IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lamar Advertising of Penn, LLC :

:

v. :

:

Southmont Borough Zoning Hearing : No. 91 C.D. 2017

Board and Borough of Southmont : Submitted: November 14, 2017

:

Appeal of: Borough of Southmont :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: December 12, 2017

The Borough of Southmont (Southmont) appeals from an order of the 

Court of Common Pleas of Cambria County (trial court) reversing the Southmont 

Borough Zoning Hearing Board’s (Board) decision finding that the Southmont zoning 

ordinance’s advertising sign provisions resulted in a de jure exclusion of billboards

and granting Lamar Advertising of Penn, LLC (Lamar) permission to construct two 

off-premise signs subject to certain specifications, including height and area. For the 

following reasons, we affirm.
2

I.

Dino and Rosemary Persio (together, Persios) own 3.9 acres of land 

located at 942 Pine Grove Lane in Southmont, Cambria County (Property), including

a structure most recently used as a restaurant. The Property is located in Southmont’s

only Commercial (C) District, with a cemetery to the north and a synagogue and local 

schools across the highway. Lamar owns and operates a company specializing in offpremise outdoor advertising otherwise known as billboards. On July 11, 2012, the 

Persios entered into a lease allowing Lamar to place billboards on the Property. 

Lamar then submitted an application to Southmont for a permit to erect an offpremise, double-sided billboard with one face bearing a digital LED display and the

other a static display. Both proposed signs were to be 45.2 feet high1 with the 

following specifications: front digital sign – 11.75 feet x 21.6 feet = 253.8 square

feet; and back static sign – 10.75 feet x 23 feet = 247.25 square feet.

Section 901 of the Southmont Borough Zoning Ordinance No. 359 

(Zoning Ordinance) pertaining to signs provides, in pertinent part:

SECTION 901 GENERAL PROVISIONS 

Except for signs indicating availability of a building or land 

for rent or sale, any sign erected or altered after the 

effective date of this Ordinance shall be in accordance with 

the provisions and regulations contained in this Article.

A. A permit shall be required for any sign erected.

 

1 The proposed location of the post bearing the billboards is on a steep slope approximately 

20 feet below the surface of the public roadway known as Menoher Boulevard.
3

B. All signs shall be constructed and maintained in a 

safe orderly manner. No sign shall be placed in such a 

position that it will cause danger to vehicular or pedestrian 

traffic by obscuring view or causing distraction.

C. Any sign, if illuminated, shall be non-flashing, 

shall be of enclosed lamp design, and shall be lighted in a 

manner not detrimental to any adjacent property or public 

right-of-way.

* * *

F. The height of any sign may not exceed twenty 

(20) feet, as measured from the ground level to the top of 

the sign.

(Reproduced Record (R.R.) at 11a.) (Emphasis added.) Section 903 of the Zoning 

Ordinance provides, in pertinent part:

SECTION 903 PROVISIONS FOR “C” DISTRICT

A. In the “C” District, the following signs shall be 

permitted and the following regulations shall apply:

1. Any sign permitted in an R District.

2. On premise business signs or identification 

signs not to exceed thirty (30) square feet per sign, 

however, if there are more than two (2) businesses the total 

amount of signage shall not exceed sixty (60) square feet.

* * *

5. No off-premise signs allowed.

(R.R. at 12a.) (Emphasis added.)
4

Southmont denied Lamar’s permit request stating that the proposed signs

exceed the 20-foot maximum height limitation set forth in Section 901-F of the 

Zoning Ordinance, as well as Section 903-A5 of the Zoning Ordinance which 

prohibits off-premise signs.

2

 Lamar then filed an appeal and application for a 

variance with the Board arguing, among other things, that the Zoning Ordinance is de 

jure exclusionary because it contains a blanket exclusion of billboards as a use 

without justification. Lamar also argued that the Zoning Ordinance is de facto

exclusionary because compliance with its restrictions renders billboards economically 

impracticable or impossible as a use. The parties submitted a joint stipulation of facts 

on July 7, 2014, including diagrams of the Property and the proposed sign location.

