         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lamar Advantage GP Company,             :
LLC                                     :
                                        :
                   v.                   : No. 253 C.D. 2018
                                        : Argued: February 14, 2019
City of Pittsburgh Zoning Board         :
of Adjustment and City of Pittsburgh,   :
                                        :
                         Appellants     :

BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                          FILED: August 29, 2019


              The City of Pittsburgh Zoning Board of Adjustment (ZBA) and the
City of Pittsburgh (together, the City), appeal from the January 24, 2018 order of
the Court of Common Pleas of Allegheny County (trial court), which reversed the
February 16, 2017 order of the ZBA denying the protest appeal from a Notice of
Violation filed by Lamar Advantage GP Company, LLC (Lamar). The Notice of
Violation, issued by the Department of Permits, Licenses and Inspections (PLI) on
June 13, 2016, stated that Lamar was in violation of City of Pittsburgh Ordinance
(Ordinance) Sections 921.03.F.2 and 919.01.J. Reproduced Record (R.R.) at 160a.
The ZBA denied the protest appeal based on its determinations that: Lamar’s
installation of a static vinyl sign over the face of an existing nonconforming sign
violated Ordinance Section 921.03.F.2; Lamar unlawfully failed to remove the sign
as required by Ordinance Section 919.01.J; Lamar abandoned its nonconforming
use; and Lamar’s installation of the static vinyl sign required a permit. On appeal,
the trial court concluded that the ZBA’s determinations were not supported by the
record.1 We affirm.


                                        Background
                Lamar owns property (Subject Property) on Grandview Avenue (Mt.
Washington) in the City of Pittsburgh.             The Subject Property contains two
nonconforming signs, one facing Grandview Avenue and the other facing
downtown Pittsburgh. The first sign is not at issue. The second sign (Sign)
measures 32 feet by 225 feet (7,200 square feet). It was constructed in the 1920s,
and ZBA decisions dated 1928 and 1933 reflect its longstanding use for electronic
advertising. In 1985, the City issued a certificate of occupancy confirming the
Sign’s nonconforming use status.2 R.R. at 41a. The City has annually issued a
permit for the Sign and has accepted Lamar’s payment of a sign permit fee through
2018.
                “In the course of its history, the Sign was used for different
corporate messaging, making use of the changeable message board and logo parts
of the electronic messaging.” ZBA’s Findings of Fact (F.F.) No. 10. “The Sign
was used consistently for the electronic advertising of businesses, commodities,
services, or entertainments conducted, sold, or offered on sites other than the

        1
          The trial court also concluded that the ZBA exceeded its authority by raising issues
concerning abandonment of a nonconforming use, structural alteration of the sign, and change of
type of advertising sign, which were not identified in the Notice of Violation.

        The 1985 occupancy permit for the Subject Property permitted “Two ground signs.
        2

One at 12’ x 25’ and one at 32’ x 225’. Issued on the basis of sign registration billing #5253
renewed annually prior to 1958. Original application destroyed.” ZBA’s Finding of Fact No. 9.


                                              2
Subject Property, as well as for community messaging and the time.” Id. The Sign
was recently used for the logo of Bayer Corporation, advertising for Bayer,
community messages (including a science quiz), and the time. The Bayer signage
made use of approximately 20 feet by 225 feet, or 4,500 square feet, on the larger
structure. F.F. No. 11. Bayer’s use of the Sign ended in early 2014, after which
the Sign displayed only public service messaging, using 4,500 square feet in area.
F.F. Nos. 12, 13.
               In 2012, Lamar began discussing plans to modernize the Sign with
the City and community groups.        In June 2014, Lamar filed an application
(Application) with the City for approval to modernize the Sign by renovating the
sign face, replacing the electronics, and repairing the structure. R.R. at 169a-71a.
The record includes correspondence emails between counsel for Lamar and Corey
Layman, the City’s Zoning Administrator, documenting the ongoing application
process. On July 25, 2014, Layman responded to an inquiry from Lamar stating
that preliminary determinations made by himself and the City’s Law Department
were “consistent with your application narrative.” R.R. at 215a. Layman advised
Lamar to submit a check in an amount calculated at $10.00 per square foot,
specifications for the product to be used, and an elevation drawing of the sign face.
Lamar responded by hand-delivered letter dated July 31, 2014, accompanied by
documentation and a check for $72,000.00 as payment of the application fee. R.R.
at 217a-26a.
               A subsequent letter from Lamar dated September 12, 2014, provided
additional information, indicating that: there would be no change to the number,
size, or spacing of characters; the size of the Sign (32 feet by 275 feet) will not
change; and the Sign will be operated in a similar manner to the existing sign in


