Weeks after the post agenda, Solicitor Specter would unravel the history of these LED approvals, in the form of a legal opinion that arrived too late to do the city much good.
In that opinion, he agreed that although for roughly three years, zoning administrators like Ms. Tymoczko had occasionally been approving these signs for Lamar under similar circumstances to the one being discussed...
Nevertheless, we have concluded further that the practice was not in accord with applicable provisions of the Zoning Code ... and should be terminated prospectively.
"Should be terminated prospectively" is somewhat redundant. It means, don't do this anymore. On what to do about the Grant Street Transportation Center, Specter was, and remains, silent.
Lamar's legal position was that they were entitled to administrative approvals without any public process for the reason that under Pennsylvania law they were entitled to modernize non-conforming signs. I did not agree then, and do not now, that elimination of non-conforming constitutes a basis for erection of new LEDs. There was not then nor now anything in the Code or decisional court precedent in support of that theory.
Specter opined then (and reaffirms now) that LEDs are not an "improved" form of billboard -- they are a different animal. Nonetheless, Lamar in 2003 threatened to sue for the right to "modernize" at least 56 existing billboards -- or later, possibly 100.
Apparently, former Mayor Murphy was afraid of the lawsuit. For some reason.
So a deal emerged to allow Lamar to put up six new LED signs, in exchange for taking down 36 existing standard billboards.
(What did Lamar get out of the deal, if it was their position that they were entitled to 56 new LEDs? Presumably, the right not to have to deal with pain-in-the-ass public hearings, public decision making, and unreliably public officials. To exempt themselves from the law.)
Oh, and yes. The deal was negotiated by Pat Ford, as Zoning Administrator under Murphy. So we see a lot of the same faces.
The agreement was consummated in a document called a "Memorandum of Understanding" between Lamar Advertising and the City of Pittsburgh.
It looks something akin to an official document:
3. The Parties agree that the City's issuance of said Permits will not have a precedential effect on any future applications which Lamar may file with the City for the erection of LED billboard faces within the City.
So even by the terms contained within this agreement that supposedly trumps city law -- this is not supposed to justify doing something like it again in the future.
4. Lamar and City also agree that any future applications involving the erection of an LED billboard face will be evaluated on a case by case basis with the Zoning Administrator. Each Party recognizes that the erection of subsequent LED faces with be a negotiated process which will be negotiated between Lamar and the City.
"A negotiated process which will be negotiated." Who wrote this?
Moreover, what can that mean? That the City reserves for itself the right to circumvent the law again, if it wants to in the future?
There are lines for signatures for Lamar Advertising Company and for the City of Pittsburgh. The Comet would be interested to know who, if anyone, actually signed this "Memorandum of Understanding" representing the City.
Specter writes of it now:
The Memorandum was not acceptable to me, and by e-mail of November 20, 2003, I advised mr. Ford that I had serious problems with it. A copy of that e-mail is attached hereto as Exhibit B. Without reviewing the Memorandum at length in this letter, I did not believe it was consistent with the Code, or that anyone had the authority to sign it.
Of course, Specter's knowledge and misgivings about Ford's soon-to-be-landmark sign deal would not come out during our Pat Ford Post Agenda. That had to come later.
Back to the post agenda itself, it was Doug Shields' turn when we left off, remember?
During his questions, we learned yet again, and more fully, about how Planning Director Noor Ismail was entirely out of the loop. We learned again that the city Law Department was never officially consulted. We learned again that many of Zoning Administrator Susan Tymoczko's answers seemed either to contravene plain English, or to relate in some murky way to the agreement outlined in this "Memorandum of Understanding".
The subject turned to the genesis of the deal for the Grant Street Transportation Center itself.
Mr. Shields: Does anybody in front of us right now know who negotiated on behalf of the city [with the Parking Authority and with Lamar] in that regard? Nobody knows?
Oddly, there was silence.
Ms. Noor, would it be your responsibility as director of planning to be involved in the negotiations such as that, or would you expect the planning department to be consulted throughout those negotiations in any way?
Ms. Ismail: Most certainly yes, but I have stated that I was not part of that negotiations.
Mr. Shields: In going to Mr. Specter, I did request from your office a legal opinion, and I am not in receipt of it yet. Is your office conducting a review pursuant to the request from my office?
Mr. Specter: Let me say I did not see your request until some time yesterday morning. And quite frankly, it's a good thing that I didn't rush to get it out, because I have learned more about the whole background since that time.
Mr Shields: It is unfortunate that we don't have that, because it makes this discussion all the more difficult, and I do expect someone to have a legal opinion in the hands of council by the end of this week, I really do.
Mr. Specter: That's not going to happen, Mr. Shields.
Mr. Shields: All right. When will we want to see that?
Mr. Specter: I think in response to Councilman Dowd, I said a couple of weeks. Let me say this.
Mr. Motznik [interrupting]: Take your time so you can get it right.
Mr. Specter: I have got it right. Oh, you mean the opinion?
Mr. Motznik: Yes.
[What did Specter think Motznik was talking about? Getting the story straight?]
Mr. Specter: Absolutely. You sent me that request late Monday afternoon. I did not see it until some time between nine and ten o'clcok yesterday morning. It would have been a horrendous mistake, maybe almost bordering on malpractice, I wouldn't go that far, for me to have set down, rushed out an opinion in six hours because you asked for it at the end of the business day.
Good thing he pulled short of calling it "malpractice", because...
Mr. Shields: That's interesting, and I hate to do this to you, George, because I got you, because that's exactly what happened when the first vehicle contract review was done...
So the Law Department has proven itself capable of performing with much greater speed -- an unseemly overabundance of speed, at times -- when it is duly motivated to speak to a subject.
Shields asked just one more time just when this particular legal opinion would be ready, in light of the fact that Council really, really wants to be advised of it quickly.
Mr. Specter: I would say a couple of weeks.
Mr. Shields: [Pauses, and then dryly:] Two weeks?
Mr. Specter: [Hesitates] The only reason I'm hesitating on that one, I'm certainly going to do my absolute positive best, but I'm going to be away for about four or five days...
... but I'm still going to try to do it within that time frame.
Mr. Shields: Well, I would hope that we hurry it up. We need it sooner than two weeks. It is a matter of great importance to this council. We would not be here otherwise.
No one can say Doug Shields didn't try to go through the city's own legal department. No one can say he didn't try to do it the easy way.
So our City Solicitor showed up to the post agenda anxious to definitively refute three of the stated concerns about the sign permit -- but to be absolutely silent on other obvious concerns, to decline to discuss his own rather extensive knowledge of these Lamar LED deals, and to refuse to come forward with a legal opinion in a remotely timely or useful manner, even considering that personal experience.
Not an encouraging performance.
Why the pressing need for a legal opinion, anyway? Let us jump abruptly to Councilman Dowd, who eventually put that question best:
Mr. Dowd: Mine is merely a procedural question. So if someone were to file an appeal against the permit that was issued, they would have thirty days from some point. We could debate that point, but they would have thirty days from some point. That is one thing. So if this decision that you should render that council does, in fact, have an administrative / adjudicative function in the conditional use question of this particular sign, where then are we, especially if that decision is rendered, you know, some number of days past that thirty day frame of time?
[Specter's legal opinion, due in two weeks plus maybe a four or five days worth of vacation, would fall just outside of what most observers believed to be outside the 30 days.]
Where are we as a body and as a government? Are we exposed in any way? I mean, what will happen at that point? What could happen? Nothing? Anything?
Mr. Specter: Well, maybe everything.
That would turn out to be correct.