Fox Rothschild u> RECEIVED JUL 8.0 2019 Rowse W. GUNDLACHL IR. Esul RGulioaPoxRotinchid oes Building & Planning Dept, July 30, 2019 VIA HAND DELIVERY Michael Wylie, Zoning Officer ‘Lower Merion Township Department of Building and Planning 75 E. Lancaster Avenue Ardmore, PA 19003-2376 Re: Application to Lower Merion Township Zoning Hearing Board — Railroad Avenue roperty Dear Mr. Wylie Thave been engaged to represent 766 W. Railroad Outdoor, LLC (the “Applicant”) in connection with an application that the Applicant desires to file to install and maintain a billboard sign on certain property on the south side of West Railroad Avenue in Lower Merion Township. ‘This letter shall constitute an application to the Lower Merion Township Zoning Hearing Board (the “ZHB") in accordance with Rule No. 7of the ZHB’s Rules. In this regatd, enclosed please find the following: 1. An original and five copies this letter and an Application Addendum; which has been executed by the Applicant. 2. Check from the Applicant, payable to Lower Merion Township, in the amount of $2,950; representing the filing fee in the amount of $1,750 and the review fee escrow deposit in the amount of $1,200. Please process this application and schedule the hearing before the ZHIB in accordance with the requirements of the Municipalities Planning Code. APwonani Line ily Parmar Celifornis Colorado Delaware District of Columbia Florida Georgla_—iiinols._—-Minnesota Nevada NewJersey NewYork North Caroling Penneyivaria South Carolina Texas Washington Ative\100721219.01-730119Pay Fox Rothschild uw» ATTORNEYS AT LAW July 30, 2019 Page 2 Should you have any questions with this submission, or need any additional materials, please advise Sincere! eam Robert W, Gundlach CC: Ari Christakis, Lower Merion Outdoor, LLC Jessica L. Rice, Fox Rothschild Active 100721219.¥1-7130719APPLICATION ADDENDUM TO THE LOWER MERION TOWNSHIP ZONING HEARING BOARD VALIDITY CHALLENGE L Applicant, Property and Ownership. A Applicant 1. The applicant for this Application to the Lower Merion Township Zoning Hearing Board (the “Board”) is 766 W. Railroad Outdoor, LLC (the “Applicant”), 2. The contact information for the Applicant is c/o Timothy F. Earle, P.O. Box 1421, Malvern, PA 19355; 610-975-9390 (phone), tim@catalystoutdoor.com (email). 3. Legal counsel for the Applicant is Robert W. Gundlach, Jr., Esquire, Fox Rothschild, LLP, 2700 Kelly Road, Suite 300, Warrington, PA 18976; 215-918-3636 (phone); 215-345-7507 (fax); rgundlach@foxrothschild.com (email) BRK shi 1. The subject property consists of taree parcels, known as tax map parcel ‘nos. 40-00-48496-00-1; 40-00-48500-00-6; and 40-00-48504-00-2, al! under common ownership located on the south side of West Railroad Avenue in Lower Merion Township (the “Subject Property”), 2. The Subject Property is owned by 762-766 Railroad Ave Partnership (the “Property Owner”) pursuant to that certain deed dated July 17, 1997 and recorded in the Office of the Recorder of Deeds in and for the County of Montgomery on August 1, 1997 as instrument number 1997063736 in Book 5194 at Page 1012. A true and correct copy of the aforesaid Deed is attached hereto as Exhibit A. 3. Applicant is a tenant of Property Owner pursuant to that certain Off Premises Lease Agreement between Applicant and the Property Owner dated July 29, 2019 (the Lease”), A true and correct copy of the aforesaid Lease (redacted as to certain business terns) is attached hereto as Exhibit B. 4, Applicant has been authorized by the Property Owner to make this Application pursuant to that certain letter providing such authority issued by the Property Owner dated July 29, 2019 and attached hereto as Exhibit C T Zoning and Existing Conditions. A. The zoning of the Subject Property is C2 Commercial Active\ID0382538.12-7729119 1 ‘Aetve\ 00708827 v2-7/30/19B. The