Billboard brawl in Philly burb sparks test of Pa. constitution

    If you object to super-sized billboards, you might be saying, “There ought to be a law.” A Philadelphia suburb thinks it has found rather a grand one — the Pennsylvania Constitution, no less, with its reference to “aesthetic values.”

    UPDATE 3:04 p.m. — Bartkowski Investment Group (BIG) has appealed to the Commonwealth Court of Pennsylvania from the Order of the Court of Common Pleas of Delaware County, according to a notice now on file at the lower court. Common Pleas Court Judge Chad Kenney had affirmed the decision of the Springfield Township zoning board to reject a proposal by BIG to erect billboards along Baltimore Pike.

    If you object to super-sized billboards, you might be saying, “There ought to be a law.” A Philadelphia suburb thinks it has found rather a grand one — the Pennsylvania Constitution, no less, with its reference to “aesthetic values.”

    The appeal to the constitution arises in Delaware County’s Springfield Township, which has confronted a proposal from the outdoor-advertising company Bartkowski Investment Group, or BIG, to erect billboards along Baltimore Pike. The community has brought local color to its protest. Once a resident even let fly red balloons above the pike in a warning to neighbors that if they could see the balloons, they would see BIG’s billboards, too. Throughout the dispute, now entering its fourth year, township authorities have, albeit politely enough and in legalese, told BIG to pound sand.

    Hence the appeal to “aesthetic values.” Might the constitution afford protection against gross visual clutter?

    “I will tell you right now that the Pennsylvania Supreme Court has never looked at that issue,” asserts William Brinton, a Florida lawyer with a national land-use practice who has followed the Springfield case. “The outdoor advertising industry is scared to death of that right in the Pennsylvania Constitution being brought up before the state appellate courts.”

    Now, following a recent lower-court decision, the controversy may be heading in that direction.

    A little background: In the early 1970s, during the early bloom of the environmental movement, Pennsylvania adopted a constitutional amendment creating a right to “the preservation of the natural, scenic, historic and esthetic values of the environment.” (See Article 1, Section 27.) Yet for decades this invocation of aesthetics has rarely been tested in the courts during land-use controversies, much less to beat back billboards.

    Then Springfield and BIG faced off. With the rejection of BIG’s proposal by the Springfield zoning board last year, the contest progressed, on an appeal by BIG, to the Court of Common Pleas of Delaware County. It was there only last Friday that Judge Chad Kenney affirmed the Springfield decision.

    BIG hasn’t since commented on its next step. But another appeal could now lead to a higher-court, appellate review.

    Other communities in Pennsylvania are taking notes. Remarking on the aesthetics angle, Mike Dawida, who heads the anti-billboard group Scenic Pittsburgh, remarks, “I think it’s a powerful argument. It would be a nail in the coffin for billboards if it succeeds. Not only is this a municipal issue but a regional issue and, we think, a statewide issue.”

    The fizz of separate but related billboard controversies in other Delco townships may meantime bubble up still other cases closer to home. Keep an eye on BIG-versus-Haverford. Haverford’s zoners, following Springfield’s, turned BIG down in February.

    During the just-concluded match in Common Pleas Court, Springfield did not land its every punch. The township tried to assert a flat-out power to regulate outdoor advertising so that some types of signs are in, some out, with billboards out absolutely. Judge Kenney had none of it, citing a Pennsylvania Supreme Court holding against exclusion of billboards per se — that is, a blanket ban must rest on clear public-welfare concerns which Springfield would need to demonstrate.

    Nor, even when then winning support from the court, did Springfield rely wholly on aesthetics, for it raised the usual alarms about billboards distracting drivers and collapsing in high winds.

    And yet the aesthetics argument figured prominently and successfully. The judge recited in full the pertinent language in the constitution and noted as well recent efforts by Springfield to bring a modicum of visual relief to parts of Baltimore Pike that no one today would mistake for William Penn’s “greene countrie towne.”

    The litigation is wearing on township budgets, but possibly it wears on BIG as well. Recently in Newtown Square, where a BIG attorney once remarked that the company is “a juggernaut that’s happening,” BIG has come back with a revised proposal: one sign instead of three along West Chester Pike, ground-mounted instead of aerial, and landscaped, though now digital and with rotating ads.

    Let’s all agree that aesthetics is highly subjective. You may like the figure that the Comcast headquarters cuts against the Center City skyline. I may not. In Times Square the garish becomes the iconic. So there can be trouble in going too far down the path of policing the outdoor environment. As for legal tactics, the billboard industry may invoke constitutional protections of its own, property rights sometimes fitting a case for tackiness.

    What, then, could be deemed so massive, so out of place, so god-awful as to violate a constitutional right?

    Consider: In Springfield, along a 1.3-mile length of Baltimore Pike, BIG was — is still? — intending to construct six double-faced billboards atop 62-foot monopoles, higher than any other structure along that stretch of road. Each billboard face would measure 672 square feet. The side of a SEPTA bus is smaller.

    Understand also that these signs would usually have nothing to do with the hoagie shop, the mobile-phone retailer, or other enterprise over which they would loom. Often those businesses are operating in leased premises. So BIG would go to the property owners to rent a piece of their properties for itself and its off-site advertisers. Far from falling in with BIG, the Greater Springfield Business Association has explicitly opposed it.

    The complaint is not only that these billboards would bring a new scale of eyesore to a commercial strip. It is also that Baltimore Pike backs up to residential neighborhoods, places where people are mowing their lawns and watching their kids’ ballgames, to say nothing of hoping their houses hold value.

    That was the point of the red balloons. It was Rose Grelis, a retired music teacher and longtime Springfield resident, who with a band of friends tethered the balloons and sent them aloft 62 feet.

    Then she foresaw sky blight. Now she sees her balloon photos in a court record that may be going up for further judicial review.

    “In Springfield,” she says, “we’re setting some precedents, I think.”

    Richard Koenig lives in Newtown Square.

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