By Joe Pinchot
Herald Staff Writer
A Westmoreland County outdoor sign company that lost a bid to challenge Hermitage’s sign ordinance in federal court has not given up the fight.
A federal judge said Mercer Outdoor Advertising LLC had to go through proper channels before asking a federal court to rule.
On Monday, Mercer appealed to the Hermitage Zoning Hearing Board the zoning officer’s denials of seven applications for billboards, said City Manager Gary P. Hinkson, who otherwise declined to comment on the court case.
On July 19, Mercer sued the city in U.S. District Court, Pittsburgh, alleging the city’s sign ordinance violates the federal constitution’s free-speech, equal-protection and due-process clauses, and the Pennsylvania constitution.
Mercer said it had preliminary deals with landowners to post billboards on East State Street and Hermitage Road, but the city denied the applications because billboards are not permitted in commercial zoning districts.
The city allows billboards in industrial zones as a conditional use, meaning they must be approved by city commissioners after a review by Hermitage Planning Commission.
Mercer also wanted to post billboards that would be well in excess of size standards, city officials said.
The city filed a motion to dismiss the suit, arguing Mercer failed to follow the procedure prescribed in the Pennsylvania Municipalities Planning Code for challenging the constitutionality of the ordinance.
Federal Judge Terrence F. McVerry said the “primary issue” for him was whether the case was “ripe.”
“Ripeness primarily tests timing, i.e., whether the alleged injury has occurred or is instead speculative, ill-defined or otherwise premature,” McVerry said in an opinion filed Dec. 11.
“Courts have generally imposed a particularly stringent standard for ripeness in cases involving challenges to land-use of zoning decisions,” he said.
Case law has established that zoning authorities must be given “an opportunity to arrive at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question” before a constitutional challenge is ripe, McVerry said.
The decision of a zoning official is not a final decision, the judge said. Only a zoning hearing board’s determination is a final adjudication, he said.
There are exceptions for free-speech challenges, the judge said, but Hermitage’s ordinance “does not directly restrict Mercer’s speech.”
Instead, “it regulates the manner in which Mercer is able to sell billboard space to customers who wish to proclaim messages,” McVerry said.
A further consideration is whether Hermitage’s decision has presented a hardship on Mercer, he said, but the hardship must be “immediate and significant.”
“The (hardship) considerations in this case weigh heavily against Mercer,” McVerry said.
“Mercer is not under threats of fine or prosecution,” he said. “An appeal procedure to the (board of zoning appeals) is readily available and Mercer has not asserted any inability to pursue that avenue. Mercer has simply refused to avail itself of this relatively simple method of reaching finality.”
Once Mercer receives a decision from the zoning board, it can refile a federal lawsuit, he said.
Since the federal issues are not ripe, McVerry said he will not rule on the state law issue. That question could be filed in common pleas court or refiled in federal court after the zoning board acts, he said.
The Hermitage Zoning Hearing Board typically meets the first Wednesday of the month. With posting and advertising requirements to be met, it appears the board could hear the case no earlier than February.