Lamar Advertising Company v. Monroeville Zoning Hearing Board, 936 A.2d 994 (Pa. Commw. Ct. 2007).

The Construction Code Act does not authorize deemed approvals for permits relating to the construction of billboards. Billboard LED conversions may be subject to conditional use and site plan approval under the MPC and local zoning ordinances.
Case Details:

On January 31, 2005, Lamar applied for a building permit to replace the display on a billboard with an LED display.  On April 7, 2005, the municipality sent a letter to Lamar informing them that their application was incomplete; Lamar sent additional information on April 13, 2005.  On August 26, 2005, counsel for Lamar asserted that their application had been deemed approved because no formal action was taken within thirty days. The Director answered that the application was still incomplete because Lamar needed to obtain a conditional use and site plan approval.  Lamar argued that the replacement of the screen was simply a modernization of a lawful nonconforming use, and was only a change to the sign face.  The Zoning Hearing Board (ZHB) held that there was a need for a conditional use permit and site plan approval.  The trial court affirmed the ZHB.

On appeal, the Commonwealth Court denied Lamar’s deemed approval argument and request for mandamus (a court order compelling a municipal official’s performance of a ministerial act where there exists a clear legal right in the plaintiff and duty in the defendant).  The Court found that Lamar had no clear right to relief because Section 502 of the Construction Code Act authorizes deemed approvals for construction of residential buildings and not for the construction of billboards.  Lamar alternatively argued that they were entitled to deemed approval under Section 508 of the MPC, which requires a municipality to review an application for a land development plan within 90 days.  The Court refused to address this argument because Lamar did not raise the issue in prior proceedings.

Lamar next argued that it had a right to modernize the billboards, and that a change of the sign face did not constitute a structural change.  The Court found that the billboards were never established as lawful nonconforming uses; therefore, they were not entitled to natural expansion.  Further, even if the billboards were lawful nonconforming uses, Lamar never filed the appropriate application to expand a nonconforming use.  The Court also rejected Lamar’s argument that they were only changing the “sign face” and not making an alteration to a “structure.”  The Court found that the billboard was a “structure,” and that the LED upgrade involved significant structural alterations which required a zoning site plan approval.   The Court also found that a conditional use application was needed for the LED conversion, not just for the erection of new billboards as Lamar argued.

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