200′ West of Schuylkill Expressway — 787 A.2d 1123 (Pa. Commw. 2001)

Scenic Philadelphia, Mary Cawley Tracy, David Cohen, Powelton Village Civic Association, Center City Civic Association and Jack Minnis v. Zoning Board of Adjustment, City of Philadelphia, Amtrak National Railroad Passenger Corp., and Interstate Outdoor Advertising; Appeal of: Amtrak National Railroad Passenger Corp. and Interstate Outdoor Advertising

Case History

December 27, 2001: The Commonwealth Court of Pennsylvania affirmed the ruling of the Trial Court.

November 1999: Amtrak applied to L&I and was denied permit. ZBA granted a variance to Amtrak to erect a freestanding advertising sign.

The Court of Common Pleas reversed the grant of a variance.

ZBA granted a variance to Amtrak to place a billboard on their property, concluding that strict enforcement of zoning code would result in unnecessary hardship to Amtrak.

Facts

In November 1999, Amtrak applied for a zoning permit to erect a freestanding, single-face, illuminated, non-accessory, outdoor advertising sign measuring 60 feet wide by 20 feet high to be placed at a height of 85 feet above grade. The sign would be placed adjacent to a two-story building in the railroad yard of its 30th Street Station property, between Spring Garden Street and the Vine Street exit of the Schuylkill Expressway. The sign would be back to back with an existing sign on the opposite end of the building.

Amtrak currently uses the 120-acre property, zoned G-2 General Industrial, for railroad and non-accessory advertising uses. L&I denied the permit request on the ground that the sign’s proposed height would far exceed the maximum height permitted under the zoning code and on the grounds that signs are prohibited within 660 feet of an ingress and/or egress ramp of the Expressway and only one sign support structure is permitted on the lot, whereas one non-accessory sign exists within 500 feet of the proposed sign and one or more other non-accessory signs already exist on the lot. L&I noted that the plan showed six existing signs on the lot.

Amtrak filed an appeal with Zoning Board of Adjustment requesting a variance authorizing the proposed sign. At the hearing before the Board, Amtrak offered to remove two signs on the 30th Street Station property at 31st Street. After hearing evidence presented by both Amtrak and SCRUB to the variance, the Board of Adjustment voted in favor of the variance. The Board concluded that strict enforcement of the zoning code would result in an unnecessary hardship to Amtrak in light of the federal mandate that it raise revenue; that denying the variance would unnecessarily prevent Amtrak from using the property without imposing on the existing railroad activity; and that Amtrak had persuasively established that the proposed sign would not negatively impact the public health, safety, and welfare.

On appeal, the trial court, without taking any additional evidence reversed. After examining the applicable sections of the zoning code and the applicant’s burden of proof, the court concluded that Amtrak had failed to demonstrate either the necessary hardship or lack of negative impact on the public interest.  Amtrak appealed from the trial court’s decision.  Amtrak argued that the Board properly concluded that Amtrak demonstrated that it would suffer unnecessary hardship if the variance were not granted and that granting the  variance would not harm the public interest.

Issue

Whether the trial court erred in reversing the decision of the Board where the trial court took no additional evidence but found that the evidence presented to the Board was not sufficient to prove undue hardship or a lack of harm to the public interest?

Rule of Law

A party seeking a variance needs to show an unnecessary burden if the variance were not granted and that granting the variance would not be contrary to the public interest. The hardship needs to arise from the particular surrounding, shape, or conditions of the specific structure or land involved and need to be unique to the property rather than an entire district. Absent evidence that the property would be rendered valueless, a showing that the zoned use is less financially rewarding than the proposed use is insufficient to justify a variance.

Holding

The landowner failed to show either that the property would be rendered valueless, or that denying the variance would result in economic detriment or financial hardship. Further, the landowner failed to introduce any specific evidence regarding the nature of the hardship or the potential economic benefit to be gained if the variance were granted. Therefore the trial court did not err in reversing the decision of the Board.

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