief as to three conditional use applications. The Township seeks
reversal, asserting that the ZHB lacked jurisdiction to hear the validity challenge;
alternatively, the Township argues that the ZHB’s interpretation of the Zoning
Ordinance reflects an error of law. For the following reasons, we vacate and
remand.

Background
In 2006, the Township adopted Ordinance 108. R.R. at 526a-638a.
Section 1 of Ordinance 108 states that Ordinance 21 of 1992 (the 1992 Ordinance),
as amended, is hereby “re-enacted and amended as indicated below in Section 2
and Section 3.” R.R. at 526a-27a. Section 2 of Ordinance 108 amends the 1992
Ordinance to include “additional revised definitions, incorporation of new
additional zoning districts, inclusion of additional conditional use conditions, [and]
amended signage regulations . . . as set forth in Attachment A.”
Attachment A contains standards for specific uses. Relevant here,
Section 1102.XX Billboards (amended) states in part that billboards are not
permitted within the R-1 and R-2 residential zoning districts or within 500 feet of a
school property. Under this provision, the size of a sign face is restricted to 750
square feet.
Section 3 of Ordinance 108 re-enacts and amends the Township
Zoning Map per Attachment B. Section 4 of Ordinance 108 states that the 1992

2
Ordinance, “as further amended by this Ordinance 108, shall be integrated and
incorporated into an updated, comprehensive Zoning Ordinance, as codified in
Chapter 175 of the Code of the [Township] as set forth in Attachment ‘C’.” R.R.
at 527a.
Attachment C2 is a draft ordinance. It includes two separate articles
that expressly regulate billboards. The first, Article XI (related to standards and
criteria for conditional uses and uses by special exception) incorporates in part the
regulations in Attachment A, §1102.XX Billboards (amended). Specifically,
Article XI, Section 1102.3(1) provides in part that billboards shall not be erected
within the AG-A and AG-B agricultural zoning districts, and the R-1 and R-2
residential zoning districts, or within 500 feet of a school. Article XI, Section
1102.3(2) states that a billboard shall have a maximum allowable gross surface
area of 750 square feet per sign face. R.R. at 585a-86a.
Also set forth in Attachment C, Article XIV (related to signs)3 states
that billboards are subject to the requirements of Article XI governing conditional
uses: “A permit for a billboard shall not be issued until the conditional use
application has been granted by the Township Supervisors, provided all of the
following requirements are met: . . . billboards shall not be erected within 500 feet
of a [school], Place of Worship or cemetery . . . .” Section 1406.1(a) of the Zoning
Ordinance, R.R. at 620a-21a. Additionally, Section 1406.1 states that billboards
may be authorized only in the C-2 and I-1 districts. R.R. at 621a. Further, under
Section 1406.2 of the draft ordinance, a billboard shall have a maximum allowable

2
R.R. at 545a-638a.

3
A billboard is defined as a “sign displaying changeable advertising copy” in Section
175-8 of the Zoning Ordinance. R.R. at 33a.

3
gross area of 450 square feet per sign face. R.R. at 621a. Lastly, Section 5 of
Ordinance 108 provides that “All Ordinances or parts of Ordinances in conflict
with the provisions of this Ordinance are hereby repealed to the extent of such
conflict.” R.R. at 527a.
In the codified Zoning Ordinance, Article XI provisions regarding
standards and criteria for conditional uses and uses by special exception are found
at Chapter 175, Article XI, Section 175-98 (Billboards). R.R. at 103a-105a. The
provisions in Article XIV regarding Signs are found at Section 175-165
(Billboards). R.R. at 163a-66a.

