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BEFORE THE ZONING HEARING BOARD OF

LOWER MERION TOWNSHIP, MONTGOMERY COUNTY PENNSYLVANIA



APPEAL NO. 4204

IN THE MATTER OF:

: Applicant - Appellant

AdSmart Outdoor Advertising, Inc.

: 762-766 Old Railroad Avenue : Bryn Mawr, PA 19010

MEMORANDUM, FINDINGS, OPINION AND ORDER

AdSmart Outdoor Advertising, Inc. ("Appellant") leases a portion of the exterior surface

of the building at 764 Old Railroad Avenue in Bryn Mawr for advertising space. [Exhibit A-5,

Wallscape Lease] The property, located in what is referred to as the "five points" neighborhood

of Bryn Mawr, is zoned C 2 Commercial. Appellant's use of the second floor exterior building

surface for a 289 square-foot vinyl advertising sign is the subject of the present appeal.

r. Procedural Background

After being asked in 2009 to investigate the legality of the Appellant's vinyl sign,' Lower

Merion Township Director of Building and Planning, Robert E. Duncan, inspected the property

and issued an enforcement notice to the owner, 762-766 Railroad Avenue Partnership. Mr.

Duncan's notice stated that the off-premises advertising sign was not permitted in the C 2

Commercial district. [Exhibit T-l, Enforcement Notice] On July 15, 2009, the Appellant (not

the property's owner) appealed the notice to the Board. The appeal claimed that a wall sign had

been located on the building for approximately thirty years and that the Appellant was entitled to

I The circumstances of that request and its bearing on the Appellant's appeal will be discussed below.

a variance by estoppel or vested right to maintain the sign. [July 15, 2009 Appeal, ~5] The Appellant waived the requirement that the Board hold a hearing on the appeal within sixty days.

On September 21, 2009, the Appellant wrote a letter to Mr. Duncan requesting that he rescind the enforcement notice. The letter alleged that the Township had issued a permit in 1926 for an off-premises advertising sign on the wall of a building on the property and that the sign became nonconforming in 1927 when the first Lower Merion Zoning Ordinance was adopted. [Broseman Letter of September 21, 2009, attached to Zoning Officer's Memorandum to the Board] The letter further claimed that the current vinyl sign was merely the lawful expansion of the prior nonconforming sign.

On October 8, 2009, the Appellant again wrote to Mr. Duncan with additional allegations in support of its claim that the sign ought to be permitted as the lawful expansion of, or continuation of a nonconforming use. [Broseman Letter of October 8, 2009, attached to Zoning Officer's Memorandum to the Board]

On October 30, 2009, Township Zoning Officer, Michael Wylie, issued a determination addressing the Appellant's nonconforming use claims and refusing to withdraw the previous enforcement notice. [Exhibit T-3] Mr. Wylie's letter stated that the sign regulations in the Lower Merion Zoning Ordinance: (1) require a permit (which the Appellant had not obtained) to alter or replace any sign, (2) prohibit an increase in the size of a nonconforming sign and (3) require that any nonconforming sign that is substantially altered 01' replaced conform to the current regulations.

Appellant filed an appeal from Mr. Wylie's determination on November 25, 2009. That appeal was consolidated, at Appellant's request, with the appeal of the enforcement notice, which

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had yet to be heard. [N.T. 6] With the Appellant's consent, the Board then held a hearing on the

consolidated appeals on April 22, 2010.

Following the hearing, the Appellant and the Township submitted briefs on all the legal

issues raised in the appeal and the Appellant granted the Board an extension of time to October

15, 2010 to render a decision. At the Board's request, the parties also submitted supplemental

briefs on the effect of the Commonwealth Court's then-recent decision in Lamar Advantage OP

Company v. Zoning Hearing Board of Adjustment of the City of Pittsburgh, 997 A.2d 423 (Pa.

Cmwlth.201O).

Now, after carefully considering all the evidence and the parties' briefs, the Board will deny

the appeals and the alternative requests for a variance by estoppel or vested right.

II. Facts Regarding a Sign on the Propeliy

Mr. Wylie testified at the hearing that his review of the township files disclosed that the

Township issued a permit in October 1926 to allow the erection of an off-premises sign, 4' x 7'

6", to be attached to a fence on the property at 764 Railroad Avenue. [N.T. 7-9; Exhibit T-2,

Permit Application and Grant]2 There was no testimony or evidence that the sign permitted by

the Township in 1926 was ever erected ..

