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A lease allocating land to a use separate from the existing use does not constitute “land development” under the MPC.
Upper Southampton Township v. Upper Southampton Township ZHB, 934 A.2d 1162 (Pa. 2007).
Clear Channel proposed to erect billboards on several different lots and entered into lease agreements with the owners of those lots. They submitted applications for sign and building permits, but the Zoning Officer rejected the applications finding that Clear Channel was required to submit a land development application and the Zoning Hearing Board affirmed.
On appeal, the Court of Common Pleas and the Commonwealth Court found that the proposed billboards were “land development” under both the MPC and the SALDO because they constituted “(1) the improvement of one lot or two or more contiguous lots, tracts, or parcels for any purpose involving: (ii) the division or allocation of land or space,. . . between or among two or more existing or prospective occupants by means of . . . a leasehold.” The trial court emphasized that there will be a new use of the land operated by a different entity.
Clear Channel appealed to the Supreme Court arguing that there would be no “land development” if the current owners of the property were to erect the same exact billboards. Furthermore, the erection of the billboards does not raise any public concerns such as issues regarding sewer, water and roadways. The proposed use would still have to be approved by the Zoning Officer and the Department of Licenses, which would ensure that the Township’s interest were sufficiently considered.
The Supreme Court found that the erection of billboards does not constitute “land development” because the definition “does not exist in a vacuum;” rather, the Court concluded, it must be read along with other provisions of the MPC, which clearly show that the concern is more focused on large scale development, such as the construction of residential or commercial buildings, which brings up issues of water management, sewers, streets and other effects on the public. The Supreme Court pointed out that this case more closely tracked the Tu-Way and Marshall Township decisions involving cell towers and light poles, respectively (where there was a finding of no “land development”), than the landmark decisions such as White and Lehigh Asphalt, which involved the expansion of a quarry and the building of a 350 feet tower with three equipment buildings, respectively.
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