Procedural History
On May 25, 2016, AFE filed three conditional use applications with
the Township Board of Supervisors (Township Supervisors) to construct a
billboard on each of three parcels of land in the Township. In completing the
applications, AFE chose the most favorable criteria from among the conflicting
ordinance provisions. On the same date, AFE filed a “protective” substantive
validity challenge with the ZHB, R.R. at 217a-47a, seeking a declaration that the
relevant ordinance provisions are invalid as being inconsistent and site-specific
relief permitting construction of the billboards in accordance with the least
restrictive provisions. R.R. at 247a. On May 26, 2016, the Township Manager
returned the conditional use applications as incomplete. R.R. at 291a-300a.
AFE unsuccessfully sought a meeting with Township Supervisors to
clarify the inconsistent provisions. R.R. at 237a. The validity challenge before the
ZHB was continued by agreement of the parties, but no settlement was reached.
The ZHB held two public hearings, and the parties submitted briefs on their

4
respective positions. AFE offered no witnesses, viewing the facial validity
challenge as raising only questions of law. The Township submitted the testimony
of Andrew Schwartz, of Environmental Planning and Design, concerning the
history and development of the Township’s billboard regulations. While the ZHB
found Schwartz’s testimony credible, the ZHB agreed with AFE that the issues
presented were primarily legal questions and the relevant facts were not in dispute.
The ZHB rejected the Township’s argument that the ZHB lacked
jurisdiction and that the matter should proceed to review before the Planning
Commission and Township Supervisors. The ZHB was persuaded by AFE’s
contentions that the conflicting ordinance provisions made it impossible for AFE to
determine what standards apply for purposes of completing its conditional use
applications. “Before it moves forward with its application[s], [AFE] should be in
a position to know how the zoning ordinance will be interpreted.” ZHB’s decision
at 3. Relying on Section 916.1(a)(1) of the Pennsylvania Municipalities Planning
Code (MPC),4 the ZHB concluded that it had jurisdiction to hear the validity
challenge.
The ZHB then identified three issues presented. The first issue
involves front yard setbacks. Under Section 175-98, the minimum front yard
setback is the same as the setback for a principal use. In the C-2 district, that

4
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(a)(1). It states:

(a) A landowner who, on substantive grounds, desires to challenge
the 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 shall submit the challenge either: (1) to the zoning
hearing board under section 909.1(a) . . . .

5
would be 75 feet. Under Section 175-165, no front yard setback can be closer than
10 feet to any public street. The second issue relates to the zoning districts in
which billboards are permitted. Under Section 175-98, billboards are permitted in
all but the AG-A, AG-B, R-1 and R-2 districts. In Section 175-165, billboards are
permitted only in the C-1 and C-2 districts. The final issue recognized by the ZHB
concerns the size of the sign facing. Under Section 175-98, sign faces can measure
750 square feet, whereas Section 175-165 limits the size of a sign face to 450
square feet. Findings of Fact, Nos. 17-21.
AFE argued that because there are irreconcilable differences between
Zoning Ordinance provisions, AFE must be allowed to utilize the lesser restriction.
See Section 603.1 of the MPC.5 The Township asserted that, consistent with the
evolution of the Zoning Ordinance, Section 175-98 applies to all billboards
authorized by conditional use or special exception, while Section 175-165 applies
to all billboards that existed prior to the adoption of Section 175-98. The ZHB did
not address these arguments. Instead, the ZHB offered an interpretation of the
Ordinance.
In doing so, the ZHB first noted that the language of an ordinance
must be given its plain meaning. Speilvogel, Inc. v. Cheltenham Township, 601
A.2d 1310, 1317 (Pa. Cmwlth. 1992). The ZHB then concluded:

5
Added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10603.1. It states:

In interpreting the language of zoning ordinances to determine the
extent of the restriction upon 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.

6
 27. The plain meaning of Sections 1 and 2 of Ordinance
[] 108 is that Attachment “A,” and in this particular
matter, Attachment “A” pertaining to billboards amends
all existing prior ordinance provisions as to billboards.

28. The plain meaning of Section 5 of Ordinance [] 108
is that all ordinances in conflict with the ordinance
provisions in Attachment A §1102.XX pertaining to
billboards, whether in former ordinance sections 1406.1
or [new] 1102.3 (both attached to Ordinance 108 as
“Attachment C”) are repealed to the extent of any
conflict with Attachment A.

