United States: Billboard Regulation: The Commonwealth Court’s Recent Top Hits

Last Updated: February 3 2014
Article by Reuben Asia

In the last quarter of the 2013 calendar year, the Commonwealth Court of Pennsylvania decided three cases that provide insight into billboard regulation in Pennsylvania and its municipalities.  These three cases help explain important legal concepts, and an understanding of these concepts can be beneficial to individuals involved with outdoor advertising and land use more generally. 

Smith v. Hanover Zoning Hearing Board: De Facto Billboard Bans in Pennsylvania 

Under Pennsylvania law, a municipality cannot completely ban billboards; a municipality may, however, regulate billboards, including their height, size, use, and location, within its municipal limits. In Smith v. Hanover Zoning Hearing Board, the Commonwealth Court discussed just how much regulation a municipality can institute before the amount of regulation creates a de facto billboard ban and the regulation must be amended.  The plaintiff, Smith, had filed an application for permits to construct two billboards with LED lights in Hanover, Pennsylvania.  The proposed billboards, however, exceeded the permitted height limit and were to be located in districts where Smith's billboards were prohibited.  Because of this, the applications were denied, and Smith appealed.  Smith maintained his proposed billboards would only be economically profitable if they violated Hanover's zoning ordinance, and because the billboards would only be economically profitable if built in violation of the ordinance, Smith argued Hanover had, for all intents and purposes, banned billboards in violation of Pennsylvania law. 

After reviewing the evidence, the Commonwealth Court determined the Hanover ordinance did not create a de facto ban on billboards.  The court explained the borough's zoning code did not function as a ban on billboards simply because it would prevent Smith from making a profit off of his proposed signs; to be a de facto ban, the court reiterated the regulations must make the construction and/or ownership of any billboard economically infeasible.  Smith had only shown that his proposed LED billboards would lose money, not that it was economically impractical for any billboard, including non-LED billboards with lower construction and operating costs, to be built and survive in the permitted district.  With respect to the height limit set forth in the ordinance, the court explained that while it might be reasonable and even beneficial for a municipality to permit billboards to be taller than the limit, this limit was not a ban.  The height limit did not exclude billboards from the municipality, and the limit was therefore permitted. 

Key Takeaway:  A plaintiff can show that a municipality's regulation of billboards is so extensive that it amounts to a de facto ban if the plaintiff can demonstrate the municipality's ordinance makes the construction of all billboards economically impractical.


Smith v. Hanover Zoning Hearing Board continued: An Application of the "Fair Share" Principle to Billboards 

The "fair share" principle was initially created to remedy exclusionary zoning practices against lower income residential developments and is premised on the concept that a municipality, through its zoning regulations, must provide for the land-use needs of all categories of people who might want to live in the municipality.  While some Pennsylvania Commonwealth Court decisions suggest the "fair share" principle should be limited to the residential housing context, other Commonwealth Court decisions have applied the principle to the commercial realm.  In the Smith case, when the borough prohibited Smith from erecting his billboards, he argued the borough's zoning ordinance prevented Hanover from taking on its "fair share" of billboards.  The Commonwealth Court, without definitively concluding the "fair share" principle applies to the commercial realm, determined Smith hadn't shown that the "fair share" principle was even violated. To prove a violation, Smith had to show that the billboard needs of the people in the community were not being met, whereas Smith had only shown that billboards were only permitted in a small area of the municipality.  Because Smith failed to produce the requisite evidence of a "fair share" principle violation, the Commonwealth court found the "fair share" principle was not violated. 

Key Takeaway:  Whether the "fair share" principle definitively applies in the commercial context is still unclear. However, to prove a violation of this principle, a plaintiff must show that the municipality's zoning ordinance prevents the land-use needs of all categories of people who might want to live in the municipality from being met.


Lynn McConville and Dea M. McAlonan v. the City of Philadelphia: The "Standing" Requirement 

In Lynn McConville and Dea M. McAlonan v. the City of Philadelphia, the Commonwealth Court dealt with the significant issue of exactly who is permitted to bring a lawsuit against another party.  McConville and McAlonan both filed lawsuits against the City of Philadelphia, challenging the legality of an agreement the City entered into with a number of billboard owners.  This agreement allowed the billboard owners to resolve disputes with the City through arbitration, as opposed to through the existing administrative and judicial process.  Before dealing with the substance of McAlonan's and McConville's arguments against the agreement, the Commonwealth Court had to determine whether these two individuals had the requisite "standing" to sue. 

To sue another party, a plaintiff must fulfill a legal requirement known as "standing."  A plaintiff frequently has standing when he or she has a substantial, direct, and immediate interest in the lawsuit.  A plaintiff has a substantial interest in the lawsuit when his or her interest is greater than the common citizen's concern in seeing that people follow the law.  A plaintiff has a direct interest in the lawsuit when the matter complained of actually caused harm to the plaintiff's interest.  A plaintiff has an immediate interest if there is a causal connection between the actions complained of and the injury the plaintiff sustained, and the interest is within the zone of interests sought to be protected by the statute or constitutional guarantee at issue. To determine if a plaintiff satisfies these standing requirements, a court analyzes the facts of the case for each separate plaintiff. 

