C.N. Diefenderfer and B.A. Diefenderfer, his wife v. Palmer Twp. Board of Supervisors , 2015 Pa. Commw. LEXIS 493 ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Charles N. Diefenderfer and :
Betsy A. Diefenderfer, his wife, :
:
Appellants :
:
v. : No. 2324 C.D. 2014
:
Palmer Township Board of Supervisors : Argued: September 17, 2015
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: November 10, 2015
Charles and Betsy Diefenderfer (Appellants) appeal from the November 24,
2014 Order of the Court of Common Pleas of Northampton County (trial court)
dismissing Appellants’ land use appeal of a zoning ordinance regulating digital
billboards (Ordinance), which was enacted by the Palmer Township Board of
Supervisors (Board). On appeal, Appellants contend that the Board’s decision to
amend the pending Ordinance’s regulations, with respect to the permitted hours of
illumination for digital billboards, represented a “substantial amendment” to the
Ordinance such that the Board was required to advertise a summary of the
amendment pursuant to the Pennsylvania Municipalities Planning Code1 (MPC),
1
Act of July 31, 1968, P.L 805, as amended, 53 P.S. §§ 10101-11202.
prior to enactment of the Ordinance. Because we conclude that the amendment to
the Ordinance was substantial, we reverse the Order of the trial court.
I. BACKGROUND
a. Enactment of the Ordinance and the Construction of the Billboard
On September 9, 2011, Palmer Township (Township) proposed a new
Ordinance that would amend the Township’s zoning code in order to allow digital
advertising signs and billboards in the Township. (Trial Ct. Op. at 1-2.) On
September 13, 2011, the Palmer Township Planning Commission (Commission)
discussed the Ordinance, but decided to table the discussion until a later date.
(Trial Ct. Op. at 2.) Thereafter, on October 11, 2011, the Commission
recommended the approval of the Ordinance to the Board, “provided it was
amended to reduce the frequency of inspections from quarterly to annually, and to
change the hours . . . digital sign[s] would be illuminated from seventeen (17) to
twenty-four (24).” (Trial Ct. Op. at 2.)
The Township advertised the following notice on both November 15 and
November 22, 2011 in The Express Times newspaper:
TOWNSHIP OF PALMER
NORTHAMPTON COUNTY
PENNSYLVANIA
The following ordinances will be scheduled for a public hearing and
considered for adoption by the Township of Palmer at a regular
meeting of the [Board] on Tuesday, November 29, 2011 commencing
at 7:00 p.m. in the meeting room of the Palmer Township Library
Community Room at 3 Weller Place, Palmer Township, in
Northampton County, Pennsylvania.
2
AN ORDINANCE OF PALMER TOWNSHIP, NORTHAMPTON
COUNTY, PENNSYLVANIA, AMENDING THE PALMER
TOWNSHIP ZONING ORDINANCE SECTION 190-161 LIGHT
AND GLARE CONTROL, AND ARTICLE XVIII SIGNS TO
ALLOW FOR DIGITAL SIGNS AND ELECTRONICALLY
CHANGING MESSAGE SIGNS.
****
The full text of the proposed Ordinances may be examined by any
citizen during normal business hours at the following locations: The
Palmer Township Municipal Building, Office of the Secretary, 3
Weller Place, Palmer, Pennsylvania, on the Palmer Township website
at www.palmertwp.com.
Charles Bruno, Esquire
Solicitor to Palmer Township
(Trial Ct. Op. at 2-3.)
Thereafter, the Board held a public hearing on November 29, 2011 to
consider adoption of the Ordinance. (Trial Ct. Op. at 3.) The first version of the
Ordinance, discussed at that hearing, stated that digital signs “shall not be
illuminated between the hours of 11:00 p.m. and 6:00 a.m.” (Draft Ordinance,
Section 190-189.J, R.R. at 24a.) The Board received public comments on the
Ordinance at the hearing. (Trial Ct. Op. at 3.) A billboard industry real estate
manager stated that billboards should be illuminated 24 hours per day in order to
allow displays of emergency messages throughout the night. (Board Minutes at 5,
November 29, 2011, R.R. at 83a.) The real estate manager also stated that no one
in the billboard industry would be interested in putting digital billboards in the
Township if the Ordinance included the restriction on the number of hours. (Board
Minutes at 5, November 29, 2011, R.R. at 83a.) Thereafter, the Board authorized
the Township solicitor to amend the Ordinance and delete Section 190-189.J, thus,
3
adopting “the Commission’s recommendation[] to increase the permitted hours of
the digital billboard’s illumination from seventeen (17) to twenty-four (24)” hours
per day. (Board Minutes at 5, November 29, 2011, R.R. at 83a; Trial Ct. Op. at 3.)
