Agenda - Planning Commission - 04/02/2009

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Zoning Bulletin February 25, 2009 I Volume 3 I No: 4 Ii . ') LDI appealed. DECISION: Order of Commonwealth Court reversed. ..'" \ The Supreme Court of Pennsylvania held that the ordinance was a de facto exclusion of billboards. The court explained that under the state and federal constitutions, citizens had a right to the enjoyment of private property. The township could "reasonably limit" that right by a zoning ordinance that was en- acted pursuant to its police power-"to protect ot preserve the public health, morality and welfare." Thus, the township had the authority to . regulate signs, including billboard size. However, said the court, since billboards were '~not objectionable per se" (on their face), "a blanket prohibition on billboards without justification" would be a violation of constitutionally protected private property rights. The court said a deter- mination of the validity of the Ordinance therefore required a two part inquiry: (1) Did the Ordinance exclude billboards as a use in the town- ship; and (2) if so, was the Ordinance nevertheless valid because it bore a substantial relationship to the public health, safety, morality or welfare? As to the first inquiry, the court concluded that the answer was "yes": the size limitation on signs in the Or:dinance amounted to a de facto exclusion of billboards in the township. The court reached that conclusion upon finding that LDI had shown (through testimony by a consultant in the outdoor advertising industry) that: a billboard was a legitimate means of displaying advertising messages to passing drivers; a 300-square-foot sign was large enough to serve that purpose, but a 25-square-toot sign was not; and a 25-square-foot-sign could not func- tion effectively as a billboard because it was "too small to contain and convey an advertising message to the motoring public. " Although the court reached a conclusion on the first inquiry, it found it could not reach a conclusion as to the second inquiry. The question remained: Was the Ordinance nevertheless constitutionally valid be- cause it was substantially related to the public health, safety, morality or welfare? Because the Board made no findings on whether the Ordi- nance was justified by the township's concerns for aesthetics and traffic safety, and the township had not challenged that "gap in the Board's analysis," the co~t found that it could not answer that question. See also: Beaver Gasoline Co. v. Zoning Hearing Bd. of Borough of Osborne, 445 Pa. 571, 285 A.2d 501 (1971). See also: Norate Corp.. v. Zoning Ed. of Adjustment of Upper More- land Tp., 417 Pa. 397, 207 A.2d 890 (1965). Case Note: The court also held that outdoor advertising industry size standards were not automatically controlling in determining @ 2009 Thomson Reuters 5 95