Billboard company calls Tarentum zoning 'unconstitutional'

Tarentum’s zoning ordinance is unconstitutional because it does not allow billboards anywhere in the borough, a company argued in appealing the borough’s denial of its proposal to put one up beside the Tarentum Bridge.

America First Enterprises, doing business as Oliver Outdoor, is asking an Allegheny County judge to vacate the Zoning Hearing Board’s decision and order borough officials to issue a permit for its billboard.

In its appeal, the company says it is challenging the validity of the borough’s zoning ordinance “on the basis that it is exclusionary, impermissibly vague, contradictory, incapable of objective criteria and violative of the United States and Pennsylvania constitutions.”

Pennsylvania requires that all communities provide a reasonable opportunity for every legitimate land use, according to Duquesne Unviersity law professor Joe Sabino Mistick. Saying a use is permitted when in reality there’s no place for it results in de facto exclusionary zoning, he said.

“It’s a fairly common problem. There are lots of municipalities that do not want to permit certain uses,” Mistick said. “That’s why the legislature and the courts have required there be an across-the-board allowance of all legitimate uses so there can’t be discrimination.”

Because of the appeal, Tarentum is scrambling to find a new attorney for its Zoning Hearing Board. Its solicitor, Gerald DeAngelis, submitted his resignation, citing a reduction in his practice. Council could vote to hire a new solicitor for the board on Thursday.

Borough Manager Michael Nestico said the borough will intervene in the case.

”We are confident that the zoning ordinance passes legal muster,” Nestico said. “Our ordinance does permit billboards in specific areas. Unfortunately the appellant wishes to place their billboard in an area where it is not a permitted use.

“We have gauged the feedback of the community and the overwhelming response is that our residents do not wish to have billboards located in this area of town,” he said. “Therefore, we must address this litigation to prevent current and future billboards from being constructed along the Tarentum Bridge corridor.

The Zoning Hearing Board rejected the company’s appeal to put up the billboard on June 10, following a hearing on May 29. The borough’s zoning officer, Anthony Bruni, previously said the billboard would not comply with zoning regulations.

Oliver wants to put a two-faced digital billboard atop a pole that would stand at 107 E. Fourth Ave.

Oliver argues that its appeal to the Zoning Hearing Board should have been granted because of “numerous errors and contradictions within the (borough’s) zoning ordinance, which effectively prohibits billboards under the current ordinance’s form.”

According to the company’s appeal, billboards would be permitted in what is designated as a roadway commercial district, but no property is designated as such in the borough.

The roadway commercial district “cannot be found anywhere on the official zoning map,” the company wrote in its appeal.

The zoning ordinance also states that billboards are allowed conditionally on otherwise vacant parcels in what is designated as a C-3 heavy commercial district.

“The Zoning Ordinance, however, does not have an authorized zoning district of C-3, nor does the zoning map show that district or any property being zoned C-3,” the company wrote.

The zoning ordinance also says billboards are permitted in what is known as a RRO Rural Resource Overlay District, referring to a section and subsection. But the company said that section and subsection do not exist, “nor are there any regulations in the zoning ordinance for the so-called ‘RRO Rural Resource District,’” the appeal said.

“Thus, under the current zoning ordinance, there is, in fact, no property in the borough which is authorized for the use of billboards (illuminated or otherwise),” the company wrote.

“The zoning ordinance, with its de facto exclusion of the use of billboards, is invalid and unconstitutional.”

Current billboards near the Tarentum Bridge and along Route 28 in Tarentum are “grandfathered,” meaning they were in place before zoning regulations were enacted.

A status conference for Oliver’s case has been scheduled for Aug. 1 at the City-County Building in Pittsburgh.