Pennsylvania Billboard CaseJanuary 2008 In The Zone
(Appeal of Clear Channel Outdoor)
(Pennsylvania Supreme Court, November 20, 2007)
The Pennsylvania Supreme Court held that the erection of billboards does not constitute land development under the Municipalities Planning Code. This decision eliminates the need for landowners and/or advertisers to obtain one level of approvals before erecting billboards in Pennsylvania.
On November 20, 2007, in Upper Southampton Twp. v. Upper Southampton Twp. ZHB (Appeal of Clear Channel Outdoor), the Pennsylvania Supreme Court held that the erection of a billboard does not, by law, constitute “land development” under the Pennsylvania Municipalities Planning Code (MPC). As a result of the Court’s decision, municipalities can no longer require landowners to go through the cumbersome, costly, and often prohibitive land development process before erecting billboards on their property.
In this case, Clear Channel Outdoor sought to erect six new billboards on four different properties in Upper Southampton Township, Bucks County. Each of the properties were already being used for commercial purposes, and Clear Channel sought to lease a small portion of the properties to erect free-standing,V-shaped, double-sided signs, which were illuminated by indirect lighting. The Township rejected Clear Channel’s applications for permits to construct the billboards, contending that the lease of a portion of the land for a different commercial purpose required the landowner to obtain land development approval. Land development is defined, in relevant part, as:
The improvement of one lot or two or more contiguous lots, tracts or parcels of land for any purpose involving….the division or allocation of land or space…between or among two or more existing or prospective occupants by means of, or for the purpose of, streets, common areas, leaseholds, condominiums, building groups or other features. (53 P.S. § 10107)
On appeal, the Commonwealth Court ruled that the erection of billboards on leased portions of the property constituted the allocation of land among two or more occupants by leasehold interests for the purpose of improving the land and, thus, it constituted land development. As a result, the landowner and/or Clear Channel would be required to submit land development plans in conformance with the Township’s Subdivision and Land Development Ordinance (SALDO), and receive the approval of the Township under SALDO prior to obtaining any right to erect the billboards.
On appeal to the Supreme Court, the Supreme Court rejected the idea that the erection of billboards could constitute land development. The Court held that, while there were leases allocating space among two or more occupants of the properties, it could not conclude that land development would occur. The Court noted that the definition of land development “does not exist in a vacuum,” and that the Court had to look at other sections of the MPC to distill what really constitutes land development. The Court ruled, “None of the concerns addressed by land development plans [i.e., parking, driveways, curbing, sidewalks, buffering, etc.] is applicable” to the erection of billboards.” The Court found that requiring a landowner to suffer through the land development process for the simple erection of billboards would be “absurd or unreasonable,” and the mere fact that leases were allocating portions of the property to two or more applicants “cannot convert a use of land that does not rise to the level of land development to a use that does.”
The Supreme Court’s decision in Appeal of Clear Channel Outdoor could eliminate a significant expense in municipalities that have been hostile to outdoor advertisers. No longer can a municipality force a landowner to comply with the SALDO (and, often, extract development fees and contributions in lieu of compliance). However, the decision does not remove the requirement that outdoor advertisers comply with other regulations and zoning restrictions.
For more information, please contact Andrew W. Bonekemper at 215.661.6412 or [email protected].