Zoning; Static Vinyl versus Electronic Advertising Signs

Lamar Advantage GP Co., LLC vs. City of Pittsburgh, Zoning. Bd. Adj. and City of Pittsburgh, 2019 WL 4120737 (Pa. Cmwlth. 2019) (unreported), reargument denied Oct. 21, 2019, allocatur granted Apr. 6, 2020, appeal docket 5 WAP 2020

The Pennsylvania Supreme Court granted allocatur in this case to determine whether the Commonwealth Court erred in affirming the trial court’s decision that the City of Pittsburgh’s Zoning Board of Adjustment’s (ZBA) decision lacked substantial evidence that the placement of a static vinyl advertisement overtop an existing, nonconforming electronic advertising sign violated the City’s zoning code.

The advertising sign at issue in this case is a large electronic billboard (7,200 sq. ft.) that was constructed in the 1920s. Records of the sign being used for electronic advertising dates back to 1928 and, pursuant to annual certificates of occupancy issued by the City since 1985, the City recognized the electronic sign as a nonconforming use.  ZBA found that the sign had been used for advertising businesses, services, and products, while also being used for community messaging and displaying the time.

In June 2014, Lamar Advantage GP Co., LLC (Lamar) filed an application with the City to renovate the sign face, replace the electronics, and repair the structure. The City acknowledged Lamar’s application was complete, but to date has not acted on it. In 2015 the City publicly stated that the zoning application would not be approved until the City specifically approved the content to be displayed. In early 2016 the City began issuing Notices of Violation (NOV) because the City code requires exterior surfaces to be “maintained in good condition [and] … protected from the elements and decay by painting or other protective covering or treatment to prevent rust or corrosion on sign.” Slip op. at 4.  Lamar responded to the initial NOV by painting the sign’s structure, but when Bayer’s 4,500 sq. ft. advertising lease on the sign expired, Lamar placed a static vinyl sign advertising Sprint “to protect the structure and continue its operation of the sign for advertising purposes,” which covered the sign’s full 7,200 sq. ft. Slip op. at 5.

The placement of the vinyl sign advertising Sprint prompted the City to issue Lamar additional NOVs that alleged Lamar was in violation of the City ordinance that prohibits a nonconforming sign to be “enlarged, added to or replaced by another nonconforming sign or by a nonconforming use or structure, except that the substitution or interchange of poster panels and painted boards on nonconforming signs shall be permitted.” Id. Lamar appealed the NOV to the ZBA. The ZBA sustained the NOVs finding that over time the space on the sign that was used for advertising was voluntarily reduced from 7,200 sq. ft. to 4,500 sq. ft. and that the installation of the 7,200 sq. ft. Sprint vinyl advertisement was an improper enlargement of a nonconforming sign. Specifically, the ZBA concluded:

The fact that the installation of the Vinyl Sign did not alter the size of the Sign Structure is not relevant and does not alter the fact that the installation of the Vinyl Sign increased the area of Sign Structure used for signage. Because poster panels or painted boards were never used on the sign Structure, the Vinyl Sign could not constitute a substitution or interchange for those types of materials. For these reasons, the Vinyl Sign violated Section 921.03.

Slip op. at 9, quoting ZHB Conclusion of Law No. 19 (emphasis in original). The ZBA also found that Lamar was in violation of other sections of the City’s ordinance for which Lamar was not issued an NOV and found that Lamar had legally abandoned the nonconforming use of the property upon the expiration of the Bayer commercial lease.

Lamar appealed the ZBA’s decision to the Allegheny County Court of Common Pleas (Trial Court). The Trial Court concluded the ZBA exceeded its jurisdiction by considering issues that were not identified in the NOVs Lamar received, including the legal abandonment finding, and found that the ZBA had erred in concluding that Lamar violated the prohibition against enlarging a nonconforming sign because the City’s Zoning Administrator conceded at hearing the size of the sign was not actually increased, which is all that is relevant under the City’s zoning code when determining the size of a sign.

On appeal before Commonwealth Court, the City urged the court to give great weight to the ZBA’s credibility determinations and argued that the Trial Court erred by substituting its own credibility determinations for that of the ZBA. In response, the court noted that the facts are not in dispute and that the ZBA’s legal conclusions are not binding on appeal. The court rejected the City’s claims that (1) the time between commercial leases to advertise is, by itself, sufficient to change the legal character of the sign, (2) the ZBA properly concluded under the definitions of “areas of the sign” and “sign face” found in the City’s zoning ordinance that the nonconforming sign was impermissibly enlarged from 4,500 sq. ft. to 7,200 sq. ft. when the vinyl advertisement was used to cover the electronic signage, and (3) the installation of a 7,200 sq. ft. vinyl advertising sign is qualitatively different than a 4,500 sq. ft. electronic non-advertising sufficient to constitute a legal abandonment of the valid non-conforming use—the court found that the City presented no evidence Lamar intended to abandon the use and that the evidence actually demonstrates that Lamar always intended to continue its nonconforming use of the sign. The Commonwealth Court affirmed the Trial Court’s decision that reversed the ZBA’s determination.

The Supreme Court granted allocatur to examine:

Whether the holding of the panel in this matter that a static vinyl advertising sign could replace an electronic advertising sign was inconsistent with the holding in Lamar Advertising Co. v. Zoning Hearing Bd. of the Municipality of Monroeville, 939 A.2d 994 (Pa. Cmwlth. 2007) that static vinyl advertising signs and electronic advertising signs are so different that one cannot simply replace the other without application for and issuance of a new zoning and building permit?

For more information, contact Kevin McKeon or Dennis Whitaker.