For municipalities, regulating billboards can be a complicated endeavor.
In addition to the typical ordinance considerations, zoning for them often involves balancing safety considerations, nuisance impacts, aesthetic concerns, glare/lighting and a use whose reach often extends beyond whatever non-residential district in which they are zoned. And there is no shortage of billboard zoning battles in the courts – whether they involve banning them outright, size limits, First Amendment rights, or otherwise! With the Commonwealth Court’s decision in Steel City Billboards, LLC v. Council of Borough of West Mifflin, a new element can be added to the list – billboard lateral separation distance requirements.
In Steel City, the developer proposed a 180 square foot LED electronic billboard along Lebanon Road in the Borough. This use was only allowed by conditional use under the Borough’s Zoning Ordinance. During the hearing, an issue of contention arose as to the whether the billboard complied with a provision intended to provide for separation between billboards. As expected, the developer claimed that the provision was ambiguous and the lateral separation requirement became the focus of the hearing and argument. And the witness presented against the application? None other than the competing billboard within close proximity to the proposed billboard!
The Zoning Ordinance provision reads:
Electronic changeable copy billboards shall maintain a lateral minimum spacing of 1,000 feet between electronic changeable copy billboard structures or billboards. Required spacing shall be measured from a point perpendicular to the centermost point of the electronic changeable copy billboards structure along the front lot line parallel to the center line of the roadway to which the electronic changeable copy billboard is oriented. (emphasis supplied)
As the crow flies, the developer’s proposed electronic billboard would be approximately 650 feet away from another billboard owned by a different company … but it was a traditional static billboard, and not electronic. The developer conceded that both billboards could be seen from a location between the two. The developer claimed that the ordinance only limited electronic billboards in proximity to other electronic billboards. Since the other sign was not an electronic billboard, the developer argued, the requirement of 1,000 feet would not apply (and that there would be no separation requirement).
The Borough held otherwise. It interpreted the provision to apply between an electronic billboard and any other type of billboard. Therefore, held that the proposed billboard did not meet the 1,000-foot minimum spacing requirement criteria to be entitled to conditional use approval.
The developer also challenged the language as ambiguous as to how the distance would be measured. Its claim was that its billboard was oriented/facing in a different direction than the existing billboard within the 1,000 feet; that the separation measurement would only run perpendicular to the direction that the signage was facing; and therefore the separation distance requirement did not apply.
The Borough (and now the Commonwealth Court) rejected this argument. As reasoned by the competing billboard company representative, the Commonwealth Court upheld the Borough’s interpretation that the word “oriented,” referred to a billboard’s position adjacent to the road, and NOT the direction it faced. If the developer’s rationale were credited, developers could stack billboards on top of one another to end run the ordinance language (and its clear intent). Applying established caselaw and the Statutory Construction Act, the Commonwealth Court held that “oriented” referred to the means of locating the roadway along which the billboard is located, and not the direction that a billboard is facing.
The legal fight in this matter highlights the lengths to which an applicant will go to construe ordinance language as ambiguous. In hindsight, perhaps more different wording could have been used? Not necessary from the Commonwealth Court’s ruling, but a clear consideration in drafting ordinances to avoid a claim in the first instance.
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