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A Philadelphia judge has ordered the removal of an illegal, five-story-high mesh “wall-wrap” advertisement that’s tacked to a building overlooking the Vine Street Expressway, fining the building’s owners almost $66,000 and requiring them to turn over all the money they’ve made on the ad over the last 15 months. Judge Alan K. Silberstein, appointed to sit as a common pleas judge in City of Philadelphia v. Berman, said the advertisement was rendered illegal in December 2002 when the Pennsylvania Supreme Court refused to hear the case. The Commonwealth Court ruled in July 2002 that the owners should not have been granted a variance for the sign — despite their arguments that without the revenue from the wall-wrap ads they would suffer economic hardship. But the sign, at 419 to 453 N. 7th St., was never taken down, and more than a year ago, the city cited the owners for keeping it up, said Mary Tracy, director of the Society Created to Reduce Urban Blight. SCRUB is the group that fought against the wall-wrap’s location in a city zone where signs more than 1,000 square feet in length are illegal. The wall-wrap currently displays a Subaru advertisement. Silberstein said in an order last week that the sign was a public nuisance under city law and a threat to the health, safety and welfare of the public. He gave the building’s owners, Myron Berman and Callowhill Center Associates, 30 days from March 1 to remove the wall-wrap — after which a daily fine of $150 would be added to the $65,850 fine he imposed, according to the opinion. Silberstein said the advertising revenues accumulated by the building owners since the Supreme Court denied allocatur on Dec. 17, 2002, would be placed in a constructive trust in favor of city residents. The defendants were “unjustly enriched by displaying the wall wrap, knew that its actions were illegal and either knew or should have known that any profits from the wall wrap display would have to be disgorged and inure to the benefit of the citizenry of the city of Philadelphia,” Silberstein wrote. Counsel for the defendants, Marianne E. Brown of Dilworth Paxson, declined to comment last week. Under a 1991 Philadelphia ordinance, zoning boards may grant a variance to signage codes if an unnecessary hardship can be demonstrated. Berman had testified before the zoning board that the exterior of the building required $4.8 million in repair and replacement of windows and that with only 70 percent to 80 percent of the building occupied by commercial tenants, their rental income was insufficient to pay for the renovations. Berman said the revenue from the sign would make the repairs possible, according to the Commonwealth Court opinion. The zoning board granted the variance, but, on appeal, Philadelphia Common Pleas Judge Matthew D. Carrafiello reversed, finding that the owners hadn’t suffered unnecessary hardship. The Commonwealth Court, in an opinion written by Judge Robert Simpson, also concluded that the hardship burden hadn’t been met. “The building was 70 to 80 percent occupied by commercial tenants when the sign was erected,” Simpson wrote. “The building is being put to a profitable use, and the loss of the sign revenue does not render the building valueless.” The owners had also argued that a wall-wrap wasn’t the same thing as a billboard or a sign, and, therefore, the zoning code didn’t apply to it. Simpson also rejected that argument, noting that the definition of a “sign” under the law is “a name, identification, description, emblem, display or structure which is affixed to, or printed on, or represented directly upon a building, structure or parcel of land.” Tracy said that when the state Supreme Court refused to hear the case, the owners appealed to the U.S. Supreme Court but were denied certiorari. SCRUB, represented by Samuel C. Stretton of the Law Offices of Samuel C. Stretton in West Chester, had challenged the wall-wrap as a blight on the Vine Street corridor, a main gateway to the city, Tracy said. The Old City Civic Association and the Kensington South Neighborhood Advisory Council joined SCRUB’s objections to the wall-wrap. Tracy said confiscating the owners’ revenue from the wall-wrap was a good way to get the billboard industry’s attention. “It’s a great victory, and we applaud Mayor Street and the city Law Department for their commitment to improving the quality of life and the visual environment on behalf of Philadelphia’s citizens,” Tracy said. Stretton could not be reached for comment Friday. (Copies of the three-page opinion in City of Philadelphia v. Berman , PICS No. 04-0319, are available from The Legal Intelligencer . Please refer to the order form on Page 12.)

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