At the outset of a hearing before the Board, Lamar requested that the 

Board determine whether the Zoning Ordinance’s ban of off-premise signs was de 

jure exclusionary because it excludes off-premise signs in all districts. The Board

declined to rule immediately and took the issue under advisement.

Nathan Karn, Esquire (Attorney Karn), testified on behalf of Lamar as 

an expert in municipal government issues concerning zoning ordinances. Citing

Township of Exeter v. Zoning Hearing Board of Exeter Township (Exeter), 962 A.2d 

653 (Pa. 2009), he testified that billboards are considered a legitimate use of property 

in Pennsylvania and, therefore, cannot be totally excluded by a municipality. 

Attorney Karn testified as to the meaning of de jure and de facto exclusions in zoning 

 

2 Southmont’s denial letter also specified that the permit request did not comply with the 

Ladybird-Johnson Act, 23 U.S.C. §§ 101-610, or the Outdoor Advertising Control Act of 1971, Act 

of December 15, 1971, P.L. 596, 36 P.S. §§ 2718.101 – 2718.115. These reasons for the denial 

have been abandoned.
5

ordinances and opined that, based upon his review of the entire Zoning Ordinance, it 

was de jure exclusionary3 because there is no district in Southmont in which offpremise advertising is permitted.4

George A. Foster (Foster), Lamar’s Vice President and General 

Manager, testified regarding the topography of the Property as well as construction 

and specifications of Lamar’s proposed static and LED billboards. Foster testified 

that the industry standard for a regular billboard is 300 square feet, and the standard 

for larger billboards that are made to go across highways is 600 square feet. He 

stated that the proposed size of the two billboards is necessary given the speed limit

(45 m.p.h.) and size of the highway the Property abuts and the distance vehicles 

would be from the billboards. Foster testified that if the signs were any smaller, they 

would be ineffective at communicating an off-premise advertising message, and none 

of his advertisers would pay for an off-premise sign that was only 30 square feet. He 

explained that Lamar proposed to put the billboards at the bottom of the slope 

easement along the roadway the Property sits upon because they cannot erect the 

billboards within the slope easement. The signs are proposed to be 42.5 feet high, as 

measured from the bottom of the slope, because they need to be clearly visible to 

vehicles traveling on the roadway. Foster testified that this would place the 

 

3 A de jure exclusion exists where an ordinance, on its face, totally bans a legitimate use. A 

de facto exclusion exists where an ordinance permits a use on its face, but when applied, acts to 

prohibit the use throughout the municipality. Macioce v. Zoning Hearing Board of the Borough of 

Baldwin, 850 A.2d 882, 887 (Pa. Cmwlth. 2004).

4 Counsel for Southmont objected to Attorney Karn’s testimony on the basis that it was an 

attempt to usurp the role of the Board in deciding the constitutionality of the Zoning Ordinance.
6

billboards six feet above the road surface, still within the Zoning Ordinance’s 20-foot 

height restriction if you measure from the actual road surface.

Richard Wargo, Southmont’s Manager and Zoning Officer (Zoning 

Officer Wargo), testified that billboards are not allowed anywhere in Southmont. He 

also testified that to the best of his knowledge, all of the on-premise signs in the C 

District comply with the size and height requirements of the Zoning Ordinance. He 

testified that there are two schools and a synagogue near the proposed billboard site, 

with heavy traffic in that area, and there is a concern that the billboard could be a 

distraction to drivers.

