LMT v AdSmart (again)

7/30/2019 LMT v AdSmart (again)

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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, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

OPINION NOT REPORTED

MEMORANDUM OPINIONBY JUDGE SIMPSON FILED: December 5, 2012

I. Introduction

Adsmart Outdoor Advertising, Inc. (Adsmart) appeals from an order

of the Court of Common Pleas of Montgomery County (trial court) 1 that affirmed

an order of the Lower Merion Township Zoning Hearing Board (ZHB) denying

Adsmarts request for zoning relief regarding its off-premises advertising sign

located on a building in Bryn Mawr. Adsmart contends the trial court erred: in

failing 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 the

1926 off-premises fence sign was lawfully expanded into a wall sign; in failing to

find Adsmart had a constitutionally protected right to modernize the off-premises

1The Honorable Bernard A. Moore presided.


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wall sign; and, in failing to find the doctrine of laches barred the Township from

issuing an enforcement notice and determination. Adsmart also contends it is

entitled to costs and fees as a result of the Townships improper enforcement

action and determination. For the following reasons, we affirm.

II. Background

A. Enforcement Notice and Determination; Appeals

In its decision denying Adsmarts appeals, the ZHB provided the

following background. The subject property is located at 762-766 Old Railroad

Avenue in Bryn Mawr. It is improved with a one-story commercial building

attached to a three-story residential/commercial building in an area zoned C-2

Commercial. Adsmart leases a portion of the second floor exterior surface of the

taller building for an attached 10 by 30 off-premises advertising wall sign. The

sign faced the intersection of Bryn Mawr Avenue and Haverford Road.

In 2009, a Township resident and an active billboard opponent, Carla

Zambelli (Ms. Zambelli), inquired as to the legality of the wall sign on the subject

property. Thereafter, the Townships 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 notice

to the propertys owner. The notice explained the Townships C-2 Commercial

District did not permit off-premises advertising signs.

In July 2009, Adsmart, not the property owner, appealed the

enforcement notice to the ZHB. Adsmart asserted an advertising wall sign had


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been located on the building wall for approximately 30 years. Adsmart therefore

claimed entitlement to a variance by estoppel or a vested right to maintain the wall

sign.

In September 2009, Adsmart wrote a letter to Planning Director

requesting rescission of the enforcement notice. Adsmart asserted the Township

issued a permit in 1926 for an off-premises advertising sign prior to the enactment

of the Townships first zoning ordinance in 1927 (1927 Ordinance). After

enactment of the ordinance, the sign became a nonconforming use. Adsmarts

letter further claimed the current vinyl wall sign was a lawful expansion of the

prior nonconforming painted wall sign. In October 2009, Adsmart wrote another

letter asserting the sign should be permitted as a lawful expansion or continuation

of a valid nonconforming use.

In October 2009, the Townships zoning officer, Michael Wylie

(Zoning Officer), issued a determination rejecting Adsmarts nonconforming use

assertions. He also refused to withdraw the enforcement notice. Zoning Officers

determination stated the current Zoning Ordinance: (1) requires a permit to alter or

replace any sign, which Adsmart did not obtain; (2) prohibits an increase in the

size of any nonconforming sign; and (3) requires that any nonconforming sign

which is substantially altered or replaced now conform to regulations pertaining to

signs in Article XIX of the Zoning Ordinance (see Twp. Code 155-91155-

93.6).


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Adsmart appealed Zoning Officers determination to the ZHB.

Thereafter, the ZHB granted Adsmarts request that its appeals from the

enforcement notice and Zoning Officers determination be consolidated.

B. ZHB Hearing

In April 2010, the ZHB held a hearing at which the parties submitted

evidence. Zoning Officer testified on behalf of the Township. In addition to

presenting argument, Adsmarts counsel, Marc B. Kaplin (Adsmarts Counsel),

testified as a witness regarding the history of the sign. The ZHB heard testimony

from Harold Wilson, a representative of the Bryn Mawr Civic Association, which

opposed the sign. Ms. Zambelli, the individual who initially inquired into the

legality of the sign, also testified.

