A Pennsylvania appellate court has affirmed a trial judge’s decision to grant site-specific relief for a billboard applicant after concluding that errors in a borough’s zoning scheme had created a “de facto exclusion” of billboards in the entire borough.

In America First Enterprises (d/b/a Oliver Outdoor) vs. Tarentum Borough, an applicant filed a zoning application seeking a permit to install a two-sided, 14’ x 48’ illuminated billboard on property in the commercial center (CC) zoning district. The zoning officer denied the application on the basis that billboards were not permitted in the CC zoning district and the applicant then appealed such denial to the Zoning Hearing Board (“ZHB”). The ZHB denied applicant’s appeal and the applicant then appealed such denial to the court of common pleas. The court then remanded the case back to the ZHB to hold an evidentiary hearing to determine whether the zoning ordinance was de facto exclusionary as to billboards. The ZHB determined that the zoning ordinance was not exclusionary and the applicant appealed such decision back to the trial court.

The trial court determined that the applicant had demonstrated that errors in the zoning ordinance, as well as contradictions between the ordinances and the zoning map, resulted in a de facto exclusion of billboards in the Borough. As a result, the trial court reversed the ZHB and granted applicant site-specific relief and directed the Borough to issue applicant a permit to construct the billboard.

Commonwealth Court Appeal

On appeal to the Commonwealth Court, the Borough contested the trial court’s determination that their ordinance was de facto exclusionary and the trial court’s grant of site-specific relief.

In its 10-page decision, the appellate court found that, as to the de facto claim, the ambiguities between the zoning ordinance and the zoning map act prohibited billboards anywhere in the borough and upheld the finding that the ordinance was de facto exclusionary.

As to the site-specific relief, the appellate court noted:

• When a challenger of a zoning ordinance establishes that the ordinance excludes the use in question, the burden shifts to the municipality to demonstrate that the exclusion bears a substantial relationship to health, safety, morality, or welfare.
• If the municipality fails to prove that the exclusion is so necessary, the challenger is entitled to site-specific relief.
• A trial court has broad discretion to grant appropriate site-specific relief.

To the victor goes the spoils. The Commonwealth Court held, given the finding that the zoning ordinance was de facto exclusionary, that the applicant was entitled to site-specific relief to construct the proposed billboard.

If you have questions about the process for obtaining zoning approvals for billboards or other advertising signs, please contact Rob Gundlach at rgundlach@foxrothschild.com or 215.918.3636, or Andrew R. Stoll at astoll@foxrothschild.com or 215.918.3589