29. Thus, the billboard provisions in §1102.XX of
Attachment A to Ordinance 108 are controlling over
codification §175-98 (Attachment C to Ordinance 108,
§1102.3) or [§175-1656] (Attachment C to Ordinance
108, §1406-1) to the extent of any conflict.

***

37. To the extent §1102.XX is accurately codified in the
Codification as [§175.98] then that section controls §175-
165. If there is doubt or confusion, then the parties must
return to Ordinance 108, §1102.XX

ZHB’s Conclusions of Law Nos. 27-29, 37.
AFE and the Township appealed to the trial court, which heard
argument but did not take additional evidence. By order dated September 25,
2018, the trial court affirmed the ZHB’s decision. In its Rule 1925(a) opinion, the
trial court identified, but did not address, the appellate claims raised by the parties.

6
The ZHB references Section 175-88, but the Reproduced Record indicates that Sections
175-82 to 175-91 are reserved. See R.R. at 97a. The codified provisions in Article XIV
regarding Signs are found in Section 175-165 (Billboards).

7
 On appeal to this Court,7 AFE seeks a declaration that the inconsistent
provisions of the Zoning Ordinance are invalid and the grant of site-specific relief,
or a declaration that the provisions are inconsistent and must be interpreted in
AFE’s favor. The Township seeks a reversal of the ZHB’s decision on the basis
that the ZHB lacked jurisdiction.8 Alternatively, the Township seeks a
determination by this Court adopting the Township’s preferred interpretation of the
codified Zoning Ordinance.

Discussion
AFE first argues that the conflicting standards in two irreconcilable
ordinance provisions are not comprehensible by a person of ordinary intelligence,
and, therefore, are unconstitutionally vague. Vague ordinances violate due process
because they “do not give fair notice to people of ordinary intelligence that their
contemplated activity may be unlawful . . . .” Scurfield Coal, Inc. v.
Commonwealth, 582 A.2d 694, 697 (Pa. Cmwlth. 1990). Additionally, because
vague ordinances do not set reasonably clear guidelines for law officials and
courts, they invite arbitrary and discriminatory enforcement. Id. See also Fisher v.

7
Where, as here, the trial court takes no additional evidence, our scope of review is
limited to determining whether the ZHB committed an abuse of discretion or an error of law.
Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807, 811 n.1 (Pa. Cmwlth.
2005).

8
In fact, the Township acknowledges that the ZHB has jurisdiction to hear a substantive
validity challenge, but the Township contends that the application submitted to the ZHB was
incorrectly labeled as such. According to the Township, the dispute between AFE and the
Township involves the interpretation and application of the Ordinance, which should be resolved
by the Township Supervisors after hearings on AFE’s conditional use applications. While the
Township characterizes the issues as involving an interpretation of the Zoning Ordinance, it fails
to acknowledge the ambiguity therein.

8
Viola, 789 A.2d 782, 787 (Pa. Cmwlth. 2001) (an ordinance is unconstitutionally
vague and violates due process when persons of common intelligence must guess
at its meaning).
In Boron v. Pulaski Township Board of Supervisors, 960 A.2d 880,
886 (Pa. Cmwlth. 2008), this Court explained:

Ordinances are presumed to be constitutional, and a
heavy burden is placed on a party seeking to challenge
the constitutionality of an ordinance. Commonwealth of
Pennsylvania v. Ebaugh, 783 A.2d 846, 849 (Pa.
Cmwlth. 2001). However, legislation that does not
establish its prohibition in explicit terms may be set aside
as unconstitutionally vague. Due process requires that a
statute give fair warning of its prohibition, as has been
explained by the United States Supreme Court:
It is a basic principle of due process that an
enactment is void for vagueness, if its prohibitions
are not clearly defined. Vague laws offend several
important values. First, because we assume that
man is free to steer between lawful and unlawful
conduct, we must insist that laws give the persons
of ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act
accordingly. Vague laws may trap the innocent by
not providing fair warning. Second, if arbitrary
and indiscriminat[e] enforcement is to be
prevented, laws must provide explicit standards for
those who apply them . . . .

