Opinion
No. 1999 C.D. 2014
06-18-2015
Yardley Spring, Inc., Appellant v. Wrightstown Township Zoning Hearing Board
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Yardley Spring, Inc. (Yardley Spring) appeals the decision of the Court of Common Pleas of Bucks County (common pleas court) which denied Yardley Spring's land use appeal and affirmed the decision of the Wrightstown Township Zoning Hearing Board (Board) to uphold the Notice of Violation and Cease and Desist Order issued by Wrightstown Township pursuant to Section 1104.B.13 of the Wrightstown Township Joint Municipal Zoning Ordinance (Ordinance) relating to prohibited signs.
Yardley Spring leases property located at 773 Durham Road, Wrightstown Township, Bucks County, Pennsylvania (Property) and operates a beer distributorship named "Cold Spring Beverages." Yardley Spring leases a white, refrigerated box truck for business purposes. The truck contains green and yellow graphics, "Cold Spring Beverages," a description of some of the items sold by Yardley Spring such as "Cigars," "Ice," "Snacks," "Kegs," and a logo for the Pennsylvania Lottery. Yardley Spring's telephone number, location and website are listed on the truck. The truck has four taps which dispense beer and is rented out to the public for use for social functions.
On March 13, 2014, the Wrightstown Township Zoning Officer, Edward T. Middleman (Middleman) issued a Notice of Violation and Cease and Desist Order to Yardley Spring for having a vehicle parked on the Property in violation of Section 1104.B.13 of the Ordinance. Yardley Spring appealed.
At the hearing before the Board, Middleman testified that he observed the vehicle parked at the Property on four consecutive dates in March of 2014, and on that basis, he issued the Notice of Violation, and Cease and Desist Order. Hearing Transcript, May 28, 2014, (H.T.) at 5-10; Reproduced Record (R.R.) at 10a-11a. He stated that it did not appear that the vehicle had been moved and looked like it was in the same exact spot all four days. H.T. at 10; R.R. at 11a. He also testified that he observed the vehicle parked in the same spot on March 19, 2014, after the Notice of Violation was issued on March 13, 2014. H.T. at 14; R.R. at 12a. Middleman testified that he went to the Property several times thereafter in March, April and May of 2014, and the vehicle was parked in the same spot. H.T. at 15; R.R. at 12a. Middleman testified that the vehicle was visible from Route 413 and Route 232, also known as Second Street Pike. H.T. at 10; R.R. at 11a.
The owner of Yardley Spring and Cold Spring Beverages, Henry Crawford (Crawford), testified that the function of the vehicle was to rent it out for large parties or large functions. H.T. at 24; R.R. at 14a. In the summer it was rented approximately three times per month. In the winter months it was not rented very often because of bad weather. He testified that it was parked on the northern part of the Property which was visible from where Route 232 and Route 413 intersect due to its size. Other locations would take up customer parking or interfere with delivery trucks. H.T. at 29; R.R. at 16a. On cross examination, Crawford admitted that he could park the vehicle in one of the spaces "on the south side." H.T. at 39; R.R. at 18a.
The Board concluded that the only reason the truck was parked in the same place day after day was to gain the attention of potential customers traveling along Route 413. The Board concluded that while the truck did have some value in the business, the basic reason it was parked there was to advertise the business. The Board upheld the Notice of Violation and Cease and Desist Order. Yardley Spring appealed to the common pleas court which affirmed.
On appeal, Yardley Spring argues that the Board abused its discretion and committed an error of law when it concluded that the basic purpose of the vehicle was to advertise the business. It claims that there was substantial uncontradicted evidence that proved the primary purpose of the vehicle was its use for social functions and to transport merchandise. The vehicle was specially equipped with a refrigeration unit and four taps, and was clearly intended for uses other than advertising. Yardley Spring further contends that the Board erred when it relied solely on the location where the vehicle was parked to arrive at the conclusion the vehicle was used for the basic purpose of advertising.
This Court's standard of review where no additional evidence was taken by the common pleas court is a determination of whether the zoning hearing board abused its discretion or committed an error of law. Lamar Advertising of Pennsylvania, LLC v. Zoning Hearing Board of the Borough of Deer Lakes, 915 A.2d 705 (Pa. Cmwlth. 2007).
Section 1104.B.13 of the Ordinance clearly prohibits any sign or advertising device displayed on a vehicle which is parked so as to be visible from a public right-of-way and where such vehicle is being used for the "basic purpose" of advertising. This Section prohibits:
Any vehicle or trailer which is parked on a public right-of-way or on public or private property so as to be visible from a public right-of-way, which has attached thereto or located thereon any sign or advertising devices for the basic purpose of providing advertisement of products or directing people to a business or activity located on the same or nearby property or any other premises. This section shall not prohibit any form of vehicular sign attached to a bus or lettered on a motor vehicle where the vehicle is not used for the basic purpose of providing advertisement or direction as set forth above. (Emphasis added.)
This Court believes the Board did not commit an error of law or abuse its discretion.
A zoning hearing board will have abused its discretion where its findings are not supported by substantial evidence. Lamar. --------
First, this Court does not agree with Yardley Spring that the phrase "for the basic purpose of advertising" is ambiguous. The term "basic" is defined as "forming or relating to the most important part of something" or "fundamental." Merriam-Webster.com. Merriam-Webster, n.d. Web. 5 June 2015. < http://www.merriam-webster.com/dictionary/basic >. The term "purpose" is defined as "the reasons why something is done or used." Merriam-Webster.com. Merriam-Webster, n.d. Web. 5 June 2015. < http://www.merriam-webster.com/dictionary/purpose >. Combining these two definitions to determine the common and approved usage of the term "basic purpose" yields a definition of a fundamental or most important reason why something is used.
Here, several factors indicated that the principal use of the vehicle or the basic purpose of the vehicle at the time the Citations were issued was to advertise the Cold Spring Beverages business. Substantial evidence established that the vehicle was covered with advertisements related to products sold on the premises; that the vehicle was parked at the outermost portion of the parking lot in a location most visible to the traveling public; and that the vehicle was parked at an angle across multiple parking spaces, with the edge of the vehicle hanging over the road, so as to be most visible to the traveling public. The evidence further established that the vehicle was parked in the same location and in the same angled manner for several weeks.
The Board simply did not believe Crawford's testimony that the vehicle was parked in that manner due to delivery trucks. He admitted that there were other places on the Property that the vehicle could have been parked that were not adjacent to the roadway. The fact that the vehicle had not moved for weeks also belied Crawford's testimony that one of the primary purposes of the vehicle was used to transport products. Crawford actually admitted that he "really wasn't using the truck a lot in the beginning" and that within the past month it had "only been rented for three days." H.T. at 26; R.R. at 15a. During the relevant time period the vehicle was not moved, and therefore, the only purpose at the time the Notice of Violation was issued was for advertising.
While the vehicle may have been used to occasionally by the public or to transport goods, the evidence supported the Board's finding that its basic purpose was still advertising. These occasional uses did not change that the basic purpose of the truck was for advertising and the equivalent of a multisided billboard during the relevant time period.
The Order of the common pleas court is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 18th day of June, 2015, the Order of the Court of Common Pleas of Bucks County in the above-captioned matter is hereby affirmed.
/s/_________
BERNARD L. McGINLEY, Judge