C. ZHBs Decision

1. Sign History

Based on the record, the ZHB found the Township issued a permit in

1926 for the erection ofa 4x 76 off-premises advertising sign to be nailed to a

ground level fence at the subject property. However, the parties provided no

testimony or evidence establishing that the 1926 sign was erected.

Rather, the earliest date established for any sign located on the

property is 1960. At the hearing, Adsmart submitted three affidavits from

individuals familiar with the neighborhood and subject property. These affidavits

state that an approximately 10 x 30 area of a wall of the building on the subject

property had been painted with off-premises advertisements. In 2004, Adsmart,


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without obtaining a permit, installed a vinyl sign with a wood frame attached to the

wall. Since that time, two advertisers used the sign.

2. Zoning Ordinance

The ZHB noted that Section 93-C of the Zoning Ordinance prohibits

any off-premises sign except as provided in its sign regulations. Twp. Code 155-

93C. Nowhere in the sign regulations is an off-premises advertising sign permitted

in the C-2 Commercial District. See Twp. Code 155-93.3 (list of signs permitted

in commercial, manufacturing and industrial districts). Therefore, Adsmarts off-

premises advertising sign violated the Zoning Ordinance. Consequently, Adsmart

bore the burden of proving its alleged defenses: either the sign constituted a lawful

nonconforming use or Adsmart has a vested right, or a right to a variance by

estoppel, to maintain the sign in its present location.

3. Nonconforming Use

The right to maintain a lawful nonconforming use applies only to usesthat were lawful when the use came into existence and which existed when the

ordinance was enacted. Hafner v. Zoning Hearing Bd. of Allen Twp., 974 A.2d

1204 (Pa. Cmwlth. 2009). The party asserting a nonconforming use must prove

both its existence and legality. Id. This heavy 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 nonconforming use. Jones v. Twp. of N.

Huntingdon Zoning Hearing Bd., 467 A.2d 1206, 1207 (Pa. Cmwlth. 1983)

(emphasis added).


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Here, the ZHB observed, Adsmart failed to establish any kind of sign

existed on the subject property prior to the adoption of the 1927 Ordinance. The

evidence shows only that the Township issued a permit in 1926 for a 4x 7 6 sign

to be attached to a fence. See Ex. T-2; Reproduced Record (R.R.) at 149a-56a.

Zoning Officer testified to a permit issued back in 1926 for an off premises sign

to advertise the Seville Theatre, the Bryn Mawr Theatre. Notes of Testimony

(N.T.), 4/22/10, at 7; R.R. at 29a. The sign was to be nailed to a fence. Id. at 8;

R.R. at 30a. The sign measured 4 by 76. Id. at 9; R.R. at 31a.

Adsmart, however, failed to present evidence establishing the

construction of a fence sign in 1926 or its continued existence until the erection of

the painted wall sign in 1960. As noted, conclusive proof by objective evidence of

the precise time, creation and continuation of the use is required. Jones. See also

Lamar Adver. Co. v. Zoning Hearing Bd. of Mun. of Monroeville, 939 A.2d 994

(Pa. Cmwlth. 2007) (billboard may not be modernized as natural expansion of

nonconforming use where there is no evidence it lawfully existed before enactment

of applicable zoning ordinance).

Further, the ZHB reasoned Adsmarts burden of proof did not present

an unreasonable task where Adsmart sought to perpetuate a nonconforming use

based on claims that originated more than 80 years ago. In Pietropaolo v. Zoning

Hearing Board of Lower Merion Township, 979 A.2d 969 (Pa. Cmwlth. 2009), the

ZHB considered testimony regarding the nonconforming commercial use of a

garage in a residential district dating back to the 1930s. In short, the ZHB stressed,

the law requires conclusive proof, through objective evidence, of the precise time


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of creation and continuation of the use. Pietropaolo; Hafner; Jones. Here, the

ZHB determined evidence that the Township issued a building permit for a fence

sign in 1926 did not satisfy Adsmarts burden to prove the sign was actually built

prior to the 1927 Ordinance or continued thereafter.