existing condition of the Subject Property is as follows: 1, Upon the parcel known as 762 West Railroad Avenue (the “Comet Parcel”) is a one-story, retail store, most-recently operated as a dry cleaning, laundering, and alterations shop, 2, Upon the parcel known as 764 West Railroad Avenue (the “Sign Parcel”) is a three-story building with a retail space at the ground level and habitable spaces of unspecified use in the second and third stories 3. The Comer Parcel and the Sign Parcel share a party wall, The relative height of the buildings on the Sign Parcol (three stories) to the Comer Parcel (one story) is such that there is an exposed portion of the party wall above the roofline of the Comer Parcel in the general direction of the three-way intersection of County Line Road/Haverford Road, South Bryn Mawr Avenue, and West Railroad Avenue (the “Exposed Wall”). The Exposed Wall is the Premises described in the Lease. I. Proposed Improvements, The Applicant is proposing to install a billboard sign on the Exposed Wall IV. Zoning Relief, A. The Applicant is challenging the substantive validity of the Zoning Ordinance, in accordance with Sections 909.1(a)(1) and 916.1(a)(1) of the Pennsylvania Municipalities Planning Code (tie “MPC”), because the Zoning Ordinance improperly restricts the development and use of land in the Township for billboards (ie., off-site premises signage). B. The Applicant requests that the Board hold a hearing on this substantive validity challenge. C, The specific reasons for this substantive validity challenge are as follows: 1. Section 155-93.3.E of the Zoning Ordinance, which limits the placement of billboards to properties located only within the Township's manufacturing and industrial zoning district, along with the dimensional requirements for billboards set forth thereunder, are (@) unreasonable, arbitrary, unduly restrictive, exclusionary, and not a valid exercise of the Township's police power, and (b) unreasonably infringe upon an affected landowner's constitutionally protected tight to freely use and enjoy the landowner’s property for a billboard. 2. ‘The provisions in Sections 155-93.3.E, when taken together, make it such that there is no area within the Township where a billboard sign would be permitted. Actives 100382538 ‘Aci veil 00708827.923. Section 155-93.3.E. is illusory in that it gives the impression that billboard signs are permitted in the Township, but then takes that ability away with the imposition of the restrictions found in that section and it subparts, 4. Section 155-93.3.E of the Zoning Ordinance is contrary to the Municipalities Planning Code and PA case law as to billboard signage 5. The Applicant also challenges the ability of the Township to require the Applicant to fund an escrow account that reimburses the Township consultants anc its legal counsel to provide services in opposition to this challenge application. D. The Applicant’s anticipated witnesses at the hearing are as follows i, Represontative of the Applicant. ii, Applicant's land planner. iti, _Applicant’s civil engineer. ‘The Applicant estimates that it will require approximately 2 to 3 hours to present its case, exclusive of any cross examination F. The Applicant reserves the right to supplement and modify the witnesses to testify at the hearings as well as to provide rebuttal testimony. V. Requested Relief ‘The Applicant is requesting that the Zoning Hearing Board find that Section 155-93.3.E. of the Zoning Ordinance is invalid, ‘The undersigned, being the Applicant referenced above, hereby confirms the accuracy of the information set forth in this Addendum to Application and the documentation attached hereto. 