McAlonan filed her claim against the City of Philadelphia after a billboard collapsed onto and damaged her property.  After the collapse, the billboard owner began to reconstruct the billboard, and McAlonan notified the City, arguing the billboard was in violation of the zoning ordinance and could therefore not be rebuilt.  After receiving McAlonan's complaint, the City issued a violation to the billboard owner, but the City later rescinded that violation and issued a building permit without notifying McAlonan. When McAlonan learned the City had issued the permit to rebuild, McAlonan filed this lawsuit, seeking to invalidate the previously mentioned agreement that she learned the owner had entered into with the City.  She did not, however, file a proper complaint over the actual issuance of the permit before the appropriate agency or court. 

McConville owned property in the City and could see the remains of a billboard from her land.  McConville believed the billboard she could see was not in compliance with the City zoning ordinance, so when she noticed that the billboard was being reconstructed, she filed a complaint with the City.  After receiving McConville's complaint, the City issued a violation to the billboard owner, and the billboard owner appealed the issuance of this violation.  While the appeal was pending, the billboard owner entered into the previously mentioned agreement with the City, and after entering into the agreement, withdrew its appeal at the next hearing and moved to have the issue resolved via arbitration pursuant to the agreement.  McConville subsequently filed this lawsuit, arguing the agreement unlawfully permitted the billboard owner to continue to litigate the violation even after the billboard owner withdrew its appeal, and McConville argued that the withdrawal of the appeal had resolved the matter in her favor. 

While the billboard owner argued McConville did not live close enough to the offending billboard to have standing to sue, the Commonwealth Court determined McConville did in fact have standing.  The court noted the case was not about whether the billboard was lawful; it was about whether the agreement the billboard owner and the City entered into was legal.  When the billboard owner withdrew its appeal of the violation, the court determined McConville arguably obtained some measure of relief.  Then, when the billboard owner moved the issue into arbitration pursuant to the agreement with the City, the relief McConville arguably received was nullified, and McConville was thereby potentially harmed.  Because McConville could show the agreement potentially caused her harm, she demonstrated a substantial, direct, and immediate interest in seeing the agreement invalidated. 

The court determined, on the other hand, that McAlonan did not have standing.  The harm McAlonan suffered was a result of the billboard falling on her property and her subsequent failure to file a proper complaint; the harm was not a result of the agreement.  Though McAlonan argued the existence of the agreement caused her to lose faith in the system and persuaded her not to file her complaint properly, the court determined this did not create a sufficient causal link between McAlonan's harm and the potential illegality of the agreement.  Because McAlonan did not have a sufficient interest in the agreement, the court determined she did not have standing. 

Key Takeaway: An individual must fulfill a legal requirement known as "standing" to sue a party.  Standing frequently requires the suing party to have a substantial, direct and immediate interest in the lawsuit. A substantial interest is any interest greater than the average citizen's interest in seeing that people follow the law.  A direct interest exists when the matter complained of caused the suing party harm.  A plaintiff has an immediate interest if there is a causal connection between the actions complained of and the injury the plaintiff sustained, and the interest is within the zone of interests sought to be protected by the statute or constitutional guarantee at issue.


MC Outdoor, LLC v. Board of Commissioners of Abington Township: The Effect of a Township Commissioners' Resolution on  a Pending Challenge before the Township's Zoning Hearing Board 

In MC Outdoor, LLC v. Board of Commissioners of Abington Township, the Commonwealth Court examined the interplay between a zoning board's authority to resolve challenges brought before it and the board of commissioners' ability to alter ordinances.  MC Outdoor wanted to construct five advertising signs on properties in Abington Township, but the applicable sections of the zoning ordinance only permitted the signs if they advertised goods or services that were available on the property on which they were located.  MC Outdoor therefore filed a challenge to the applicable sections of the ordinance with the Township's Zoning Hearing Board and argued the ordinance was an impermissible ban on off-site advertising signs. 

Three months after MC Outdoor filed its challenge and while the challenge was still pending before the Zoning Hearing Board, the Township's Board of Commissioners adopted a resolution declaring the challenged ordinance sections invalid.  According to Pennsylvania statute, the Commissioners then had 180 days either to 1) enact a curative amendment or 2) reaffirm the ordinance's validity.  Within approximately two months of the decision to invalidate, the Commissioners rescinded the resolution and reaffirmed the ordinance's validity.  MC Outdoor subsequently filed suit in court, arguing the Commissioners' resolution resolved its challenge before the Zoning Hearing Board in its favor. 

The Commonwealth Court held the Commissioners' resolution of invalidation did not resolve the challenge before the Hearing Board in MC Outdoor's favor.  The court explained that even though the Commissioners had declared the ordinance invalid, the Commissioners had rescinded that resolution.  Moreover, even if the Commissioners hadn't rescinded the resolution, the Commissioners' resolution of invalidation still wouldn't have rendered MC Outdoor's challenge moot.  If the Commissioners pass a resolution invalidating an ordinance after a challenge to the ordinance is pending before the Zoning Hearing Board, that resolution does not establish that the ordinance is invalid as a matter of law.  The resolution is only persuasive evidence that the Zoning Hearing Board can consider at its hearing concerning the ordinance's validity. 

Key Takeaway: A resolution passed by the commissioners is NOT a final decision and can be reversed.  Parties should wait for the commissioners to pass the curative amendment to the ordinance before relying on the resolution.  If a resolution invalidating an ordinance is passed after a challenge to the ordinance is pending before the Zoning Hearing Board, the resolution does not establish that the ordinance is invalid as a matter of law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Reuben Asia
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions