IN THE COMMONWEALTH COURT OF PENNSYLVANIA Adsmart Outdoor Advertising, Inc., v.

Lower Merion Township Zoning Hearing Board and Township of Lower Merion Appeal of: Adsmart Outdoor Advertising, Inc. BEFORE: : : : : : : : : : :

No. 173 C.D. 2012 Argued: October 15, 2012

HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge

OPINION NOT REPORTED MEMORANDUM OPINION BY 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 nonconforming 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

The Honorable Bernard A. Moore presided.

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

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 155-9115593.6).

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 of a 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,

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 15593C. 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 offpremises 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 uses that 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).

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

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.

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 15593.3E. 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
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 from enforcing 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 9

unequivocal evidence. Springfield Twp. v. Kim, 792 A.2d 717 (Pa. Cmwlth. 2002).

Here, the ZHB found that Adsmart failed to present sufficient evidence that the Township actively acquiesced to a 10 x 30 painted wall sign or a vinyl sign attached to the building. See Pietropaolo (townships inaction for 38 years did not entitle landowner to a variance by estoppel in the absence of a permit); Vaughn v. Zoning Hearing Bd. of Twp. of Shaler, 947 A.2d 218 (Pa. Cmwlth. 2008) (where township zoning officer advised property owners they did not need a permit to construct a retaining wall and owners paid for construction of the wall, they were entitled to a variance by estoppel); Skarvelis v. Zoning Hearing Bd. of Borough of Dormont, 679 A.2d 278 (Pa. Cmwlth. 1996) (variance by estoppel is unusual remedy and is granted only in most unusual circumstances; mere passage of time without enforcement of zoning regulation does not, by itself, entitle property owner to variance by estoppel; property owner cannot acquire right to a variance by estoppel through actions or representations of someone who does not speak for the municipality).

The ZHB also found Adsmart presented no evidence at all of substantial expenditures based on belief the sign was permitted by the Township. In addition, the denial of a variance by estoppel does not cause an unnecessary hardship because the building is being used for commercial and residential purposes. Pietropaolo.

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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 offpremises 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 the effective date of this Ordinance, or authorized by a building permit issued prior thereto, may be continued, although such use does not conform with the provisions of this Ordinance, and such use may be extended throughout the building or premises lawfully acquired previous 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 was permitted in 1926 . It was permitted on the property. If you look at the drawing, the fence is right on the property line. The fence is right on the property line where the wall presently is. What none of us have been able to determine is when was the building built and when was the sign transferred, or whatever descriptive word you want 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 be called to testify that the original 1926 Sign was erected or what happened to the 1926 Sign between the years of 1926-1960. There exists no known photographic evidence of the 1926 Sign. However, the uncontroverted evidence does demonstrate that the Painted Sign and the Existing Sign have been located in the same highly visible location on the Property since 1960. Adsmarts Br. at 20. 16

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 offpremises 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.

We 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 the existence 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 antibillboard 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 presented no 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. Lower Merion Township Zoning Hearing Board and Township of Lower Merion Appeal of: Adsmart Outdoor Advertising, Inc. : : : : : : : : : :

No. 173 C.D. 2012

ORDER AND NOW, this 5th day of December, 2012, the order of the Court of Common Pleas of Montgomery County is AFFIRMED.

ROBERT SIMPSON, Judge