766 W. Railroud Outdoor, a Acsive\100382538 2-299 3 ‘Aofive\LG0708827.72-130/19Exhibit A RECORDER OF DEEDS MONTGOMERY COUNTY PENNSYLVANIA Jeanne Sorg ‘one stantgomery Plaza Suede and Ay Streets ~ Sue 303 + Thereby certity that the following is a true and correct, Copy of the original document recorded in Montgomery County, PA Lanne Soy ce coy Pie bees mee 8209 rayon sad nese fee and Digitally Signed "Bentaey Coty Rooter at Seedspen7sane comnouvenith tand Ritle Znmusence Co. = Media ~ This Tadernture sme wo rose sor» oS Sy Metiweet —ecurmnorcn onse or rennerzvanca 4 Ghenoater called tm “rent, 1162-766 RALERORD AVR PRODEROTRA LTO. APA LINEDRD PARIVERSES? $ (teeter clad the Gaatee ‘Witmewwethy Tae she wid Grantor tor and in cowieraton of the ware of "ata ESF MERE ENE res Pye Cet ny the ald Grantee at ar tape ha arpa ead folds elesed ald conned; acd by thee jeune doen” rant, bargain and hr rue ae vel en SUSE Cenc dee nucceneort nd ign a suesrsone [Ramee 2a : Loatezeo ce | PRERSES & teen of Lend with the buttdinas and Atvate in the Tounshie ef Lower ‘ier ion ind Commonseeith of Pannavivanies described #3 ALL THAT CERTAIN 1ut or ravenents th snty of Mant ee wouter ECIUNING at. point in the alddle Line of Reitrosd Avenue at the stance of 54279 feet orthuestwardiy from the andke driven ot ane intertection of tha middie Lines of Retitaad Avenue and County Line Bi Tetir South 31 eer Thence South 62d adie Line of Ma Road Naren 27 deatens 54 einutes Wests 18.59 fact to # points North 62 dearaes cf minutes Gasts 18.5 feae to a point on the Easteriy Side of Line of said Road! thence by land now or Lote of Panquale Tati Pasting through the middie of the purtttion uall separating the house on ‘its Rerety granted fron the house edJoining on the Narthuest, Yo ninutan Eastr G6ro4 feet tae point am the middle ce along the widdle Line of seid Rain i"thanes Of minutes Exets 16 feat to the STASI PH 148 oF beginning. SEING ASSESAHENT PaRCEL WuNGER a0-co-s04ns-co- GA Ag PREMISES © —-ALLATHAT- CERTAIN trect or-eiece of land situate in the Tounship ef Lover Rerionr County of Montsanery and Connonuealtn of Punnavivania bauhded an Ussorived sccerding to a survey theres! nado by Milton Ry Yarkesy Civil Enatneers on Herch 207 1909 4s follows: to wit? pS 194PG1 O12BEGINNING at @ anike set in the inturgection of the eiddte tine of Maverrorg Road with the sigdie tine of Ratiroag avenoes and thence slang the eiddle Ling of Ratzrosd Avenues South 26) 128.8 fests theoe South 31 deat states Unence South s7 dugrees 90 minut the aiddie Ling of Haverford Roadt the Moeer 90,29 faat along the middie Line of Haverfara Romd the spies, unence North 19 daaraue 58 mine the aiddie Tine of seid Hiavertard Rasdy 88,43 feet to abe place of Beginning. rome ¢ meng ALL THAT CERTAIN Lot ar place af around with the building and Snerovenente thereon evecteds situste in Gry Haury Township of Lower Kartone County. of Nan ‘and Cannonuvaith of Penmsvivaniar bounded Sed dencrabed ae folieuss te ater . BEGENNING st = point in the siddle Line of Railroad Avanugy 565.9 fi Kortrwest from sapike Ln the aiddie Line of the county Line Road) thence by lend of i South 81 degraens 29 minutes Heats 86,08 feats Gouth Bacninuten Matte 14/5 fant to the middie of Haverford Road? Nobth 27 degrees 36 minutes tees 10 minutes Westy GP feetr thence tnutns East 1s;8 feati nd oF dacoD A = 29 sinvien Ea 15 thence Blond) he aiudie Line of Ralinasd Avenue’ South ‘Si ainstes Eests 16 Post to the first mentioned paint und plsce af beginning. 