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

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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
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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.
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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). [Note to Reader: “Return” appears to be
the term used for exhibit submissions in proceedings before the Board].
2 See Ex. 20 to the Board’s and City’s Return in the trial court; R.R. 168a-169a (a
1933 decision of the Board on appeal from a decision of the Bureau of Building
Inspection).
3 See Ex. 19 to the Board’s and City’s Return in the trial court; R.R. 167a (Certificate
of Occupancy).
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$72,000. The City also sought additional information from Lamar. Lamar paid the
application fee and submitted the requested information. In November 2014, the City
sought additional information, which Lamar provided. Although Lamar believed that its
application was complete, the City did not. The City took no further action on the
application.
Speaking publicly about the billboard and Lamar’s application, Pittsburgh’s Mayor
and other City officials reportedly stated that Lamar’s application would not be approved
unless the City also approved the content of the message that would be displayed on the
billboard.4
In May 2016, Lamar pressed on nonetheless. Without approval, it installed a static,
vinyl advertisement over the entire 7,200 SF sign structure, ratcheting the vinyl to the
concrete and covering the existing electronic sign. The vinyl sign was a black and gold
advertisement for Sprint, a telecommunications company. Pittsburgh’s Assistant Director
for Permits, Licenses, and Inspections (“PLI”) directed its senior building inspector to
inspect the installation. Based upon that inspection, Pittsburgh officials determined that
the billboard violated the Zoning Code.
On June 13, 2016, PLI issued a notice of violation to Lamar, informing Lamar that
its installation of the vinyl sign violated two provisions of the Zoning Code: Section
921.03.F.2 (barring the enlargement of, addition to, or replacement of a nonconforming
sign without approval) and Section 919.01.J (requiring the removal of an advertising sign
when a business has been terminated). Each alleged violation arose from Lamar’s use
of the vinyl static sign over the 7,200 SF sign structure.
4 See Ex. 30 to the Board’s and City’s Return in the trial court; R.R. 289a-290a (an
article from Pittsburgh Local CBS/KDKA, May 22, 2015, quoting the City’s Mayor stating
“[w]hat they were trying to do was to go to Giant Eagle and tell them that they could
advertise for chipped ham and the [billboard] would say what the specials are with
Klondikes and milk and that was never going to happen in this city.”).
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Lamar filed a protest appeal. On November 1, 2016, the Board conducted a
hearing. Testimony from City employees established that the static vinyl sign did not
change the size of the sign structure, but rather increased the size of the advertising
content from the 4,500 SF that had been used for the electronic sign to the entire 7,200
SF area of the sign structure.
Following the hearing, the Board held that Lamar had installed the static vinyl sign
without approval, in violation of the Zoning Code. In so holding, the Board reasoned that
the 7,200 SF sign structure had never been used for advertising. Rather, only the 4,500
SF electronic sign had been used. When Lamar covered the entire 7,200 SF sign
structure, it replaced the 4,500 SF electronic sign with the 7,200 SF vinyl sign. The Board
held that this enlarged the area of the sign, in violation of Section 921.03.F.2.
The Board further held that Lamar violated Section 919.01.J by failing to remove
the electronic Bayer signage after its business relationship with Bayer ended. In reaching
its decision, the Board also opined that Lamar’s conduct violated Sections 919.02.N.25
and 919.02.N.6,6 although PLI had not cited Lamar for violating these two sections.
Finally, the Board concluded, sua sponte, that Lamar had abandoned the prior
nonconforming use of the sign structure under Section 921.02.B.2 by changing the sign
from electronic to vinyl, and that this abandonment meant that the prior nonconforming
use could not continue.
5 Section 919.02.N.2 prohibits “structural alteration, enlargement, or extension” of a
nonconforming sign unless “the alteration is required by law or will eliminate the
nonconforming condition.” PITTSBURGH, PA., ZONING CODE § 919.02.N.2.
6 Section 919.02.N.6 prohibits replacing an advertising sign with an electronic
advertising sign and vice versa “unless the replacement sign meets all of the
requirements of Sec. 919 for a new sign.” PITTSBURGH, PA., ZONING CODE § 919.02.N.6.