Even assuming someone erected a 4 x 76 sign on a ground level

fence, the ZHB further found that a 10 x 30 wall sign painted on the second story

faade of a building is qualitatively different in size, location, material and impact.

The right of expansion, including the right to modernize, must be exercised in

accord with the applicable zoning regulations. Mun. of Monroeville; see also

Lamar Advantage GP Co. v. Zoning Bd. of Adjustment, 997 A.2d 423 (Pa.

Cmwlth. 2010) (replacement of smaller conventional billboard with significantly

larger electronic billboard required zoning relief). Here, the ZHB found, Adsmart

never sought Township zoning approval for the change from the smaller fence sign

to the larger painted wall sign. Citing Limely v. Zoning Hearing Board of Port

Vue Township, 533 Pa. 340, 625 A.2d 54 (1993) and Pappas v. Zoning Board of

Adjustment, 527 Pa. 149, 589 A.2d 675 (1991), the ZHB noted that it is within the

province of a zoning board to determine whether a use continues as a

nonconforming use or constitutes a change in use. Thus, the ZHB must determine

whether the new use is sufficiently similar to the prior nonconforming use. Id.

Here, the Board found a 300 square-foot sign painted on the second story to be

qualitatively different from a 30 square-foot sign attached to a ground level fence.

ZHB Op., 10/14/10, at 7.


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The ZHB made a similar finding with respect to the change from the

painted wall sign to the attached vinyl sign. Again, Adsmart never applied for a

permit or sought zoning approval2 to modernize the painted wall sign by attaching

a wood-framed vinyl sign to the wall. The vinyl sign uses different materials, a

different method of attachment and presents safety concerns not presented by the

painted sign. The ZHB found this to be a change in use, not a modernization or

continuation of a nonconforming use. Lamar Advantage; Mun. of Monroeville.

In addition, the ZHB observed, Section 93.4B of the Zoning

Ordinance 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 [Article

XIX Signs]. See Twp. Code 155-93.4B (emphasis added). Here, Section 93.4B

prohibited the replacement of the painted wall sign with the attached wood framed

vinyl sign. Also, Section 93.3E of the Zoning Ordinance provides that billboards

are permitted uses only in the manufacturing and industrial districts. Id. at 155-

93.3E. Thus, the sign could not be replaced in a C-2 commercial district.

4. Summary: Nonconforming Use

Summarizing the reasons for its decision, the ZHB rejected Adsmarts

claim that the Zoning Ordinances prohibition on replacement of nonconforming

signs cannot trump the constitutional protection allowing nonconforming uses to

2 Section 99B of the Zoning Ordinance provides, A nonconforming use may be

expanded or extended when authorized as a special exception . Twp. Code 155-99B.


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modernize and expand. First and foremost, the ZHB determined Adsmart failed to

conclusively establish the precise manner and creation of the 1926 sign, and its

continuation throughout the period of 1926-1960. Consequently, Adsmart never

proved a valid nonconforming use existed from 1927-1960. Pietropaolo; Hafner;

Jones. Second, the ZHB determined Section 93.4B of the Zoning Ordinance

prohibited the replacement of the painted wall sign with an attached vinyl wall

sign. Therefore, the ZHB concluded, Adsmarts natural expansion argument fails.

Lamar Advantage.

For these reasons, the ZHB determined Adsmarts nonconforming use

defense to the Zoning Officers enforcement notice and determination fails.

5. Variance by Estoppel/Vested Right

The ZHB next addressed Adsmarts alternative claim of entitlement to

a variance by estoppel or a vested right. The ZHB noted these terms are used

interchangeably and refer to an equitable remedy that prevents a municipality fromenforcing a land use regulation. Appeal of Krieder, 808 A.2d 340 (Pa. Cmwlth.