The Board also decided to re-advertise the Ordinance, as revised, and place it on
the agenda for a hearing scheduled in December. (Trial Ct. Op. at 3.)
Subsequently, the Township advertised the following notice on December
13 and December 20, 2011 in The Express Times:
TOWNSHIP OF PALMER
NORTHAMPTON COUNTY
PENNSYLVANIA
The following Ordinance will be scheduled for a public hearing and
considered for adoption by the Township of Palmer at a regular
meeting of the [Board] on Tuesday, December 27, 2011 commencing
at 7:00 p.m. in the meeting room of the Palmer Township Library
Community Room at 3 Weller Place, Palmer Township, in
Northampton County, Pennsylvania.
AN ORDINANCE AMENDING THE PALMER TOWNSHIP
ZONING ORDINANCE SECTION 190-161 LIGHT AND GLARE
CONTROL, AND ARTICLE XVIII SIGNS TO ALLOW FOR
DIGITAL SIGNS AND ELECTRONICALLY CHANGING
MESSAGE SIGNS.
The full text of the proposed Ordinances may be examined by any
citizen during normal business hours at the following locations: The
Palmer Township Municipal Building, Office of the Secretary, 3
Weller Place, Palmer, Pennsylvania, on the Palmer Township website
at www.palmertwp.com.
Charles Bruno, Esquire
Solicitor to Palmer Township
(Trial Ct. Op. at 3-4.) At the Board’s public hearing on December 27, 2011, the
Board adopted the revised Ordinance. (Trial Ct. Op. at 4.) The minutes from the
4
hearing held on December 27, 2011 do not reflect that there were any public
comments on the Ordinance prior to its adoption. (Board Minutes at 3, December
27, 2011, R.R. at 37a.) The final version of the Ordinance did not include any
restrictions on the hours when billboards could be illuminated. (Ordinance, R.R. at
94a.)
Appellants did not appear at either the November 29, 2011 or December 27,
2011 public Board hearings. (Trial Ct. Op. at 4.) From March to July 2013,
however, Appellants regularly appeared at the Board’s general business meetings
“to comment on the operation and construction of a digital sign on a parcel of
property located near their residence.”2 (Trial Ct. Op. at 4.) The digital sign is
located on Route 22, facing Appellants’ home. (Board Minutes at 2, March 4,
2013, R.R. at 97a.) In addition to Appellants, many other citizens voiced their
2
At one such meeting, Appellant, Betsy Diefenderfer, explained that the sign:
is a quality of life issue for her. She said she suffers from fibromyalgia . . . Our
bedroom is in the back of the house and the walls are bright. In our recreation
room I’m watching the colors of the light come through from underneath my
deck. My bedroom is flashing and I’m not sleeping – this makes me feel worse. .
. . . our house is so lit up, turning it down won’t help, you should turn it off.
(Board Minutes at 4-5, March 11, 2013, R.R. at 102a-03a.) At another meeting, Betsy
Diefenderfer explained that:
we are really affected by the light [from the sign]. Our whole house is saturated
with this light. It bounces off our addition and comes in our window and on to
our wall. I can open a Tylenol bottle without turning on a light at night and line
up the little arrow on the bottle. The other night I was awakened at 3 a.m. with
such a bright light.
(Board Minutes at 8, May 6, 2013, R.R. at 129a.)
5
concerns about the digital sign at these meetings. (Board Minutes at 3-6, March
11, 2013, R.R. at 101a-04a.)
On November 27, 2013, Appellants filed a land use appeal with the trial
court, arguing that the Ordinance should be declared null and void because the
Board had not complied with the notice requirements of Section 610 of the MPC3
in adopting the Ordinance. (Land Use Appeal at 4-7, R.R. at 11a-14a.) In
particular, Appellants alleged that the published summary of the Ordinance did not
comply with Section 610(a) of the MPC, 53 P.S. § 10610(a), and that the notice
published prior to the December 27, 2011 hearing did not comply with Section
610(b) of the MPC, 53 P.S. § 10610(b), because it did not include a summary of
the amendment to the original version of the Ordinance, i.e. the increase in the
permitted hours of illumination from 17 to 24 hours per day. (Land Use Appeal at
4-5, R.R. at 11a-12a.)
