Posted by: Patricia Salkin | November 24, 2015

PA Appeals Court Finds Ordinance Allowing Digital Advertising Billboards was Null and Void

Charles and Betsy Diefenderfer (Appellants) appealed from an Order of the Court of Common Pleas of Northampton County dismissing Appellants’ land use appeal of a zoning ordinance regulating digital billboards, which was enacted by the Palmer Township Board of Supervisors. On appeal, Appellants contended that the Board’s decision to amend the pending Ordinance’s regulations, with respect to the permitted hours of illumination for digital billboards, represented a “substantial amendment” to the Ordinance such that the Board was required to advertise a summary of the amendment pursuant to the Pennsylvania Municipalities Planning Code (MPC), prior to enactment of the Ordinance. Appellants further contended that the illumination from the billboard shined directly into their home and has deprived them “of the quiet and peaceful enjoyment of their property, prevented them from sleeping or otherwise enjoying their home and caused deterioration in their health and well-being.”

The Township contended that the removal of the single subsection governing hours of illumination was miniscule compared to the rest of the Ordinance –thus, it was unsubstantial. The court disagreed, finding this change reflected a “significant disruption of the continuity” of the Ordinance to the extent that it substantially increased the negative impact of the Ordinance on landowners living close to digital billboards. Because the court concluded that the change to the Ordinance was substantial, it found the Township did not substantially comply with Section 610 of the MPC when it did not advertise the change before the Ordinance was enacted. Due to the Township’s failure to comply with Section 610 of the MPC, Appellants and similarly situated landowners were prevented from commenting on the proposed change before it was enacted. Accordingly, the court held that Appellants met their burden under Section 5571.1 of the Judicial Code and that the Ordinance was “void from inception.”

Diefenderfer v Palmer Township Board of Supervisors, 2015 WL 6919451 (PA Commwlth 11/10/2015)

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