2002). A party claiming variance by estoppel must establish: (1) a long period of

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

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 made substantial

expenditures in reliance on his belief that the use was permitted; and (4) denial of

the variance would impose an unnecessary hardship on the applicant. Pietropaolo;

Borough of Dormont v. Zoning Hearing Bd. of Borough of Dormont, 850 A.2d

826 (Pa. Cmwlth. 2004). These factors must be established by clear, precise and


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Next, the ZHB dismissed Adsmarts vested rights claim. It found

Adsmart did not demonstrate good faith or due diligence in an attempt to comply

with Township regulations. See Lamar Advantage (applicant failed to establish a

vested right under the standards in Petrosky v. Zoning Hearing Bd. of Twp. of U.

Chichester, Delaware County, 485 Pa. 501, 402 A.2d 1385 (1979): due diligence in

attempting to comply with the law; good faith throughout the proceedings; the

expenditure of substantial unrecoverable funds; the expiration of an appeal period

without an appeal from the issuance of a permit; and, the insufficiency of evidence

to prove that individual property rights or the public health, safety and welfare

would be adversely affected by the use of the permit).

6. Conspiracy; Retaliation

Last, the ZHB dismissed Adsmarts claim that the Township violated

Adsmarts First Amendment rights by issuing its enforcement notice in retaliation

for the assertion of a validity challenge involving billboards in neighboring

Haverford Township by Adsmarts majority shareholder, Thaddeus Bartkowski. In

so doing, the ZHB determined Adsmart failed to produce any witnesses supporting

its retaliation claim. See ZHB Op. at 11-12.

7. Counsel Fees and Costs

In light of its denial of Adsmarts arguments and appeals, the ZHB

denied Adsmarts request for counsel fees and costs.


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D. Trial Courts Order

Adsmart appealed. Taking no evidence, the trial court affirmed the

ZHB. Adsmart appeals to this Court.

III. Issues

Adsmart raises four issues for our review. It contends the trial court:

erred in failing to find the off-premises sign use permitted in 1926 constituted a

lawful non-conforming use under the 1927 Ordinance that can continue on the

subject property; erred in failing to find the 1926 off-premises sign was lawfully

expanded; erred in failing to find Adsmart had a constitutionally protected right to

modernize the off-premises sign; and, erred in failing to find the doctrine of laches

barred the Township from issuing an enforcement notice and determination.

Adsmart also contends it is entitled to costs and fees as a result of the Townships

improper enforcement action and determination.

Adsmarts arguments notwithstanding, where, as here, the trial court

takes no additional evidence, our focus is on the ZHB adjudication, not the opinion

of the trial court. Thus, our review is limited to determining whether the ZHB

committed an abuse of discretion or an error of law. Pietropaolo. It is the function

of the ZHB to weigh the evidence. Id. The ZHB is the sole judge of the witnesses

credibility and the weight afforded their testimony. Id. Thus, when supported by

substantial evidence, the ZHBs findings are binding on appeal. Id. As such, this

Court will not substitute its interpretation of the evidence for that of the ZHB. Id.


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In addition, the ZHB is the entity responsible for the interpretation and

application of its zoning ordinance. Id. Therefore, the ZHBs interpretation of its

ordinance is entitled to great deference from a reviewing court. Id.

IV. Discussion

A. 1926 Sign Permit

1. Argument

Adsmart contends the trial court erred in failing to find the off-

premises sign use permitted in 1926 constituted a lawful non-conforming use under

the 1927 Ordinance that can continue on the subject property. Our Supreme Court,

Adsmart asserts, affords nonconforming uses protection of a constitutional

dimension. Pa. Nw. Distribs., Inc. v. Zoning Hearing Bd. of Twp. of Moon, 562

Pa. 186, 584 A.2d 1372 (1991). The right to continue a nonconforming use after

the enactment of a zoning change prohibiting that use is protected by the due

process clause. Id. Also, Pennsylvania citizens enjoy an inherent and indefeasible

right to possess and protect property. Id.

Further, the right to maintain an existing nonconforming use includes

the right to make necessary alterations and expansions to that use. Nettleton v.

