Billboard fight nearing end – or new beginning – in Haverford Township

Three years into Thaddeus Bartkowski III and Bartkowski Investment Group's attempts to erect five billboards in Haverford Township, the stories are familiar.

Sandi Donato grew up in the township and became a homeowner 12 years ago. She lives along West Chester Pike, where BIG is determined to put up three billboards, and her fear that billboards will ruin the aesthetics of the township are palpable. At the final hearing scheduled by the Zoning Hearing Board before it makes a final decision Feb. 16, Donato's views represented most of the meeting-goers in the room.

Marc Kaplin, the attorney for BIG in multiple billboard-related cases, has long-since insisted Haverford Township unconstitutionally bans billboards. But to a room full of Haverford and Lower Merion township residents – two locations on BIG's application at Lancaster Avenue sit adjacent to Lower Merion – Kaplin's position remained the least popular.

"I don't envy you in your position because if you do the right thing, you're going to be the ones who brought signs into Haverford Township," Kaplin said to the board in his closing argument.

On behalf of Haverford Township, attorney Jim Byrne attacked the language of BIG's application, which says the township unconstitutionally excludes non-accessory advertising signs, and said billboards damage residents' public health, safety and welfare.

Addressing the board while going through a Power Point slideshow, Byrne showed examples of outdoor advertising in Haverford Townships on buses, bus stops and grocery carts. He also showed the radius of collapse zones around the billboard locations, emphasizing that hazards, such as electrical wires and pedestrian walkways, made the areas where BIG proposed putting billboards poor choices.

Kaplin's focus remained not on the placement of the advertisements, but on the exclusion of billboards as a use of outdoor advertising.

"The township may not prohibit billboards entirely," Kaplin said during his closing arguments. "Somewhere along the line, they should have been regulated."

The township itself and Lower Merion contest Kaplin's stance that Haverford should have long ago regulated billboards. Byrne, along with residents, maintains there are no safe places for billboards in the area, and though Lower Merion allows billboards along the Schuylkill expressway, it has a stringent code on where and when developers can put up such forms of advertisement.

A few years ago, the Lower Merion Zoning Hearing Board issued a violation against a billboard between County Line Road and West Old Railroad Avenue and asked it be removed. The company, AdSmart Outdoor Advertising, which is also owned by Bartkowski, appealed the decision to the Montgomery County Common Pleas Court, but the court recently denied the appeal.

"Billboards are only allowed on the eastern part of Lower Merion only along the expressway," Lower Merion Commissioner Scott Zelov said. "Haverford Township doesn't have that option. There's no interstate highway that goes through Haverford Township with one exception, the Blue Route, where billboards are banned by the entire state of Pennsylvania."

Attorney Charles Bernard Haws of Reading, Pa., argued for advertising company Land Displays, Inc., in an appeal that led to the Pennsylvania Supreme Court in 2008 and ended up allowing billboards in Exeter Township. Both sides of the Haverford billboard controversy cited the case, Township of Exeter v. Zoning Hearing Board of Exeter Township and Land Displays, Inc., in their closing arguments.

"The township of Exeter sought to limit the billboard sizes, which come in two standard industry sizes," Haws said. "If you're prohibiting billboards altogether, that's a different issue to defend. You'd have to demonstrate how public safety would be affected. So, for example, a busy place with strip malls down the sides of the roads might not be the best place."

William Malone, the Haverford Township ZHB solicitor, said the way the board interprets the Exeter case in BIG and the township's arguments remains "the big one." An adviser to the board, Malone elaborated only by pointing to a portion of the Exeter opinion.

"It is clear that ordinances addressing the regulation of signs, billboards and other outdoor advertising media are within the power of the municipality," the opinion, written by Chief Justice Ronald Castille states. "Thus, a zoning authority is empowered to regulate … billboard size. Moreover, a municipality may divide the municipal area into districts and prohibit or regulate activities such as advertising in those areas whose character is not consistent with that use. However, since billboards are not objectionable per se, a blanket prohibition on billboards without justification cannot pass constitutional muster."

A final decision on the three-year long battle will be made Feb. 16, though an opinion will not be available right away. If the ZHB favors the township, Kaplin said an appeal is unavoidable.