Township of Exeter v. ZONING HEARING BD. OF EXETER TOWNSHIP

DISSENTING OPINION BY

Judge FRIEDMAN.

I respectfully dissent. The majority reverses a decision of the Court of Common Pleas of Berks County (trial court), which affirmed the Zoning Hearing Board (ZHB) of Exeter Township’s (Township) holding that the Township’s Sign Ordinance unconstitutionally excludes billboards. The majority holds that the Sign Ordinance does *206not totally exclude billboards from the Township because the Sign Ordinance permits off-site advertising signs that are smaller than industry-standard billboards.1 For the following reasons, I cannot agree.

The Township Sign Ordinance permits off-site advertising signs in commercial and industrial zoning districts. (ZHB’s op. at 1.) However, the area of any one side of an advertising sign may not exceed twenty-five square feet, and the total area of all signs facing any one street on any premises may not exceed 100 square feet. Id. The minimum industry-standard billboard is 300 square feet. (ZHB’s op. at 4, Findings of Fact, No. 3.) Thus, the ZHB found that the Sign Ordinance excludes all industry-standard billboards from the Township. (ZHB’s op. at 4, Findings of Fact, No. 2.)

Property owners have a constitutional right to the enjoyment of their property. C & M Developers, Inc. v. Bedminster Township Zoning Hearing Board, 573 Pa. 2, 820 A.2d 143 (2002). However, a municipality may reasonably limit that right by enacting zoning ordinances pursuant to a municipality’s police power, i.e., the power to protect the public health, safety, morality and welfare. Id. Property owners may challenge the validity of a zoning ordinance by showing that the zoning ordinance is unreasonable, arbitrary, or not substantially related to the police power, e.g., by showing that the ordinance is exclusionary. Id.

Courts have held on many occasions that ordinances dealing with the regulation of signs and billboards are within a municipality’s police power. Norate Corporation, Inc. v. Zoning Board of Adjustment, 417 Pa. 397, 207 A.2d 890 (1965). However, our supreme court has held that an ordinance prohibiting all off-site advertising signs is unreasonable, id., and that an ordinance prohibiting all signs with flashing lights is patently unreasonable. Appeal of Ammon R. Smith Auto. Co., 423 Pa. 493, 223 A.2d 683 (1966). Moreover, this court has held that an ordinance prohibiting all revolving signs is invalid. Amerada Hess Corporation v. Zoning Board of Adjustment, 11 Pa.Cmwlth. 115, 313 A.2d 787 (1973).

Once a person challenging the validity of an ordinance shows that the ordinance totally bans a particular business,2 or type of sign, id., the municipality must establish the public purpose served by the total ban.3 Derry Borough v. Shomo, 5 Pa. Cmwlth. 216, 289 A.2d 513 (1972). In other words, a municipality may totally exclude a certain type of sign only if the municipality establishes that the particular type of sign is injurious to the public health, safety, morality or welfare.

Here, the Exeter Township Sign Ordinance totally excludes industry-standard billboards. (ZHB’s op. at 4, Findings of Fact, No. 2.) However, the ZHB found, based on testimony presented by the *207Township, that: (1) industry-standard billboards greater than 300 square feet would be injurious to the public safety; and (2) industry-standard billboards erected along either side of Route 422 between Shelb-ourne Road and the boundary line between the Township and St. Lawrence Borough would be injurious to the public safety. (ZHB’s op. at 11.) Thus, the Township could properly exclude industry-standard billboards greater than 300 square feet from the Township and could properly exclude all industry-standard billboards at the specified location along Route 422 within the Township. Because the ZHB provides for industry-standard billboards in a way that protects the public health, safety, morality and welfare, I see no error in the ZHB’s analysis.

Accordingly, unlike the majority, I would affirm.

. Thus, the majority believes that an off-site advertising sign that does not meet industry standards for billboards is nevertheless a billboard.

. The evidence in the record indicates that the billboard industry is a rental business that relies upon uniform sizing and printing to accommodate advertisers. (ZHB’s op. at 3.) Thus, the exclusion of industry-standard billboards from Exeter Township is the exclusion of a particular type of rental business.

.In reviewing an ordinance to determine its validity, courts generally employ a substantive due process inquiry, involving a balancing of properly owner rights against the public interest that the police power seeks to protect. C & M Developers. A conclusion that an ordinance is valid necessitates a determination that the public purpose served by the ordinance adequately outweighs property owners' rights to do as they see fit with their property. Id.