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In an age when competition is king, achieving an “edge” oftentimes necessitates uncompromising ingenuity. The automobile industry, more specifically the competition amongst dealers/franchisees, is a perfect case in point. A glut of new-car dealers peddle their wares to extremely discerning consumers wielding too much information dangerously. One moderately creative marketing strategy is one I shall refer to as “the carnival theme.” On any given Saturday, one might happen upon that playful dealer implementing one of many variations on this theme. Hot dogs, balloons, clowns, mascots and live radio broadcasts literally transform these dealerships into circuses with cars. How about oscillating searchlights illuminating the nighttime sky, distracting passing motorists and forcing them to quickly take notice of a particular store? Or one of those automobile shells mounted atop the dealership, a la the infamous Hard Rock Caf� guitar or the star-studded Planet Hollywood globe? It seems that such flamboyant techniques no longer shock the conscience. Eventually, some of these more risqu� stratagems attract the discerning stare of the local zoning board. There is a point when the capitalistic envelope has been pushed too far some might suggest. So exactly when does a well-meaning marketing technique cross over into the interesting and highly regulated realm of land use? Just several months ago, a sensible dealer reached out for an opinion from one of his local zoning officers, prior to opting for the searchlight method. Sutliff Enterprises, the local Hummer/Saturn dealer in Silver Springs, Pa., wished to call the attention of passing motorists to special sales and events. The objective of the inquiry was to clarify that using a portable, towable trailer of oscillating searchlights did not constitute a “sign” under the code. More precisely, “[t]he purpose of the searchlights would be to call attention generally to the business locations and on occasion to specific promotional sales and events.” And so the zoning board and eventually the Cumberland County Common Pleas Court were forced to embark upon a relatively metaphysical journey into the question of what constitutes a “sign.” After failing at the officer and then again at the board level, the instant appeal ensued. Here’s how the ordinance reads in pertinent part: A sign is a “device for visual communication that is used to bring the subject to the attention of the public, but not flags or other insignia of any government, fraternal or similar organization.” A prohibition on oscillating signs and unshielded light also exists. Of course Sutliff contended that beams of light from its searchlights are not a sign, as there is no information or subject brought to attention by the light. In other words, the board erred by not focusing solely on the lights themselves, which intrinsically communicate nothing. In response to Sutliff’s novel argument, the court relied upon the Autohaus Lancaster decision, another matter stemming from a car dealer’s marketing ingenuity. In Autohaus, a Lancaster County Volkswagen dealer decided that it would be beneficial literally to place a vehicle atop its store. In turn and without the blessing of the Manheim Township zoning board, he used a crane and effectuated that vision. A violation was incurred, with the board citing to the following ordinance in support of the action: The placement of the car on the roof constituted a sign that impermissibly projected above the building’s roof line. Autohaus decided to litigate the matter, contending that the vehicle was not, in fact, a sign but rather a nonconforming use. Additionally, at least in the eyes of Autohaus, the pertinent ordinance was unconstitutionally vague and overbroad, even impinging upon its First Amendment rights. As it so happened, Autohaus had been engaging in this practice of mounting vehicles atop its roof for years; it had even reinforced the roof for this exact purpose. These cars were much more than ordinary hunks of metal � they set this particular dealership apart from the others, proudly branding it as a VW store. That should certainly count for something. Furthermore, the township’s reading of the ordinance was fatally flawed. Its myopic interpretation would also lead one to the absurd conclusion that every other car on the lot should be treated as a sign as well. Despite a valiant effort, Autohaus failed on all accounts, with the Commonwealth Court ultimately sustaining the trial court. Because these cars were placed there for the purpose of performing the special function of calling the public’s attention to Autohaus, Autohaus’ fight proved a fait accompli. In the less modern times, when competition was arguably not quite as fierce and before technology had gotten ahead of us, a Bucks County dealer nevertheless became ensnared in the same sign quagmire. He “desire[d] to erect a contrivance � better described than named” according to the Stockburger court. Stockburger wished to erect metal poles and illuminated plastic panels along two sides of his used-car lot resembling a long narrow theater marquee. The paving on the premises made distinguishing between the display area and parking lot difficult, for both customers and the public alike. So although his application was marketing driven, the proposed structure served a functional purpose as well. The pertinent Newtown zoning ordinance, which permitted signs in commercial districts, also set forth use restrictions. The Stockburger court realized that the outcome of the appeal hinged upon whether this “contraption” constituted a sign in the first place. If it did not, neither the zoning officer nor the board had the authority to refuse the application. With little if any precedent to go on, the court engaged in the following analysis: Does the proposed structure look like a sign, does it function like a sign and is it intended to perform the functions of a sign or is its sign function merely incidental? And although it took issue with a few of the board’s computations, the Stockburger court had little trouble concluding that under any one of the factors the device here was clearly a sign. In light of these decisions, it would seem that marketing ploys oftentimes are not quite as simple as the mere generation of a marvelous idea and its nimble execution. Although some are arguably more innocuous than others, the inescapable truth is that they will almost certainly require the blessing of one’s local township. The claim that an advertising gimmick is not in and of itself a sign will probably not pass regulatory muster. Intent will be the operative focus of the inquiry, as it should be. The fact that private property is used for the purpose of literally beaming light into the eyes of the unsuspecting public does not transmute such a tactic into constitutionally protected speech or even tolerable conduct for that matter. Harper Dimmerman represents clients in real estate matters and is the principal of his firm and president of DST Land Transfer, Inc., a title insurance company licensed in Pennsylvania and New Jersey. He may be reached via email: [email protected] or telephone 215-545-0600. He is co-chairman of the Philadelphia Bar Association’s Solo and Small Firm Committee and an Executive Committee member of the Law Practice Management Committee and YLD.

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