Lamar Advertising v. Borough of Deer Lake Zoning Hearing Board, 915 A.2d 705 (Pa. Cmwlth. 2007).
The complete prohibition of off-site billboard advertising is unconstitutional. A successful constitutional challenge does not automatically entitle the challenger to a variance.
Billboard Company wanted to construct an off-site billboard in a commercial district and submitted an application for a permit. The application was denied because the Zoning Ordinance prohibited off-site advertising and because the proposed sign exceeded the size requirements for on-site signs.
Billboard Company appealed to the Zoning Hearing Board (ZHB), requesting a variance and challenging the constitutionality of the Zoning Ordinance. The ZHB allowed the off-site advertising because it was completely excluded under the Zoning Ordinance, which it found to be unconstitutional. The ZHB, however, did not allow the variance with regard to the height and area requirements because the sign could be erected in conformity with the size restrictions under the Zoning Ordinance.
Billboard Company then appealed to the trial court and argued that the entire Ordinance was unconstitutional because it was a de facto exclusion of all off-site advertising (i.e., it did not explicitly prohibit off-site advertising, but as applied precluded such advertising). The court rejected this argument because of the existence of other billboards in the municipality. In addition, the trial court found that the Board did not abuse its discretion in denying the variance application and applying the same restrictions for on and off-site advertising.
On appeal, the Commonwealth Court affirmed that zoning ordinances cannot completely restrict off-site advertising, but that a municipality may impose restrictions as long as they bear a reasonable relationship to the public health, safety, welfare, and morals, and it rejected the argument that it is unreasonable to apply the same restrictions to off-site advertising that apply to on-site advertising. The Commonwealth Court also affirmed the trial court’s conclusion with respect to the de facto exclusion argument.
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