Zoning Bd. of Adjustment, 574 Pa. 45, 828 A.2d 1033 (2003). Municipalities may

not prevent the owner of a nonconforming property from making those necessary

additions to an existing structure as are needed for its natural expansion. Pa. Nw.

Distribs. This includes the construction of additions to a structure used in a

nonconforming use within an area used for that use. Appeal of Peirce, 384 Pa.

100, 119 A.2d 506 (1956).


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Adsmart also asserts that modernization of a nonconforming use will

not defeat its existence. See Firth v. Scherzberg, 366 Pa. 443, 77 A.2d 443 (1951)

(the use of modern and more effective instrumentalities in a business does not

constitute a change in the nonconforming use); Clanton v. London Grove Twp.

Zoning Hearing Bd., 743 A.2d 995 (Pa. Cmwlth. 2000) (nonconforming use of

processing topsoil did not become a new use by drying and bagging topsoil on

premises rather than loading it on a truck).

Turning to present case, Adsmart argues, when the Township issued a

sign permit in 1926, the off-premises advertising sign constituted a legal use. The

enactment of the 1927 Ordinance, which created a prohibition against off-premises

advertising signs, rendered the 1926 sign a legal nonconforming use on the subject

property. Section 1307 of the 1927 Ordinance (nonconforming uses) pertinently

provides (with emphasis added):

The lawful use of a building or premises existing on theeffective date of this Ordinance, or authorized by abuilding permit issued prior thereto, may be continued,although such use does not conform with the provisionsof this Ordinance, and such use may be extendedthroughout the building or premises lawfully acquiredprevious to the said date.

R.R. at 210a-11a. Therefore, Adsmart asserts, pursuant to Section 1307 of the

1927 Ordinance, the nonconforming off-premises advertising use could be moved

from the fence to the wall of a building on the premises. Adsmarts Counsel

testified the fence existed on the subject property before the current buildings were

constructed. N.T. at 20; R.R. at 42a. He further testified:


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What we know is the following. That a sign waspermitted in 1926 . It was permitted on the property. Ifyou look at the drawing, the fence is right on the propertyline. The fence is right on the property line where thewall presently is. What none of us have been able to

determine is when was the building built and when wasthe sign transferred, or whatever descriptive word youwant to use, to be put on the wall.

Id. at 18; R.R. at 40a.

Further, Adsmart contends, given the circumstances here, the ZHB

and trial court erred or abused their discretion by assigning Adsmart the burden to

prove the 1926 sign was actually constructed and continuously maintained on the

property. To that end, Adsmart asserts the 1926 permit for the fence sign issued

more than 85 years ago. There is no known person alive able to testify whether

anyone erected the 1926 sign or what happened to the sign between 1926 and

1960. No known photographic evidence of the 1926 sign exists.

Nevertheless, the uncontroverted evidence demonstrates the painted

wall sign and attached vinyl sign were located in the same highly visible location

on the property since 1960. If the Township believed the painted sign or the vinyl

sign were not legally conforming, it should have brought an enforcement action to

remove the sign decades ago. The fact that the Township failed to take any action

strongly suggests the Township considered the painted wall sign and vinyl sign to

be a legal nonconforming use on the property.


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2. Analysis

Adsmart contends the ZHB unreasonably assigned the burden of proof

to Adsmart to establish the erection of the 1926 sign and its continuous

maintenance until the erection of the painted wall sign in 1960. This argument

fails for the following reasons.

First, the ZHB properly recognized the right to maintain a lawful

nonconforming use applies only to uses that were lawful when the use came into

existence and that existed when the ordinance was enacted. Lamar Advantage;

Pietropaolo; Hafner. A party seeking to establish the existence of a preexisting

lawful nonconforming use bears a heavy burden; it is required to present

conclusive proof in the nature of objective evidence of the precise extent, nature,

time of creation and continuation of the alleged nonconforming use. Id.