35.42" teat to's leat 16:8 feet ta a'peine in ‘tn 22 degrees 10 asnut BEING ABSESSHENT PARCEL NUMBER 40-00- SEINE known a SEIUG the sane, srgnigag enich fronets f, taatey: gheritr of the County of Mantgousry by Deed Poll dated dune 19) 1998 ond Fecarded in Rontcasry County ta Osed Book S115 page 2547 conveyed unto Milminaten Trust of Pennayivaniay in Tees ‘sera omy PA lap aac ase Seeeeeeoaaaaaians Lemerrow we | STATE STAN? 3730.00 | ora 7300.00 ocx 3730.00 08519461013 rm 2 crt oy fed 8 1S7OGTI on 224 ‘anger ome cad oncecine ee ene me oman ame tases Iuli€ingn and lnrovenny angn stent tlayn avevegee an pegs, hevelansnte re apurtenescn, cece vate tig To and to ‘the sid toto plage of ground ubove detribed with the Re fet an te 0h etl ee rede ad pri ky (Paste, raentoned, and vended too beste epportenancts uate the sed ‘Tee woceweeare ica ad a raime yeko mre se sel Sn Te eeu Yovremen cary comission reste ——_AOTIOEY cam cme : : — (40-00-48496-00-1 LONEM HERION 40-00-8804 nearsrRy, soabiaea ieee Ge metas i ae a Eee BOO9A U O08 LL 124 DATED oBvoirs7 => 8 907A U O10 Be: onres cereus ONrcony COUNTY conmBBTONERS AECISTY 40-00-40590-00- 30098 U ooF ‘4824 GATES O8/0%/97 nD cress Grantor, for Loyal, Lom miccaasors ant aestgne i+ byte en coast et oe ne, fund beat canine, en muoveasors and Antamy tat “he id aaacar tc vgn ‘cdsents and preiam ‘Sean shore denied andere cerned thd tnd to Wt ‘Aiparcce nto eat Grantee, tes nutuseace Re Aetna 2 taht Sranvet ad apa al and every Peon or Panes ‘Neomioreiafuly ealang eta clan nsec any pat bere, by fam orunder Te” erany a a, ‘aed at on o coven. promo wed are, to end with sald deen, bytes prnat tat ‘eae i astra nat dons, commited ‘Sey rae or ay pat thee, tal or may bempenched, charge canine ox tore or winter oe dene or cori, anys, mate oF thing whasover whereby the cthewtohowioer, e ae fi in tice Wea, heed Geamorha/havecaune hee reas be ly exsated. ‘tae ore erie sexo Cond ‘eaten an Betiversd a5 194P5 1014 comet aatinnde ett ceca dil‘COMMONWBALTHOP PENNSYLXANIA Sein ne ay ot JAD.1?, beforeme, ‘he ued ofr, prolly tcnown te me or etter proven) tbe the person. wows mune - (re subsea to dhe within [Getuentandackrenltand that te ett osama for he purpu been coaee, i Wines Wbeeot, hereunto vet my hand anol el. Roary Pobie Beles ‘OF Only the TI devel Ty A.D.1907 ,betoreme, Andran @ Connoes oi appeed ro ectnewiatent ato “eg Manlf Gera bethe Vie Perseene TP ROPE inna rest ot Penni van me coponmioncnt it ean Cian [SkPemnorn dun ced efector ppm rina ria tobe cnted i ‘seneraon ty Bigs Gemeente nr |, ees Wes The tera ad od : flaps fe BW .Leqcaske fet 2A. < ‘The ailren of the shnetned Grane ne. monconicemaemeieasse fe=a OFF-PREMISES LEASE AGREEMENT PARTIES: fo. this Outdoor Advertising Lease Agreement (“Lease” ot “Agreement” is made effective wis] day “eal 2019 by and between 766 W. Railroad Outdoor, LLC, located at 3400 West Chester Pike, Naftiowh Square, PA. 19073 hereinafter to 2s (“WRO” of “Lessee”) and 762-766 Railroad Ave Partnership, located at P.O, Box 490, Concordville, PA 19331-0490 hereinafter refered to as (“RPI" or “Lessor”). PREMISES: |. In consideration of the undertakings contained in this Lease and other good and valuable ‘consideration, the receipt of which is acknowledged, RPI hereby leases to WRO a certain portion of the real estate commonly known as 762-766 Railroad Ave. Brya Mawr, PA 19010 (parcel # 40- (00-48496-00-1, 40-00-48500-00-6, 40-00-48504-002) as legally described in ‘Exhibit A” Property”), with such portion of the Property being leased hereinafter referred to as the Premises”) as more particularly described on ‘Exhibit B’ attached hereto, under the terms and conditions hereinafter set forth, 2. WRO sholl use and occupy the Property forthe purpose of erecting, maintaining, operating, painting, posting, servicing, repairing, altering, removing or repositioning an off-premise advertising structure (OF-Premise Structure”) and its replacements including the necessary fixtures, equipment, cables, and attachments, appearances, hereinafter referred to as Equipment”) which the parties agree is not pact of the Property. This instrument is a Lease and the Equipment will remain the personal property of WRO. 13, This Lease at the Property will commence on the Effective Date and run for a period of I (-Terin"). Nothing in this paragraph