Pittsburgh may be facing an uphill battle in its latest attempt to remove a controversial Mount Washington billboard.
Some members of the state Supreme Court expressed skepticism Thursday over the city’s claims that the billboard, which is owned by Lamar Advertising, is illegal.
The record of the case “reads as if for some reason somewhere in the city, people got angry at Lamar and decided that they were going to punish it with an unnecessary fight,” Justice Max Baer said.
Thursday’s arguments before the state’s seven-member high court constituted the latest chapter in the titanic battle over the nearly 100-year-old billboard — a local staple that has flashed advertisements for Iron City Beer, Alcoa and Bayer in decades past.
The current controversy dates back to 2014 when Lamar draped a static 7,200-square-foot black-and-yellow advertising banner for Sprint over a nonconforming 4,500-square-foot electronic sign.
City zoning board of adjustment members maintained that the decision violated a section of the zoning code that states nonconforming signs “may not be enlarged, added or replaced by another nonconforming sign or by a nonconforming use or structure.”
But both Allegheny County Common Pleas Senior Judge Joseph James and the state’s Commonwealth Court rejected that contention, prompting the city to take the case to the state Supreme Court.
Mayor Bill Peduto had dubbed the Sprint banner an eyesore.
Thursday’s argument was to focus on the narrow issue of whether the Commonwealth Court ruling contradicted a separate decision by the same court in a case involving Lamar and Monroeville.
In that decision, a three-panel judge concluded that electronic and static vinyl billboards could not be substituted for one another because they are different uses.
In making his pitch to justices Thursday, Lawrence Baumiller, assistant city solicitor, argued that Lamar’s decision to cover the billboard and its support structure with the Sprint banner represented “an illegal change in use.”
Mr. Baumiller maintained there is a difference between what is allowed in terms of the advertisement itself and the support structure on which the ad is mounted.
“This is consistent with the fact that the size of the 100-year-old nonconforming neon tube sign was 4,500 square feet,” he said. “This is also consistent with the fact that the zoning code defines electronic advertising sign separately from a traditional advertising sign or traditional billboard.”
The city’s argument quickly ran into trouble with some of the justices.
Justice Christine Donohue said she does not believe the Monroeville case “stands for the propositions for which you cited.”
“As a matter of fact, it’s diametrically opposed to the situation we have here,” she said, pointing out that the Monroeville case involved a new sign that “required an entirely new structure.”
“We’re not faced with that here. We’re the exact opposite of that. We have a situation where no new structure is necessary. All we have is vinyl put up on an existing structure and, frankly, I don’t see how the Monroeville case has anything to do with this.”
Justice Donohue noted that the occupancy certificate for the sign indicated that it’s 7,200 square feet in size. “They’re just using the 7,200 square feet,” she said.
Justice Baer chimed in that his inclination is to dismiss the city’s appeal as “improvidently granted.”
“I think you don’t win the case on Monroeville and that’s all we granted on,” he said.
In countering, Mr. Baumiller said the Monroeville case, at its core, involves a “change in use and that’s enough. And a change in use does not necessarily require a change in structure.”
He said the billboard’s original neon-tube electronic sign was 4,500 square feet mounted onto a 7,200-square-foot concrete structure. Under the city’s zoning rules, the mounting area is excluded, he maintained.
Lamar attorney Jonathan Kamin disputed that. He said 1928 and 1933 zoning board rulings and a 1985 city occupancy permit support the notion that the “area of the sign” is 7,200 square feet.
“Whether I have Chevrolet on that sign or UPMC on that sign, whether it’s 16 characters or four characters, the number of letters is irrelevant,” he said.
Underscoring that, he contended, is when Lamar sought to modernize the sign in 2014, the city charged it $72,000 for the permit — or $10 a square foot.
“If it wasn’t 7,200 square feet at that time, how can they charge me $72,000 for a permit based on the square footage of the sign?” he asked.
He added that the entire face of the billboard underneath the vinyl ad is covered in neon tubing. When Bayer advertised on the sign, it ran a science quiz that took up all 7,200 square feet, he said.
The sign, he added, is unique because it has both static and electronic components.
In the Monroeville case, Lamar had to remove the existing sign and replace it with an entirely new one, explained Mr. Kamin, who represented the billboard company in that matter.
The Mount Washington case involved no alterations to the structure, he said.
In response to one question, Mr. Kamin contended that covering the billboard with the vinyl Sprint banner represented nothing more than a “change of face” permitted under city zoning law. “I don’t have to get a zoning permit when I’m changing an ad from Chevrolet to Ford,” he said.
The black-and-yellow Sprint banner that triggered the controversy and court battle has since been replaced by a red, white and blue National Flag Foundation advertisement.
Mark Belko: 412-263-1262 or mbelko@post-gazette.com.
First Published: September 17, 2020, 7:24 p.m.