Grayned v. City of Rockford, 408 U.S. 104, 108-09
[(1972)]. In short, an enactment that requires men of
common intelligence to guess at its meaning violates due
process.
We agree with AFE. The Zoning Ordinance provisions that expressly
regulate billboards irreconcilably conflict in material respects, including minimum

9
front yard setbacks, the districts in which billboards are permitted, and the
permitted size of the billboard face. The ZHB did not acknowledge the conflicting
criteria in Sections 175-98 and 175-165, but nevertheless attempted to resolve the
conflicts. To the extent the Township now challenges the ZHB’s interpretation, its
argument also reflects the ambiguity in the Zoning Ordinance.
AFE next argues that the ZHB erred in determining that the repealing
clause in Ordinance 108, Section 5 (repealed) conflicts within Articles XI and XIV
of the Zoning Ordinance while simultaneously enacting them. AFE observes that
the stated purpose of Ordinance 108 is to “re-enact all previous Zoning Ordinances
with the amendments set forth below and to codify the same in Chapter 175 . . . .”
R.R. at 526a.
AFE argues that the following reasoning is consistent with that
purpose: Section 1 of Ordinance 108 re-enacted and amended the 1992 Ordinance,
including the billboard provisions that were codified as Section 175-165. Section 2
of Ordinance 108 amended the 1992 Ordinance, adding, inter alia, provisions set
forth in draft amendments attached to Ordinance 108 as Attachment A, which were
numbered as Section 1102.XX of the draft and became Section 175-98 in the
consolidated Ordinance. Section 3 re-enacted the Township Zoning Map. Section
4 integrated and incorporated the prior, new and amended provisions into a
comprehensive zoning ordinance in Chapter 175 of the Township Code, as
reflected in Attachment C. Finally, Section 5, referred to as the repealer clause,
repealed all ordinances “in conflict with the provisions of this Ordinance . . . .”
R.R. at 526a-27a. AFE maintains that, logically, the term “this Ordinance” refers
to Ordinance 108. AFE argues that the ZHB relies on a tortured interpretation of

10
Ordinance 108, which results in a re-enactment and repeal of the same provisions.
We agree.
As AFE correctly notes, the ZHB’s conclusions ignore Attachment C,
the final codification of Chapter 175. The ZHB’s suggestion that application of
Ordinance 108 resolves this matter also ignores that Chapter 175 does not include a
repealer clause. We agree that the repealing clause of Ordinance No. 108 did not
eliminate the conflicts that currently exist in the Zoning Ordinance.
AFE also argues that the ZHB acted ultra vires in interpreting the
Zoning Ordinance. The ZHB’s authority to decide a validity challenge is limited
by Section 916.1 of the MPC to determining whether the challenge has merit, and,
if so, to include recommended amendments to the challenged provision that will
cure the defects found. AFE correctly notes that a validity challenge does not seek
clarification of conflicting ordinance provisions,9 but only asks the ZHB to
determine whether a person of common intelligence would have to guess at their
meaning – an issue the ZHB did not address.
Section 916.1 of the MPC authorizes a landowner to challenge the
validity of a local ordinance on substantive grounds before the ZHB. Where a
validity challenge is brought before a zoning hearing board, the MPC provides:

Based upon the testimony presented at the hearing or
hearings, the governing body or the zoning board, as the
case may be, shall determine whether the challenged
ordinance . . . is defective, as alleged by the landowner.
. . . If a challenge heard by a zoning hearing board is
found to have merit, the decision of the zoning hearing

9
For that reason, we do not address AFE’s argument challenging the ZHB’s
interpretation of the Zoning Ordinance, or the Township’s arguments in support of its suggested
interpretation.

