A. Bortz v. Zoning Board of Adjustment of the City of Pittsburgh and City of Pittsburgh
1974 C.D. 2016
| Pa. Commw. Ct. | Jan 5, 2018Background
- Property at 131 9th Street (GT-C) houses an adult entertainment business (“Blush”). A 2006 certificate authorized a 5.89 sq ft illuminated business sign and a 14.39 sq ft changeable electronic sign (total 20.28 sq ft).
- Bortz obtained ZBA special-exception approval in 2011 to expand the nonconforming use; the ZBA limited signage on the 9th Street façade to a maximum total of 40 sq ft (and no signage on Penn Ave.).
- Zoning Code was amended in Dec. 2011 to prohibit electronic non-advertising signs in GT districts, making previously electronic signs nonconforming; Section 921.03.F.2 forbids enlargement/replacement of nonconforming signs.
- In April 2015 Bortz installed an LED changeable-letter sign (disputed size; renderings imply ~37.94 sq ft) in addition to the 5.89 sq ft business sign, producing a total that exceeds the 40 sq ft cap (court found actual total 43.83 sq ft; Bortz/trial court used lower figures).
- City denied a permit and ZBA denied Bortz’s application for special exception/variance, concluding the LED replaced a nonconforming electronic sign (prohibited) and Bortz failed to prove grounds for a variance.
- The trial court reversed the ZBA, finding the signage complied with the 2011 approval; the Commonwealth Court reversed the trial court and reinstated the ZBA decision.
Issues
| Issue | Plaintiff's Argument (Bortz) | Defendant's Argument (City/ZBA) | Held |
|---|---|---|---|
| Whether the 2011 ZBA approval vested a right to install LED signage or otherwise insulated Bortz from the post-2011 ban on electronic non-advertising signs | 2011 approval expressly permitted additional signage up to 40 sq ft on 9th St., so new LED was allowed and not subject to new Code prohibition | 2011 approval limited total signage but did not expressly authorize specific signs or create a vested right; Code amendment made electronic signs nonconforming and prohibited replacement/enlargement | Held for City/ZBA: 2011 approval did not create a vested right to LED signage; electronic sign became nonconforming and is subject to Code restrictions |
| Whether the installed LED sign violated the 2011 square-foot limitation | Bortz contends total signage remained within the 40 sq ft cap, so compliant | City/ZBA showed measurements render total >40 sq ft (5.89 + ~37.94 = 43.83), thus exceeding the 2011 cap | Held for City/ZBA: actual signage exceeded the 2011 40 sq ft limit |
| Whether replacing the older electronic sign with the new LED was permissible under nonconforming-sign rules | Bortz argued earlier electronic signage and the 2011 approval allow replacement | City/ZBA relied on §921.03.F.2 banning enlargement/replacement of nonconforming signs; substitution requires variance | Held for City/ZBA: replacement/enlargement of a nonconforming electronic sign was prohibited without variance |
| Whether Bortz proved entitlement to a variance from the prohibition on replacing/enlarging a nonconforming sign | Bortz asserted vested rights and prior approvals; argued compliance with 40 sq ft | City/ZBA argued Bortz presented no evidence of unique hardship or other variance elements | Held for City/ZBA: Bortz failed to meet the burden for a variance under the Zoning Code/Hertzberg standards |
Key Cases Cited
- Demko v. City of Pittsburgh Zoning Bd. of Adjustment, 155 A.3d 1163 (Pa. Cmwlth. 2017) (variance standards and review discussion)
- Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh, 721 A.2d 43 (Pa. 1998) (relaxed standard for dimensional variances regarding unnecessary hardship)
- Tidd v. Lower Saucon Twp. Zoning Hearing Bd., 118 A.3d 1 (Pa. Cmwlth. 2015) (variance burden remains significant despite Hertzberg)
- Singer v. Philadelphia Zoning Bd. of Adjustment, 29 A.3d 144 (Pa. Cmwlth. 2011) (reaffirming heavy burden for variance applicant)
- City of Philadelphia Civil Service Commission v. Lewis, 508 A.2d 633 (Pa. Cmwlth. 1986) (agency decision review principles)
- Deyarmin v. Consolidated Rail Corp., 931 A.2d 1 (Pa. Super. 2007) (judicial notice of public docketed materials)
- Lycoming County v. Pennsylvania Labor Relations Bd., 943 A.2d 333 (Pa. Cmwlth. 2007) (judicial notice of pleadings/judgments in related proceedings)