The Herald, Sharon, Pa.

Local News

May 10, 2014

Billboard dispute back in federal court

HERMITAGE — The Hermitage billboard dispute is back in federal court as a Westmoreland County advertising company has filed a new complaint challenging the constitutionality of the city’s zoning ordinance and the decision of the Hermitage Zoning Hearing Board to deny the company’s appeal.

Mercer Outdoor Advertising LLC, owned by the Statler family, wants to erect electronic billboards and said it has easement agreements with property owners to do so. Six of the billboards would be on Hermitage Road (Route 18), and one at East State Street and Dutch Lane.

The city denied the applications because the zoning ordinance does not allow billboards in commercial districts.

Billboards can be put up in industrial districts, but the Statlers argued the city’s industrial zones do not get enough vehicle traffic to make them economically viable for billboards.

The company filed a suit in federal court, but a federal judge said the company needed to allow the city appeals process to play out before it could ask for federal intervention.

Mercer Outdoor appealed to the zoning hearing board, and the board on April 2 agreed that the city acted properly in denying the applications.

The zoning board issued an opinion dated April 16 turning aside the company’s free-speech challenge, saying city officials testified that they never considered the proposed content of the billboards.

The board also disagreed with the company’s argument that the zoning ordinance is a de facto ban on billboards because the industrial zones are not economically viable for billboards.

The board noted a 2013 Commonwealth Court decision that stated a company can overcome the presumed constitutionality of a zoning ordinance by showing “economic impossibility.”

The Statlers offered only “conclusory statements regarding economic viability of the proposed billboards in the respective zoning districts,” the board said.

City Director of Planning and Development Marcia A. Hirschmann credibly testified about how the ordinance was enacted and the purposes and objectives in setting billboard restrictions, the board said.

In its lawsuit filed May 1, Mercer Outdoor restates its original contentions that the ordinance violates federal free-speech and equal protection rights and the state constitution by creating a de facto ban on billboards.

The company added a fourth count: that the zoning hearing board misinterpreted the sign regulations; did not properly weigh the evidence; and abused its discretion.

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