The Herald, Sharon, Pa.

October 10, 2013

City seeks dismissal of billboard lawsuit

By Joe Pinchot
Herald Staff Writer

HERMITAGE — The city of Hermitage on Wednesday asked a federal judge to dismiss a lawsuit filed against it over the city’s sign ordinance.

The city said Mercer Outdoor Advertising LLC of Westmoreland County failed to follow the procedure prescribed in the Pennsylvania Municipalities Planning Code for challenging the constitutionality of the ordinance.

Mercer also lacks standing to file claims on behalf of the property owners on whose property billboards would be built, the city said.

Mercer filed seven applications to erect signs in the commercial section of the city, but the city denied the applications because billboards are not permitted in commercial districts under the zoning ordinance, city officials said.

The ordinance allows billboards in industrial zones as a conditional use, meaning they must be approved by city commissioners after a review by the Hermitage Planning Commission.

Mercer claims the sign ordinance violates the federal constitution’s free-speech, equal-protection and due-process clauses.

Mercer said it considered seeking variances from the Hermitage Zoning Hearing Board, but decided not to because the process is “wholly subjective.”

“(T)he plain language of the variance regulations state that even if Mercer meets all the enumerated requirements for obtaining a sign variance, the board may still refuse to issue a variance,” Mercer said.

In its motion to dismiss, the city said “the exclusive method for challenging the substantive validity of a municipality’s zoning ordinance” is to submit the challenge to the zoning hearing board.

The city said case law has established that, when a procedure for addressing a specific claim has been set by state law, it must be followed. The federal courts have set their own case law that requires constitutional claims to be addressed through an appropriate administrative process, if there is one, before the federal courts have jurisdiction, the city said.

The city also argued that Mercer has not shown that it suffered any sort of injury as a result of the application denials, and that “the real parties of interest” – “those who may have sustained an actionable alleged injury” – are the businesses and individuals who sought to earn rental fees from Mercer that the erection of the billboards would have produced.

The ad agency will have an opportunity to respond to the city’s motion before a judge rules on it.