Lamar Advantage v. City of Pgh ZBA, Aplts.

CourtSupreme Court of Pennsylvania
DecidedJanuary 20, 2021
Docket5 WAP 2020
StatusPublished

This text of Lamar Advantage v. City of Pgh ZBA, Aplts. (Lamar Advantage v. City of Pgh ZBA, Aplts.) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lamar Advantage v. City of Pgh ZBA, Aplts., (Pa. 2021).

Opinion

[J-79-2020] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

LAMAR ADVANTAGE GP COMPANY, LLC, : No. 5 WAP 2020 : Appellee : Appeal from the Order of the : Commonwealth Court entered : August 29, 2019 at No. 253 CD v. : 2018, affirming the Order of the : Court of Common Pleas of : Allegheny County entered January CITY OF PITTSBURGH ZONING BOARD : 24, 2018 at No. SA 17-000201. OF ADJUSTMENT AND CITY OF : PITTSBURGH, : ARGUED: September 17, 2020 : Appellants :

OPINION

JUSTICE WECHT DECIDED: JANUARY 20, 2021 For many years, Lamar Advantage GP Co. displayed an electronic advertisement

on a billboard perched atop Mount Washington, which overlooks downtown Pittsburgh.

In 2016, Lamar ratcheted a static, vinyl sign over the electronic advertisement and the

underlying structure. Believing that this action “enlarged” or “replaced” the sign, the City

of Pittsburgh cited Lamar for breaching the City’s Zoning Code. Specifically, the City cited

Lamar for violating Section 921.03.F.2 of that Code. This provision bars a nonconforming

sign from enlarging, adding to, or replacing another nonconforming sign. Pittsburgh’s

Zoning Board of Adjustment upheld the citation, agreeing with the City that Lamar’s

actions enlarged or replaced the sign. On appeal, the Court of Common Pleas reversed

the Board. The Commonwealth Court affirmed the lower court. Both courts held that the

Board’s conclusion was unsupported by the record. We agree. The record here does not support the Board’s legal conclusion that, by

draping the vinyl static sign over the existing electronic sign and sign structure, Lamar

violated Code Section 921.03.F.2. We further conclude that the Commonwealth Court’s

decision in this case is not inconsistent with that court’s earlier decision in Lamar

Advertising Co. v. Zoning Hearing Bd. of Monroeville, 939 A.2d 994 (Pa. Cmwlth. 2007),

which held that structural alterations required to replace seventeen static vinyl signs with

electronic signs “altered” those signs within the meaning of a municipal ordinance.

Accordingly, we affirm the order of the Commonwealth Court.

Before we delve further into the actions that preceded this litigation, we must

review pertinent provisions of Pittsburgh’s Zoning Code. (Please bear with us). The Code

defines an “advertising sign” as:

[A] sign that directs attention to a business, commodity, service, or entertainment, conducted, sold, or offered: (a) Only elsewhere than upon the premises where the sign is displayed; or (b) As a minor and incidental activity upon the premises where the sign is displayed. PITTSBURGH, PA., ZONING CODE § 919.01.C.2. An “electronic sign” is defined as “any sign,

video display, projected image, or similar device or portions thereof with text, images, or

graphics generated by solid state electronic components.” Id. § 919.01.C.5. A

“nonconforming sign” is any “sign, lawfully existing on the effective date [of the Code] that

does not completely conform to the sign regulations applicable in the district in which it is

located.” Id. § 919.01.C.15.

Turning to the different parts of a sign, the Code defines the “area of the sign” as

follows:

[T]he entire area within a single continuous perimeter enclosing the extreme limits of writing, representation, emblem or any figure or similar character together with any frame or other material or color forming an integral part of the display or used to differentiate such sign from the background against which it is placed (excluding the necessary supports or uprights on which

[J-79-2020] - 2 such sign is placed or apron designed to cover such uprights or work board installed to provide a safe area for servicing such sign). Id. § 919.01.C.16. The “face” of the sign is “the side or sides of a sign on which the

lettered, pictorial or sculptured matter designed to convey information is to be placed.”

Id. § 919.01.C.19.

Section 919.02.N.6 provides that “[a]n electronic advertising sign shall not replace

an advertising sign, and an advertising sign shall not replace an electronic advertising

sign, unless the replacement sign meets all of the requirements of Sec. 919 for a new

sign.” Id. § 919.02.N.6. Section 921.03.F subjects nonconforming signs to the Code’s

nonconforming structure regulations, subject to certain modifications. One such

modification appears in Section 921.03.F.2, which provides that “[n]onconforming signs

may not 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. § 921.03.F.2.

With this arcane but necessary lexicon in hand, we turn to the facts of this case.

Lamar owns a parcel of property on Grandview Avenue in the Mount Washington section

of Pittsburgh, overlooking the Golden Triangle (as the City’s downtown is known). The

property contains two legal, nonconforming billboards, only one of which is the subject of

this litigation. The billboard at issue here is a flat-faced concrete billboard that was

erected in the mid-1920s. The billboard consists of a concrete structure measuring thirty-

two by twenty-five feet, or 7,200 square feet (“SF”). Until May 2016, the sign face included

an electronic advertising sign measuring 4,500 SF. The electronic components attached

directly to the concrete sign structure. From 1933 to May 2016, Lamar used the 7,200

SF sign structure to support the 4,500 SF electronic sign.

[J-79-2020] - 3 On March 15, 1928, the Board confirmed the billboard’s legal use as an advertising

sign.1 On October 19, 1933, the Board confirmed the billboard’s legal nonconforming use

as an “electric advertising sign.”2 On June 17, 1985, the City issued a Certificate of

Occupancy for the billboard, again confirming the legality of the nonconforming use.3 The

occupancy permit describes the billboard as measuring 7,200 SF. The City has

continuously accepted Lamar’s payment of the sign permit fee and has continuously

issued a sign permit for the Mount Washington billboard.

For many years leading up to this litigation, the 4,500 SF electronic sign displayed

the logo of Bayer Corporation, the time of day, and advertising content for Bayer. In

daylight, however, the electronic sign was not used. Instead, the billboard displayed

“Pittsburgh” via signage that appeared underneath the electronic components. Bayer’s

use of the billboard ended in 2014. Lamar proceeded thereafter to use the billboard for

display of public service announcements.

In June 2014, Lamar sought approval from Pittsburgh’s Department of City

Planning to renovate the Mount Washington billboard. The proposed renovations

included replacing the electronics and repairing the sign structure, which had deteriorated

over the years. As part of its approval process, the City sought payment of an application

fee from Lamar of $10.00 per square foot of the sign face. When calculating this fee, the

City determined that the billboard was 7,200 SF, and accordingly sought payment of

1 See Ex. 31 to the Board’s and City’s Supplemental Return in the trial court; Reproduced Record (“R.R.”) 293a (a 1928 decision of the Board on appeal from a decision of the Bureau of Building Inspection).

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Related

Mars Area Residents v. Zoning Hearing Board
529 A.2d 1198 (Commonwealth Court of Pennsylvania, 1987)
Lamar Advertising Co. v. Zoning Hearing Board of the Municipality of Monroeville
939 A.2d 994 (Commonwealth Court of Pennsylvania, 2007)
Valley View Civic Ass'n v. Zoning Board of Adjustment
462 A.2d 637 (Supreme Court of Pennsylvania, 1983)
Gorsline v. Bd. of Supervisors of Fairfield Twp.
186 A.3d 375 (Supreme Court of Pennsylvania, 2018)

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