East Deer is suing its zoning hearing board over a decision that recommended three of four electronic billboards be built.

The township, which filed the appeal last week, claims the zoning hearing board’s decision to recommend allowing three electronic billboards in the township was “arbitrary.” It alleges the board erred by finding the township’s zoning ordinance was exclusionary to billboards.

It also alleges the applicant, America First Enterprises, which does business as Oliver Outdoor, failed to establish the zoning ordinance was exclusionary to billboards.

On June 29, the zoning board held a hearing for Oliver’s request, which claimed the township’s ordinance was substantively invalid because of its total exclusion of billboards as a use.

Oliver sought to erect four billboards in East Deer, and the zoning board recommended three of them be built in an Aug. 10 ruling, which also found the township’s zoning to be exclusionary of billboards.

It recommended approval of two double-faced billboards at 1101 Freeport Road — one with a 14-by-48-foot display and 82 feet tall and the second measuring 12 by 29 feet and 29 feet tall — in the township’s neighborhood and highway commercial district. The third was a single-faced display measuring 14 by 48 feet and 82 feet high at 1300 Freeport Road in an industrial-zoned district.

But the fourth billboard — double-faced with a 14-by-48-foot display and 57 feet high at 918 Bellview St., a residential zoned district — requires “more deliberation and dialogue” between the township and Oliver before approval could be considered.

All boards would be visible from Route 28.

The zoning board wrote that the definitions of signs, and their restrictions listed in the ordinance, “fully exclude ‘billboards’ from being erected within East Deer Township.” During the hearing, Oliver pointed to language in the ordinance that they believed banned billboards. However, the township testified the ordinance was not exclusionary because billboards exist throughout the township and that they are mentioned multiple times in the ordinance.

East Deer accused the zoning board of failing to consider the “incompleteness, inaccurate and inconsistent information” in Oliver’s submissions. It said the zoning board didn’t consider other provisions within the zoning ordinance that apply to all signs, including billboards, which if they would have, may preclude the proposed billboards at one or all of the proposed locations.

The township also claims the zoning board is devoid of any testimony, and the board’s recommendations to allow the billboards “do not take into consideration the health, safety and welfare of the general public with regard to any findings of site specific relief.”

The zoning board also erred by recommending Oliver be entitled to site-specific relief, the appeal said. The township wrote that even if the board’s determination that the zoning ordinance is exclusionary of billboards — “which is disputed” — success on an exclusionary ordinance challenge doesn’t automatically permit the applicant to build whatever kind of structure it wants without looking into the reasonableness of the proposed plan.

In addition, the appeal claims the zoning board didn’t set forth regulations for billboards, such as size, setback, height, illuminations, closeness to residential properties, glare and reflection, screening and LED regulations.

The township also alleges it was believed the zoning board would continue the hearing until a later day “to provide for the possibility of additional testimony,” but didn’t, and instead issued its determination from the initial hearing, “precluding the public from creating a full record.”

At the June hearing, Commissioners Chairman Tony Taliani was the only person who gave testimony supporting East Deer’s position, the zoning hearing board wrote in its findings. Taliani had indicated the township’s solicitor, Craig Alexander, was conducting a study East Deer hoped to enter into evidence before the hearing ended, but the zoning board rejected the claim, saying the township should have been ready at the time of the hearing. Maureen Sweeney, the attorney representing Oliver Outdoor, also objected to the proposition.

Paul Duffer, chairman of the zoning board, and Sweeney could not immediately be reached for comment.

Planners’ review

East Deer also is in the process of establishing an ordinance that regulates billboards in the township.

Commissioners in August referred the draft, which amends East Deer’s zoning ordinance regarding billboards, to township and county planners as required by the state’s Municipalities Planning Code. The proposal doesn’t impact Oliver’s case, but rather prevents other billboard applications from being submitted until the proposal is adopted.

During its Sept. 12 meeting, the township’s planning commission recommended the proposal be approved but with a few conditions.

Commissioners advised against the “exclusionary statement” listed in the proposal, which reads: “No LED digital billboards are permitted.”

They also recommended the ordinance establish conditions site-specific for electronic billboards.

The proposal only permits billboards in industrial-zoned districts. County planners recommended township officials ensure the industrial district is the most appropriate location for billboards and advised them to evaluate whether the entire industrial district is appropriate for billboards. They suggested the township might want to pursue an overlay within the industrial district if more specificity is warranted as far as locations where billboards are allowed in the area.

County planners also recommended the solicitor review the section that states a billboard shall be a principal use on the property. They recommended the township evaluate regulations on height and how it relates to the topography.

“For example, depending on the setback from the roadway and the topography of the site, this could have a significant impact on how height is calculated,” county planners wrote.

The proposal currently states the maximum height of the sign should be 30 feet, measured from the ground to the top of the sign, and billboards that are not located at the grade of the street should be no higher than 40 feet above the curb of the street from which they will be viewed.

Billboards can’t be placed within 500 feet of any residential property, be closer than 15 feet to any street right of way or be closer than 1,000 feet to any other existing or proposed billboard, the proposal states.

County planners recommended the township clarify whether the measurement is to the closest point of the billboard and the structure, or the property line.

They said the solicitor should review the statement in the proposal that prohibits LED digital billboards and advised the township to periodically review that section given the technological changes in the billboard industry.

The commissioners will now schedule a public hearing on the proposed ordinance before its final adoption.

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