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LMT v AdSmart (again)

LMT v AdSmart (again)

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Published by thereadingshelf
Thiis has to do with the ongoing battle re: billboards in the burbs
Thiis has to do with the ongoing battle re: billboards in the burbs

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Published by: thereadingshelf on Dec 05, 2012
Copyright:Attribution Non-commercial

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12/05/2012

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Adsmart Outdoor Advertising, Inc., ::v. : No. 173 C.D. 2012: Argued: October 15, 2012Lower Merion Township Zoning :Hearing Board and Township :of Lower Merion ::Appeal of: Adsmart Outdoor :Advertising, Inc. :BEFORE: HONORABLE DAN PELLEGRINI, President JudgeHONORABLE ROBERT SIMPSON, JudgeHONORABLE MARY HANNAH LEAVITT, JudgeOPINION NOT REPORTED
MEMORANDUM OPINIONBY JUDGE SIMPSON FILED: December 5, 2012I. Introduction
Adsmart Outdoor Advertising, Inc. (Adsmart) appeals from an orderof the Court of Common Pleas of Montgomery County (trial court)
1
that affirmedan order of the Lower Merion Township Zoning Hearing Board (ZHB) denying
Adsmart’s request for zoni
ng relief regarding its off-premises advertising signlocated on a building in Bryn Mawr. Adsmart contends the trial court erred: infailing to find the off-premises sign use permitted in 1926 constituted a lawful non-conforming use that can continue on the subject property; in failing to find the1926 off-premises fence sign was lawfully expanded into a wall sign; in failing tofind Adsmart had a constitutionally protected right to modernize the off-premises
1
The Honorable Bernard A. Moore presided.
 
2wall sign; and, in failing to find the doctrine of laches barred the Township fromissuing an enforcement notice and determination. Adsmart also contends it is
entitled to costs and fees as a result of the Township’s improper enforcement
action and determination. For the following reasons, we affirm.
II. BackgroundA. Enforcement Notice and Determination; Appeals
In its decision denying Adsmart’s appeals, the ZHB provided the
following background. The subject property is located at 762-766 Old RailroadAvenue in Bryn Mawr. It is improved with a one-story commercial buildingattached to a three-story residential/commercial building in an area zoned C-2Commercial. Adsmart leases a portion of the second floor exterior surface of thetaller building for an attached
10’ by 30’
off-premises advertising wall sign. Thesign faced the intersection of Bryn Mawr Avenue and Haverford Road.In 2009, a Township resident and an active billboard opponent, CarlaZambelli (Ms. Zambelli), inquired as to the legality of the wall sign on the subjectproperty. Thereafter,
the Township’s Director of Building and Planning, Robert E.
Duncan (Planning Director) investigated the legality of the sign. In June 2009,Planning Director inspected the subject property and issued an enforcement noticeto the
 property’s owner. The notice explained the Township’s C
-2 CommercialDistrict did not permit off-premises advertising signs.In July 2009, Adsmart, not the property owner, appealed theenforcement notice to the ZHB. Adsmart asserted an advertising wall sign had
 
3been located on the building wall for approximately 30 years. Adsmart thereforeclaimed entitlement to a variance by estoppel or a vested right to maintain the wallsign.In September 2009, Adsmart wrote a letter to Planning Directorrequesting rescission of the enforcement notice. Adsmart asserted the Townshipissued a permit in 1926 for an off-premises advertising sign prior to the enactmentof the Townshi
 p’s first zoning ordinance in
1927 (1927 Ordinance). Afterenactment of the ordinance,
the sign became a nonconforming use. Adsmart’s
letter further claimed the current vinyl wall sign was a lawful expansion of theprior nonconforming painted wall sign. In October 2009, Adsmart wrote anotherletter asserting the sign should be permitted as a lawful expansion or continuationof a valid nonconforming use.
In October 2009, the Township’s zoning officer, Michael Wylie(Zoning Officer), issued a determination rejecting Adsmart’s nonconforming use
assertions. He also refused
to withdraw the enforcement notice. Zoning Officer’s
determination stated the current Zoning Ordinance: (1) requires a permit to alter orreplace any sign, which Adsmart did not obtain; (2) prohibits an increase in thesize of any nonconforming sign; and (3) requires that any nonconforming signwhich is substantially altered or replaced now conform to regulations pertaining tosigns in Article XIX of the Zoning Ordinance (see Twp. Code §§155-91
 — 
155-93.6).

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