A municipality cannot impose a total ban on digital billboards within its borders without showing evidence that excluding such signage “bears a substantial relationship to the public health, safety, morality, or welfare,” the Pennsylvania Commonwealth Court has ruled.

Background

In Adams Outdoor Advertising vs. Zoning Hearing Board of Stroudsburg Borough, an applicant before the ZHB challenged Ordinance 1048-2018, which included a total ban on electronic message boards in the Borough. Notwithstanding the fact that the Borough presented no evidence or testimony in support of its position as to the validity of the ordinance in question, the ZHB denied the applicant’s challenge.

On appeal, the trial court determined that the applicant’s substantive due process rights were contravened by the zoning ordinance’s blanket prohibition of digital billboards within the Borough. Accordingly, the trial court concluded that the applicant was entitled to site-specific relief in the form of authorization to build a digital sign that otherwise complied with Ordinance 1048-2018 and state/federal law.

The trial court’s decision was appealed to the Commonwealth Court, which first cited to the Pennsylvania Supreme Court’s decision in the Exeton Quarries case. Specifically, the Court noted the following:

• The constitutionality of zoning ordinance that totally prohibits legitimate businesses from an entire community should be regarded with particular circumspection; for unlike the constitutionality of more restrictions on property rights imposed by other ordinances, the constitutionality of total prohibitions of legitimate business cannot be premised on the fundamental reasonableness of allocating to each type of activity a particular location in community.
• Therefore, we caution that a zoning ordinance which totally excludes a particular business from an entire municipality must bear a more substantial relationship to the public health, safety, morals and general welfare that an ordinance which merely confines that business to a certain area in the municipality.

The Commonwealth Court then noted that its analysis in such a case proceeds in two steps. First, the court considers whether the challenging party has overcome the presumed constitutionality of an ordinance by showing it excludes billboards as a use. Second, if a challenger has done so, the court then considers whether the municipality has salvaged the ordinance by presenting evidence to show that the exclusionary regulation bears a substantial relationship to the public health, safety, morality or welfare.

The Borough’s Burden

The Borough took the position in the appeal that digital billboards are not entitled to the same level of constitutional protection as other uses and, consequently, that it was not the Borough’s burden to show that the ban imposed against them was substantively valid.

The Commonwealth Court disagreed and noted that it was the Borough’s responsibility to defend its total ban by presenting evidence to show that the exclusionary regulation bears a substantial relationship to the public health, safety, morality, or welfare. The Commonwealth Court noted that the Borough failed to present any such evidence to justify the exclusionary regulation. As a result, the Commonwealth Court upheld the decision of the trial court and found the ordinance prohibiting digital billboards invalid.

Interestingly, in a footnote, the Commonwealth Court noted that Section 1006-A of the Municipalities Planning Code gives “broad discretionary powers” to the Trial Court to fashion appropriate relief to the successful challenger of a zoning ordinance. It also noted that, in exercising this power to fashion judicial relief, the Trial Court “owes no deference to the administrative findings” of the ZHB and that whatever form of judicial relief is appropriate (i.e., location and/or configuration), is up to the Trial Court and subject to a right of appeal back to the Commonwealth Court.

Conclusion

In summary, a municipality cannot ban digital billboards from their borders unless they have some “special reason.” It is hard to imagine that a municipality can come up with a valid reason to ban them from their entire municipality. The Borough’s failure to submit any evidence in this case was the “kiss of death” as to their attempt to defend their municipal-wide prohibition.

If you should have any questions regarding this case, or challenges to ordinances regulating billboards or monument signage, please contact Rob Gundlach at rgundlach@foxrothschild.com or 215-918-3636.