Michael Lose, the West Millcreek Police Chief (Chief Lose), testified 

that he conducted a traffic study by placing a mobile radar trailer traffic counter 

(counter) in close proximity to the location of the proposed billboards. The counter 

clocked the northbound, downhill traffic for six days and observed 11,121 vehicles 

traveling at an average of 44 m.p.h.5

The Board denied Lamar’s appeal and variance request, finding that the 

Zoning Ordinance was not de jure exclusionary because it permitted on-premise 

signs. In the alternative, the Board held that Lamar’s request was properly denied 

because it failed to conform with area and height requirements for all signs in the 

borough, because 300 square foot signs did not represent the minimum variance 

 

5 Several members of the public present at the hearing asked questions and testified that they 

opposed the permit request due to the proposed billboards’ proximity to local schools, a synagogue 

and cemetery and the high volume of traffic; the potential of the billboards to distract drivers; and 

because a 300-foot sign would detract from the aesthetics of the area.
7

necessary to convey an advertising message, and any hardship was unique only to a 

small portion of the Property and created by Lamar due to where it proposed to place 

the signs.

Lamar appealed to the trial court6and Southmont intervened. The trial 

court sustained Lamar’s appeal, finding that Section 903-A5 of the Zoning Ordinance 

is unconstitutional to the extent that it excludes billboards and that Southmont failed 

to establish a substantial relationship between the exclusion and public health, safety, 

morality or general welfare. Citing to In re Bartkowski Investment Group, Inc., 106 

A.3d 230 (Pa. Cmwlth. 2014), and Section 1006-A(c) of the Municipalities Planning 

Code (MPC),

7

the trial court noted that it “has broad discretionary powers to fashion 

appropriate relief to the successful challenger of a zoning ordinance.” Bartkowski, 

106 A.3d at 248.

The trial court also determined that additional evidence would be 

beneficial in fashioning relief because the issues of public health, safety, morality and 

general welfare were not fully developed and the Board did not receive complete 

evidence regarding alternatives to the proposed billboards. Therefore, the trial court 

remanded the case to the Board

for further proceedings relative to all issues not inconsistent 

with this Opinion/Order. Including, but not limited to, 

exploration of alternative sites and/or alternative 

 

6 The parties submitted an updated Stipulation of Facts to the trial court on May 29, 2015.

7 Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L. 

1329, 53 P.S. § 11006-A(c).
8

configurations for [Lamar]’s proposed use. In an effort to 

encourage finality and discourage delay, any issues not 

presented before the Board will be waived, and will not be 

considered in additional proceedings before this Court.

(Trial Court’s November 24, 2015 Order at 2.)

II.

On remand, Zoning Officer Wargo testified that the topography of the 

Property had not changed since the Perios purchased it in 2011. Southmont also 

presented a written report from Brad Detweiler (Detweiler), a registered professional 

land surveyor, showing the use of significantly smaller, on-premise advertising signs

throughout Cambria County.8

Several members of the community testified regarding concerns they 

have over the proposed billboards, in particular, the proposed size, arguing: they are 

unsightly and too close to residences; would detract from the area’s historic nature 

and beauty; would have a negative effect on neighboring property values; would 

distract drivers and create a safety hazard; could be seen from the cemetery; and 

smaller signs are sufficient to carry an advertising message.

Andrew Ebersole (Ebersole), a licensed land surveyor, testified that the 

grading of the roadway along the Property changed at some point so that, with respect 

 

8 Southmont argued that the Board should adopt the Zoning Ordinance’s size and height 

requirements for on-premise signs when considering Lamar’s request to construct the proposed offpremise billboards. Lamar argued that the Zoning Ordinance’s on-premise sign requirements were 

irrelevant and also objected to the introduction of evidence in Detweiler’s report regarding signs 

located outside Southmont.
9

to the location of the proposed billboards, the center line of the roadway is now six 

feet higher. Ebersole admitted that this change occurred prior to the Perios 

purchasing the Property.

The Board then made the following recommendations to the trial court: 

(1) Lamar should be permitted to erect two billboards on the Property on one support, 

approximately 60 square feet each (no more than 5.3 feet tall by 11.5 feet wide); (2) 

the bottom of each billboard should be no more than 3 feet above the center of the 

roadway; (3) the downhill facing billboard should be static without animation and 

backlighting; and (4) the uphill facing billboard could be digital but with no 

animation, no video, a 30-second hold on changing messages, and must automatically 

dim at night to no more than 10% of daytime illumination.