Here, Adsmart concedes it had no evidence that anyone erected an

off-premises advertising sign on the fence. Further, Adsmart admits it does not

know what happened to the sign between 1926 and 1960. To that end, Adsmart

conceded in its brief (with emphasis added):

The 1926 Sign Permit was issued more than eighty-five(85) years ago. There is no person alive who can becalled to testify that the original 1926 Sign was erected orwhat happened to the 1926 Sign between the years of

1926-1960. There exists no known photographicevidence of the 1926 Sign. However, the uncontrovertedevidence does demonstrate that the Painted Sign and theExisting Sign have been located in the same highlyvisible location on the Property since 1960.

Adsmarts Br. at 20.


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However, Adsmart argues it bears an unreasonable burden of proof

regarding the erection and maintenance of the 1926 sign given the Townships

inordinate delay in bringing the enforcement action. The Township could have

brought an enforcement action decades ago when proof of the 1926 remained

available.

We disagree with Adsmarts contention that the Townships inaction

prior to the 2009 enforcement action relieves Adsmart of its burden to establish the

construction and maintenance of the 1926 sign. Fundamentally, the right to

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

they came into existence. Lamar Advantage; Pietropaolo; Hafner. Whether the

use extends back a few years or 100 years, conclusive proof by way of objective

evidence of the precise extent, nature, time of creation and continuation of the

nonconforming use is required. Id. For example, in Pietropaolo the appellants

presented the testimony of a witness who was familiar with the garage use of the

property in the 1930s.

Additionally, since 1974, the Zoning Ordinance requires registration

of nonconforming uses. Section 102 of the Zoning Ordinance provides, The

Director of Building and Planning shall identify and register all nonconforming

uses and nonconforming structures. ... Failure to register the use shall give rise to

a rebuttable presumption that the use was instituted and maintained in violation of

the provisions of this chapter. Twp. Code 155-102. Registration of the

nonconforming sign at issue here use would have eased Adsmarts heavy burden of

proof under the applicable case law. See DoMiJo LLC v. McLain, 41 A.3d 967


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(Pa. Cmwlth. 2012) (registration of nonconforming use represents procedural

advantage, whereas failure to register results in procedural disadvantage).

In sum, in light our decisions in Lamar Advantage, Pietropaolo,

Hafner and Jones, we conclude the Townships inaction in not bringing an earlier

enforcement action regarding the painted wall sign or the vinyl wall sign does not

relieve Adsmart of the requirement of proving the existence of a lawful off-

premises advertising sign prior to the enactment of 1927 Zoning Ordinance and the

continued existence of a lawful nonconforming advertising use from 1927 until

1960.3 Therefore, the ZHB did not err or abuse its discretion in determining

Adsmart failed to meet its burden of establishing the creation and continuation of a

lawful nonconforming use. Id.

3We also note Adsmart submitted three affidavits to the ZHB from individuals who were

familiar with the subject property prior to 1960. Joseph Ianotta stated he lived in the

neighborhood between 1930 and 1960. See Ex. A-1; R.R. at 98a. He attested to the fact that the

painted wall sign existed since 1960. Id. However, Ianotta did not state that an off-premises

advertising wall sign existed prior to 1960. James Barone operated a business in the area since

1948. See Ex. A-2; R.R. at 100a. He also attested to the existence of the painted wall sign in

1960. However, he did not state an off-premises advertising sign existed on the property prior to

1960. Also, Minella T. McGurk stated she resided nearby at 754 Railroad Avenue from 1947 to

1959 and was very aware of the subject property. Ex. A-3; R.R. at 102a. She also recalled theexistence of the painted wall sign as of 1971. Likewise, however, her affidavit is silent regarding

the existence of an off-premises advertising sign on the subject property prior to 1960.

Each of these affiants was familiar with the subject property prior to 1960. However,

they did not mention the existence of an off-premises sign on the subject property prior to 1960.

This evidence supports a reasonable inference that an off-premises sign did not exist prior to

1960.


