Billboard Challenge Goes Before Zoning Board

Proposed at 40 feet wide, 12 feet high and 43 feet up from the ground, three electronic billboards that may go on Nutt Road are already garnering attention despite not being erected yet.

For more than three and a half hours on Wednesday night, residents and business owners gathered along with representatives of applicant Chester County Outdoor for a substantive validity challenge to Phoenixville’s zoning ordinances. Amee Farrell of Kaplin Stewart is the attorney representing Chester County Outdoor. She explained the substantive validity challenge process to members of the zoning hearing board.

“You have to provide for billboards within the municipality,” Farrell said. “The extent to which you provide for those you can control, but you have to at least provide for them, and if you don’t in any way, then it’s exclusionary and the ordinance becomes invalid.”

Chester County Outdoor’s argument is that the borough’s ordinance doesn’t allow for billboards. Farrell argued that as a validity challenge rather than a variance application, the hearing was not site-specific.

However, the applicant must present that it has a standing to bring the challenge, and as part of the evidence presented, Chester County Outdoor produced three leases signed by business owners at 95 Nutt Road (), 486 Nutt Road () and 1012 Nutt Road (/). The leases were signed by Thaddeus Bartkowski III of Catalyst Outdoor Advertising, the company behind Chester County Outdoor. Neither Bartkowski nor the property owners of the leased parcels were in attendance Wednesday evening.

Several nearby residents and representatives of businesses were at the hearing to voice concerns about the possibility of billboards at the three locations. Farrell asked for the opportunity to object to granting them party status, which would give them a chance to have a say in any appeals and also to introduce witnesses of their own and cross-examine witnesses brought by the applicant during the proceedings.

To move things along, all those who applied were given provisional status. Each person gave a brief statement, parts of which you .

Throughout the evening, Farrell frequently cited case law, and that brought about several objections. In one instance, Farrell objected to the admission into evidence of three letters—one by the Phoenixville Regional Chamber of Commerce’s president, one by the president of the Phoenixville Area Business Association and later, one from representatives of Sherwin Williams.

An issue that frequently arose throughout the proceedings was the relevance of the three specific sites in the borough where the billboards may go. At the beginning and at times throughout the hearing, Farrell argued that the validity challenge is not site specific, but rather a challenge to the overall zoning in the borough.

When Allan Greenwood, attorney for the zoning hearing board, said that should allow anyone who owns property in the borough to have party status, Farrell disagreed. She said those with party status would have to have a financial stake in the outcome, according to case law. Proximity to the locations was also not enough, Farrell told the board.

"It's not enough to be close to a property," Farrell said. "It has to be a little more than that."

As it came time for testimony, Farrell said she could introduce a witness, Patrick Wolfington of Chester County Outdoor, to testify about the three leases for the specific sites. Zoning hearing board member John Horenci said it seemed the applicant was trying to “have it both ways" with site-specific evidence.

Farrell said validity challenges are not a typical process, and that case law requires the challenger to present site-specific details to show there is standing. Wolfington testified that there are three current leases in place for the parcels along Nutt Road. When asked about the active dates, which were blacked out in the evidence documents, Wolfington didn’t answer at first and then said he didn’t know the details.

“I don’t see how that’s relevant,” he said.

The applicant agreed to provide “less redacted” versions of the three lease agreements for the next portion of the hearing, which will be Dec. 14 at 7 p.m.

Farrell said she has only the one witness and has already presented the major piece of evidence, which is the borough’s sign ordinance. Farrell still has to make her full opening statement, and those granted permanent party status will have a chance to cross-examine Wolfington at the next portion of the hearing.

As for next steps after the hearing, the zoning board has 45 days to render a decision on whether or not it agrees with the applicant that the ordinance excludes billboards. Borough council also elected to send an attorney to represent the borough’s interest at the hearing.

If the zoning board agrees that the borough is exclusionary, then Chester County Outdoor will go to the Court of Common Pleas to get approval to put the billboards in, according to Farrell. The borough can then create a curative ordinance or try to show that the exclusion was made in the interest of public health, safety and welfare.

If the board finds that billboards are allowed under borough code, then Chester County Outdoor will likely appeal, Farrell said.

“Regardless of which way this board decides, there will likely be an appeal of this matter and there will be a court that makes a final determination,” Farrell said.

The next portion of the . in borough hall. Also see on specific complaints from residents and business owners.