Posted by: Patricia Salkin | August 12, 2018

Recent Decisions Involving Digital Signs

This post was authored by Amy Lavine, Esq.

Over the past few months we’ve noticed quite a few cases involving digital signs and the various issues involved in defining and regulating them. Here’s an overview, in case you missed any of the blog posts covering these cases:
• Adams Outdoor Adver. Ltd. P’ship v. City of Fitchburg, 2018 WL 674007 (Wis. App. 2/1/18), held that a sign was an “alternating” sign where it was proposed to change from one image to another no more than once every two minutes. The court explained that the plain meaning of “alternating” encompassed this frequency of change, and the fact that it overlapped somewhat with another provision relating to “flashing” signs didn’t render the city’s interpretation unreasonable. As the court noted: “To conclude that the word ‘alternating’ cannot mean changing in message regardless of time interval, despite its common and plain meaning, would require adding words—that ‘alternating’ means changing in message at some interval of time—that were not in the ordinance.””
• 92 Montvale, LLC v. Zoning Board of Appeals of Stoneham, 93 Mass. App. Ct. 1104 (3/30/18), similarly found that a sign was a prohibited “intermittent” or “flashing” sign where it would display different messages every eight to ten seconds. The ordinance in this case defined flashing signs as those having “an intermittent or sequential flashing light source” and the board had interpreted this to mean that each time the display changed it would essentially constitute a change from one lighted image to another, which would therefore qualify as a flashing light source under the ordinance. This was a reasonable interpretation of the regulations, the court found, and it was also consistent with the ordinary meaning of “intermittent” and “flashing.”
• Bel-Air Nursing & Rehab Ctr., Inc. v. Town of Goffstown, 2018 WL 264091, 2018 U.S. Dist. LEXIS 239 (D.N.H. 1/2/18), held that a challenge involving the denial of variance approval for an electronic sign was barred by res judicata. Even if the state courts hadn’t already heard and decided the claims brought by the property owner, which operated a nursing home on the site, the New Hampshire federal district court held that the nursing home’s equal protection and due process challenges would have failed on the merits. This was because the nursing home failed to prove that it was similarly situated to other applicants for electronic signs that were treated more favorably, and because the term “internally illuminated” was not unconstitutionally vague.
• Antioch Community Church v. Board of Zoning Adjustment, 543 S.W.3d 28 (Mo. 4/3/18), held that there were no practical difficulties that would justify a variance for a church to install a digital display on an existing sign located in front of its building. The Missouri Supreme Court affirmed the decision of the board of zoning adjustment, which denied the variance relief sought by the church. The church had claimed difficulties of changing the old sign’s manual lettering in bad weather, wanting a sign with bigger and more easily read type in order to attract more membership, and the fact that it had already spent substantial amounts of money installing a new digital display. These circumstances were all merely inconveniences, however, not practical difficulties, and they arose because of personal circumstances and preferences rather than due to any unusual or peculiar features of the property itself.

This post was authored by Amy Lavine, Esq,

The Missouri Supreme Court ruled in April that there were no practical difficulties that would justify a variance for a church to install a digital display on an existing sign located in front of its building. The court reversed a 2016 decision from the Missouri Court of Appeals and instead affirmed the decision of the board of zoning adjustment, which had denied the church’s variance request. Antioch Community Church v. Board of Zoning Adjustment, 543 S.W.3d 28 (Mo. 4/3/18).

The plaintiff, Antioch Community Church, had used a bequest from a church member to install a digital display face on its existing glass-fronted monument sign. The church didn’t apply for a permit before installing the new display, however, and when the city became aware of the new display it issued the church a zoning citation. In particular, the regulations provided that the church could have a sign, but that any “changeable copy feature must use direct human intervention for changes and may not include any form of digital or electronic display.” The church then filed an appeal of its violation, and it also submitted an application for a variance to allow its sign. The board declined to grant a variance however, finding that the digital sign display would change the “type” of sign from a monument sign to a digital sign, in violation of a code provision that prohibited sign variances “as to type and number.” Alternatively, the board found that the church failed to establish undue hardship or practical difficulties sufficient to support variance relief. The circuit court reversed as to the denial of the church’s sign variance, and this appeal followed.