The earliest date established at the hearing for any sign having actually been located on

the property is 1960. In that regard, the Appellant introduced two affidavits purporting to be

from long-time owners of businesses in the vicinity of the property. Their affidavits state that an

area (approximately ten feet by thirty feet) of the wall of the building at 764 Railroad Avenue

had been painted with an advertisement for J.I. Skelton Oil Heat from "approximately" 1960 to

2 An "off-premises" sign is one that relates to a business not conducted on the property where the sign is located. The 1926 permit application indicates that the proposed fence sign was to advertise the Seville Theatre (now the Bryn Mawr Theatre), which was not located on the Railroad Avenue property.

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1971. [Exhibit A-2, Barone Affidavit; Exhibit A-3, Iannotta Affidavit] They go on to state, as

does a third affidavit from a former resident of the area, that the same wall was painted with an

advertisement for John J. O'Hanlan Real Estate from 1971 to 1991. [Id.; Exhibit A-1, McGurk

Affidavit] As for the 34-year period between 1926 and 1960, the Appellant had no evidence,

because it was "so darn long ago." [N.T. 23, 30]

Appellant then introduced a number of photographs, which established, according to

Appellant's counsel, that from 1991 to 1997 the wall was painted with an advertisement for Bryn

Mawr Beverage, and from 1997 to 2004 with an advertisement for Founders Bank. [Exhibit A-4,

Photographs of Property; N.T. 28-29] In 2004, Appellant installed a new vinyl sign and wood

frame, without obtaining the required permit. That sign has since been used by two different

advertisers. [N.T. 29-30; Exhibit A-4, pp. 4-5]

III. Appellant's Off-Premises Sign is not Permitted in the C 2 Commercial District; Appellant did not Provide Clear and Convincing Evidence of a Valid Nonconforming Use

Section 93 C of the Lower Merion Zoning Ordinance prohibits any off-premises sign,

except as may otherwise be provided for in the sign regulations. Code §155-93 C. Nowhere else in

the sign regulations is such a sign permitted in the C 2 Commercial District. See Code §155-93.3

(listing permitted signs in commercial districts). Nor is such a sign permitted under the applicable C

2 use regulations. See Code § 155-80. Mr. Wylie's testimony established that the Appellant's sign is

an off-premises sign, a condition not permitted under the Zoning Ordinance and, therefore, properly

the subject of the original June 16,2009 enforcement notice. [N.T. 6-10; Exhibit T-1, Enforcement

Notice]

The Township having proved that the Appellant's sign was in violation of the Zoning

Ordinance, Appellant bore the burden of proving its alleged defenses - that the sign continues a

prior, lawful nonconforming use, or that it has a vested right (or a right to a variance by estoppel) to

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continue to maintain the sign in its present location. In this section, the Board will consider the

Appellant's nonconforming use defense. The other defenses will be discussed in section IV below.3

The right to maintain a nonconforming use applies only to uses that were lawful when they

came into existence and which existed when the zoning ordinance was passed. Hafner v. Zoning

Hearing Board of Allen Township, 974 A.2d 1204 (Pa. Cmwlth. 2009). It is the burden of the party

asserting a nonconforming use to prove both its existence and its legality. Id. This burden:

includes the requirement of conclusive proof by way of objective evidence of the precise extent, nature, time of creation and continuation of the alleged nonconfOlming use.

Jones v. Township of North Huntingdon Zoning Hearing Board, 467 A.2d 1206, 1207 (Pa. Cmwlth.

1983) quoted with emphasis in Lamar Advantage GP Company v. Zoning Hearing Board of

Adjustment of the City of Pittsburgh, 997 A.2d 423 (Pa. Cmwlth. 2010). The Lower Merion Zoning

Ordinance also protects only nonconforming uses that were in existence when the Ordinance

became effective. Code §155-99 A.

Concomitantly, Pennsylvania law does not protect a use that is new 01' is different from the

original nonconforming use. Hanna v. Board of Adjustment of Borough of Forest Hills, 408 Pa.

306, 183 A.2d 539 (1962). In the seminal case of Haller Baking Company's Appeal, 295 Pa. 257,

145 A. 77 (1928), the Supreme Court explored what "existing use" means. The court stated:

As understood in the ordinance, "existing use" should mean the utilization of the premises so that they may be known in the neighborhood as being employed for a given purpose, i.e., the conduct of a business. Ordinarily an existing use for business combines two factors: (a) construction 01' adaptability of a building 01' room for the purpose, and (b) employment of the building 01' room 01' land within the purpose.