3
53 P.S. § 10610. Section 610 of the MPC provides, in relevant part, that:
(a) Proposed zoning ordinances and amendments shall not be enacted unless
notice of proposed enactment is given in the manner set forth in this section . . .
Publication of the proposed ordinance or amendment shall include either the full
text thereof or the title and a brief summary, prepared by the municipal solicitor
and setting forth all the provisions in reasonable detail.
...
(b) In the event substantial amendments are made in the proposed ordinance or
amendment, before voting upon enactment, the governing body shall, at least ten
days prior to enactment, readvertise, in one newspaper of general circulation in
the municipality, a brief summary setting forth all the provisions in reasonable
detail together with a summary of the amendments.
Id.
6
b. Proceedings before the trial court
In considering Appellants’ land use appeal, the trial court concluded that the
appeal was governed by Section 5571.1 of the Judicial Code.4 (Trial Ct. Op. at 5.)
4
42 Pa. C.S. § 5571.1. Section 5571.1 provides, in relevant part, that:
(a) Applicability; court of common pleas.--
(1) This section shall apply to any appeal raising questions relating to an
alleged defect in the process of or procedure for enactment or adoption of any
ordinance, resolution, map or similar action of a political subdivision.
(2) An appeal pursuant to this section shall be to the court of common pleas.
(b) Appeals of defects in statutory procedure.--
(1) Any appeal raising questions relating to an alleged defect in statutory
procedure shall be brought within 30 days of the intended effective date of the
ordinance.
(2) Except as provided in subsection (c), it is the express intent of the General
Assembly that this 30-day limitation shall apply regardless of the ultimate
validity of the challenged ordinance.
(c) Exemption from limitation.--An appeal shall be exempt from the time
limitation in subsection (b) if the party bringing the appeal establishes that,
because of the particular nature of the alleged defect in statutory procedure, the
application of the time limitation under subsection (b) would result in an
impermissible deprivation of constitutional rights.
(d) Presumptions.--Notwithstanding any other provision of law, appeals pursuant
to this section shall be subject to and in accordance with the following:
(1) An ordinance shall be presumed to be valid and to have been enacted or
adopted in strict compliance with statutory procedure.
(2) In all cases in which an appeal filed in court more than two years after the
intended effective date of the ordinance is allowed to proceed in accordance
with subsection (c), the political subdivision involved and residents and
landowners within the political subdivision shall be presumed to have
substantially relied upon the validity and effectiveness of the ordinance.
(Continued…)
7
(3) An ordinance shall not be found void from inception unless the party
alleging the defect in statutory procedure meets the burden of proving the
elements set forth in subsection (e).
(e) Burden of proof.--Notwithstanding any other provision of law, an ordinance
shall not be found void from inception except as follows:
(1) In the case of an appeal brought within the 30-day time limitation of
subsection (b), the party alleging the defect must meet the burden of proving
that there was a failure to strictly comply with statutory procedure.
(2) In the case of an appeal which is exempt from the 30-day time limitation
in accordance with subsection (c), the party alleging the defect must meet the
burden of proving each of the following:
(i) That there was a failure to strictly comply with statutory procedure.
(ii) That there was a failure to substantially comply with statutory
procedure which resulted in insufficient notification to the public of
impending changes in or the existence of the ordinance, so that the public
would be prevented from commenting on those changes and intervening,
if necessary, or from having knowledge of the existence of the ordinance.
(iii) That there exist facts sufficient to rebut any presumption that may
exist pursuant to subsection (d)(2) that would, unless rebutted, result in a
determination that the ordinance is not void from inception.
(f) Void ordinances.--A determination that an ordinance is void from inception
shall not affect any previously acquired rights of property owners who have
exercised good faith reliance on the validity of the ordinance prior to the
determination.
(g) Definitions.--As used in this section, the following words and phrases shall
have the meanings given to them in this subsection:
“Intended effective date.” Notwithstanding the validity of the challenged
ordinance, the effective date specified in the challenged ordinance or, if no
effective date is specified, the date 60 days after the date the ordinance would
have been finally adopted but for the alleged defect in the process of enactment or
adoption.
“Ordinance.” An ordinance, resolution, map or similar action of a political
subdivision.
