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Mercer Outdoor Advertising, LLC v. City of Hermitage

United States District Court, W.D. Pennsylvania

July 28, 2014

MERCER OUTDOOR ADVERTISING, LLC, Plaintiff,
v.
CITY OF HERMITAGE, PENNSYLVANIA, Defendant.

MEMORANDUM OPINION AND ORDER OF THE COURT

TERRANCE F. McVERRY, District Judge.

Pending before the Court is the MOTION TO DISMISS PLAINTIFF'S COMPLAINT PERSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) (ECF. No. 10), filed by Defendant City of Hermitage, Pennsylvania ("Hermitage") with brief in support. Plaintiff Mercer Outdoor Advertising, LLC ("Mercer") filed a brief in opposition on July 14, 2014, and Hermitage filed a reply on July 21, 2014. The Motion is ripe for disposition.

Factual and Procedural Background

The relevant facts are undisputed. Plaintiff Mercer is a family organization which operates a signage company specializing in posting both commercial and non-commercial messages. (Comp. ¶ 1) Mercer's primary clientele are charities and small-to-medium-sized businesses. (Comp. ¶ 6).

Prior to June 2013, representatives of Mercer observed a lack of outdoor advertising in Hermitage. (Comp. ¶ 7). Mercer investigated the business potential in Hermitage, in an attempt to find property owners willing to lease land as signage locations. (Comp. ¶ 8). Eventually, seven property owners in Hermitage agreed to permit Mercer to post and operate signs, in return for payment. (Com. ¶ 9). The locations included: (a) North Hermitage Road, Lot #1; (b) 2925 East State Street; (c) 2410 State Route 18; (d) 1430 North Hermitage Road; (e) 271 North Hermitage Road; (f) 405 South Hermitage Road; and (g) 711 South Hermitage Road. (Comp. ¶ 13). Mercer contends that the proposed signs would comply with all Pennsylvania regulations, including size, spacing, and zoning. (Comp. ¶ 4). Based on Hermitage's City Zoning Ordinance, which defines various types of signage, Mercer identified each of its proposed signs as billboards. (Comp. ¶ 12).

Procedural History

On or about June 21, 2013, Mercer submitted permit applications to Hermitage, and sought permission to install and operate signs at six of the locations which it had procured. (Comp. ¶ 13). On or about August 16, 2013, Mercer submitted a sign permit application for a seventh property. (Comp. ¶ 14). The City Planning Technician, Nathan Zampogna, denied all of the applications because billboards are not permitted in the commercial zoning districts of Hermitage. (Comp. ¶ 17). "While the proposed billboards were otherwise noncompliant due to size, height and proximity to an intersection, the sole basis for denial by the zoning officer was the impermissible zoning, per §306.10 of the ordinance." (ZHB Op. ¶ 12). Section 306.10 does not allow placement of billboards in either the Central Commercial or the Highway Commercial zoning districts of Hermitage. (ZHB Op. ¶ 10).

Mercer then filed suit against Hermitage in this Court, in which it alleged financial damages and challenged the constitutionality of Hermitage's Zoning Ordinance. (Comp. ¶ 20). The Court ruled that Mercer's claim was not ripe, due to its failure to first appeal Zapogna's denial to the Hermitage Zoning Hearing Board ("ZHB"). (Comp. ¶ 22).

Mercer then appealed to the ZHB. On April 16, 2014, the ZHB affirmed the initial denial of Mercer's permit applications in a written decision. (Comp. ¶ 25 and Exh. B). On May 1, 2014, Mercer filed a new Complaint in this Court, in which it alleges in Count 1 that Hermitage's Zoning Ordinance violates the First Amendment; in Count 2 that the Ordinance violates the Fourteenth Amendment; in Count 3 that the Ordinance violates the Pennsylvania Constitution; and in Count 4 Mercer requests that this Court overturn the decision of the ZHB. Mercer seeks judgment against Hermitage, including: (1) a declaration that the Hermitage Zoning Ordinance is unconstitutional; (2) an injunction against Hermitage enforcing its Zoning Ordinance; and (3) an award of damages and attorney's fees. (Comp. ¶ 40). In response, Hermitage filed a Motion to Dismiss on June 26, 2014. (ECF. No. 10).

The relevant provisions of the City of Hermitage Zoning Ordinance , effective Dec. 23, 1991, which Mercer is contesting include: §§ 105, which says "The City of Hermitage will be exempt form the provisions of this Ordinance in the exercise of its municipal functions."; 202, which defines the term "billboard" as, "a sign indicating a business conducted, a commodity sold, or a service rendered, somewhere other than on the premises..."; 306.10, which limits the zoning districts where billboards are permissible to the Light and Heavy commercial districts; 409.4(7), which exempts "signs for City events or promotions, or similar community events"; and 409.5(5), which prohibits "Any sign which advertises a business, goods or services not located on the same property as said sign." Mercer also takes exception to § 308.27, which limits billboard use in the following ways:

Billboards shall be permitted as a conditional use in the Light Industrial and Heavy Industrial Zoning districts provided:

(a) Such signs shall not be placed within 150 feet of another.
(b) Such signs shall not be placed within 250 feet of any residence, church or similar edifice.
(c) Such signs shall not be placed with (sic) 250 of any road intersection or at a curve or at any other place where vehicular line of sight could be partially or completely obstructed.
(d) A set back of 50 feet from the centerline of all adjacent street is required.
(e) Such signs shall not exceed 150 square feet in area when viewed from its widest silhouette.
(f) Such signs shall not exceed a total height of 20 feet, as measured from the ground to the top of the sign.

Zoning Ordinance, § 308.27. The Court notes that the Zoning Odinance was "adopted by virtue of the authority granted to the City under Article VI of the Pennsylvania Municipalities Planning Code, Act 247 of 1968." These documents were provided to the Court as attachments to Mercer's complaint.[1]

Standard of Review

A motion to dismiss pursuant to Rule 12(b)(6) challenges the legal sufficiency of a complaint, which may be dismissed for the "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6) Upon review of a motion to dismiss, the Court must accept all well-pleaded facts and allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff. Burtch v. Milberg Factors, Inc. , 662 F.3d 212, 220 (3d Cir. 2011), cert. denied , 132 S.Ct. 1861 (2012) (citing In re Ins. Brokerage Antitrust Litig. , 618 F.3d 300, 314 (3d Cir. 2010)). However, as the Supreme Court of the United States has made clear in Bell Atlantic Corp. v. Twombly , such "[f]actual allegations must be enough to raise a right to relief above the speculative level." 550 U.S. 554, 555 (2007).

The Supreme Court later refined this approach in Ashcroft v. Iqbal , emphasizing the requirement that a complaint must state a plausible claim for relief in order to survive a motion to dismiss. 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly , 550 U.S. at 555). Nevertheless, "the plausibility standard is not akin to a probability requirement, '" but ...


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