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Lamar appealed to the Court of Common Pleas, which reversed the Board. The
court recognized that, because it took no additional evidence, it was required to consider
whether the Board committed an error of law, abused its discretion, or made findings that
were not supported by the record.7 The court concluded that the Board exceeded its
jurisdiction by venturing beyond the two provisions under which PLI had cited Lamar. The
court also agreed with Lamar that it did not need a permit to change the Mount
Washington billboard from an electronic sign to a vinyl sign under Section 921.03.F.2. In
this respect, the court found no indication that Lamar enlarged, added to, or replaced the
sign. Rather, the City’s evidence before the Board demonstrated that the size of the sign
structure had not changed with the installation of the static vinyl sign, and that the vinyl
sign only increased the size of the advertising content. According to the court, the Board’s
conclusion that Lamar impermissibly enlarged the area of the sign conflicted with the
definition provided in Section 919.01.C.16 for “area of sign.” The court did not discuss
Section 919.01.J.
The City appealed to the Commonwealth Court, which proceeded to affirm the
decision of the Court of Common Pleas. Waiving any challenge related to Section
919.01.J, the City confined its appeal to Section 921.03.F.2. The City argued that it
correctly considered the measurements of the sign face as most recently used, or 4,500
SF, separately from the dimensions of the sign structure, or 7,200 SF. The
Commonwealth Court rejected this argument, relying upon the Board’s finding that the
size of the advertising content increased but the size of the sign face or sign structure did
not. Because Lamar had not increased the area of the sign, the Commonwealth Court
held that Lamar did not violate Section 921.03.F.2.
7 See Mars Area Residents v. Zoning Hearing Bd., 529 A.2d 1198, 1199 (Pa.
Cmwlth. 1987).
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The City of Pittsburgh petitioned this Court, and on April 6, 2020, we granted review
as to the following issue:
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. Commw. Ct. 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?
Lamar Advantage GP Co., LLC v. City of Pittsburgh Zoning Bd. of Adjustment, 228 A.3d
888 (Pa. 2020).
We take note first of two relevant parameters: (1) When the trial court takes no
additional evidence in an appeal from the determination of a zoning hearing board, an
appellate court’s scope of review is limited to determining whether the zoning board
committed an error of law or abused its discretion;8 and (2) Whether a particular use falls
within a category specified in a zoning ordinance is a question of law. 9 Accordingly, our
review here is limited to determining whether the Board committed an error of law.
On this appeal, the City focuses upon the differences between an electronic sign
and a vinyl sign, arguing that the lower courts failed to address the distinction between
the two as described by the Commonwealth Court in Lamar v. Monroeville, 939 A.2d 994(Pa. Cmwlth. 2007). In that case, Lamar sought to replace seventeen existing static vinyl
signs with electronic LED signs. Id. at 997. The municipality of Monroeville informed
Lamar that this change would require conditional use and site plan approval before a
building permit would be considered under Monroeville’s Zoning Ordinance. Id. at 998.
Lamar appealed this determination to the Monroeville Zoning Hearing Board (“ZHB”),
8 Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637, 639 (Pa.
1983).
9 Gorsline v. Bd. of Supervisors of Fairfield, 186 A.3d 375, 385 (Pa. 2018).
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arguing that, because the LED screen would replace the vinyl advertising copy, it was a
modernization to a lawful nonconforming use. Id. Lamar further argued that, because
the proposed changes were not structural, they were not subject to Monroeville’s Zoning
Ordinance. Id. The ZHB rejected these arguments, finding that Lamar failed to present
any evidence to substantiate its assertion that the billboards were lawful, nonconforming
uses. Id. The ZHB further concluded that the proposed alterations were not limited to
the sign face, but would also change the billboards’ structures. Id. Because Lamar failed
to establish the billboards’ nonconforming use, its proposed changes required conditional
use and site plan approval under the Monroeville Zoning Ordinance. Id. Lamar sought
review in the Court of Common Pleas, which proceeded to affirm the Board.
On appeal to the Commonwealth Court, Lamar argued that the seventeen
billboards were lawful, nonconforming structures as defined in the Municipalities Planning
Code, 53 P.S. § 10107. As such, Lamar asserted, it had a right to modernize its existing
billboards, and changing the sign face did not constitute a structural change that required
site plan or conditional use approval. 939 A.2d at 1001.
The Commonwealth Court disagreed, rejecting Lamar’s assertion that the
billboards were legal, nonconforming uses. Id. at 1002-03. Because it was Lamar’s
burden to establish the legal, nonconforming use before the ZHB, and because Lamar
failed to produce any evidence to substantiate this assertion, the Commonwealth Court
found no record support for Lamar’s argument. Id. Therefore, the Commonwealth Court
found, Lamar had no right to modernize its billboards. Id. at 1003.
The Commonwealth Court turned to whether Lamar’s proposed changes
constituted a change in structure, inasmuch as Monroeville’s Zoning Ordinance required
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permits to enact certain changes in a structure.10 The Commonwealth Court held that
changing billboards from conventional signs to LED signs involved significant structural
alterations to the billboard structure and thus required a zoning permit. Id. at 1004.