(Continued…)
8
Because the appeal was filed more than 30 days after adoption of the Ordinance,
the trial court determined that Appellants needed to satisfy the exception under
Section 5571.1(c) and demonstrate a deprivation of constitutional rights. (Trial Ct.
Op. at 8.) The trial court held that “[l]and ownership will be protected by
substantive due process where a governmental decision impinges upon a
landowner’s use and enjoyment of property” and that there is a “recognized private
constitutional interest in the use and enjoyment of one’s property, and property
owners have a constitutionally protected right to enjoy their property.” (Trial Ct.
Op. at 9 (citing Messina v. East Penn Township, 62 A.3d 363, 370 (Pa. 2012)).)
The trial court determined that Appellants’ “use and enjoyment of their
property ha[d] been impacted by the erection of the digital billboard at issue.”
(Trial Ct. Op. at 9.) Specifically, the trial court noted that Appellant Charles
Diefenderfer testified in his deposition “that the light from the digital billboard
illuminates multiple bedrooms in their house at night which interferes with their
ability to sleep.” (Trial Court Op. at 9.) The trial court also noted that Appellant
Betsy Diefenderfer stated in her deposition that “the billboard light entering their
home at night causes problems with her sleep, which impacts her and her
husband’s use and enjoyment of their property.” (Trial Ct. Op. at 9.) Because
Appellants’ sleep had been disturbed by light emanating from the digital billboard,
the trial court concluded that there had been a deprivation of Appellants’
“substantive due process right to the use and enjoyment of their property.” (Trial
“Statutory procedure.” The preenactment and postenactment procedures
prescribed by statute or ordinance in adopting an ordinance.
Id. (emphasis added).
9
Ct. Op. at 9.) Moreover, the trial court determined that, by enacting the Ordinance,
the Township had “made a decision which interfere[d] with Appellants’ use and
enjoyment of their property.” (Trial Ct. Op. at 10.) The trial court concluded that,
because there had been a deprivation of Appellants’ constitutional rights,
Appellants satisfied the exception of Section 5571.1(c) and, accordingly, the filing
of the land use appeal more than 30 days after the enactment of the Ordinance was
excused. (Trial Ct. Op. at 10.)
Nevertheless, the trial court concluded that, in order to succeed in their land
use appeal, Appellants needed to meet their burden of proof under Section 5571(e)
of the Judicial Code and demonstrate that the Township both: (1) failed to strictly
comply with statutory procedures; and (2) that the Township failed to substantially
comply with statutory procedure such that “the public [did] not have knowledge
of” impending changes to the ordinance, which “prevented [the public] from
commenting on those changes and intervening.” (Trial Ct. Op. at 10 (citing
Section 5571.1(e) of the Judicial Code, 42 Pa. C.S. § 5571.1(e)).)
The trial court first held that the summary of the Ordinance published by the
Township in November and December 2011 had both strictly and substantially
complied with the notice requirements of Section 610(a) of the MPC. (Trial Ct.
Op. at 11-15.) The trial court next addressed whether the Township had complied
with Section 610(b) of the MPC when it published the notices before the December
27, 2011 hearing, without mentioning in the notices that the Ordinance had been
changed to increase the permitted hours of illumination for digital billboards from
10
17 hours to 24 hours per day.5 (Trial Ct. Op. at 18-19.) The trial court determined
that, because the policy of the Ordinance was to allow digital billboard advertising,
there was no overall change in policy when the Ordinance was amended to
increase the hours of illumination. Thus, the trial court held that the change to the
Ordinance was not substantial, the Township was not required to advertise a
summary of the change, and the Township had strictly complied with Section
610(b) of the MPC. (Trial Ct. Op. at 19-20.) Accordingly, the trial court held that,
although there had been an impermissible deprivation of Appellants’ substantive
due process rights, because Appellants were unable to demonstrate that the
Township had violated Section 610 of the MPC, Appellants had not met their
burden of proof under Section 5571.1(e)(2) of the Judicial Code. (Trial Ct. Op. at
20.)
II. DISCUSSION
On appeal,6 the sole issue raised by Appellants is whether the change to the
Ordinance, increasing the permitted hours of illumination from 17 hours to 24
hours per day, was a substantial amendment to the Ordinance such that the
Township was required, under Section 610(b) of the MPC, to re-advertise the
change prior to enactment of the Ordinance. Appellants contend that the
5
The trial court also addressed whether the adoption of the Ordinance had deprived
Appellants of their procedural due process rights. (Trial Ct. Op. at 15-18.) Relying on Mathews
v. Eldridge, 424 U.S. 319 (1976), and Messina v. East Penn Township, 995 A.2d 517 (Pa.
