Approvals for off-premises advertising signage continue to be difficult to obtain in Pennsylvania and applicants need to “go all in” when they have the right cards.

In Lehigh Valley Properties v. City of Allentown, the ZHB denied a landowner’s zoning application seeking dimensional variances to construct two billboards. Specifically, the landowner requested variances to place the billboards within 300 feet of a residential district and 1,000 feet from another off-premises digital billboard (which was installed by the city).The trial court denied landowner’s appeal and the owner appealed to the Commonwealth Court.

Landowner’s Failure

On appeal, the Commonwealth Court acknowledged that the property possessed unique physical characteristics, but found that the landowner failed to show that the property could not be used for some other purpose in strict conformance with the ordinance (such as a commercial communications tower).

The Commonwealth Court went on to find that the landowner did not explore any other permitted uses and made no attempts to market the property commercially to determine if there was public or private interest in the property for uses by right under the ordinance. The Commonwealth Court acknowledged that the proposed billboard’s use may be the “highest and best” use of the property, but such finding did not satisfy the unnecessary hardship criteria required for a variance; even under the relaxed standards set forth in Hertzberg. As a result, the Commonwealth Court upheld the decision of the ZHB and denied the requested dimensional variances.

Lesson Learned

In this case, the landowner did not make an alternative argument challenging the validity of the dimensional requirements at issue. Had they done so, they could have argued that the two requirements at issue were unreasonable and not adopted for a proper legal basis, but rather to prevent additional billboards in the City.

It is important to consider including a validity challenge when seeking zoning relief for billboards or other contested land uses.

If you should have any questions concerning this case or the process to obtaining zoning relief for billboards, digital displays or other signage in Pennsylvania, please contact Rob Gundlach at 215.918.3636 or RGundlach@FoxRothschild.com.