Land Displays, Inc. (“LDI”),in the business of outdoor advertising, erected billboards on real estate that it leased. Between 2003 and 2005, LDI submitted applications to the township for permits to erect billboards on several parcels of property located in the commercial or industrial zoning districts of the township. LDI proposed billboards that consisted of either 300 or 672 square feet of signage per side. The township denied LDI permit applications on the basis that the proposed billboards did not comply with the 25-square-foot size restriction set forth in the township’s zoning ordinance (“the Ordinance”). The Ordinance permitted directional or advertizing signs in commercial and industrial zoning districts only if the “area of any one side [did] not exceed twenty-five (25) square feet.”
After its permit applications were denied, LDI appealed to the township’s zoning hearing board (the “Board”). As part of its appeal, LDI challenged the validity of the Ordinance. It argued that the Ordinance operated as a de facto exclusion of billboards – meaning that although the Ordinance appeared to permit billboards as a use, under the conditions of the Ordinance, billboard use could not in fact be accomplished. Accordingly, LDI argued that the Ordinance deprived it of “constitutional property rights and interests without due process of law.” The Board ultimately concluded that the Ordinance was invalid as a de facto exclusion of billboards throughout the township. Considering national advertising industry standards which set billboards size at either 300 or 672 square feet, the Board ordered billboards with a maximum surface area of 300 square feet be permitted in the township.
The Supreme Court of Pennsylvania agreed that the ordinance was a de facto exclusion of billboards. The court said a determination of the validity of the Ordinance required a two part inquiry: (1) Did the Ordinance exclude billboards as a use in the township; and (2) if so, was the Ordinance nevertheless valid because it bore a substantial relationship to the public health, safety, morality or welfare? The court concluded 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-foot sign was not; and a 25-square-foot sign could not function effectively as a billboard because it was “too small to contain and convey an advertising message to the motoring public.” With respect to the second inquiry, however, the Court said it could not determine whether the ordinance was nevertheless constitutionally valid because it was substantially related to the public health, safety, morality or welfare since the Board made no findings on whether the Ordinance 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.” Therefore, the court remanded the matter as to this issue.
Township of Exeter v. Zoning Hearing Bd. Of Exeter Tp., 962 A.2d 653 (Pa. 1/22/2009)
The opinion can be accessed at: http://www.aopc.org/OpPosting/Supreme/out/J-73-2008mo.pdf
Read about the case on the Pennsylvania Litigation Blog
This abstract is based on one appearing in West’s Quinlin Zoning Bulletin (2/25/2009).
LAW OF THE LAND 
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