Cmwlth. 2010), aff’d, 62 A.3d 363 (Pa. 2012), the trial court concluded that Appellants were not
denied procedural due process. (Trial Ct. Op. at 18.)
6
In a procedural validity challenge brought pursuant to Section 5571.1 of the Judicial
Code, 42 Pa. C.S. § 5571.1, we “review the trial court’s findings and conclusions to determine
whether the trial court committed an error of law or abused its discretion.” Messina, 995 A.2d at
525.
11
illumination from the billboard shines directly into their home and has deprived
them “of the quiet and peaceful enjoyment of their property, prevented them from
sleeping or otherwise enjoying their home . . . [and] caused deterioration in their
health and well-being.” (Appellants’ Br. at 13.) The difference between a dark
sky out one’s window at night and a flashing billboard illuminating one’s bedroom
constitutes a substantial change. Moreover, Appellants argue that a change to an
Ordinance constituting a substantive due process violation—which the trial court
concluded had occurred due to the enactment of the Ordinance—should be deemed
a “substantial amendment” under Section 610(b) of the MPC.
Appellants also argue that the change to the Ordinance constituted a
substantial amendment to the overall policy of the Ordinance. Whereas the
previous policy of the Ordinance was to protect neighbors from nighttime
illumination, the Township amended the Ordinance to eliminate any nighttime
protections. Appellants further maintain that the purpose of Section 610(b) of the
MPC is to allow the public to become aware of changes to ordinances and to
participate in their consideration. Appellants argue that, by not publishing a
summary of the substantial amendment to the Ordinance, the Township thwarted
the goals of Section 610(b). Although there may be no reason to object initially to
an ordinance, subsequent substantial amendment of the ordinance may create a
reason to object to the ordinance. By not complying with Section 610(b) of the
MPC, Appellants and their neighbors were prevented from having knowledge of
the substantial amendment to the Ordinance, commenting on the change, and
intervening. Appellants contend that, because the Township did not comply with
Section 610(b) of the MPC, the Ordinance is null and void.
12
The Township does not challenge the trial court’s conclusion that the
Ordinance resulted in a deprivation of Appellants’ substantive due process rights
and that Appellants’ land use appeal is not time barred. However, the Township
argues that the trial court correctly ruled that the change in the number of permitted
hours of illumination in the Ordinance was not substantial enough to require a
published summary under Section 610(b) of the MPC. The change was not
substantial because it only removed one single subsection of the Ordinance. “The
[O]rdinance for the first time allows for digital and electronic signs, and in so
doing regulates the size of the signs, billboard location, the need for buffer zones,
changes by district, luminosity, duration of message, regulations for particular
districts, the application process, and numerous other areas.” (Township’s Br. at 8
(citing Ordinance, R.R. at 88a-95a.).) The Township contends that the removal of
the single subsection governing hours of illumination is miniscule compared to the
rest of the Ordinance.
In addition, the Township relies on Lamar Advantage GP Company, LLC v.
City of Pittsburgh, 67 A.3d 156 (Pa. Cmwlth.), petition for allowance of appeal
denied, 81 A.3d 79 (Pa. 2013), to argue that the removal of the limitation on hours
of illumination did not change the overall policy or disrupt the continuity of the
Ordinance. The policy of the Ordinance is to allow for electronic and digital signs
in the Township, rather than to protect neighbors from nighttime illumination. The
fact that the original limitation for hours of illumination permitted billboards to be
illuminated before 11:00 p.m. and after 6:00 a.m. indicates that the policy of the
Ordinance was not to protect neighbors from nighttime illumination because,
during the winter months of the year, this timeframe would include several hours
of darkness. Finally, the Township argues that the trial court’s finding of a
13
substantive due process violation has no correlation to whether substantial
amendments were made to the Ordinance.
a. Whether the change to the Ordinance is a substantial amendment
Pursuant to Section 610(b) of the MPC,
[i]n the event substantial amendments are made in the proposed
ordinance or amendment, before voting upon enactment, the
governing body shall, at least ten days prior to enactment, readvertise,
in one newspaper of general circulation in the municipality, a brief
summary setting forth all the provisions in reasonable detail together
with a summary of the amendments.