11
 board shall include recommended amendments to the
challenged ordinance which will cure the defects found.
Section 916.1(c)(5) of the MPC, 53 P.S. §10916.1(c)(5) (emphasis added). The
ZHB fashioned an interpretation of the Zoning Ordinance, but it did not determine
the merit of AFE’s substantive validity challenge. The ZHB’s efforts to reconcile
the conflicting ordinance provisions exceeded the ZHB’s authority to determine
whether the validity challenge had merit.
Finally, we address AFE’s requests for either site-specific relief or a
declaration that the challenged ordinance provisions are inconsistent and must be
interpreted in AFE’s favor. A party that successfully challenges a zoning
restriction cannot be denied site-specific relief if the challenger complies with the
remaining valid portions of the regulations. Casey v. Zoning Hearing Board of
Warwick Township, 328 A.2d 464, 469 (Pa. 1974). The ZHB has the authority and
jurisdiction to initially consider AFE’s request for site-specific relief.
In Adams Outdoor Advertising, Ltd. v. Hanover Township Zoning
Hearing Board, 633 A.2d 240, 245 (Pa. Cmwlth. 1993), we observed:

Casey requires that a successful challenger to a zoning
ordinance be granted the relief requested unless the
government unit proves that the proposed use will be
injurious to the public health, safety, and welfare.
Casey[, 328 A.2d at 469,] considered:

[W]hether a court has the power to grant an
applicant-challenger definitive relief upon
rendering a zoning ordinance
constitutionally infirm. . . . “Obviously, if
judicial relief of local zoning action is to
result in anything more than a farce, the
courts must be prepared to go beyond mere
invalidation and grant definitive relief.” To
forsake a challenger’s reasonable
development plan after all the time, effort
12
 and capital invested in such a challenge is
grossly inequitable . . . .
However, we explained that an approval of a successful challenger’s
plan is not automatic; the suitability of the proposed site and various health and
safety considerations must be considered. Id. The municipality in Adams Outdoor
Advertising, Ltd. failed to provide any record evidence demonstrating that the
challenger’s plan, if allowed, would be injurious to the public health, safety,
welfare, and morals. Relying on Casey, we reversed the trial court’s order and
remanded the matter to the zoning hearing board with instructions to issue the
challenger a permit to construct the sign as proposed. 633 A.2d at 245-46.
However, neither this Court nor the ZHB can provide AFE site-
specific relief. We hold that AFE is entitled to application of the most favorable
reconciliation of the challenged conflicting Zoning Ordinance provisions. To the
extent that billboards are allowed as conditional uses under the Zoning Ordinance,
the Township Supervisors consider such applications. Our holding herein does not
relieve AFE of the need to re-submit its conditional use applications to that body.10
Accordingly, we vacate the trial court’s order and remand the matter
to permit AFE to re-submit its conditional use applications for consideration and
disposition by the Township Supervisors.11

MICHAEL H. WOJCIK, Judge

10
Accord Bloomsburg Industrial Ventures, LLC v. Town of Bloomsburg, ___ A.3d ___
(Pa. Cmwlth., No. 961 C.D. 2020, filed November 5, 2020), slip op. at 22-25 (remanding the
matter to the governing body to allow a successful challenger requesting site-specific relief to
demonstrate compliance with the other zoning requirements for the proposed uses).

11
Based on our disposition, we will not consider any remaining claims.

13
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

America First Enterprises, LLP, :
and Middlesex Township :
:
v. : No. 1440 C.D. 2018
:
Middlesex Township Zoning :
Hearing Board :
:
Appeal of: Middlesex Township :

America First Enterprises, LLP, :
and Middlesex Township :
:
v. : No. 1466 C.D. 2018
:
Middlesex Township Zoning :
Hearing Board :
:
Appeal of: America First :
Enterprises, LLP :

ORDER

AND NOW, this 5th day of January, 2021, the order of the Court of
Common Pleas of Butler County dated September 25, 2018, is VACATED, and the
matter is REMANDED for proceedings consistent with the foregoing
memorandum opinion.
Jurisdiction is RELINQUISHED.

__________________________________
MICHAEL H. WOJCIK, Judge