Billboards and Conflicting Zoning Ordinance Provisions

April 2021Articles

Over the last few years, a number of billboard cases have come before Pennsylvania’s Commonwealth and Supreme courts for review. In the latest, American First Enterprises (AFE) vs. Middlesex Township, the Commonwealth Court addressed conflicting provisions in the township’s zoning ordinance.

In this case, AFE filed three conditional use applications to construct a billboard on three separate parcels of land in the township. The zoning ordinance, which was recently republished, contained several conflicting provisions concerning billboards (i.e., required setbacks, the zoning districts where billboards were permitted and the size of sign feet facing). The township returned the conditional use applications as incomplete and AFE filed a validity challenge with the zoning hearing board (ZHB). After limited testimony, the ZHB did not render a decision as to the validity of the zoning ordinance provisions at issue, instead offering its interpretation of the provisions.

On appeal, the Commonwealth Court agreed with AFE that the zoning ordinance contained provisions regulating billboards that irreconcilably conflicted in material respects. The Commonwealth Court went on to find that the ZHB’s failure to determine the merits of the substantive validity challenge was legal error. As a result, the Commonwealth Court held that AFE was entitled to application of the most favorable reconciliation of the challenged conflicting provisions; and then remanded to allow AFE to resubmit its conditional use applications for consideration and disposition by the township's board of supervisors.

Interestingly, in this case, the Commonwealth Court confirmed that a party that successfully challenges a zoning restriction cannot be denied site-specific relief if the challenger’s plan is in compliance with the remaining valid portions of the regulations. That is, if a successful challenger requesting site-specific relief demonstrates compliance with the other zoning requirements for the proposed use, and the governmental unit fails to prove that the proposed use will be injurious to the public health, safety and welfare, then the requested site-specific relief should be granted.

For more information on this case, or the permit and approval process for billboards in general, please contact Robert W. Gundlach, Jr. at 215.918.3636 or [email protected].