The Missouri Supreme Court first addressed whether a variance allowing a digital display would result in changing the sign “type,” which was prohibited under the variance regulations. “Sign type,” the court noted, was defined in the code as a “group or class of signs that are regulated, allowed or not allowed… as a group or class,” and examples were listed as including monument signs, wall signs, digital signs, and electronic signs. The board claimed that the addition of digital lettering to the church’s sign changed the sign type from a monument sign to a digital sign, but the court agreed with the church that the type of lettering used on a sign was not relevant to the definition of a “monument sign.” Rather, “monument signs” were defined as signs “placed upon a base that rests upon the ground where the width of the base of the sign is a minimum of 75 percent of the width of the longest part of the sign.” The church’s sign qualified under this definition both before and after the addition of digital lettering, the court found. The board’s interpretation, the court explained, appeared to be based “on the belief a sign can be of only one sign type at a time,” but the court found this position to be contrary to the inherently overlapping nature of the different sign types in the code. In sum, the court held that “the addition of a digital display to the Church’s monument sign did not change its sign type. It remained a monument sign, albeit with an unpermitted digital display. The BZA therefore had the authority to grant the Church’s request for a variance if other requirements were met.”

While the board may have had authority to grant a variance, the court ultimately concluded that its denial of the variance was reasonable and supported by the evidence. As a “nonuse” variance, the court noted that the correct standard was “practical difficulties,” which it further explained was “slightly less rigorous” than the undue hardship test applied to use variances. The church offered three primary arguments as to the practical difficulties it would face if it was denied a variance for its digital sign: first, it was difficult for the church’s aging members to manually change the sign’s messages, especially during bad weather; second, the digital display was more easily seen from the road than the small lettering on the old monument sign; and third, the church would suffer economic hardship due to the fact that it had spent more than $11,000 on the upgrades to the sign, based on its good faith belief that the digital display was permitted.

These arguments may have offered an explanation for the church’s desire for a digital display, the court noted, but they fell short of establishing practical difficulties. The ability to change the sign’s messages without going outside in bad weather was a mere convenience, and it arose from the personal nature of the church’s aging demographics, not from any unique aspect of the property. As to the sign’s visibility and the church’s ability to convey its messages to drivers in order to boost membership, the court noted that “the test for a variance is not whether the variance would be beneficial or allow the Church to expand but whether the Church experiences practical difficulties in operating without the variance.” And finally, the fact that the church had invested a substantial amount of money in upgrading its sign could not be a practical difficulty, as it was a self-created problem and did not involve any unusual or peculiar aspect of the property.

The court also rejected the church’s contention that the restriction against digital monument signs in residential areas favored commercial speech over non-commercial speech in violation of the First Amendment. The church failed to preserve this claim, the court explained, but it would have failed on the merits regardless. The church’s argument was essentially that the restriction against digital signs in residential zones had a disparate impact on churches because the zoning code prohibited churches from obtaining variances for digital display signs. This was simply incorrect, the court noted, as the church could obtain a variance for its digital sign so long as it met the requirements for a variance under the zoning code.
Antioch Community Church v. Board of Zoning Adjustment, 543 S.W.3d 28 (Mo. 4/3/18).

This post was authored by Matthew Loeser, Esq.

In 1957, Preston and Doris Sweet platted a 17–lot subdivision near Lake Michigan called the Merriweather Shores subdivision. Over time, the Sweets conveyed some of the lots to buyers, and retained other lots. This case involves Lot 6 of the subdivision, which had a total area of 9,676 square feet. After the enactment of a 1981 ordinance, Lot 6 was rendered nonconforming because the ordinance required all lots to have a minimum area of 20,000 square feet for buildability. Seeking to build a residential cottage on Lot 6, appellant filed an application with Chickaming Township for a nonuse dimensional variance under § 14.02, which required all R–1 lots to have a minimum lot area of 20,000 square feet and a rear setback of 50 feet. Following public comment, the ZBA voted to approve the variance request. Appellees appealed the ZBA’s decision to the circuit court, and the circuit court permitted appellant to intervene in the circuit court action. The ZBA moved to dismiss the circuit court action for lack of subject-matter jurisdiction, arguing that appellees lacked standing to challenge the ZBA’s decision to grant the variance. The circuit court reversed, holding that the ZBA did not have authority to grant the variance because appellant did not satisfy § 23.04 of the township’s zoning ordinance, which permitted the ZBA to grant a variance under specific conditions.