53 P.S. § 10610(b). Here, although the Township re-advertised the Ordinance
prior to the December 27, 2011 hearing, it did not include a summary of the
changes made regarding the permitted hours of illumination for billboards.
Accordingly, if the modification of illumination hours is considered a substantial
amendment to the overall Ordinance, then the Township would have violated
Section 610(b) of the MPC by not including a summary of the change. We must,
therefore, determine whether this modification was a “substantial amendment.”
Our Supreme Court has explained that although “it is obvious that an
insignificant amendment made to a proposed ordinance after advertisement and a
public hearing does not require a re-advertisement and public hearing, the case is
clearly otherwise if the amendment is substantial in relation to the legislation as a
whole.” In re Appeal of Hawcrest Association, 160 A.2d 240, 241 (Pa. 1960)
(quotation omitted). Thus, “[f]or an amendment to be ‘substantial’ . . . there must
be a significant disruption of the continuity of the proposed legislation or some
appreciable change in the overall policy of the bill.” Id. at 242. See also Lamar,
14
67 A.3d at 159 (concluding that “amendments that go far beyond the proposed
legislation cannot be made without re-advertisement and a new hearing”).
Amendments are also substantial where they add or delete a permitted use, change
a district boundary or classification, or significantly alter a regulation. Appeal of
Hawcrest, 160 A.2d at 242. In addition, this Court has noted that “[a]nother factor
in determining the substantiality of such modifications is whether they affect other
landowners in a different way or have an adverse impact on adjoiners.” Appeal of
Sweigart, 544 A.2d 74, 78 (Pa. Cmwlth. 1988). This Court has also concluded that
an amendment is substantial where it includes land that was previously unaffected
by the proposed amendment. Id.
An example of a substantial change to a pending ordinance arose in Save
Our Local Environment II v. Foster Township Board of Supervisors, 587 A.2d 30
(Pa. Cmwlth. 1991). There, a landowner applied for a curative amendment to the
township zoning code in order to allow him to use 3300 acres of land for solid
waste disposal. Id. at 31. After multiple hearings, several modifications were
made to the curative amendment including: new definitions for solid waste
disposal facilities and conditional uses; “inclusion of waste processing and waste
disposal facilities as a conditional use in an I-1 (General Industrial) District, rather
than the permitted use for which [the landowner] had previously applied; and . . .
reclassification of an A-1 (Agricultural) district to an I-1B (Industrial) district.” Id.
The township board of supervisors adopted the modified curative amendment
without conducting public hearings. Id. This Court determined that, although
changing the waste disposal facility from a permitted to a conditional use was
insignificant, the change in the zoning classification from agricultural to industrial
was significant, as were the changes to the definitions for solid waste disposal
15
facilities and conditional uses because “they could have a significant effect on [the
t]ownship’s regulation of these types of facilities.” Id. at 31-32. Thus, our Court
concluded that the township violated the MPC in adopting the modified curative
amendment without holding public hearings. Id. at 32.
More recently, in Lamar, this Court addressed changes made to an ordinance
involving billboards. Lamar, 67 A.3d at 157. There, an ordinance was introduced
at Pittsburgh City Council to revise several sections of Pittsburgh’s Zoning Code
relating to Electronic Message Signs. Id. After several public hearings, the
ordinance was amended to: (1) reinstate electronic sign messages in the Golden
Triangle District; (2) eliminate provisions in the ordinance allowing community
message signs; (3) eliminate electronic advertising signs from local neighborhood
commercial zoning districts; (4) modify the review and approval process for
reconstructed electronic advertising signs; (5) reduce dwell time and brightness for
signs; and (6) allow City Council to establish brightness requirements in certain
districts. Id. at 158. The ordinance, as amended, was adopted without re-
advertising the ordinance or conducting a subsequent public hearing. Id.
On appeal, Lamar argued that the ordinance was void because the ordinance
had not been re-advertised and the changes were substantial. Id. This Court
concluded that the changes between the original and final versions of the ordinance
“were not substantial enough to warrant re-advertisement and rehearing.” Id. at
159. We first noted that “changes which merely make regulations more stringent
than initially proposed are acceptable and do not necessitate the holding of a
subsequent public hearing.” Id. (quotation omitted). Thus, we concluded that “the
final bill’s reductions of the permitted brightness and dwell time levels for various
16
types of advertising signs were not substantial enough to warrant another hearing.”
