Phoenixville Billboard Hearing Concludes

Editor’s Note: This is the first of on Wednesday’s hearing. This one will deal with the legal aspects of the case, while the follow-up goes into the statements made by the public following the testimony.

After people came forward to offer emotional appeals to stop the process that may allow 40-foot wide, 43-foot tall electronic billboards along the Nutt Road corridor, the zoning hearing for Chester County Outdoor came to a close Wednesday evening.

Once again the zoning hearing came down to the delineation between site-specific vs. general, and the applicant, represented by Amee Farrell of the law firm Kaplin Stewart and witness Patrick Wolfington, refused to answer questions posed by those audience members with full party status, saying the hearing was about a general issue rather than the specifics of the billboards and their possible locations.

Rather than asking for zoning relief, Chester County Outdoor instead issued a substantive validity challenge, putting up a case that Phoenixville’s zoning ordinances do not allow for off-premises billboards. To issue the challenge, the applicant had to prove standing, which Chester County Outdoor did by producing three leases with three Nutt Road business owners.

The lease terms, which were disclosed Wednesday night, are good for 29 years, 11 months, according to the evidence presented. The leases were signed by land 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

Confusion Wednesday evening came from the fact that “less redacted” leases—now including the lengths of the lease of 29 years, 11 months—were submitted into evidence at the zoning hearing board’s request. Several people with party status had questions about the leases, which Farrell said she directed her client not to answer.

F. William Evans, who was granted permanent party status along with eight others and one business, asked whether or not the leases included any provisions against advertising alcohol, gambling or things of an adult nature.

Farrell said the leases are part of the record and can be reviewed, and she objected and said her client would not answer those questions.

“The leases say what they say,” Farrell said.

Wolfington said that off the top of his head, he couldn’t answer the question. Zoning Board Member John Horenci looked at the lease and told Williams there are no restrictions listed on the type of advertising.

When asked about the light intensity and whether or not the signs would be static or changing, Farrell objected and said the Wolfington wasn’t qualified to answer that question. Alan Greenwood, attorney for the zoning hearing board, noted that after the first full portion of the hearing, Chester County Outdoor sought to remove the plans, which included dimensions of the signs, from the application. The zoning hearing board unanimously denied that request on Wednesday evening.

Greenwood said he felt the applicant should have brought a witness to speak to the specifics of the signs.

“As I mentioned to you in an e-mail, I thought you should have somebody here who could go into detail concerning the signs, but your position is that you don’t need to attach the plans to the application, the amended application, and should be able to withdraw [the plans],” Greenwood said.

Farrell again stated that the leases were in evidence solely to show the applicant has standing in the legal matter and she stated that the substantive validity challenge is not site-specific but takes on the entire zoning ordinance and the question of whether or not off-premises billboards are permitted within the borough.

John Colarusso, who owns property near one of the potential sign locations, was also granted full party status on Wednesday evening and he asked Wolfington whether or not the historical resources of a community are considered before Chester County Outdoor picks a location for its billboards. Farrell called the question irrelevant and objected. Board Chairman Dan Dvorak said that the question was “pertinent.” Farrell disagreed.

“My point is that it doesn’t matter because the only question before this board tonight is whether or not your sign ordinance allows billboards, not whether or not it allows billboards on these particular sites, not the considerations this applicant or another applicant may take into account when it decides where to locate billboards,” Farrell said.

She said questions like that were “premature” and site-specific inquiries would be addressed at the Court of Common Pleas level. Farrell said she directed Wolfington not to answer any site-specific questions. Dvorak said Colarusso’s question wasn’t site-specific.

“His question was a general question whether this company takes into consideration the historic interest of the town,” Dvorak said.

Farrell said that doesn’t have any bearing on the question at hand, and said Wolfington “doesn’t have to” answer the question.

“I’m not trying to be difficult,” Farrell said. “But once you open the door it’s Pandora’s Box, and once we’ve opened Pandora’s Box we’re then asking more and more and more questions that really are site-specific.”

Greenwood said he thought Colarusso’s question was too broad and didn’t get to the matter at hand, but left it up to the board to decide whether or not Wolfington should answer. Board Member Walt Rubel asked whether or not Farrell had directed the sole witness not to take any site-specific questions, and Farrell said she had. Horenci told audience members to save their site-specific questions to Commonwealth court, “assuming that’s where it goes.”

Colarusso said he was done with his questions.

“I can’t think of questions that [Wolfington] would answer,” Colarusso said.

“Frankly, nor can I,” Rubel said.

No other parties to the case got up to ask questions during cross-examination, though many audience members later in the evening. Farrell and attorney Anthony Verwey, representing the borough, were able to give closing statements before the public comment portion.

Verwey presented six exhibits. Three were applications by Lamar Advertising, another billboard company, asking to install billboards at two locations on properties at 600 Nutt Road and one for a property at 640 Nutt Road. The other three exhibits were denial letters from the zoning hearing board.

Verwey’s closing statement said the applications and denials showed that another outdoor advertising applicant did believe that free-standing, off-premises signs were permitted in the borough, though the applications were denied because they didn’t meet specific requirements laid out in the sign ordinance. Verwey said electronic display signs are also permitted in the borough’s Route 23 Overlay District. The freestanding sign definition clearly covers billboards, Verwey stated, and the signs proposed by Lamar were off-premises billboards.

“We believe it’s clear from the record, it’s clear from the ordinance that freestanding signs are permitted, that the use is permitted, that the ordinance is Constitutionally firm, it’s on good ground, and the ordinance must be upheld as valid,” Verwey said.

During her closing statement, Farrell pointed to the applicant’s exhibit—the borough’s sign ordinance—and said she agreed that the borough permitted freestanding signs, but she disagreed that billboards and off-premises signs fit the definition of freestanding signs under the ordinance.

Freestanding signs and regulations governing them are tied to the owner of the signs being on the premises—going against the off-premises sign proposal of Chester County Outdoor, Farrell said. 

“Whether it’s the single or multiple occupants of that property, it’s always tied to the occupancy and use of the property,” Farrell said.

Though the ordinance defines billboards and off-premises signs, it doesn’t clearly permit them, Farrell said.

Greenwood closed the hearing and explained that the next step is for both sides—the borough's attorney and the applicant's attorney—to submit briefs. Those briefs are due within 30 days, and following that, the zoning hearing board will have 45 days, or until Feb. 27, to make a decision on whether or not the substantive validity challenge will stand.

Chester County Outdoor has indicated multiple times that it would appeal to the Court of Common Pleas if the board finds that the ordinance does permit off-premises billboards. 

Likewise, the case will end up in court if the zoning board finds in favor of Chester County Outdoor, because the court will have to determine the specifics of allowing the billboards in Phoenixville. In that instance, the borough would have a chance in the meantime to draft an ordinance to protect itself against future billboard applicants, but the court would have the final ruling on what specifically happens to the Chester County Outdoor billboards.