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Clear Channel Outdoor Inc. must remove five billboards from the top of a building in the Mayfair section of Philadelphia, a Commonwealth Court panel has ruled in an unpublished opinion. Lawyers for a group opposing excessive signage have asked the court to publish its decision, and say that it could provide momentum for requiring the removal of “thousands” of illegal signs in Philadelphia. In Clear Channel Outdoor Inc. v. Zoning Board of Adjustment, Commonwealth Court Judges Bernard L. McGinley, Robert Simpson and James R. Kelley denied the latest in a series of appeals by Clear Channel and the billboards’ landowner, Stemy Associates. Clear Channel had been seeking to have the billboards at 7033-49 Frankford Avenue deemed “nonconforming uses” so that they could remain in place. Clear Channel’s attorneys argued that the billboards had been in place before the 1981 and 1991 changes to the Philadelphia Zoning Code, which prohibits such signs. Clear Channel cited continuous use since 1954. The court did not contest the billboards’ continuous use in its Dec. 29 ruling, but found that they were illegal prior to the zoning changes and therefore ineligible for nonconforming use status. “[Clear Channel] asserts a party claiming the existence of a nonconforming use need only prove such use was in operation at the time of an ordinance enactment that rendered it illegal,” the court wrote. “[Clear Channel] suggests it is unnecessary to show the use existed lawfully at the time of the prohibiting enactment in order to obtain nonconforming status. . . . We reject these assertions.” A community group, Society Created to Reduce Urban Blight (SCRUB), that wants to see the signs come down, opposed Clear Channel’s application. SCRUB attorney Samuel C. Stretton said the case was an important decision in aiding SCRUB’s efforts to remove illegally maintained billboards citywide. Stretton said he has applied to have the 18-page opinion published. Stretton is a columnist for Pennsylvania Law Weekly, a publication of ALM. “There are thousands of illegal signs in Philadelphia – they haven’t been properly permitted. . . . Some sign companies contend that they should be grandfathered in. This decision cut through that argument and will help us remove thousands of illegal signs that blight the community,” Stretton said. SCRUB executive director Mary Tracy said the case broke precedent for SCRUB because the group usually works with the zoning board to prevent the erection of new signs. This time the group got a ruling in favor of removing illegal signs, she said. According to the opinion, the case began in 2002 when Clear Channel applied to the Department of Licenses & Inspection for a use permit to legalize the five billboards. When L&I refused the application, Clear Channel’s appealed to the Zoning Board of Adjustment and then common pleas court. It lost at each level, eventually bringing it to the Commonwealth Court. Clear Channel maintained that its predecessors acquired valid permits for the billboards in 1949. The permits were one approving the signs with no expiration date, and a temporary one-year use permit and a permit from the Department of Public Safety for a rooftop sign. The court determined that, combined, the permits had granted permission for the erection of a sign on a temporary, one-year basis. Clear Channel also argued that the trial court’s decision had disregarded established law regarding the doctrines of vested rights, estoppel and laches. The court also rejected those arguments. The court wrote that Clear Channel’s vested rights argument failed because the 1949 use permit was not shown to be issued in error or later invalidated. And since the permit expired in 1950, Clear Channel could not argue that it had relied in good faith on the permits, the court said. The court waived the estoppel and laches arguments because Clear Channel had not raised those arguments with the Zoning Board Authority. The court also noted that those arguments failed on their merits. The attorneys for Clear Channel and Stemy Associates were Carl S. Primavera and Richard C. DeMarco of Klehr Harrison Harvey Branzburg & Ellers. Neither attorney returned calls for comment. Tracy said she thought it was likely that Clear Channel would appeal the decision “to buy more time.” (Copies of the 17-page opinion in Clear Channel Outdoor Inc. v. Zoning Board of Adjustment , PICS No. 07-0022, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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