3 The Appellant did not raise the nonconforming use defense in its original appeal from the enforcement notice. In that appeal, it claimed only that it had a vested right (01' right to a variance by estoppel) to maintain the sign. Appellant subsequently appealed the Zoning Officer's refusal to rescind the enforcement notice, and alleged in that appeal that the sign was nonconforming. Since the Township agreed to consolidate the appeals, the Board will consider the nonconforming use defense in connection with the original enforcement notice.

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145 A. at 79 (emphasis supplied).

In this matter, the Appellant did not produce any evidence to prove that a sign of any kind

actually existed on the property prior to the adoption of the Lower Merion Zoning Ordinance in

1927. The evidence proved only that the Township issued a permit in October 1926 for a 4' x 7' 6"

off-premises sign to be attached to a fence on the parcel at 764 Railroad Avenue. [N.T. 7-9;

Exhibit T-2, Permit Application and Grant] The Appellant did not proffer any evidence that the

sign was in fact built before 1927 and that it continued to lawfully exist thereafter. Although this

refers to a time that was indeed "so darn long ago," the law requires that a proponent of a

nonconforming use provide conclusive proof through objective evidence of the precise time of

creation and continuation of the use. Jones, supra. The Board recognizes that this sometimes

requires eyewitness testimony relating to events more than eighty years in the past (when the

first Lower Merion Zoning Ordinance was adopted). But that is not an unreasonably

burdensome task when a property owner seeks to perpetuate a use that violates current zoning

restrictions based on claims originating more than eighty years ago." Indeed, the Board recently

had occasion to hear and consider exactly that kind of testimony. Pietropaolo v. Zoning Hearing

Board of Lower Merion Township, 979 A.2d 969, 976 (Pa. Cmwlth. 2009). Here, Appellant's

evidence that a building permit was issued in 1926 did not satisfy the burden to prove that the

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sign was built in 1926 and that it continued to lawfully exist thereafter.

Even if the Board could legitimately assume that the sign was erected on the fence as

indicated in the 1926 permit plan, the Appellant admittedly failed to prove what happened to it

4 See, Harrisburg Gardens, Inc. v. Susquehanna Township Zoning Hearing Board, 981 A.2d 415 (Pa. Cmwlth. 2009) (it is the policy of Pennsylvania courts to closely restrict nonconforming uses).

thereafter and up to 1960. [N.T. 22-26 " ... none of us know ... "] This can hardly be

characterized as conclusive proof that the sign - if it existed - continued to 1960.5

In addition, the Board finds that the painted 10' x 30' sign on the second story wall of the

building at 764 Railroad Avenue, whenever it first came into existence, was not the lawful

continuation of a 4' x 7' 6" sign attached to a fence. Since the 1990s, the Supreme Court has held

that in determining whether a use "continues" a nonconforming use or constitutes a "change" in use,

a zoning board must determine whether the new use is sufficiently similar to the prior

nonconforming use. Limley v. Zoning Hearing Board of Port Vue Borough, 533 Pa. 340, 625 A.2d

54 (1993); Pappas v. Zoning Board of Adjustment of the City of Philadelphia, 527 Pa. 149, 589

A.2d 675 (1991). Here the Board finds that a 300 square-foot wall sign painted on the second-story

facade of a building is qualitatively different (in size, location, material and impact) from a 30

square-foot sign attached to a ground-level fence. See, Ryan, Pennsylvania Zoning Law and

Practice §7.6.3A.

The Board makes the same finding with respect to the change from a painted-on wall sign to

the attached vinyl wood-framed sign, for four reasons. First, while this change might be deemed a

modemization of the painted sign, that circumstance does not automatically equate to a by-right

expansion of a nonconforming use, as Appellant would have it here. The right of expansion granted

to a nonconforming use includes the right to modemize, but that right must be exercised through an

application to the Board for a special exception. See, Lamar Advertising Co. v. Zoning Hearing

Board of the Municipality of Monroeville, 939 A.2d 994 (Pa. Cmwlth. 2007). The Appellant in this

5 Based on our fmdings with respect to the period 1926-1960, the Board makes no determination with respect to the proof - through affidavits only - of the state of the sign during the period 1960-1991. In fairness, the Appellant suggested that the Township representatives had indicated that they would not object to the affidavits and Appellant offered to bring in those witnesses. [N.T.21-22] The Board notes that even where no objection to hearsay evidence is made, a Board must have corroborating evidence in order to base any findings of fact on such hearsay. Appeal of Little Britain Township from the Decision of the Zoning Hearing Board of Little Britain Township, 651 A.2d 606, 615 (Pa. Cmwlth. 1994).