On appeal, appellant argued that appellees lacked standing to challenge the decision of the ZBA before the circuit court because they were not “aggrieved parties” within the meaning of the Michigan Zoning Enabling Act (“MZEA”). The court interpreted the phrase “aggrieved party” in §605 of the MZEA consistent with its historical meaning. Thus, to demonstrate that one is an aggrieved party under MCL 125.3605, a party must “allege and prove that he or she has suffered some special damages not common to other property owners similarly situated.” Here, the court found that appellees’ aesthetic, ecological, and practical harms insufficient to show special damages not common to other property owners similarly situated. Although the circuit court noted that septic systems and setback requirements specifically affected the property of neighboring landowners, there was no evidence that these damages were more than mere speculation or anticipation of future harm.


Appellees next contended that they appeared before the ZBA together with counsel and presented their arguments in that forum without appellant challenging their right to do so, and the appellant therefore waived any challenge to appellees’ standing to pursue the appeal in the circuit court. The court noted, however, that appellant was not challenging the appellees’ right to appear at the public hearing before the ZBA and make public comments, but was instead challenging the ability of appellees to thereafter appeal the decision of the ZBA to the circuit court. The court further found that ZBA was not the appropriate forum to address whether appellees were empowered to appeal the ZBA’s decision as aggrieved parties. Thus, appellees did not have the ability to invoke the jurisdiction of the circuit court, and the circuit court erred in denying the township’s and appellant’s motion to dismiss the circuit court action.


Olsen v Jude and Reed, LLC, 2018 WL 3244150 (MI App 6/3/2018)


This post was authored by Matthew Loeser, Esq.

Willistown Township brought zoning-enforcement actions against property owner, Main Line Gardens, which operated a garden center, for per diem violations of ordinance concerning the dumping, storing, transferring, or processing of tree waste in the form of wood chips. The magisterial district court entered judgment against owner on each complaint. Main Line appealed, and a civil-arbitration panel entered an award in township’s favor in one of the actions and in owner’s favor in the remaining actions. Township appealed the actions that were not decided in its favor. The Court of Common Pleas, entered judgment for township in all of the appealed actions, awarded township attorney fees, and denied owner’s post-trial motions. The Supreme Court reversed and remanded.


The record reflected that the Township initiated these matters through the filing of seven civil complaints in magisterial district court, seeking to recover $12,000 in fines for seven discrete 12–day periods in 2012. After civil arbitrations in the seven cases, an arbitration panel entered an award in favor of the Township in one action in the amount of $21,274.67, and in favor of Main Line in the remaining six actions. The Township appealed the six arbitration awards entered against it and in favor of Main Line to the trial court de novo. Here, the court found Main Line failed to allege that the Township’s proposed amendments to its complaints to reflect that each of the six complaints corresponded to the discrete 12–day periods set forth in the Township’s complaints filed in the magisterial district court violated a positive rule of law, and even conceded it would not suffer prejudice as a result of the amendments. Moreover, the court found that because the Township’s amended complaints each related to a different time period in which Main Line violated the zoning ordinance, the object of each suit was not the same, andres judicata did not apply.


Main Line next contended the trial court’s modification of the arbitrators’ award was improper. Contrary to Main Line’s assertions, however, the court determined that the trial court did not alter the final, unappealed arbitration award entered in favor of the Township. Instead, the trial court merely noted the Township sought the imposition of fines, attorney fees, and costs for seven discrete 12–day periods. Furthermore, the trial court’s determination that the arbitration panel’s award in favor of the Township in one of the seven cases pertained to only one of the seven separate and discrete 12–day violation periods was supported by the record. Accordingly, the orders of the Court of Common Pleas of Chester County were affirmed.