Relying upon Lamar v. Monroeville, the City argues here that a static vinyl sign is
so different from an electronic sign that the one cannot ever replace the other without
prior approval under applicable zoning requirements. Premised upon this interpretation
of Lamar v. Monroeville, the City argues that the Board correctly determined that the vinyl
sign was distinct from the electronic sign and required new approval and permits. In this
respect, the City relies upon the credited testimony of the City’s Zoning Administrator that
the support structure is not part of the electronic sign face. According to the City,
ratcheting the vinyl sign over the electronic sign drastically altered the manner in which
the support structure was used.
Lamar disagrees with the City’s assertion that Lamar v. Monroeville conflicts with
the Commonwealth Court’s holding in this case, maintaining instead that the earlier case
is not controlling. Lamar emphasizes that there was a dispute in Lamar v. Monroeville
about whether the seventeen billboards were legal nonconforming uses, whereas, in this
case, the parties agree that the Mount Washington billboard is a legal nonconforming use
and structure.
Lamar observes that the renovations it proposed in Lamar v. Monroeville
necessitated structural alterations to seventeen billboards, whereas its placement of the
vinyl sign over the sign structure of the Mount Washington billboard did not require any
structural alterations. Finally, responding to the City’s argument under Section
10 Monroeville Zoning Ordinance Section 106 provided that “[n]o structure shall be
located, erected, constructed, reconstructed, moved, altered, converted, or enlarged, nor
shall any structure or land be altered or used, except in full compliance with all the
provisions of this Ordinance and after the lawful issuance of all permits and certificates
required by this Ordinance.” Lamar v. Monroeville, 939 A.2d at 1003.
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921.03.F.2, Lamar argues that its placement of the vinyl sign on the Mount Washington
billboard complies with this provision, which is the only regulation under which Lamar was
cited that remains relevant at this point in the litigation.
Before addressing the issue before us, we must observe that the only citations that
the City issued to Lamar were for violating Sections 921.03.F.2 and 919.01.J. The Board
sua sponte chose nonetheless to speculate that Lamar also had violated Sections
919.02.N.2 and 919.02.N.6 and, additionally, that Lamar had abandoned the billboard
under Section 919.02.B.2. Although these latter provisions may have been relevant to the
Board’s interpretation of Section 921.03.F.2, the Board’s sua sponte findings of such
violations were beyond the Board’s jurisdiction and are not part of this appeal.11 The
Board’s role in this case was solely to interpret the provisions of the Zoning Code that
formed the basis of the citations that the City had issued.
Of the two provisions referenced in the City’s citations, only Section 921.03.F.2
remains part of the case.12 This section provides that nonconforming signs may not be
enlarged, added to, or replaced by another nonconforming sign, use, or structure (except
for an exception inapplicable here).13 The sole issue that the City chose to raise in this
Court is whether, under Lamar v. Monroeville, a static vinyl advertising sign could replace
an electronic advertising sign.
11 See PITTSBURGH, PA., ZONING CODE § 923.02.B.1 (vesting the Board with the power
“[t]o hear and decide appeals where it is alleged that there is an error in any order,
requirement, decision or determination made by the Zoning Administrator . . . and, upon
appeal, to interpret any provision of this Code where its meaning or application is in
question.”).
12 As noted, the City did not raise any issues related to Section 919.01.J on appeal.
13 An exception exists for “the substitution or interchange of poster panels and
painted boards on nonconforming signs.” Section 921.03.F.2. This exception is not
implicated in this case.
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There are legal and factual distinctions that limit Lamar v. Monroeville’s
applicability to this case. First, Lamar v. Monroeville involved a different zoning
ordinance. Section 106 of the Monroeville Zoning Ordinance barred the alteration of any
structure without prior acquisition of all necessary permits. Lamar v. Monroeville, 939
A.2d at 1003. The focus in Lamar v. Monroeville was, therefore, on the significance of
the proposed structural alterations. In this case, the basis of the citation under 921.03.F.2
was that the vinyl sign “replaced” or “enlarged” the sign face.14
Second, the Commonwealth Court in Lamar v. Monroeville relied upon Lamar’s
failure to establish that the seventeen billboards were legal nonconforming uses. It was
Lamar’s burden there to establish the legal nonconforming use before Monroeville’s
Zoning Hearing Board, and Lamar presented no evidence to support its assertion.
Lamar’s failure in that regard undermined its ability to defend the alteration of the
billboards in that case. By contrast, the parties here agree that the Mount Washington
billboard is a legal nonconforming use and has existed as such for over ninety years.
