United States: Pennsylvania Commonwealth Court Finds Municipality-Wide Exclusion Of Billboards Unconstitutional

Last Updated: December 22 2014
Article by Jennifer L. Wunder

In Appeal of the Bartkowski Investment Group, Inc. From the Decision of the Zoning Hearing Board of Haverford Township, Dated March 1, 2012, (27 C.D. 2014, December 8, 2014), the Pennsylvania Commonwealth Court found Section 182-701.B of the Haverford Zoning Ordinance (ZO) unconstitutional for excluding billboards from the entire municipality, where Haverford Township (Haverford) did not prove a substantial relationship between the exclusion and the public health, safety, morality or general welfare. The court also held that, although the trial court did not err in denying Bartkowski Investment Group, Inc. (BIG) the proposed billboards, the trial court should have proceeded under section 1006-A of the Municipalities Planning Code (MPC) and considered whether alternative relief can and should be granted to BIG with respect to the proposed sites. Section 1006-A provides that, if the court finds an ordinance to be unconstitutional, it may order the proposed use approved as to all elements, or as to some elements.

BIG filed applications with the Haverford Zoning Hearing Board (ZHB) seeking approval to construct several billboards in Haverford. The applications raised substantive validity challenges to the ZO based upon the alleged municipality-wide exclusion of billboards. The ZHB conducted numerous hearings on the applications, hearing testimony regarding traffic and safety concerns related to the proposed billboards and sites, the impact of the proposed billboards on historic and aesthetic values and the ramifications of structural problems with the proposed billboards.

The ZHB denied BIG's substantive validity challenge, relying greatly on the testimony of the witnesses. The ZHB held that the ZO prohibits "billboards" but does not prohibit all non-accessory outdoor advertising signs, which BIG must establish in order to prevail. The ZHB also concluded that even if the ZO did improperly exclude billboards, Haverford demonstrated that health and safety concerns support the prohibition of the proposed billboards.

BIG appealed to the trial court, which affirmed the ZHB decision "to the extent that the billboards proposed were not suitable for the proposed sites."

BIG then appealed to the Commonwealth Court, which analyzed two issues, 1) whether the Zoning Ordinance is unconstitutionally exclusionary as to billboards, and if so, 2) whether and to what extent BIG is entitled to judicial relief. 

Exclusionary Ordinance Issue

The court first discussed the burden-shifting framework for challenging the validity of a zoning ordinance. The challenger must initially demonstrate total exclusion of an otherwise legitimate use. If this is accomplished, the burden then shifts to the municipality to show that the total exclusion bears a substantial relationship to the public health, safety, morality or general welfare. Such a showing will save the ordinance.

In analyzing the present ordinance, the Commonwealth Court recognized that, "since billboards are not objectionable per se, a blanket prohibition on billboards without justification cannot pass constitutional muster." The court noted that, because the ZO totally excludes billboards as a permitted use, the burden shifted to Haverford to save the ZO from a finding of unconstitutionality by showing that the total exclusion of billboards bears a substantial relationship to the public health, safety, morality or welfare.

The Commonwealth Court determined that Haverford did not meet this burden, and thus the trial court erred to this extent, because:

  1. Haverford failed to present any evidence that no billboard would be suitable at any site within Haverford, and;
  2. The ZHB upheld the validity of the ZO based on evidence relating solely to the proposed billboards at the proposed locations. 

The Court explained that, when courts examine an ordinance that fails to permit a lawful use throughout a municipality, the municipality must present evidence supporting the ban of the use throughout the municipality, and not simply rely upon evidence demonstrating that health, safety and general welfare concerns support a ban on particular proposed sites. Therefore, the court found the ZO unconstitutional for totally excluding billboards from the entire municipality with no proof of a substantial relationship between the exclusion and the public health, safety, morality or general welfare.

Judicial Relief Issue

In examining the relief owed BIG, the court distilled several principles from the language of Section 1006-A of the MPC and preceeding case law. First, Section 1006-A gives broad, discretionary powers to the trial court to fashion appropriate relief to the successful challenger of a ZO. Second, while a trial court may conduct a review using all evaluative tools available, a trial court's failure to utilize one or all of the options does not, in itself, constitute an abuse of discretion. The court also recognized that the paramount concern of the General Assembly expressed in Section 1006-A, as interpreted by the courts, is to seek to provide a successful challenger with some measure of relief. Finally, the court noted that a challenger's failure to expressly request relief under Section 1006-A could lead to a waiver.

The trial court acknowledged that the ZO is exclusionary but, rather than proceed as directed under Section 1006-A, which allows the trial court to grant relief that is less than, or an alternative to, the original use sought, the trial court went no further than considering and rejecting the proposed billboards. The court thus held that the trial court erred in failing to consider BIG's request for judicial relief under Section 1006-A of the MPC and remanded this matter to the trial court for this determination.

The decision in Appeal of BIG demonstrates the court's willingness to provide a successful challenger of an unconstitutional zoning ordinance with some form of relief for its proposed use, either by approval as requested, or approval as to some elements of the proposed use or development. The appropriate relief is determined by the trial court through the examination of evidence provided at the ZHB hearing or at a subsequent hearing if needed. Challengers should be sure to always include an express request for relief under Section 1006-A of the MPC in their appeal to avoid potential waiver.

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.

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Jennifer L. Wunder
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