Posted by: Patricia Salkin | January 4, 2015

Fed. Dist. Court in PA Finds Sign Ordinance was a Prior Restraint on Speech in Violation of the First Amendment

Nittany Outdoor Advertising, LLC, and Stephanas Ministries filed a complaint seeking redress of defendant College Township’s denial of Nittany’s applications to post three billboards bearing the Ministries’s messages along East College Avenue, “the Township’s most heavily trafficked commercial corridor.” Plaintiffs claimed that the Sign Ordinance under which the Township Zoning Officer denied Nittany’s applications violated the First Amendment of the United States Constitution.

The Supreme Court has permitted a party to challenge an ordinance under the overbreadth doctrine in cases where every application creates an impermissible risk of suppression of ideas, such as an ordinance that delegates overly broad discretion to the decisionmaker. This doctrine can also be applied in situations, as in this case, when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license. Thus, Nittany has standing to challenge the Sign Ordinance on its face even though Nittany would be hard pressed to argue that the Township abused its discretion in processing Nittany’s sign permit applications.

Nittany asserted that the Sign Ordinance failed to specify a limitation on the time within which the Township will grant or deny a sign permit application. In addition, the amended Sign Ordinance empowered the Township to withhold a permit from an applicant for an off-premises sign until the applicant submits “any additional information requested” by the Zoning Officer. Due to lack of evidence to the contrary, the court held that the Township’s Sign Ordinance was unconstitutional for failing to specify a limitation on the time within which the Township will grant or deny a sign permit application; for empowering the Township to withhold a permit from an applicant for an off-premises sign until the applicant submits “any additional information requested” by the Zoning Officer; and for failing to set forth sufficiently circumscribed criteria to guide Township officials in their decision to grant or deny a variance. Since the Zoning Hearing Board’s assessment of what is in the “public interest” was at the very heart of the decision to grant or deny a variance under § 10910.2, the Court concluded that severance could not save the variance provision of the Township’s Ordinance. Accordingly, the Court held that all of the Sign Ordinance’s clauses implementing the permit requirement, as well as the Ordinance’s variance provision, were void.

Nittany Outdoor Advertising, LLC v College Township, 22 F. Supp. 3d 392 (MD PA 5/20/2014)


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