When the City issued an occupancy permit in 1985, it noted that the Mount Washington
billboard was permitted as a “ground sign” measuring 7,200 SF. Since then, the City has
continued to accept Lamar’s annual permit fees and has issued a sign permit every year.
As the Mount Washington billboard is a legal nonconforming use, Lamar has a right to
continue that use.15
14 See Zoning Board of Adjustment, Case No. 302 of 2016, 2/6/2017, ¶ 18; R.R. 31a
(holding that “Lamar’s installation of the 7,200 sf Vinyl Sign, a static advertising sign, as
a replacement for the nonconforming, 4,500 sf electronic [s]ign, violated Code Section
921.03.F”); id. ¶ 19; R.R. 31a (holding that the vinyl sign enlarged the area used for the
electronic sign).
15 See PITTSBURGH, PA., ZONING CODE § 921.02 (providing that a “nonconforming use
which has a valid Certificate of Occupancy and lawfully occupies a structure or vacant
site on the date that it becomes nonconforming may be continued as long as it remains
otherwise lawful. . . “).
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Third, Lamar’s proposed alterations in Lamar v. Monroeville were substantial.
There, Monroeville’s Zoning Ordinance provided that “no structure shall be located,
erected, constructed, reconstructed, moved, altered, converted, or enlarged” except in
compliance with all requirements of the Ordinance. Lamar v. Monroeville, 939 A.2d at
1003. Lamar proposed to remove the static sign structure from seventeen billboards and
replace them with new sign structures containing LED displays. This renovation would
include the installation of electric services and cables, as well as air conditioning units
that would be bolted permanently to the billboards. Id. at 998. The extent of the
renovations caused the Commonwealth Court to conclude that the structural alterations
required conditional use and site plan approval.16
In this case, Lamar’s display of the vinyl sign required no structural alterations to
the Mount Washington billboard. The City’s own witness testified before the Board that
the static vinyl sign did not replace or enlarge the sign structure.17 And Lamar’s use of
the vinyl sign did not change the use of the Mount Washington billboard. Rather, the vinyl
sign was placed over the electronic sign, the components of which remain where they
were. The decisive factor that drove Lamar v. Monroeville—the structural alterations—is
absent here.
The conclusion in Lamar v. Monroeville that the change from conventional signage
to LED signage required zoning permits was premised upon the pertinent language of
Monroeville’s Zoning Ordinance, Lamar’s failure to establish the billboards as legal
nonconforming uses, and the significant structural alterations that the change would
16 Id. at 1004 (“The evidence showed that the change from conventional signage to
LED screens required significant structural alterations to the billboard structure; as such,
they required a zoning permit under Section 502 of the Zoning Ordinance.”).
17 Notes of Testimony, Zoning Board of Adjustment, 11/10/2016, at 23-25; R.R. 80a-
82a.
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entail. None of these circumstances are present in today’s case. Because of these
differences, Lamar v. Monroeville is distinguishable. We therefore answer the sole
question before us in the negative: the Commonwealth Court’s decision below is not
inconsistent with Lamar v. Monroeville.
Having resolved the issue before us, our task is complete. We did not grant review
over any other basis to sustain the City’s citation under Section 921.03.F.2. Although the
City seeks now to argue that the installation of the 7,200 SF static vinyl sign impermissibly
enlarged the 4,500 SF sign face, this argument is beyond the scope of our allocatur
grant.18
We conclude that Lamar v. Monroeville is not helpful in ascertaining whether
Lamar violated Section 921.03.F.2. The holding there was driven by the significant
structural alterations required for the proposed renovations, and by the meaning of those
alterations under the Monroeville Zoning Ordinance. By contrast, Lamar’s ratcheting of
a vinyl static sign over an existing electronic sign here involved no structural alterations.
Accordingly, Lamar v. Monroeville is not controlling. We affirm the order of the
Commonwealth Court.
Justices Baer, Todd and Donohue join the opinion.
Chief Justice Saylor files a dissenting opinion in which Justices Dougherty and
Mundy join.
18 The Dissenting Opinion maintains that this Court should delve beyond the
controlling effect of Lamar v. Monroeville in an effort to shed light upon the pertinent land-
use regulations. See Dissenting Opinion at 1-2. While we do not disagree that the land-
use regulations could benefit from judicial clarification, the sole issue that the City chose
to raise in this Court is whether, under Lamar v. Monroeville, a static vinyl advertising sign
could replace an electronic advertising sign. It is that question which we resolve today.
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