PA Commonwealth Court Consistent in Finding Billboard Erection Is Not Land Development

April 2011Newsletters In the Zone

In January 2008, I wrote about Upper Southampton Twp. v. Upper Southampton Twp. ZHB (Appeal of Clear Channel Outdoor), in which the Pennsylvania Supreme Court held the erection of a billboard did not constitute land development. In that article , I expressed some cynicism that the court’s holding would just force municipalities to find creative ways to deny outdoor advertisers’ applications. To some extent, that appears to have happened in many municipalities. The good news for developers is that the Commonwealth Court is holding firm against the imposition of land development regulations against outdoor advertising.

Just recently, on March 23, 2011, the Commonwealth Court again found the application of land development regulations against a billboard erection impermissible. In Anter Associates v. ZHB of Concord Twp., the township’s zoning hearing board denied the application for the erection of a billboard based on its failure to adhere to four specific provisions in the zoning ordinance. After dismissing the board’s first basis for denying the application as inapplicable, the court addressed the applicant’s failure to comply with provisions requiring an historical resource study and landscape buffering. The court held neither of the code provisions could be made applicable to the billboard erection because they were development requirements, and under Appeal of Clear Channel Outdoor, erection of a billboard is not land development.

That is the good news for developers. The bad news is the denial of the application was still affirmed by the Commonwealth Court. The fourth basis on which the zoning hearing board denied the application was a requirement that an engineer certify a billboard will meet all applicable township building codes and standards. The court held the developer failed to meet that requirement. Thus, based on an issue involving compliance with the building code, the court found the zoning hearing board properly denied the special exception.

The upshot of the case is that Pennsylvania courts seem unwilling to retreat on the position that land development requirements are entirely inapplicable to billboard construction. However, the case leaves some room for municipalities to continue antagonizing outdoor advertisers in the zoning process by using regulations with marginal relations to the actual use of the land as outdoor advertising space.

For more information, please contact Andrew W. Bonekemper at 610.397.7976 or [email protected].