                                         3
terms of messaging and content. R.R. at 227a-28a. The letter also conveyed
Lamar’s understanding that the “Application [was] now complete.”                            Id.    A
subsequent letter of November 17, 2014, states that Lamar had agreed to
conditions regarding the duration of the lease, charitable and civic content,3 and
landscaping and corridor enhancements. R.R. at 230a-31a. To date, the City has
not acted on the Application, and the pending Application is not at issue in this
appeal. F.F. Nos. 15-18.
                    In the spring of 2015, the City’s mayor and other City officials
began publicly stating that the Application would not be approved until the City
specifically approved the content to be placed on the Sign.4 In early 2016, PLI
inspected the Sign and began issuing citations under both the City’s zoning code
and building code related to the Sign’s deteriorating condition.5 On February 2,
2016, PLI issued a notice of violation regarding the Subject Property for violation
of Section 304.2 of the Ordinance, which requires that all “exterior surfaces shall
be maintained in good condition [and] shall be protected from the elements and
decay by painting or other protective covering or treatment to prevent rust or
corrosion on sign.” See R.R. at 261a-62a.
                    In response, Lamar first painted the rear of the Sign’s structure. Id.
Shortly thereafter, in the spring of 2016, the Bayer logo portion of the Sign ceased

         3
          “We have spoken with the new advertiser and they have agreed to make space available
to their charitable and civic partners on a ‘space available’ basis. Please note that this decision is
solely the decision of the advertiser, and all of the content on the billboard, both commercial and
charitable, will be controlled by the advertiser.” R.R. at 230a.

         4
             See, e.g., “CBS article,” May 22, 2015, R.R. at 279a.

         5
             Citations under the building code were withdrawn or dismissed by a magisterial district
judge.


                                                    4
operation. On May 31, 2016, while approval of the Application was still pending
and citations were being issued concerning the condition of the Sign, Lamar placed
a vinyl sign on top of the Sign’s existing message and neon letters “to protect the
structure and to continue its operation of the [Sign] for advertising purposes.”
Lamar’s brief at 8. The vinyl sign displayed a black and yellow advertisement for
Sprint.


                                    Notices of Violation
                On June 13, 2016, PLI issued a Notice of Violation, stating that
Lamar was in violation of Ordinance Section 921.03.F.2, and Ordinance Section
919.01.J.6 R.R. at 160a. In relevant part, Ordinance Section 921.03.F.2 states:

               Nonconforming signs shall be subject to the
               noncomplying structure regulations of this section, as
               modified by the following:

               Nonconforming 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
R.R. at 437a. On July 12, 2016, Lamar filed a protest appeal.7 The ZBA held a
hearing on the protest appeal on November 10, 2016.

       6
          Section 919.01.J of the Ordinance requires removal of signs within 30 days from the
date a business is terminated. The City does not address this Ordinance provision in its appellate
brief, and Lamar argues that this issue is waived. We agree. See Jackson v. Indiana University
of Pennsylvania, 695 A.2d 980, 983 (Pa. Cmwlth. 1997) (an issue is waived if it is not addressed
in the appellant’s brief).

       7
         The City filed a separate criminal complaint against Lamar on June 27, 2016, asserting
the same violations as in the June 13, 2016 Notice of Violation. Proceedings were continued
awaiting the ZBA’s decision.


                                                5
                                The ZBA Hearing
              PLI senior inspector Kevin Karman testified that he photographed
and inspected the Subject Property on May 13, 2016, from a vantage point on West
Carson Street, approximately 500 feet below the Sign. He stated that he could not
see the structure or measure it, but he could observe that the vinyl Sprint
advertisement covered the “Bayer” sign.
              Karman acknowledged that he did not review any relevant records
concerning the Subject Property and that he was not familiar with the relevant
Ordinance provisions. Karman said that Erik Harless, assistant director of PLI, and
Corey Layman, the City’s Zoning Administrator, determined what Ordinance
sections were violated and told him what to put on the Notice of Violation.
Karman said he believed that Lamar violated Section 921.03.F.2 of the Ordinance
(concerning enlarging or replacing a nonconforming sign) by placing the Sprint
advertisement on top of the Bayer sign. He could not say how Lamar was in
violation of Ordinance Section 919.01.J.
              Zoning Administrator Layman testified that he and Harless
determined the specific provisions of the Ordinance that were violated by Lamar’s
placement of the vinyl covering over the prior Bayer signage.         R.R. at 89a.
Layman believed that Ordinance Section 919.01.J was violated because the Bayer
sign messaging had ceased more than 30 days before the Sign was covered by the
vinyl advertisement. R.R. at 93a.
              Additionally, according to Layman, the “increase in the size of the
advertising” on the face of the nonconforming sign meant that a permit for a new
sign was required. R.R. at 96a. He clarified that while the structure itself was not