Board of Supervisors of Willistown Township v Main Line Gardens, Inc., 184 A. 3d 615 (PA Cmwlth 5/9/2018)


This post was authored by Matthew Loeser, Esq.

In 1996, Plaintiffs bought a five-acre industrial property. Plaintiffs’ property manager sent several letters regarding delinquent rent to tenant Glenn Schaum. The eviction proceedings never took place because Schaum voluntarily vacated the property. In 1997, Schaum was elected to the Springfield Township Board of Commissioners. In this case, the industrial landowners brought §1983 action against township, claiming procedural and substantive due process violations arising out of a protracted zoning and land-use dispute that followed between it and the township. The United States District Court for the Eastern District of Pennsylvania entered summary judgment for township and township officials, and landowners appealed. On appeal, Plaintiffs argued that there was a genuine issue of material fact regarding their procedural due process claim because the Township’s zoning and land use procedures were “subverted for personal ends and were a sham”.

The court found that Plaintiffs’ due process arguments focused solely on how the Township arrived at the decisions to deny their land use application and fire code appeal. Plaintiffs failed to argue that the remedial process – of which they partly availed themselves – failed to provide reasonable remedies. As this was not alleged, the court held that the District Court did not err in granting summary judgment against their procedural due process claim.

Plaintiffs next contended that a reasonable factfinder could conclude that three of the individual Defendants’ actions “rested on revenge and spite.” Plaintiffs failed to allege, however, that the Township’s behavior shocked the conscience. Upon review of the record, the court found that there was no evidence of conscience-shocking behavior, and therefore no genuine factual dispute on the issue. Consequently, the district court’s finding was affirmed.

Guiliani v Springfield Township, 726 Fed. Appx. 118 (3rd Cir. CA 3/6/2018)


This post was authored by Matthew Loeser, Esq.

In this case, the Friends of Lackawanna (FOL) and individual citizens sought review of an order of the Court of Common Pleas of Lackawanna County dismissing their appeal from a decision of the Dunmore Borough Zoning Hearing Board. The Board denied Objectors’ appeal of the Borough’s Zoning Officer’s preliminary opinion that a landfill’s proposed upward expansion did not violate the applicable building height limitations in the Borough’s Zoning Ordinance. Specifically, the Board determined Objectors lacked standing to appeal the Board’s decision. Objectors appealed to the trial court, which agreed with the Board on the standing issue and granted Appellees’ motion to dismiss.

On appeal, Objectors claimed that they lived in close proximity to the landfill and that they could see and smell it from their homes. Additionally, they alleged they constantly cleaned dust and seagull droppings from their properties. Objectors also contended that FOL, as an organization, had derivate standing as a representative of its members to bring a cause of action despite the absence of an injury to the organization. The record indicated that in addition to its involvement in the Pennsylvania Department of Environmental Protection (DEP) proceedings, FOL participated in the negotiation of the Host Municipality Fee Agreement, which referenced the zoning issues discussed by the Zoning Officer in his opinion. Thus, FOL was found to have derivative standing.

The court next noted that the Board and the trial court acknowledged Individual Objectors’ complaints regarding pungent odors of rotting garbage, dust, bird droppings, and truck traffic directly affecting their properties. While the landfill may have pre-dated the Objectors moving in, the Objectors challenged the proposed Phase III expansion in this case. The proposed expansion would, at the least, continue, if not exacerbate, the present harm to Individual Objectors and their properties for another 46 years. As such, the court determined that the Individual Objectors could suffer considerable harm by approval of the expansion. Accordingl0y, the court reversed and remanded this case to the trial court for a decision on the merits of Objectors’ appeal.

Friends of Lackawanna v Dunmore Borough Zoning Hearing Board, 186 A. 3d 525 (PA Commwlth 6/26/2018)

This post was authored by Matthew Loeser, Esq.