Lamar appealed, and the trial court sustained the appeal but did not grant 

all of the relief Lamar requested. It limited the downhill facing sign to 64 square feet 

rather than 275 square feet, without animation and backlighting; and limited the 

uphill facing sign to a 300 square foot digital billboard with no animation, no video, 

an 8-second hold on changing messages, and it must automatically dim at night to no 

more than 10% of daytime illumination. The trial court admonished Southmont for 

failing to address the issue of public health, safety, morality and welfare on remand. 

Southmont then filed this appeal.

III.

On appeal, Southmont does not argue that the trial court erred in 

determining that Section 903-A5 of the Zoning Ordinance is exclusionary by totally 

excluding billboards. Instead, it argues that the trial court abused its discretion by
10

granting Lamar greater relief than was reasonable because that relief was inconsistent 

with the square footage restrictions for on-premise business signs as outlined in 

Section 903-A2 of the Zoning Ordinance as well as allowing the sign to be in excess 

of the 20-foot height limitation contained in Section 901-F.

A.

Initially, Southmont contends that because the parties entered into two 

separate stipulations of fact and the trial court did not take any additional evidence,

the trial court was required to affirm the Board’s determination regarding relief unless 

the Board committed a manifest abuse of discretion or an error of law. However, 

Section 1006-A(c) of the MPC9 gives the trial court and not the zoning hearing board 

jurisdiction to oversee this process and make independent findings. As we stated in

Bartkowski:

Section 1006-A gives broad discretionary powers to the trial 

court to fashion appropriate relief to the successful 

challenger of a zoning ordinance. In exercising this power 

to fashion judicial relief, the trial court owes no deference 

 

9

53 P.S. § 11006-A (c) provides:

If the court finds that an ordinance or map, or a decision or order 

thereunder, which has been brought up for review unlawfully prevents 

or restricts a development or use which has been described by the 

landowner through plans and other materials submitted to the 

governing body, agency or officer of the municipality whose action or 

failure to act is in question on the appeal, it may order the described 

development or use approved as to all elements or it may order it 

approved as to some elements and refer other elements to the 

governing body, agency or officer having jurisdiction thereof for 

further proceedings, including the adoption of alternative restrictions, 

in accordance with the court's opinion and order.
11

to the administrative findings of the zoning hearing board . . 

. . This does not mean, however, that a trial court must also 

ignore findings of the local agency or the evidence gathered 

in the local agency proceeding. Though not binding, both 

may inform a trial court’s decision under Section 1006-A. 

The trial court may also conduct a hearing to receive 

evidence. Such additional evidence, whether developed 

before the trial court or the zoning hearing board at the trial 

court’s discretion, would seem necessary should the trial 

court consider alternative sites and/or alternative 

configurations for the use at issue. . . . Ultimately, what 

form of judicial relief is appropriate – e.g., location and/or 

configuration – is the trial court’s decision, subject to a 

right of appeal, of course, to this Court.

106 A.3d at 248. In effect, this provision embodies the principle that “Where a 

zoning ordinance acts as a de jure exclusion of a legitimate use . . . ‘the sole remedy 

is to allow the use somewhere in the municipality and equity dictates that this 

opportunity fall to the successful litigant.’” Lamar Advertising of Penn, LLC v. 

Zoning Hearing Board of the Borough of Deer Lake (Deer Lake), 915 A.2d 705, 710

(Pa. Cmwlth. 2007) (quoting Adams Outdoor Advertising v. Borough of Coopersburg 

Zoning Hearing Board, 625 A.2d 768, 770 (Pa. Cmwlth. 1993)); see also Casey v. 

Zoning Hearing Board of Warwick Township, 328 A.2d 464, 469 (Pa. 1974) (stating 

“[t]o forsake a challenger’s reasonable development plans after all the time, effort and 

capital invested in such a challenge is grossly inequitable.”).