                                           6
enlarged, the “size of the nonconformity was changed” because the advertising
copy on the structure was larger than the prior advertising copy. Id.
                Layman explained that over time, the area of the Sign used for
advertising was reduced to 4,500 square feet, and the percentage of time devoted to
commercial advertising was reduced to approximately 10 percent. He stated:
“Voluntarily, the level of nonconformity was reduced to a size that is much smaller
than the entire face of the sign and to a [shorter] duration of advertising content.”
R.R. at 104a-105a. He testified that the voluntary reduction in size and subsequent
increase of the nonconformity referred to the size of the advertising message, not
“the size of the signage itself.”8 R.R. at 116a.

       8
          Layman stated that, “[the City] didn’t want to see an application that increased the
nonconformity of the sign . . . .” R.R. at 116a. He explained that the City’s concerns regarding
an increase to the Sign’s nonconformity referred “to the size of the advertising message, not the
sign itself.” Id. He added that for the Application to be considered complete, the City would
need “architectural submissions . . . as well as that those submissions were not increasing the
advertising size of the sign.” R.R. at 127a-28a.

       Counsel for Lamar asked Layman:

              If I have a billboard that I have a sign up, and that sign says UPMC
              on it, and there is a white background beside UPMC, and it only
              says UPMC on it, your position is that my advertising medium, all
              that is permitted is where the U, the P, the M and the C are,
              correct, and that the background doesn’t mean anything?
R.R. at 117a. Layman responded:

              I think you’re oversimplifying it. That is not my testimony. . . . I
              can say this is an exceptional sign. It is not a standard advertising
              billboard. It is visible to vast amounts of the City. It has a history
              and occupancy permits that are clear about the advertising nature
              of it. It has been -- it is an exceptional structure and sign. I would
              not try to make a comparison between that and a typical billboard
              where you change out a vinyl panel. This is an electronic sign that
(Footnote continued on next page…)
                                                7
               Jim Vlasach, Lamar’s real estate manager, testified that, for the
period of years that the Application was pending, the Sign remained in operation
and the entire Sign was used. R.R. at 132a-33a. Its messaging included the time
and public service messages. Vlasach testified that the Sign was used continually
up to the time the vinyl Sprint ad was installed. Vlasach also testified that while
the Application was pending, Lamar had discussions with another advertiser about
leasing the Sign, but the advertiser changed its mind due to concerns about the
City’s requests to limit the Sign’s content. R.R. at 141a.
               Vlasach said that the vinyl Sprint advertisement measures 32 feet by
225 feet, the same size as the Sign face. He said that no structural alterations were
made when the vinyl was installed and there were no physical changes, other than
ratcheting the vinyl onto the Sign face. He noted that the Sprint advertisement did
not cover the entire face of the Sign. Vlasach also stated that in his 20 years of
experience, he was never required to obtain a permit to remove or change a sign
under Section 919.01.J, which Lamar contends applies only to on-premises
advertising. R.R. at 137a-38a.


                                      ZBA Decision
               In relevant part, the ZBA found that no evidence was presented to
show that the Sign was ever used for static advertising, or that the full 7,200 square


(continued…)

              had been operated with motion, with changing. It’s been clearly a
              substantial nonconforming sign.

R.R. at 118a. Layman acknowledged that there is no special provision in the Ordinance for an
“exceptional sign.”


                                             8
feet of the Sign was used for advertising. The ZBA noted that the vinyl sign does
not use electronic technology and covers the entirety of the Sign. The ZBA
concluded that Lamar’s installation of a 7,200-square-foot static advertising sign as
a replacement for the nonconforming “4,500 [square foot] electronic sign” violated
Ordinance Section 921.03.F.2, which provides that nonconforming signs cannot be
enlarged, added to or replaced by another nonconforming sign, use, or structure.
              The ZBA concluded that the area used for the vinyl sign was a
significant enlargement from the 4,500-square-foot area used for the electronic
sign message characters of the Sign. Conclusion of Law No. 19.
             The fact that the installation of the Vinyl Sign did not
             alter the size of the Sign Structure is not relevant and
             does not alter the fact that the installation of the Vinyl
             Sign increased the area of Sign Structure used for
             signage. Because poster panels or painted boards were
             never used on the sign Structure, the Vinyl Sign could
             not constitute a substitution or interchange for those
             types of materials. For these reasons, the Vinyl Sign
             violated Section 921.03.

