An Adams Outdoor billboard in Pennsylvania. Source: Adams Outdoor.

In a case that we’ve reported on previously, the Third Circuit Court of Appeals held last week that the Pennsylvania Department of Transportation’s rules pertaining to billboard permitting violate the First Amendment.  The court’s decision is yet another in a string of decisions from around the country making it more difficult for government to restrict the proliferation of off-premises signage.

To refresh our readers’ memory, Pennsylvania regulates billboards under its Outdoor Advertising Control Act of 1971.  That law prohibits the placement of billboards within 500 feet of a highway interchange or rest area, with an exception for official signs or on-premises “for sale or lease” signs.  The law also requires that a billboard advertiser obtain a permit from the state’s transportation department, but does not set forth a timeframe for such a permit to be processed.

Adams Outdoor, a billboard company, sought to install a billboard in Hanover Township, Pennsylvania.  After processing the permit application for over a year, the state’s transportation department  eventually denied the permit on the grounds that the sign violated the interchange restriction.  Adams challenged the interchange restriction and permitting procedures under the First Amendment, and also claimed that the billboard law was unconstitutionally vague.

The district court, which had previously dismissed Adams’s vagueness challenge, granted summary judgment for the state on the interchange restriction, but granted summary judgment for Adams on its permitting challenge.

On appeal, the Third Circuit affirmed the dismissal of the vagueness challenge.  Analyzing the interchange restriction, the appeals court concluded that the exemption for official signs was not content-based, as it is simply an exemption for government speech.  The court found, however, that the state had not met its burden to demonstrate that the on-premises sign exemption furthered an important state interest that was at least as important as the state interest in the overall prohibition.  The court remanded that issue back to the district court for further factfinding.

On the permitting claim, the Third Circuit agreed with the district court that the lack of a permitting timeframe created an unconstitutional prior restraint.

Two points stand out about the court’s ruling.  First, the Third Circuit appears to continue to apply a test that it established for “context-sensitive” sign regulation in the case of Rappa v. New Castle County, a case authored by the now-Supreme Court Justice Alito.  Under that test, the court reviews exemptions to general prohibitions as a balancing of the governmental interests in both the exemption and the general prohibition.  Some observers had questioned whether the context-sensitive analysis survived Reed, but it appears to have done so.  Second, the Third Circuit’s analysis does not take into account the Supreme Court’s prior statement in the case of Thomas v. Chicago Park District that strict permitting timeframes are not required in cases involving content neutral regulation.  Here, the court did not find that the exemptions were content based, but it still imposed a requirement for a strict permitting timeframe.

Adams Outdoor Limited Partnership by Adams Outdoor GP, LLC v. Penn. Dept. of Transp., ___ F.3d ___, 2019 WL 3071292 (3d Cir. Jul. 15, 2019).

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private…

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.