Because the trial court is granted jurisdiction to decide the appropriate 

remedy and not the Board, what is before this Court is whether the trial court, not the 

Board, abused its discretion in determining, based on the evidence presented, that 

what Lamar proposed “is reasonable, and not injurious to the public health, safety, 

welfare and morals.” Deer Lake, 915 A.2d at 711 (citation omitted); see also Adams 
12

Outdoor Advertising, Ltd. v. Hanover Township Zoning Hearing Board, 633 A.2d 

240, 245 (Pa. Cmwlth. 1993).

B.

As to its contention that the trial court abused its discretion by permitting 

Lamar to construct a billboard in excess of the square footage limitation for onpremise signs, Southmont would have to show that what was proposed by Lamar as 

site specific relief would be detrimental to the health, safety and welfare of the 

community. In addition, to obtain the relief that it suggests, Southmont would have 

to establish that the square footage of the signs it proposes is reasonable and would 

advance the public’s health, safety and welfare.

In determining what sized signs are needed to grant site-specific relief, 

proof of industry standards for billboards are probative; however, a municipality can

establish that smaller signs would be reasonable if it can demonstrate that the smaller 

size it proposes would be effective at communicating a commercial message. Exeter, 

962 A.2d at 662-63; Interstate Outdoor Advertising, L.P. v. Zoning Hearing Board of 

Warrington Township, 39 A.3d 1019, 1026 (Pa. Cmwlth. 2012), petition for 

allowance of appeal denied, 75 A.3d 1283 (Pa. 2013). Based on that evidence, the 

trial court can make an independent judgment of the size of the sign that provides 

site-specific relief.

In this case, Lamar offered evidence that the industry standard for a 

regular billboard is 300 square feet, and the standard for larger billboards that are 

made to go across highways is 600 square feet. All that Southmont offered was 

evidence showing the use of significantly smaller, on-premise advertising signs 
13

throughout Cambria County without any evidence that the size of the billboards it 

proposed could convey a commercial message. It did not offer any substantive 

evidence that the signs would “distract drivers” or constitute “traffic hazards,”and did 

not provide any evidence regarding the effects the two billboards would have on 

development or how they could harm the area. See Norate Corp. v. Zoning Board of

Adjustment of Upper Moreland Township, 207 A.2d 890 (Pa. 1965); Spriggs v. South 

Strabane Township Zoning Hearing Board, 786 A.2d 333 (Pa. Cmwlth. 2001).

Given that Southmont did not offer any evidence to show the small, onpremise square footage limitation was reasonable to convey a commercial message or 

otherwise show that the proposed billboards would adversely affect the health, safety 

and welfare of the community, the trial court did not abuse its discretion in finding 

that the billboards had to be in excess of the Zoning Ordinance’s square footage 

requirement for on-premise signs to give site specific relief.

C.

As to the trial court’s ordering that the billboards could be 45.2 feet in

height rather than the 20-foot height requirement for all signs contained in the Zoning 

Ordinance, it is undisputed that it would be impossible for Lamar to comply with the 

20-foot height restriction if it was forced to measure from the base of the slope versus 

the highway road surface because the billboards would not be visible to passing 

motorists. Again, Southmont failed to offer any evidence that allowing a sign to be in 

excess of the 20-foot height requirement would “distract drivers” or constitute a 

“traffic hazard;” failed to show what effects the billboards would have on 

development; and failed to show any other effect that would be detrimental to the 

health, safety and welfare of the community.
14

Accordingly, given that Southmont failed to offer any probative 

evidence establishing that the proposed billboards were in any way detrimental to the 

health, safety and welfare of the community, the trial court did not abuse its

discretion in granting the site-specific relief that it ordered, and that order is affirmed.

 

DAN PELLEGRINI, Senior Judge

Judge Wojcik did not participate in the decision of this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lamar Advertising of Penn, LLC :

:

v. :

:

Southmont Borough Zoning Hearing :

Board and Borough of Southmont : No 91 C.D. 2017

:

Appeal of: Borough of Southmont :

O R D E R

AND NOW, this 12th day of December, 2017, the order of the Court 

of Common Pleas of Cambria County in the above-captioned matter is affirmed.

 

DAN PELLEGRINI, Senior Judge