Conclusion of Law No. 19 (emphasis added).
      The ZBA further determined that, “[a]lthough not specifically noted in the
Notice of Violation,” the installation of the vinyl sign also violated Sections
919.02.N.2    (prohibiting   the   structural   alteration   or   enlargement   of   a
nonconforming sign) and 919.02.N.6 (prohibiting the replacement of an electronic
sign with an advertising sign). Conclusions of Law Nos. 21, 22. Additionally, the
ZBA found that Lamar unlawfully failed to remove the Bayer signage after its
business relationship with Bayer ended, as required under Ordinance Section
919.01.J. Conclusions of Law Nos. 25-27. Finally, the ZBA concluded that Lamar
abandoned the nonconforming use, stating that, by installing the vinyl sign, Lamar


                                          9
abandoned any legally nonconforming use as an electronic advertising sign.
Conclusions of Law Nos. 28-34.
               In its February 16, 2017 decision, the ZBA denied Lamar’s appeal of
the Notice of Violation “with specific reference to Section 921.03 [enlarging or
replacing a nonconforming sign] and also consistent with Section 919.02.N
[related to increasing the area used for signage and replacing an electronic
advertising sign with an advertising sign].” Conclusion of Law No. 24.
               Lamar appealed the ZBA’s decision to the trial court.9


                                   Trial court’s decision10
               Before the trial court, Lamar asserted, inter alia, that the ZBA
exceeded its jurisdictional authority by sua sponte raising issues, including
abandonment of a nonconforming use and change in the type of advertising sign,
and applying Ordinance provisions not cited in the Notice of Violation.11

       9
         On April 12, 2017, while Lamar’s appeal of the ZBA’s decision was pending,
Municipal Court Judge James A. Motznik (MCJ Motznik) held a hearing on the criminal
complaint. R.R. at 284a-331a. Following the hearing, MCJ Motznik dismissed the criminal
charges.

       10
           After the City filed the record of the ZBA proceedings, Lamar filed a Supplemental
Return to include the transcript of the April 12, 2017 hearing into evidence. Over the City’s
objections, the trial court allowed the Supplemental Return, but the trial court did not refer to it
in its opinion.

       11
           Lamar also asserted that the ZBA exceeded its authority and violated Lamar’s
constitutional rights to free speech and due process of law by, inter alia, sua sponte finding
violations under Ordinance Section 919.02.N.2 (concerning the enlargement of the area of the
sign and increasing the nonconformity); Ordinance Section 919.02.N.6 (change in use); and
Ordinance Section 921.02.B.2 (abandonment). “It is well settled that a court should not decide a
constitutional question if the case can be decided on non-constitutional grounds.” Friedlander v.
Zoning Hearing Board of Sayre Borough, 546 A.2d 755, 758 (Pa. Cmwlth. 1988). The trial
(Footnote continued on next page…)
                                                10
              The trial court concluded that the ZBA exceeded its jurisdictional
authority by considering issues not identified in the Notice of Violation,
specifically, issues concerning abandonment of a nonconforming use and change in
the type of advertising sign. The trial court also determined that Lamar did not
need a permit to change the advertising copy on the Sign and did not violate
Section 921.03.F.2, prohibiting enlargement or replacement of a nonconforming
sign. The trial court noted that Layman, the City’s Zoning Administrator, had
agreed that the size of the Sign structure had not changed with the installation of
the vinyl cover. Instead, he testified that the vinyl cover increased the size of the
advertising content. In its decision, the ZBA concurred, stating, “the area used for
the vinyl sign was . . . a significant enlargement from the 4,500 [square foot] area
used for the electronic sign message characters” of the Sign. Conclusion of Law
No. 19 (emphasis added). The trial court concluded that the ZBA’s determination
that the area of the Sign was impermissibly enlarged conflicted with the definition
provided in Ordinance Section 919.01.C.16, which states:
              Area of Sign means the entire area within a single
              continuous perimeter enclosing the extreme limits or
              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 which such sign is placed or apron designed to
              cover such uprights or work board installed to provide a
              safe area for servicing such sign).
R.R. at 437a-38a (emphasis added).

