PHILADELPHIA (CN) – Citizens claim Philadelphia has submitted to a “billboard shakedown,” and allowed illegal “contract zoning on a massive scale,” to avoid the cost of First Amendment litigation from companies that erect and maintain billboards where they are prohibited.
Billboard companies sued the city in 2005, claiming its annual $650-per-billboard licensing fee violated free speech. So “to escape the billboard shakedown, defendants cut a private deal with the billboard companies that purports to ‘supersede’ multiple validly enacted municipal ordinances,” the complaint states.
Plaintiffs in the 2005 lawsuit included CBS Outdoor, Clear Channel Outdoor and H.A. Steen Industries, and their ad hoc association, Free Speech LLC.
Instead of answering the complaint, in August 2006 then-City Solicitor Romulo Diaz signed an extra-legislative, private contract that “turns the zoning code on its head,” the new complaint states in the Court of Common Pleas.
The plaintiffs – two city residents – say the city’s scheme to “legalize” thousands of billboards sidestepped the City Council and stamped out citizens’ right to challenge land use rules.
“No matter how compelling a citizen’s basis for such a challenge, the settlement agreement takes away any right to seek the removal of illegal billboards existing at the time it was signed,” the complaint states.
The deal “amounted to an absolute delegation of the police power to the billboard companies themselves.”
The billboard companies “immediately and voluntarily dismissed their complaint,” rather than submit the agreement for customary district court review, the complaint states.
Signs “up to 25 percent larger” and “up to 10 feet higher than are permitted under the zoning code” are permitted by the agreement, the citizens complain.
They add that “these provisions have nothing at all to do with the First Amendment issues raised” in the billboard companies’ original federal complaint.
The illegal agreement also violates state law that requires removal of dilapidated highway-area billboards if replacement costs exceed a certain percentage of the cost to construct a new, identical billboard, according to the complaint.
“Under the settlement agreement, the billboard companies may replace any component of a billboard” regardless of cost, the complaint states.
The citizens say the settlement also annuls the Pennsylvania Administrative Code’s “sunset” provision, which regulates some billboards that stand empty for extended periods without bona fide advertising, or a current lease or a license.
Plaintiff Lynn McConville is no stranger to legal wrangling with billboard companies. In previous zoning hearings, she challenged the legality of two billboards visible from her property, prompting a zoning officer to cite the operator.
In Zoning Hearing Board proceedings, says the operator “ultimately withdrew its appeal of the city’s denial of a zoning permit for those billboards,” McConville says. “By operation of law, this constitutes a binding, non-appealable judgment that these billboards are illegal.”
But McConville says those billboards weren’t removed.
“Instead, based solely on the settlement agreement – and contrary to numerous valid and legally enacted zoning provisions and the now nonappealable judgment of the ZBA – the city has annually issued a permit to the billboard company for these undisputably illegal billboards.
“The billboard operator has ignored the outcomes of the ZBA proceedings, on the purported ground that the contract at issue in this case retroactively and extra-legally ‘legalized’ the billboards.”
Plaintiff Dea McAlonan objects to the reconstruction of a billboard that collapsed and damaged her property. She claims the billboard was prohibited by zoning.
“Under the claimed authority of the settlement agreement, the City Law Department has directly ordered the Department of Licenses and Inspections” – which has police power over billboards – “that it is to take no action in response to Ms. McAlonan’s complaints,” the complaint states.
Not only did the city fail to address McAlonan’s complaints, it “has not undertaken a single challenge in the three-plus years since the settlement, despite numerous complaints and requests for action by plaintiffs and other Philadelphia citizens,” the complaint states.
“To the contrary, the Law Department ordered the Department of Licenses and Inspections to rescind any and all pending citations it had issued to the billboard operators for violation of the zoning codes before the settlement.”
Only the city and the companies are allowed to participate in disputes over the billboards, the plaintiffs say, and all disputes must be heard by an arbitrator.
“Under the settlement agreement/zoning contract, a billboard company seeking a permit for an existing billboard need only list it on a certified inventory,” the complaint states.
“In real-life terms, for more than three years the city has granted the billboard companies a free hand to determine for themselves whether their billboards are to receive a permit.
“Unsurprisingly, the billboard companies have not seen fit to deny themselves a permit for any of the billboards.”
McConville and McAlonan claim the agreement violates due process, the Pennsylvania Sunshine Act and state law on “contract zoning,” which has been found illegal by the Pennsylvania Supreme Court.
They seek declaratory judgment and a permanent injunction.
They are represented by Charles Sweedler with Levin, Fishbein, Sedran & Berman.