changes the fat that the Equipment is the property of WRO and may be removed by WRO prior o or atthe conclusion of this Lease. RPT agrees not to contract with any other party to permit any other form of outdoor advertising on the Property. PAYMENT: 4. Lessee's obligation to pay Rent as defined herein shal! begin upon the construction completion and operation ofthe OfF Premise Structure (“Reat Commencement”). Ail Rent and notices are to be forwarded tothe parties atthe addrassee noted above. Rent is due on the frst (1"9 day ofthe month following Rent Commencement. A ter percent (10%) fee will apply to any portion of the rent that is more than fifteen days (15) late. If Rent is pald with a check that is wneolleetible by the ‘bank, there will be a charge to Lessee of fifty dollars (850.00) payable upon written recsipt of ‘written notice by Lessor. All notices and payments are effective upon dispatch. Ali notices are to be by certified mail. RENTALS: 5, Payment of Rent shall be due on the Rent Commencement date. Lessce shall pay Rent on a snonthly basis every year beginning with Rent Commencement. Page 10f6OBSTRUCTION: 6. RPLagrees not to place any construction, fixture, building, or vegetation, which shall hinder ether the view of the Of-Premise Structure or access to the Of Premise Structure or the Equipment, INABILITY TO ADVERTISE: 7. Hin WRO’s sole judgement any of the following circumstances occur, this agreement may be terminated at the sole discretion of WRO: a, Visibility of any of the Off-Premise Structure shall become entirely or partially obscured Jnany manner. b. The Property, OffPremise Structure, Equipment, or maintenance of same becomes unsafe; ¢. Temporary or permanent diversion of traffic or change of direction of traffic from any highway or street leading to or past the Property; 4. By law or ordinance WRO is unable to operate the OFF Premise Structure. In such case this agreement may be terminated atthe option of WRO upon thirty (30) days" notice to RPL. WARRANTY OF OWNERSHIP: 8. RPE represeats and warrants that (fit isthe owner of the Property; (i) ithas the authority to enter into, execute and fulfil its obligations under this Lease; and (ii) the execution of this Lease by [RPT and the performance ofits obligations hereunder will not violate the covenants, terms or conditions of any other agreement to which its a party, including but aot limited to any other leases or easement agreements. ACCESS: 9. RPL gives WRO right of ingress and egress in order fo erect and service the Off-Premise Structure and Equipment, NO COMPETITION: 10. RPLagrees not to advestise its own business or allow any other party to advertise their business in ‘a way which within the sole discretion of WRO would hamper or detract from the Off-Premise Structure advertisement. RPI shall not contractor nermit any other person, fitm or corporation to advertise from the Property during the life ofthis Lease, INSURANCE: 11, WRO agrecs to maintain ibility coverage for the eroction, use and maintenance ofthe Off- Premise Structure in an amount not less than $2,000,000.00 and to provide RPI with evidence of the same upon written request, ASSIGNMENT/MEMORANDUM OF LEASE: 12. RPI acirowledges that this Lease and the interests contained in this Lease are cumulative and. inure to the benefit of the WRO and may be sold or transferred without prior consent of RPt whereupon WRO shal be fully discharged from any and all obligations under this Lease ‘occutring after such transfer. RPT and WRO agree to execute a recordable memorandum of this Lease within five days (5) request by the other party, and further agree to execute any documents nevessary to evidence or effectuate this Lease, including any documents necessary to effectuate its purpose. [SIGNATURE PAGE FOLLOWS] Page 1 of 6IN WITNESS WHEREOF, the said parties