12 Oregon Avenue — 862 A.2d 731 (Pa. Commw. 2004)

Scenic Philadelphia and Mary Cawley Tracy, Appellants v. Zoning Board of Adjustment of the City of Philadelphia and Oregon Avenue Associates and Clear Channel Outdoor, Inc.

Case History

December 6, 2004: The Commonwealth Court overturns decision of the Court of Common Pleas, ruling that the ZBA erred when it overlooked its finding that the property indeed was usable for development per applicants plans.

November 2, 2004: SCRUB presented oral arguments to the Commonwealth Court.

January 2004: SCRUB appeals to the Commonwealth Court.

December 11, 2003: Court of Common Pleas judge Hon. Matthew D. Carrafiello ruled, affirming the ZBA’s granting of variances.

SCRUB appealed to the Court of Common Pleas.

November 27, 2002: ZBA granted the variances on the ground that the shape and location of the parcel rendered it unsuitable for other development, even though applicant had stated plans to use the parcel for a self-storage facility.

October 16, 2002: The applicant appealed to the ZBA for variances.

June 20, 2002: Oregon Avenue Associates applied for a permit to erect a seventy-two foot, free-standing, double-faced billboard. L&I denied the application on the grounds the sign would violate numerous provisions of section 14-1604, including being within 500 feet of existing billboards, within 660 feet of the Delaware Expressway, and was taller and larger than allowed.

Facts

On June 20, 2002, Oregon Avenue Associates (Oregon) applied for a permit to erect one free-standing, double-faced, illuminated, non-accessory outdoor advertising sign measuring twenty feet by sixty feet and measuring seventy-two feet from the grade of Swanson Street to the top of the sign. The property is located in a G-2 zoning district, and non-accessory outdoor advertising signs are permitted in a G-2 zoning district subject to section 14-1604 of the Philadelphia Code.

L & I denied the permit application for the following reasons: (1) the proposed sign would be within 500 feet of two other non-accessory outdoor advertising signs, in violation of section 14-1604(3); (2) the proposed sign would be within 660 feet of ingress and egress of the Delaware Expressway (I-95), in violation of section 14-1604(9)(b); (3) Oregon does not propose to remove existing signs of equal or greater “sign area” prior to the erection of the proposed sign as required by section 14-1604(10)(a); (4) the proposed sign would be 2,400 square feet, and the maximum area per support structure fronting Swanson Street is 1,500 square feet; (section 14-1604(5) of the Code); (5) the proposed sign would be within 660 feet of the outward edge of the right-of-way lines for Oregon Avenue, in violation of section 14-1604(9)(h); and (6) the proposed sign would be fifty-two feet in height from the roadway surface of Swanson Street, but the permitted maximum height from the visible roadway is twenty-five feet; (section 14-1604(6)(a) of the Code.)

Oregon appealed to the Board seeking variances, and the Board held a public hearing on October 16, 2002. Oregon presented the testimony of, an engineer, who testified as an expert that there were similar signs in the area and that the grant of a variance would have no adverse effect on adjacent properties. Oregon also presented the testimony of the Senior Vice President of Devon Self Storage, who testified that Devon had acquired the property from Oregon about thirty days before the October 16, 2002, hearing. The Vice President stated that Devon intended to use the property for a state-of-the-art self storage facility with approximately 800 self storage units; the units would be rented within thirty-six months for amounts ranging from $ 59 to $ 259, depending on the size of the unit. Although Devon had no plans to redevelop the rear portion of the lot, which is filled with rubbish and trash, Devon would clean up the rear of the lot and would allow the user of the adjacent lot to park there.

In opposition to the variances, SCRUB presented the testimony of a professional civil engineer. He testified as an expert that the proposed sign would be a major distraction for motorists coming off of the bridge from New Jersey. SCRUB also presented the testimony of the Executive Director of SCRUB. She testified that the signs would block the beautiful gateway to the city and that the property has value without the variances. The Board also received a letter from Whitman Council, Inc. opposing any additional billboards within the community. Finally, the Board placed on the record a letter from the Philadelphia Planning Commission in opposition to the sign, pointing out the many violations and asserting that there appears to be no hardship to the landowner without the variances.

On November 27, 2002, after considering the evidence presented, the Board granted the variances. The Board concluded that the peculiar shape and location of the parcel renders it unusable for other development. SCRUB appealed to the trial court, which affirmed the Board’s grant of variances. SCRUB appealed to the Commonwealth Court.

Issue

Whether the Board erred or abused its discretion in granting the use variances inasmuch as the applicant failed to prove an unnecessary hardship?

Rule of Law

Unnecessary hardship may be shown by demonstrating either that physical characteristics of the property are such that the property could not be used for the permitted purpose or could only be conformed to such purpose at a prohibitive expense, or that the characteristics of the area are such that the lot has either no value or only a distress value for any permitted purpose. However, there is a more relaxed standard for establishing unnecessary hardship for a dimensional variance as opposed to a use variance.

Under Hertzberg, the courts may consider multiple factors in determining whether the applicant established unnecessary hardship for a dimensional variance, including the cost of the strict compliance with the zoning ordinance, the economic hardship that will result from denial of a variance, and the characteristics and conditions of the surrounding neighborhood.

Variances from Section 14-[1]604 of the [Philadelphia] Code are not dimensional. This is because section 14-1604 of the Philadelphia Code prohibits the use of property for non-accessory outdoor advertising signs unless its requirements are met.

Holding

The board abused its discretion in granting the use variance where the applicant failed to prove an unnecessary hardship. Here, the Board found that Devon acquired the property from Oregon and planned to create a state-of-the-art, 800-unit self storage facility on the property. Despite this finding, the Board then concluded that the peculiar shape and location of the parcel renders the parcel unusable for development other than the erection of prohibited non-accessory outdoor advertising signs. Clearly, the Board erred in reaching such a conclusion.