Billboard • Zoning Variance • De Minimus Variance Theory

Petrizzo v. Zoning Hearing Bd. of Middle Smithfield Twp., PICS Case No. 14-0163 (C.P. Monroe Dec. 13, 2013) Zulick, J. (15 pages).

Where parties seek to change the dimensions of a non-conforming billboard in excess of 10%, such changes are not de minimis variances that a zoning board may approve outside of statutory requirements. Affirmed in part and reversed in part.

Adams Outdoor Advertising, Ltd. leased a wooden 240 sq. ft. billboard sign mounted 15 feet high on the property of Edward Regina. Adams sought to replace the existing billboard with a metal, double-sided, digital billboard with 288 sq. ft. per face, mounted 35 feet high, no more than 3 feet from the location of the existing billboard.

Because the original billboard did not conform to local zoning ordinance, Adams and Regina requested a variance from the Zoning Hearing Board of Middle Smithfield Township. Appellant John Petrizzo, an adjoining property owner, opposed the variance and was granted party status.

After hearing, ZHB granted a partial variance, allowing an increase in the square footage of the sign up to 300 sq. ft., allowed the increase in height to 35 feet, allowed the sign to be constructed of metal, and allowed the usage of a digital display, on the basis that such changes were de minimis and did not violate the zoning ordinance any more than the existing sign. However, Adams’ and Regina’s conditional use approval was denied by the Board of Supervisors.

Petrizzo and Adams appealed ZHB’s decision; Adams and Regina also appealed the Supervisors’ denial of conditional use approval. Petrizzo asserted error by ZHB in granting a de minimis variance to Adams. Adams argued its complete request for variance should have been granted, and that the Supervisors should have granted conditional use approval based on the partial variance.

The court noted that under local zoning ordinances, a nonconforming sign could be replaced and retain its nonconforming status as long as the new sign is in the same location with the same or less sign area and height. Therefore, it rejected Adams’ and ZHB’s assertion that the proposed billboard was no more nonconforming than the existing sign.

Furthermore, the court noted that the proposed variance met none of the five statutory factors listed in 53P.S.§10910.2 that controls grant or denial of a variance. The court observed that while ZHB can grant a variance that meets none of the factors under a de minimis variance theory, the proposed variance in the instant case was not de minimis, as it involved a 25% increase in sign area and 133% increase in sign height. The court cited case law that held that variance of less than 10% was de minimis, while variance of 34% was not. The court also held that the change to a digital sign was also not a de minimis variance.