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B. Lawful Expansion

As noted above, Adsmart also contends the 1926 fence sign was

lawfully expanded to the size of the painted wall sign. Adsmart asserts all versions

of the Zoning Ordinance prior to 1985 provided for the expansion of lawful

nonconforming uses without zoning approval. Relying on the affidavits of Joseph

Ianotta and James Barone, Adsmart contends the 1926 fence sign had been

expanded to its current wall size in 1960, prior to the 1985 zoning regulations

limiting the expansion of nonconforming uses. See Exs. A-1 and A-2; R.R. at 98a

and 100a. Therefore, Adsmart urges, the vinyl wall sign must be permitted to

exist.

We disagree. As discussed above, the right to maintain an existing

nonconforming use includes the right to make necessary alterations and expansions

to that use related to growth in trade. Nettleton. However, these protections apply

to nonconforming uses, not structures. Id.; Mun. of Monroeville. Here, Adsmart

cannot establish the 1926 fence sign ever existed. More importantly, the doctrine

of natural expansion applies to nonconforming uses, not structures such as

billboards or advertising signs. Lamar Advantage; Mun. of Monroeville.

Therefore, Adsmart had no right to construct the 10 x 30 painted wall sign as a

natural expansion of the 4 x 76 fence sign. Id.

C. Right to Modernize

Next, Adsmart contends the trial court erred in failing to find Adsmart

had a constitutionally protected right to modernize the off-premises sign. Adsmart

asserts it lawfully modernized the painted wall sign in 2004 by attaching a vinyl


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sign on a wood frame over the same area of the wall occupied by the painted sign.

In so doing, Adsmart merely changed an instrumentality of the nonconforming use,

it did not change or abandon the existing nonconforming use. Therefore, it is

permitted to maintain the current vinyl wall sign. Firth; Clanton.

Again, we disagree. Even assuming that a lawful nonconforming wall

sign existed since 1960, Section 93.4B of the Zoning Ordinance prohibited the

replacement of the painted wall sign with the attached vinyl sign and wood frame.

Section 93.4B provides in part, If a nonconforming sign is substantially altered or

replaced, it must be made to conform with the provisions of this article [Article

XIX Signs]. See Twp. Code 155-93.4B (emphasis added). In addition, Section

93.3E of the Ordinance provides that billboards are permitted uses only in the

manufacturing and industrial districts. Id. at 155-93.3E. Therefore, the sign

could not be replaced in a C-2 commercial district.

A municipal ordinance prohibiting the restoration of a nonconforming

structure when it is eliminated is a valid exercise of the police power. Korngold v.

Zoning Board of Adjustment, 606 A.2d 1276 (Pa. Cmwlth. 1992). Thus, the ZHB

properly determined Adsmart had no protected right to replace the painted wall

sign with the vinyl sign. Id. In addition, we again emphasize that the doctrine of

natural expansion, including the right to modernize, applies to nonconforming

uses, not structures such as billboards or advertising signs. Lamar Advantage;

Mun. of Monroeville.


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D. Laches

1. Argument

Next, Adsmart contends the trial court erred in failing to find the

doctrine of laches barred the Township from issuing an enforcement notice and

determination. For a party to prevail under the doctrine of laches, it must prove

both an inordinate delay and prejudice resulting from that delay. Kim.

Here, Adsmart asserts, there is nothing in the record to excuse the

Townships indifference to the painted wall sign and vinyl wall sign for over 50

years. The signs were not concealed from view. Rather, they were seen by all for

decades. Nonetheless, the Township took no action until Ms. Zambelli, an anti-

billboard activist, inquired as to the legality of the wall sign.

In addition, the Townships inaction led Adsmart to believe the

painted wall sign was a legal nonconforming use. Adsmart relied on this inaction

when it incurred significant financial expenditures in leasing the painted sign and

modernizing it by attaching a vinyl sign. The Townships delay in bringing an

enforcement action made it virtually impossible for Adsmart to locate living

individuals with personal knowledge of the 1926 sign. Therefore, the Townships

delay prejudiced Adsmarts ability to prove its right to maintain the vinyl sign as a

legal nonconforming use.