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case never applied for the required special exception under the Lower Merion Zoning Ordinance to

expand (by modernization) the previous sign. See, Code § 155-99 B. Second, the right to modernize

does not apply where the applicant fails to prove the existence of a valid nonconforming use.

Lamar Advertising OP Company v. Zoning Board of Adjustment of the City of Pittsburgh, 997 A.2d

423 (pa. Cmwlth. 2010). Third, the vinyl wood-frame attached sign uses different materials, a

different method of attachment to the building, and presents additional safety concerns not

comparable to the painted-on sign. The Board deems this an impermissible change in use, not a

modernization.

Finally, even if the vinyl wood-framed sign were deemed the continuation of the painted

sign, it would be prohibited by Section 93.4 B of the Zoning Ordinance, which Mr. Wylie cited in

his October 30, 2009 determination and which provides:

Any sign in existence at the time this article becomes effective which is not in conformance with the provisions as set forth herein may be repainted or relettered. If a nonconforming sign is substantially altered or replaced, it must be made to conform with the provisions of this article [i.e., the sign regulations].

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Code §155-93.4 B.

The Appellant did not merely repaint or reletter the painted wall sign. To the contrary, it

completely replaced the painted-on wall sign with a vinyl, wood-framed sign mounted to the wall.

Section 93.4 B operates to prohibit that since the replacement sign does not conform to the existing

commercial district sign regulations (the over-sized sign is essentially a billboard, which can only be

located in manufacturing and industrial districts). Code §§155-92 ("Billboard") and 155-93.3 E.

The Appellant claimed during the hearing that the aforementioned prohibition on replacing

nonconforming signs found in the Lower Merion Zoning Ordinance cannot trump the constitutional

protection that allows nonconforming uses to modernize and expand. [See N.T. 54] The Board

disagrees. In Lamar Advertising GP Company v. Zoning Board of Adjustment of the City of

Pittsburgh, 997 A.2d 423 CPa. Cmwlth. 2010), the Commonwealth Court reviewed the settled

caselaw on expansion of nonconforming uses, assumed that the applicant had established a

nonconforming use of a sign in the relevant location, but held that the municipality's specific local

ordinance provisions prohibiting replacement or enlargement of a nonconforming sign barred the

applicant's request to modernize its nonconforming sign to include a large LED display. Id. at 439.

The same reasoning applies here. The Appellant's replacement of a painted-on wall sign with a 298

square-foot vinyl, wood-framed, mounted wall sign is prohibited under the Lower Merion Zoning

Ordinance, even if the painted-on wall sign had been proven to be lawfully nonconforming.

For all of the foregoing reasons, the Board finds that the Appellant failed to conclusively

prove the precise manner and time of creation of the wall sign, and its continuation throughout the

period of 1926-1960. Moreover, the Lower Merion Zoning Ordinance's sign regulations

specifically prohibit the replacement of nonconforming signs to any configuration that does not

adhere to current limitations. The Appellant's nonconforming use defense is, therefore, of no avail

against the June 16,2009 enforcement notice and the October 30, 2009 determination.

The Appellant Failed to Prove all the Elements of Variance by Estoppel and/or Vested Right

Appellant alternatively claims that it is entitled to a variance by estoppel or a vested right.

These terms are sometimes used interchangeably, as they both refer to an equitable remedy that

prevents a municipality from enforcing a zoning regulation. Appeal of Kreider, 808 A.2d 340 CPa.

Cmwlth. 2002). The Board finds that the Appellant failed to prove all the elements of these

remedies.

One who claims a variance by estoppel must establish all of the following: (1) a long

period of municipal failure to enforce the law, when the municipality knew or should have

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known of the violation, in conjunction with some form of active acquiescence in the illegal use; (2) the landowner acted in good faith and relied innocently upon the validity of the use throughout the proceeding; (3) the landowner has made substantial expenditures in reliance upon his belief that his use was permitted; and (4) denial of the variance would impose an unnecessary hardship on the applicant. Borough of Dormont v. Zoning Hearing Board of the Borough of Dormont, 850 A.2d 826 (Pa. Cmwlth. 2004). Moreover, for a party to prevail under the theory of variance by estoppel, they must establish these factors by clear, precise and unequivocal evidence. Springfield Township v. Kim, 792 A.2d 717 (Pa. Cmwlth. 2002).

In this matter, the Appellant did not prove all the elements of a variance by estoppel by clear, precise and unequivocal evidence.