have set their hands and seals hereto the day and year fist above written. Page of 6EXHIBITA Property SEEINNING at # epihe sot in the interswotion of the middie tiow of Haverford Road with. Le" Line of Ralivoad @venve) end thence slong ‘siddie tine af Rail 3 ‘s Wests along the middle line oF eaid faverford Ronde 3 jot ta tha placy of bestnnings PEDO ASEGENENT PARCEL WUNBER fo-00-48500-00-8 PAL 10) PRENTSES ©. ALL THAY CERTAIN Lot ar piace of ground with the building and Udprovenenta thereon erecteds wituste in Bryn Raury Township of Lover ‘ane County cf Rontseaary and Coananuaeith of Penneyiveniay pounded ine described se foliouss to witt * oint in the middie Line of Relirosd Avenues S65. ‘pike in the aiddie Line of she County Line Rowd? { Gauth 32 degrees 29 minutes ests 86.04 Testy Sauth Hettr 1éS fees to the aiddde nf Waverrard Read? dale Line of said Raed Neluh 27 degrecs 36 ainutes ‘and North 22 desraes 10 sinutas Wests B-9 feet) thence: o'alnoees Eset Lord fat} thence by Land of deceb Ae ‘SECKNNING at & foot serve asoceeegy Pence. wou ocea:4esea-60-t eae ase Ac QEINE known as Hos 7621 Mas 76% BEING the ssee praaises ubich Francts P. Lelleve Sheriff of the County ry by Deed Poll dete June 19) 903 end recorded Ln Tountvs in Owed Sook Si1S page 2347 conveyed unto Wilatnaton shanisen’ ai Cee cet ALL THAT CERTAIN Let or piece of Zand with the Dutisings and Gnprovewents thereon eracteds situste in the Tounsnis ef Lauer ter iony Gouney sf Montgomery snd Commarwewitn of Pannuviventay described a6 fren to wit JEGENNIMG ata point in the Aiddia Line of Reitrced Avenue at the Teel Morthuestwerdiy from the spike driven at the Tines cf Raklrand Avenva snd County Line of Pexqusie Tatty Sousn 31 degree iy side line of Havesfard Rosdi i, "ises test toe poine an the sions the aiddie Line of waid a5 Fane toe points, thence Dy" dand neu oF jortttion wall separating the haves on ‘che hovee adjoining on the Northuesty {o's point in the miadle ‘Of seid Ratirosd Roanver Sguth 38 deataesr thence 01 TS Feet te the place ot" besinninas SEIN ABSESSHENT PancEL WuMDER 49-00-40976-00- A PRentses 9 ALL THAT-CERTAIN tract or-elece of. Lend Herianr County of Hontgawery and Common Mesecload according tos aurvoy. thereof aude by Wilton R Yerkesr Ebinwers on 'Rerch 20) 1909 os follower to uit Page 1of 6EXHIBIT E Premises ‘Tho Premises is the portion of the Property that will be occupied by the Off Premise Structure. The Off Premise Structure shall be erected within the general area outlined in yellow in the image below unless “otherwise agreed to by Lessor and Lessee. Page Lof §Exhibit C 762-766 W. RAILROAD AVE PARTNERSHIP 762-766 W. RAILROAD AVE. BRYN MAWR, PA 19010 (Parcel ID # 40-00-48496-00-1, 40-00-48500-00-6, 40-00-48504-002) July 26, 2019 To Whom tt May Concern: Allow this fetter to confirm that 762-766 W. RAILROAD AVE PARTNERSHIP Is the owner of the property located at 762-766 W. Railroad Ave, Bryn Mawr, PA 19010, (Parcel ID #40-00- 48496-00-1, 40-00-48500-00-6, 40-00-48504-002) located in Lower Merion Township, Montgomery County hereinafter referred to as the “Property”. 766 W. Railroad Qutdoor, LLC and its subsidiaries are the only entities authorized to file, commence, and process any and all applications and proceedings with any local, state or federal bodies, boards, agencies, or any other government related entity, and any appeals therefrom to courts of appropriate Jurisdiction, having jurisdiction over the subject off-premises advertising structure at the Property; including but not limited to any zoning applications and substantive validity or procedural challenges permitted by the Municipality Planning Code or the zoning ordinance of the subject municipality; PennDOT outdoor advertising permit applications; etc” Sincerely, 762-766 W. Rail id Ave Partnership By: Kennath Gross Title: General Manager