As it did before the trial court, Adsmart relies on Appeal of Heidorn,

412 Pa. 570, 195 A.2d 349 (1963). There, the Supreme Court ultimately

determined the doctrine of laches applied to a township which never objected to


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the property owners unsightly overhang and stoop that extended into a front

setback area. Ten years later, the owners replaced the unsightly overhang and

stoop with an attractive awning and platform. Although the Township never

objected to the encroachment of the overhang and stoop into the setback, it

objected to the replacement awning and platform. As a result of the townships

inactions, the owners spent significant funds replacing the overhang and stoop.

Like the unsightly overhang and stoop in Heidorn, Adsmart asserts its

billboard here stuck out like a proverbial sore thumb for the world to see for over

50 years. Yet the Township took no action, and Adsmart spent a significant sum

leasing the wall space for the painted sign and later attaching a vinyl sign.

Therefore, Adsmart urges, the Township should be barred by the doctrine of laches

from requiring removal of the vinyl sign. Heidorn.

In response, the ZHB contends Adsmart did not raise the doctrine of

laches until it appealed to the trial court. Therefore, the ZHB asserts, the laches

issue is waived. Lamar Advantage (issues not raised before zoning board were

waived).

Alternatively, the ZHB argues Heidorn is a unique case limited to its

facts and is otherwise inapplicable here. As the trial court recognized, nothing in

the record indicated any Township official knew the painted wall sign or attached

vinyl sign were not lawful nonconforming uses prior to the request that the

Township investigate the validity of the sign.


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In addition, the ZHB asserts that the record contains no evidence

Adsmart suffered any prejudice as a result of the Townships non-enforcement. To

the contrary, Adsmart and the property owners reaped substantial financial benefits

from having a large unpermitted advertising sign for nearly 50 years at this Bryn

Mawr intersection.

On this issue, the Township also argues Adsmart cannot claim any

vested right in the vinyl sign because it never sought the necessary permits when it

replaced the painted wall sign in 2004. Consequently, any expenditures Adsmart

made were not in good faith.

2. Analysis

First, although Adsmart did not raise the doctrine of laches before the

ZHB, it raised similar vested rights or variance by estoppel claims. In rejecting

those claims, the ZHB noted Adsmart did not establish it made a good faith effort

to comply with Township regulations. Further, the ZHB found Adsmart presentedno evidence of substantial expenditures based on the belief the sign was permitted

by the Township.

We agree with the ZHB that Adsmarts lack of good faith in failing to

seek any type of zoning approval for the changes in signs prohibits application of

the doctrine of laches. In Puleo v. Zoning Hearing Board of Schuylkill Township,

722 A.2d 789 (Pa. Cmwlth. 1999), this Court determined a landowners failure to

obtain a building permit prior to the reconstruction of removed nonconforming

billboards prevented the landowner from acquiring a vested right in the rebuilt


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structures. A person who completely disregards the requirement of securing a

building permit cannot acquire any vested right in the structure. Id.

Additionally, the ZHB also determined Adsmart failed to present any

evidence of substantial expenses incurred on the belief the sign was a lawful

nonconforming use. Consequently, the doctrine of laches is inapplicable here.

Kim.

E. Costs

Last, Adsmart contends it is entitled to costs and fees as a result of the

Townships improper enforcement action and determination. However, having

determined the ZHB properly denied Adsmarts appeals and its requests for a

variance by estoppel or vested right in the off-premises advertising sign, we reject

Adsmarts claim for costs and fees.

V. Conclusion

For the above reasons, we discern no error or abuse of discretion in

the ZHBs decision denying Adsmarts appeals. Accordingly, we affirm the order

of the trial court.

ROBERT SIMPSON, Judge


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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Adsmart Outdoor Advertising, Inc., ::

v. : No. 173 C.D. 2012

:Lower Merion Township Zoning :Hearing Board and Township :of Lower Merion :

:Appeal of: Adsmart Outdoor :Advertising, Inc. :

O R D E R

AND NOW, this 5th day of December, 2012, the order of the Court of

Common Pleas of Montgomery County is AFFIRMED.

ROBERT SIMPSON, Judge

LMT v AdSmart (again)

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