Antitrust Law Daily Wrap Up, ADVERTISING—W.D. Pa.: Zoning ordinance restricting billboard use survives constitutional challenge, (Jul 30, 2014)

By Linda O’Brien, J.D., LL.M.

A city zoning ordinance that limited the use of advertising billboards to certain municipal zoning districts did not infringe on an outdoor advertising company’s right to free speech, the federal district court in Pittsburgh has decided. Thus, the company’s complaint challenging the ordinance’s constitutionality was dismissed (Mercer Outdoor Advertising, LLC v. City of Hermitage, Pennsylvania, July 28, 2014, McVerry, T.).

Mercer Outdoor Advertising is a signage company specializing in posting commercial and noncommercial billboard messages, with its primary clientele consisting of charities and small businesses. Investigating the business potential of Hermitage, Pennsylvania, Mercer located seven property owners who agreed to lease land to Mercer as signage locations. Based on the city zoning ordinance, in June 2013, Mercer submitted permit applications to install and operate billboards on the locations it procured. The city planning technician denied all of the applications on the basis that billboards were not permitted in the city’s commercial zoning districts. Mercer appealed to the city zoning hearing board (ZHB), which affirmed the initial denial of its permit applications. Subsequently, Mercer filed suit against Hermitage, alleging damages and challenging the constitutionality of the city zoning ordinance. Hermitage moved for dismissal.

The city zoning ordinance restricts the zoning districts where billboards are permissible to the light and heavy commercial districts. The ordinance limits billboard use regarding its total height, square footage, and placement in relation to another billboards, residences, churches, and road intersections and curves.

The court found that the city zoning restrictions regarding billboards did not infringe on Mercer’s First Amendment right to free speech. In rejecting Mercer’s argument that the zoning ordinance created a ban on all advertising signage, the court noted that a proper construction of the ordinance was a general ban on billboards with exceptions in certain locations. The language of the ordinance did not provide unfettered discretion to the city and stated clearly that billboards are permitted assuming the various location and size requirements are followed. Permit applications are approved based on their adherence to the ordinance and may not be rejected if the sign meets all listed criterion.

Additionally, the city zoning ordinance was not a regulation on free speech, since the sign content was not considered in the review of a permit application, according to the court. The ordinance limited only the location for speech and was not a restriction based on the content of the signs, the court noted. In enacting the ordinance, Hermitage sought to advance a legitimate governmental interest by restricting billboard usage for aesthetics and safety. Its decision to limit possible billboard locations was narrowly tailored to advance this interest. Thus, the city’s billboard restrictions were constitutional.

The case is No. 2:14-cv-00561.

Attorneys: E. Adam Webb (Webb, Klase & Lemond, LLC) for Mercer Outdoor Advertising, LLC. David J. Rosenberg (Weber Gallagher Simpson Stapleton Fires & Newby) for City of Hermitage, Pa., and City of Hermitage Zoning Hearing Board.

Companies: Mercer Outdoor Advertising, LLC.

Cases: Advertising PennsylvaniaNews