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A commercial sign advertiser has the burden of demonstrating that a zoning ordinance’s distinction between on-site and off-site advertising has no rational basis or nexus to the public’s health, safety and welfare, where the differing treatment is content neutral and does not effect a total ban on commercial speech.
Adams Outdoor Advertising, LP. v. Zoning Hearing Bd. of Smithfield Township, 909 A.2d 469 (Pa. Cmwlth. 2006).
Landowner applied for a permit to perform preliminary site preparation for an office park for which he had obtained conditional land development approval. Landowner received a site preparation permit subject to the condition that two off-premise billboards leased to Advertiser be removed because the Township’s Zoning Ordinance mandated the removal of advertising signs on commercial property where land developments, alterations, or enlargements were being proposed.
Advertiser appealed the sign removal conditions to the ZHB, which rejected the appeal citing the clear language of the Zoning Ordinance.
Applicant appealed to the trial court arguing that the ZHB’s determination discriminated against property on which off-premise advertising signs were located; resulted in a taking of his property without just compensation; and infringed on his right to free speech. The trial court rejected each argument and affirmed the ZHB.
On appeal, the Commonwealth Court affirmed and held: 1) Advertiser failed to establish its burden that the Zoning Ordinance had no rationale relationship to the Township’s goal of traffic safety and esthetics; 2) the Zoning Ordinance did not impermissibly ban commercial speech by requiring the removal of off-site commercial signs because the provision was content and subject matter neutral and did not create a total ban on commercial signs; and 3) the Zoning Ordinance did not amount to a de facto taking because Advertiser still had remedies against Landowner under contract law for effectively breaching the lease by exercising his right to develop the property, and that there was a sufficient nexus between the Township’s goal of traffic safety and esthetics and the manner in which the Zoning Ordinance sought to achieve that goal.
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