Agenda - Council - 05/26/2015 - Laserfiche WebLink

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February 25, 2015 1 Volume 9 1 Issue 4 Zoning Bulletin tional for totally excluding billboards from the entire municipality given that the exclusion was not substantially related to the public health, safety, morality, or general welfare. In so holding, the court explained that zoning ordinances are presumed constitutional unless the challenger (i.e., here, BIG) can demonstrate that the ordinance totally or effectively excludes an otherwise legitimate use by showing that the ordinance is either: (1) de jure exclusionary in that, on its face, the ordinance totally bans a legitimate use; or (2) de facto exclusionary in that the ordinance permits the use on its face, but, when applied, actually prohibits the use throughout the municipality. The court further explained that if a challenger meets that burden, the burden then shifts to the municipality to show, through evidence, that the total exclu- sion "bears a substantial relationship to the public health, safety, morality, or welfare." Such a showing by the municipality "will rescue an otherwise exclusionary ordinance from a constitutional challenge," said the court. Here, BIG had argued that the ZO was de jure exclusionary because it expressly prohibited billboards in the Township. The court found that all parties agreed that the ZO did prohibit billboards in the Township. The court found that the ZO classified a "commercial billboard" as a form of off -premises advertising sign. Section 182-701.B(6) of the ZO provided that "[a]ll signs, other than exempt signs, shall be erected on the same lot as the use to which it pertains." Section 182-701.B(9) provided that signs "are intended for purposes of identification and information and not for advertising of a product or service." Roughly translated, the court found that those provisions meant that the ZO generally prohibited all off -premises advertising signs, including billboards, subject to certain exemptions, none of which allowed for a billboard or advertis- ing sign. Having found the ZO totally excluded billboards as a permitted use, the court found the burden shifted to the Township to show, through evidence, that the total exclusion of billboards from the Township "[bore] a substantial relation- ship to the public health, safety, morality, or welfare." The court said that the Township had to "present evidence to support the ban of the use throughout the municipality, and not simply rely upon evidence demonstrating only that health, safety, and welfare concerns support the prohibition on the particular sites upon which [BIG] propose[d] to develop or construct the prohibited use." The court concluded that the Township failed to meet that burden. The court found that each of the ZHB's material factual findings relating to the Township's burden to justify the municipality -wide exclusion of billboards, and the evi- dence on which the ZHB relied, were directed to BIG's proposed billboards, as configured and located at specific locations. "Neither the findings of the ZHB nor the record provide[d] a sufficient basis to justify [the Township's] municipality -wide exclusion of billboards," concluded the court. Accordingly, the court held that the ZO was unconstitutional for totally excluding billboards from the entire municipality and that the Township failed to prove a substantial relationship between the exclusion and the public health, safety, morality, or general welfare. As to the appropriate relief to thus grant BIG in light of the finding that the ZO was unconstitutional, the court looked to § 1006-A(c) of the state's 6 ©2015 Thomson Reuters