The Morning Call: Developers claim in federal lawsuit that Easton officials violated their civil rights by denying digital billboard
Did the Easton Zoning Hearing Board violate a developer’s right to free speech by denying a 10-by-15-foot digital billboard in Centre Square earlier this year?
A federal lawsuit filed this week by Adams Outdoor Advertising and developers Dennis Benner, Garrett Benner and Brandon Benner alleges city officials violated their civil rights when they denied a digital billboard on the Benners’ One 6 Flats apartment complex at 16 Centre Square earlier this year.
The plaintiffs also include LVL Co., a subsidiary of Adams Outdoor Advertising and One 6 LLC.
The case cites the First and 14th Amendments of the U.S. Constitution, saying city officials violated the “equal protection and free expression of rights” afforded to the advertising company and developer when they denied the billboard at a July zoning board meeting.
The First Amendment includes protections for freedom of speech, while the 14th Amendment guarantees due process and equal protection under the law.
The suit seeks monetary damages, though it does not specify an amount. The latest suit is in addition to a $7.2 million federal lawsuit Adams filed against the city in June 2018, alleging city officials failed to provide a suitable location for a digital billboard.
Last year, Easton’s Historic District Commission recommended against approving a digital billboard on the side of 16 Centre Square, which is the former Easton Bank & Trust Building. Easton City Council upheld that recommendation.
In January, LVL Co. and Dennis Benner appealed City Council’s decision to the zoning board.
The board held multiple hearings before finally denying the 150-square-foot sign that would display different static advertisements every eight seconds.
In addition to the latest federal lawsuit filed on Tuesday, Adams Outdoor Advertising also filed a 200-page appeal of the zoners’ denial in the Northampton County Court of Common Pleas.
The sign would violate multiple parts of the city’s zoning, including the fact that off-premises signs, or signs advertising businesses at different locations, are not permitted in a historic district, Easton’s Assistant Attorney Joel Scheer said in a written response to the appeal.
Signs permitted in the downtown district also have a 20-square-foot size limit.
In its appeal to the zoning board, Adams requested numerous variances, including a challenge to one section of the ordinance that prohibits red or green lights in signs within a certain distance from traffic control signals, Scheer wrote.
Over the course of several meetings, zoning board members expressed concern that the sign could create a safety hazard by distracting drivers trying to navigate Centre Square, and said the digital sign would be out of place in Easton’s historic downtown.
“We will defend it, and we think we are well on the way to winning both of those cases. I guess they think we are going to give up, but we won’t give up. They are violating not only the zoning code but the historic district ordinance,” Mayor Sal Panto Jr. said on Thursday.
“We have heard loud and clear from the public that they don’t want it there, and I don’t blame them. It would be ugly,” he said.
On Thursday, Garrett Benner referred questions to his father, Dennis Benner. Dennis Benner could not immediately be reached for comment.
“The city strongly believes the ordinance is constitutional. We look forward to defending it in court,” said attorney Steve Hoffman of Hoffman, Hlavac & Easterly in Allentown, which is representing the city against both federal cases.
Both federal cases will be heard by U.S. District Judge Edward G. Smith for the Eastern District of Pennsylvania, though a date has yet to be set in either case, Hoffman said.
The latest federal lawsuit says city officials denied the Benners and One 6 LLC substantive due process under the 14th Amendment with respect to their “protected property and liberty interests.”
Since 2018, the Benners have been attempting to lease the space formerly occupied by a Wells Fargo bank. The Benners only had three inquires between June 2018 to January, the lawsuit says.
It goes on to say that the Benners’ difficulty filling the space is tied to their inability to compete with other commercial properties in Centre Square that have been “systemically” granted variances for larger signs and sign coverage area.
The zoning board has declined to enforce the size limitation in its zoning ordinance, “while treating the Benners and One 6 LLC differently,” it says.
The city has allowed “proliferate neon signs advertising pawn shops, tattoo parlors,” as well as “very large Crayola murals and free-form crayons and markers,” and a “100-square-foot backlit sign intended to resemble a giant microphone,” at the music venue One Centre Square, the lawsuit says.
The situation imposes a restriction of the plaintiff’s speech, but not other companies’ in Centre Square, it says.
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