(continued…)

court did not address Lamar’s constitutional arguments, and we need not decide them in this
appeal.


                                            11
       The trial court further held that the ZBA erred in concluding that Lamar
abandoned its nonconforming use of the Sign.               The trial court noted that a
determination of abandonment must be established by evidence of intent to
abandon and actual abandonment,12 whereas the record shows that Lamar was
actively pursuing approval to modernize the Sign and the Sign was continuously
used for advertising purposes. Accordingly, the trial court reversed the ZBA’s
decision.
                                       Discussion13
              On appeal, citing Marshall v. City of Philadelphia, 97 A.3d 323 (Pa.
2014), and Nettleton v. Zoning Board of Adjustment of the City of Pittsburgh, 828
A.2d 1033 (Pa. 2003), the City first asserts that the ZBA’s credibility
determinations should be given great weight, and the City contends that the trial
court erred in substituting its credibility determinations for those of the ZBA. We
disagree.
              Significantly, while the ZBA expressly found Layman’s testimony
credible, his factual assertions are not in dispute. Where his credible testimony
concerns his interpretation of the Ordinance, those legal conclusions are not
binding on appeal. Rather, an appellate court’s scope of review of questions of law
is plenary. Smith v. Hanover Zoning Hearing Board, 78 A.3d 1212, 1218 (Pa.


       12
         Latrobe Speedway, Inc. v. Zoning Hearing Board of Unity Township, Westmoreland
County, 720 A.2d 127, 132 (Pa. 1998).

       13
          Where, as here, the trial court takes no additional evidence, our scope of review is
limited to determining whether the ZBA abused its discretion or committed an error of law.
Broussard v. Zoning Board of Adjustment of the City of Pittsburgh, 831 A.2d 764, 768 n.5 (Pa.
Cmwlth. 2003). The ZBA abuses its discretion only if its findings are not supported by
substantial evidence. Id.


                                             12
Cmwlth. 2013); Cheng v. SEPTA, 981 A.2d 371, 382 (Pa. Cmwlth. 2009).
Similarly, although the ZBA rejected Vlasach’s testimony that the use of the entire
7,200 square feet of the Sign did not constitute an enlargement of the Sign, this is a
legal determination, not a factual issue.
               We discern no merit to the City’s contention that the trial court erred
in substituting its credibility determinations for those of the ZBA. Indeed, there is
little dispute about any of the relevant facts in this case. Rather, the issues involve
the interpretation and proper application of the Ordinance provisions. Unlike
credibility determinations, the ZBA’s legal conclusions are not binding on appeal.
Smith, 78 A.3d at 1218.
               Next, the City argues that the ZBA properly found that a change in the
use of the Sign, from advertising to nonadvertising, had occurred. 14 The City notes
that after display of the Bayer logo ceased, the Sign was used only for messaging
time and public service information. According to the City, the Sign had become a
nonadvertising sign as of the May 2016 inspection. Presuming that the Sign had
lost its characterization as an electronic advertising sign, the City argues that the
electronic nonadvertising sign was then replaced with a larger, static advertising
sign, which then required Lamar to obtain zoning approval. The City argues that
once the ZBA found that the vinyl sign was a nonelectronic advertising sign, a new
and different use, it properly concluded that Lamar was required to obtain a new
certificate of occupancy.



       14
          Specifically, the City maintains that as of May 2016, the Sign no longer fell within the
definition of an advertising sign under Ordinance Section 919.01.C.2, because it did not depict a
logo or reference a business, commodity, service, or entertainment.



                                               13
              The City cites no authority to support the proposition that a temporary
interruption in the use of the Sign for advertising is sufficient, alone, to effectuate a
change in the use of the Sign from advertising to nonadvertising. Moreover, in
arguing that the use of the Sign to display time and public service messages
changed its use to nonadvertising, the City disregards the pending Application and
the City’s failure to formally act upon it. More important, the City fails to explain
how any interruption of commercial advertising, no matter how brief, results in a
change of zoning use as a matter of law.15 We reject the City’s implied contention
that a nonconforming use can be changed from advertising to nonadvertising based
solely on a period of inactivity between commercial leases.
              The City next argues that it properly considered the measurements of
the Sign face as most recently used, or 4,500 square feet, separately from the
dimensions of the Sign structure, 7,200 square feet, as reflected on the certificate
of occupancy.       The City argues that its distinction is consistent with the
Ordinance’s current definitions of “areas of the sign” and “sign face.”16 However,
the ZBA specifically found that the size of the advertising content on the Sign was
increased; no evidence presented suggests that the sign face or the structure as a
whole was enlarged.17


       15
        The City presents this change of use as a separate issue from the question of
abandonment.

       16
         Ordinance Section 919.01.C defines “Face of Sign” to mean “the side or sides of a sign
on which the letterhead, pictorial or sculpted matter designed to convey information is to be
placed.”