Id. We also concluded that “the reinstatement of ‘electronic signs messages’ in the
Golden Triangle and the elimination of the provisions for ‘Community Message
Signs’ and electronic advertising signs from [Local Neighborhood Commercial]
districts,” “were not substantial in relation to the legislation as a whole because
those modifications [did] not demonstrate any appreciable change in the overall
policy of the bill.” Id.
There are, thus, several factors to consider in determining whether a change
is substantial, including whether the change “affect[s] other landowners in a
different way” or has an “adverse impact” on adjoining property owners. Appeal
of Sweigart, 544 A.2d 78. In addition, a change is substantial where it has a
significant effect on a township’s regulation of different types of land uses.
Appeal of Hawcrest, 160 A.2d at 241-42; Save Our Local Environment II, 587
A.2d at 31-32. Based on our case law, we conclude that the change at issue here
was a substantial amendment.
It is undisputed that the light emanating from the billboard interferes with
Appellants’ sleep and impacts Appellants’ use and enjoyment of their property.
(Trial Ct. Op. 9.) While the change in hours of illumination from 17 hours to 24
hours appears minor in comparison to the grand scheme of the Ordinance, this
change clearly had an adverse impact on Appellants. The change to the Ordinance
also affected Appellants in a different way than would have occurred if the prior
version of the Ordinance had been enacted: under the earlier version of the
Ordinance, Appellants would have enjoyed seven hours of darkness each night.
This change reflects a “significant disruption of the continuity” of the Ordinance to
17
the extent that it substantially increased the negative impact of the Ordinance on
landowners living close to digital billboards. Appeal of Hawcrest, 160 A.2d at
242. Moreover, the change to the Ordinance was substantial because it
significantly altered the Township’s regulation of nighttime billboard use.
Although in Lamar this Court concluded that a change to an ordinance was
not substantial even though several regulations were made less stringent, Lamar is
distinguishable. In that case the land use appeal was brought by the billboard
company, rather than adjacent landowners, and there was no evidence that adjacent
landowners objected to the change to the ordinance or that the change interfered
with adjacent landowners’ use and enjoyment of their property. In contrast, here,
because the change to the Ordinance resulted in a deprivation of Appellants’ right
to the use and enjoyment of their property, we conclude that the change was a
“substantial amendment” under Section 610(b) of the MPC and that the Township
was required to advertise the change prior to enactment of the Ordinance.
b. Whether the Ordinance is null and void
In order to declare the Ordinance void, Appellants are required to satisfy
their burden of proof under Section 5571.1 of the Judicial Code. Because
Appellants filed their land use appeal more than 30 days, but less than two years,
after the enactment of the Ordinance, Appellants are required to demonstrate that:
(1) the defect in statutory procedure “result[ed] in an impermissible deprivation of
constitutional rights”; (2) the Township “fail[ed] to strictly comply with statutory
procedure”; and (3) the Township “fail[ed] to substantially comply with statutory
procedure” such that the public did not have notice of the change to the Ordinance,
which “prevented [the public] from commenting on those changes and
18
intervening.” Section 5571.1 of the Judicial Code, 42 Pa. C.S. § 5571.1. As
determined by the trial court, because the billboard interfered with Appellants’ use
and enjoyment of their property, Appellants were impermissibly deprived of their
constitutional rights. Moreover, since we have concluded that the change to the
Ordinance was substantial, it is clear that the Township did not substantially
comply with Section 610 of the MPC when it did not advertise the change before
the Ordinance was enacted. Due to the Township’s failure to comply with Section
610 of the MPC, Appellants and similarly situated landowners were prevented
from commenting on the proposed change before it was enacted. Thus, we
conclude that Appellants have met their burden under Section 5571.1 of the
Judicial Code and that the Ordinance was “void from inception.” Id.
III. CONCLUSION
Accordingly, for the foregoing reasons, the Order of the trial court is
reversed.
________________________________
RENÉE COHN JUBELIRER, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Charles N. Diefenderfer and :
Betsy A. Diefenderfer, his wife, :
:
Appellants :
:
v. : No. 2324 C.D. 2014
:
Palmer Township Board of Supervisors :
ORDER
NOW, November 10, 2015, the Order of the Court of Common Pleas of
Northampton County, entered in the above-captioned matter, is hereby
REVERSED.
________________________________
RENÉE COHN JUBELIRER, Judge