First, there was no unequivocal evidence that the Township actively acquiesced in a 300 square-foot painted wall sign, or a later vinyl wood-framed wall sign on the subject building. There must have been an affirmative act, such as issuing a permit, for this element to be satisfied. Skarvelis v. Zoning Hearing Board of Borough of Dormont, 679 A.2d 278 (Pa. Cmwlth. 1996); accord, Pietropaolo v. Zoning Hearing Board of Lower Merion Township, 979 A.2d 969 (Pa. Cmwlth. 2009) (inaction for 38 years did not entitle landowner to variance by estoppel in the absence of a permit). In this case, there was no evidence of a permit having been issued for any wall sign at any time.

Second, there was no evidence that the Appellant made substantial expenditures in reliance on the belief that the sign was permitted by the Township. Indeed, there was no evidence at all of Appellant's expenditures.

And third, denial of the variance by estoppel does not constitute an unnecessary hardship, as the property is principally being used for business and other purposes. Pietropaolo, supra.

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As for the closely-related vested rights claim, the Board finds, in addition to the findings on variance by estoppel, that the Appellant did not demonstrate good faith and due diligence throughout in attempting to comply with township regulations. Here, the Appellant did not even apply for a permit to erect the new vinyl sign. The absence of any application precludes a claim of vested right. Lamar Advertising GP Company v. Zoning Board of Adjustment of the City of Pittsburgh, 997 A.2d 423 (Pa. Cmwlth. 2010).6

In sum, the Township sustained its burden to prove that the existing sign violates the Zoning Ordinance. The Appellant did not sustain its burden of proving any of its affirmative defenses.

Appellant Failed to Prove a Conspiracy to Deprive Its Constitutional Rights

Appellant's final argument is that the enforcement notice was served by the Township in retaliation for the assertion of a validity challenge by Appellant's majority shareholder, Thaddeus Bartkowski (through another entity - Bartkowski Investment Group ("BIG"», to the validity of the Haverford Township zoning ordinance. [N.T. 31-34, 38-43] The Board finds that the Appellant failed to prove this claim.

The only evidence tending to at all relate BIG's validity challenge in Haverford Township to Appellant's appeal of Lower Merion's enforcement notice was that a Lower Merion resident, Carla Zambelli, opposed both matters. According to Appellant's attorney, Ms. Zambelli discovered the connection between Appellant and BIG during the course of the Haverford Township hearings, discovered that it was Appellant who leased the space for the vinyl sign in Bryn Mawr, and then complained to Lower Merion's Commissioner for Bryn Mawr, Scott Zelov, about the sign. Mr. Zelov then requested that Mr. Duncan investigate - which led to the issuance of the enforcement notice. [N.T.38-43] Appellant did not produce any witnesses to support this version of events. The fact that Lower Merion Township opposed BIG's challenge in Haverford

6 Appellant's post-hearing brief does not argue the vested rights claim.

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Township and thereafter sent an enforcement notice to a Lower Merion property owner concerning a sign erected by Appellant does not prove that BIG's exercise of a protected First Amendment activity (if indeed a validity challenge is such an activity) was a "substantial or motivating factor" in the issuance of the Lower Merion enforcement notice to the Appellant. Baldassare v. New Jersey, 250 F.3d 188 (3d Cir. 2001).

Moreover, the facts of record do not support the Appellant's claim. Ms. Zambelli testified that she did not file a complaint, but merely asked Mr. Zelov about the Bryn Mawr sign and that she did not even know who owned the sign until after the hearing in this matter was scheduled. [N.T.63-71] Appellant did not, therefore, sustain its burden of proof with respect to the unconstitutional retaliation claim.

Based on all the above findings and conclusions, the Board denies Appellant's request to award it counsel fees and costs.

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ORDER

AND NOW, this 14th day of October, 2010, it is hereby ORDERED, for the reasons set

forth in the foregoing opinion, that:

(1) the appeals of AdSmart Outdoor Advertising, Inc. from the June 16, 2009

enforcement notice and the October 30,2009 determination of the Township Zoning Officer that

the off-premises sign on the building on the property at 764 Old Railroad Avenue is prohibited is

DENIED;

(2) the application for a variance by estoppel or a vested right to allow the sign to

remain on the building is DENIED;

(3) the retaliation claim under 42 U.S.C. §1983 is DENIED; and

(4) the claim for costs and counsel fees is DENIED.

Chairman Aaron, Members Fox and Brier participating, all voting "aye."

Attest:

Michael Wylie Secretary

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