Montclair State University (“MSU”) commenced an action in the Law Division of the Superior Court, invoking judicial authority over a dispute between MSU and local governmental authorities concerning improvements regarding the intersection of a campus road with a Passaic County road in the City of Clifton. The trial court declined the requested relief and dismissed the action. Additionally, the trial court told MSU either to appear before the local planning board to establish a record on the public safety concerns expressed by the local governmental authorities or to appeal. MSU appealed and the Appellate Division reversed the dismissal of the action and remanded for further proceedings before the trial court.
At the outset, the court noted that MSU was an entity that, in planning its alteration to its campus roads in order to better serve its intra-campus traffic, was acting in an immune capacity, pursuant to its statutory authorization to control its property. Furthermore, the public interest to be served supported that the Legislature intended for MSU to be free of local land use regulation in managing its internal road system so long as there was no asserted impact on non-state-owned public property.
Here, the local governmental entities cited public safety concerns and voiced apprehension about their ability to fulfill their own duty of care to members of the public, traveling on or along the county road, who might be negatively affected by MSU’s plan design and its effect on the intersection with the county road. The court found that a review by MSU and its experts asserting that it has reasonably addressed the public safety concern was not sufficient, standing alone, to protect general public safety and also the interests of the local governmental entities with regard to that local public safety concern. As such, the court determined that only that a public entity could show that its planning had reasonably addressed public safety concerns identified by local governments as having a direct impact on non-state public property and that a judicial finding as to the reasonableness of the public entity’s action with respect to public safety would be required.
Accordingly, the court remanded the case for a judicial finding as to the reasonableness of the planned MSU project, specifically as it affected public safety regarding the intersection with the county road.
Montclair State University v County of Passaic, 2018 WL 3716020 (NJ 8/6/2018)

This post was authored by Matthew Loeser, Esq.

Inflection Energy, LLC submitted to the Board a “Zoning and Development Permit Application” seeking permission for a “drilling, completion, production and operation of multiple gas wells” use on a 59.877–acre parcel of land located on Quaker State Road in Montoursville, Pennsylvania and owned by Donald and Eleanor Shaheen. The application proposed to improve the existing farm access road with a stone access drive from Quaker State Road/T–855 to the pad site, a level pad, well head, and a temporary water impoundment area with sediment and erosion controls. The objecting residents sought review of the decision of township board of supervisors to grant the energy company’s application for a conditional-use permit to locate gas wells on tract of land that was located in an area zoned residential–agricultural. The Court of Common Pleas reversed, and the energy company and tract’s owners appealed. The Commonwealth Court reversed, and objecting residents petitioned for allowance of an appeal.

On appeal, the court found that the Board’s decision contained no findings of fact whatsoever with respect to similarity of use. The record reflected that the Commonwealth Court did not carefully examine the language of the two definitions at issue. The court noted that by its definitional terms, a “public service facility” involves “public service structures by a utility … or by a municipality or other governmental agency.” Similarly, “essential services” are the facilities and related equipment of a “public utility.” Here, Inflection’s proposed gas wells use would provide no public or essential services to the residents of the R–A district, and would not provide any infrastructure to support and promote residential and agricultural development in Fairfield Township. Additionally, Inflection’s proposed use was intended solely for Inflection’s own commercial benefit, and not for the benefit of furthering the expressed goals of Fairfield Township’s R–A district. Moreover, since the Ordinance at issue did not expressly authorize a gas wells use in any of the Township’s three zoning districts, the proposed use could not enjoy any presumption of being “similar to” uses that are permitted in those districts, and section 12.18 of the Ordinance placed the burden of proof with respect to similarity of use on the applicant. Accordingly, the court reversed the decision of the Commonwealth Court.

Gorsline v Board of Supervisors of Fairfield Township, 186 A.3d 375 (PA 6/1/2018)

This post was authored by Matthew Loeser, Esq.

In 2007, McLaughlin applied for, and received, a permit from the municipal Building Inspector to build a 40–by–60 foot garage on his property. However, as he admitted to the Tiverton Zoning Board of Review and in a letter seeking a zoning variance, that permit was based on an erroneous site plan that McLaughlin had provided to the town. That plan, which McLaughlin himself prepared, inaccurately described the boundaries of his property. In this case, McLaughlin appealed from an order of the Superior Court denying his motion to vacate an earlier court order that compelled him to remove the garage from his property.