       17
         Lamar contends that the vinyl advertising is ratcheted on top of the existing structure
and is permitted under Ordinance Section 921.03.F as an “interchange of poster panels.”
Although this is a questionable conclusion, Lamar correctly notes that none of the electronic or
(Footnote continued on next page…)
                                              14
             The City further argues that the installation of the vinyl sign resulted
in Lamar’s abandonment of the nonconforming use.               Specifically, and again
presuming that the advertising use was changed to a non-advertising use once the
paid commercial content ceased, the City contends that the subsequent installation
of the 7,200-square-foot vinyl, nonelectronic advertising sign is qualitatively
different from the prior use as a 4,500-square-foot electronic nonadvertising sign.
             However, the City acknowledges that to prove abandonment, both
actual abandonment and an intent to abandon the nonconforming use must be
established. Latrobe Speedway, Inc. v. Zoning Hearing Board of Unity Township,
720 A.2d 127, 132 (Pa. 1998). Actual abandonment cannot be inferred from non-
use alone. Metzger v. Bensalem Township Zoning Hearing Board, 645 A.2d 369,
370 (Pa. Cmwlth. 1994). Where discontinuance of a use occurs due to events
beyond the owner’s control, there is no actual abandonment. Id. Removal or
alteration of structures or equipment designed for a specific use is the most
definitive evidence of actual abandonment of that use. Id. at 371.
             Whether the attachment of the vinyl advertisement over the electronic
Sign constitutes evidence of actual abandonment, the City presented no evidence
that Lamar intended to abandon the use.              To the contrary, the evidence
demonstrates that Lamar always intended to continue its nonconforming use of the
Sign as an electronic advertising sign. Consequently, this argument also fails.
             Finally, the City argues that even though the trial court did not address
whether the dismissal of the criminal complaint collaterally estopped the City from

(continued…)

mechanical components of the Sign were removed and the square footage of the advertisement
was not increased.


                                           15
proceeding with the appeal, it should not have permitted Lamar to introduce the
transcript, where the trial court did not determine that the record before it was
otherwise incomplete or hold a de novo hearing. We need not resolve these
arguments, however, because regardless of the applicable legal standard, the
testimony in the separate proceeding was virtually identical to that presented
before the ZBA. Moreover, any purported error in this regard is harmless as there
is no indication that the transcript was relied upon, or considered by the trial court.


                                     Conclusion
             The relevant facts are both unique and undisputed. After careful
review, we agree with the trial court that the record does not support the ZBA’s
legal conclusions that Lamar reduced the area of the Sign or that the area of the
Sign was subsequently increased from 4,500 square feet to 7,200 square feet with
placement of the vinyl sign cover, thereby violating Ordinance Section 919.02.N.2
(prohibiting enlargement of a nonconforming sign). Likewise, the facts do not
support the ZBA’s legal conclusions that Lamar changed the use of the Sign from
advertising to non-advertising by displaying time and public service messages after
Bayer’s advertising ceased, or that the subsequent attachment of the vinyl sign
cover converted the use of the Sign from electronic non-advertising to advertising,
in violation of Ordinance Section 919.02.N.6. The trial court properly concluded
that Lamar did not violate Ordinance Section 921.03.F.2 (providing that
nonconforming signs cannot be enlarged, added to or replaced by another
nonconforming sign) and properly reversed the ZBA’s decision.




                                          16
Accordingly, we affirm.




                          MICHAEL H. WOJCIK, Judge




                           17
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lamar Advantage GP Company,               :
LLC                                       :
                                          :
                  v.                      : No. 253 C.D. 2018
                                          :
City of Pittsburgh Zoning Board           :
of Adjustment and City of Pittsburgh,     :
                                          :
                         Appellants       :



                                   ORDER


            AND NOW, this 29th day of August, 2019, the order of the Court of
Common Pleas of Allegheny County is AFFIRMED.




                                        __________________________________
                                        MICHAEL H. WOJCIK, Judge
