by Charles A. Rausch, Esquire
The Pennsylvania Commonwealth Court recently struck down a zoning regulation to allow digital signs to operate all night long because the Township did not advertise changes to the ordinance before adopting the changes. Diefenderfer v. Palmer Township Board of Supervisors, 2324 C.D. 2014 (Pa. Cmwlth. Ct,, filed November 10, 2015). In this case, the Township wanted to enact zoning regulations for digital signs. The first regulations prohibited illumination of digital signs between 11:00 p.m. and 6:00 a.m. At the public hearing, there was testimony from a billboard industry representative that the signs should be illuminated 24 hours a day. The Township agreed, and changed the regulations to allow digital signs to operate for 24 hours a day. When the ordinance was advertised again, the notice did not include the change to allow 24-hour operation. The revised changes were then adopted on December 27, 2011.
Fast forward to 2013. The Diefenderfers had been complaining to the supervisors that the all-night illumination of a digital sign near their home was also illuminating the inside of their home disrupting their sleep. On November 27, 2013, the Diefenderfers filed a land use appeal arguing that the zoning regulations were null and void because the Township did not advertise the changes made to the time restrictions. The Pennsylvania Municipalities Planning Code requires that when a “substantial” change is made to a zoning ordinance at a public hearing, then the change has to be advertised at least 10 days before the change is enacted.
The Commonwealth Court first determined that the trial court correctly determined that the Diefenderfers met the statutory time limits to file an appeal beyond the normal 30-day appeal period because they showed that the interference with the use and enjoyment of their property was a deprivation of a constitutional right under Section 5571.1(C) of the Judicial Code. The Judicial Code allows an appeal up to two years beyond the adoption date if the deprivation of a constitutional right can be shown, and the municipality failed to substantially comply with statutory procedure.
The trial court, however, found that the change to the time limit for digital signs was not “substantial,” so the Township was not required to advertise that change. The Commonwealth Court reversed holding that change reflected a “significant disruption of the continuity” of the ordinance to the extent that it substantially increased the negative impact of the ordinance on landowners living close to digital billboards. In addition, the change also altered the Township’s regulation of nighttime billboard use. Therefore, the Diefenderfers met their burden of proof, and the ordinance was void from inception. One can only hope that the Diefenderfers can now sleep in peace and darkness.