At the outset, the court noted that when the trial justice denied McLaughlin’s motion to vacate in 2016, he did so, in part, because of his concern for the finality of the hearing justice’s April 7, 2014 order. As such, the court determined that the decision was premised upon the doctrine of law of the case, not res judicata.

On appeal, McLaughlin argued that the April 7, 2014 order was void because the Superior Court lacked subject matter jurisdiction to enter the order and because the court’s action violated his due process rights. The court rejected this contention, and found that the Superior Court was vested with the subject matter jurisdiction to order McLaughlin to remove the garage pursuant to statute, and McLaughlin admitted he received notice of the April 7, 2014 hearing.

McLaughlin next contended that the unique circumstances of this case presented a manifest injustice “justifying relief from the operation of the” order. The court found that the removal action was not properly brought under § 45–24–62. Specifically, the zoning board’s “Motion for Order to Comply” was not a “due proceeding” as required by the plain language of § 45–24–62, and a motion to comply, filed by the zoning board, rather than the town, at the conclusion of a zoning appeal, did not suffice. Here, the record reflated that the solicitor did not file a separate complaint on behalf of the town setting forth McLaughlin’s alleged noncompliance with the Tiverton Zoning Ordinance. Thus, at no point did McLaughlin’s zoning appeal transform into a “due proceeding in the name of the Town of Tiverton, instituted by its town solicitor.” Therefore, despite the fact that McLaughlin received notice and an opportunity to be heard, the town’s failure to comply with § 45–24–62 in obtaining permanent injunctive relief on April 7, 2014, was fatal. Accordingly, the court held that McLaughlin’s motion to vacate should have been granted.

McLaughlin v Zoning Board of Review of Town of Tiverton, 186 A. 3d 597 (RI 6/20/2018)

This post was authored by Matthew Loeser, Esq.

Christ Central Ministries (“CCM”), which owned property on the corner of Main Street and Elmwood Avenue in the City of Columbia, leased a portion of the property to Lamar Companies for the purpose of erecting and maintaining a fixed display billboard. In 2014, Lamar sought a permit to replace the existing billboard with a changeable copy billboard. The City issued the permit on March 13, 2014, which lasted six months, and was later extended until December 31, 2014. Also in 2014, CCM requested a permit from the City to replace the existing billboard with a changeable copy billboard. The City denied CCM’s request because “Currently, there is an active zoning/building permit … issued to Lamar Advertising, to convert said sign to a changeable copy.” CCM decided to sign a lease with a different sign company, and Lamar removed its billboard in August 2014. CCM again sought a permit to place a changeable copy billboard on the property in January, 2015, after the expiration of Lamar’s permit. The City denied CCM’s request noting “it is my understanding that the non-conforming sign at the above referenced location was removed by the sign owner on or about August 2, 2014. As such, this office would not be able to issue a permit, per § 17-404(e)(4), to replace a sign that is no longer existing.” CCM appealed the City’s decision to the Board of Zoning Appeals, which affirmed the City’s denial. CCM appealed the Board’s decision to the circuit court, which reversed the Board’s decision. The circuit court found, according to the plain language of the City’s ordinance, “no language in the relevant provision of the ordinance imposes a time period in which one must act to seek a permit, and strict construction of the ordinance does not grant this court authority to impose such a limitation.”

On appeal, the City contended that the circuit court erred in its interpretation of the city ordinance. Specifically, as a legal non-conforming sign, the sign at issue could not be replaced once it was removed. While the City initially requested the circuit court stay its order requiring the City to issue CCM the zoning permit, the circuit court denied that request. The City did not request this court stay the order pending the outcome of the appeal. Instead, the City issued CCM a permit to construct the billboard in question. Furthermore, CCM had since constructed the billboard at significant cost, and had collected rent from a third-party pursuant to a new lease. Accordingly, the appeal was dismissed as moot.

Christ Central Ministries v City of Columbia Board of Zoning Appeals, 2018 WL 3636578 (SC App. 8/1/2018)

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