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A pair of land use cases has state Supreme Court justices considering the nature of billboards and asking whether a farm can be considered a recreational facility. In an apparent case of first impression , an outdoor advertising company has challenged a Commonwealth Court decision affirming the Bucks County Common Pleas Court’s ruling that applications to erect billboards are subject to the local land development ordinance. The case is Upper Southampton Township v. Upper Southampton Township Zoning Hearing Board. In the case, Clear Channel Outdoor argues its agreements with landowners should not trigger the ordinance and that the land development approval process is too onerous for what is essentially a temporary structure. Upper Southampton Township, on the other hand, argues that the billboard structures should be subject to the same degree of scrutiny as other land uses because they present many of the same concerns. In Middletown Township v. The Lands of Josef Sega Stone, a family has challenged the Bucks County municipality’s taking of a family farm, claiming the condemnation for open space preservation is prohibited under the Open Space Lands Act of 1968. Middletown Township argues that because the land, which continues to operate as a farm, was envisioned as a park in the township’s recreation plan, the Second Class Township Code allows the acquisition by eminent domain. Both cases were argued before the Pennsylvania Supreme Court Tuesday in Philadelphia. Clear Channel’s attorney, Douglas C. Maloney of Begley Carlin & Mandio in Langhorne, Pa., said the zoning board’s contention that the company’s agreements with landowners amount to leaseholds – which fall under the Municipal Planning Code definition of “land development – is flawed. He compared the agreements to licenses and said the ease with which Clear Channel could rearrange its agreements supports that position. Under consideration is a scheme in which the landowners would own the billboard structures and Clear Channel would hold license to place advertisements on them, Maloney said. The justices turned to the Commonwealth Court’s holding that miscellaneous use structures require zoning approval. “Did the Legislature intend an unoccupied structure to require zoning approval?” Justice Max Baer asked. Maloney said the Legislature’s intent is not specific enough to presume all unoccupied structures should be subject to zoning approval. “Without a more explicit statement from the Legislature, we don’t think it’s land development,” Maloney said after the arguments. Representing Upper Southampton Township, Robert J. Sugarman of Sugarman & Associates in Philadelphia, argued the Land Development Ordinance’s definition of land use, including the division of space between two “occupants,” must not be taken literally. “The term ‘occupants’ doesn’t entail a kitchen and bedroom. It includes anyone who has a right to be on the property,” Sugarman said. Sugarman said regardless of whether a property is used as a place of residence, business or neither, land use issues can be present. “The way land development works is that it can be as simple or complex as the project,” Sugarman said following the arguments. “If there are no ingress and egress issues, no high tension wires and no storm water drainage issues, it would not be very cumbersome at all.” Baer asked whether it is fair to say the municipality simply doesn’t want billboards and is looking for a creative way to exclude them. Sugarman assured the court the township officials involved are acting in good faith. President Judge James Gardner Colins summed up the appellant’s position perfectly in his dissent to the Commonwealth Court opinion in Stone, Don F. Marshall of Stuckert & Yates in Newtown, Pa., told the Supreme Court. He argued to overturn Middletown Township’s condemnation of the Stone family’s 175-acre farm as a municipal park. Stone claims the taking was illegal because the township’s declaration of condemnation also mentioned open space preservation as a purpose, which is prohibited by the state Open Space Lands Act. “The fact that the taking for recreation was legal doesn’t get past the partial purpose of taking for open space preservation, which is illegal,” Marshall said. Marshall warned that eminent domain could become a land use tool if the decision is allowed to stand. David Conn of Rudolph Pizzo & Clarke in Trevose, Pa., admitted that the declaration contains the words “open space,” but argued that it makes no subsequent reference to the Open Space Lands Act. The only law in effect is the Second Class Township Code, which permits condemnation of land for recreational purposes. Conn argued the high court must examine whether the township took adequate steps to identify the Stone farm as a recreational resource. Following the arguments, Conn said the court posed a series of tough, pointed questions about the nature of the land use and how it might distinguish a park from open space. “From a city boy perspective, a park has swings and ball fields,” Chief Justice Ralph J. Cappy said. “Is there anything in the law that restricts a park to recreational facilities?” Conn told the justices a nearby apple orchard was acquired by the township for recreation and still functions as an orchard, but also provides recreational opportunities to residents during the autumn apple season. Open space is not legally distinct from recreational land in many circumstances, Conn said. When no forethought is given to the use of public land beyond ensuring that it is not developed, then it is strictly open space, he said. “Is there a farmer in the state of Pennsylvania who would agree with your definition of a farm as a recreational facility?” Cappy asked. Conn replied, “I imagine not, but you could ask the same of any employee of the Philadelphia Art Museum.”

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