2275 Bridge Street (Frankford Arsenal) — 858 A.2d 679 (Pa. Commw. 2004)

Scenic Philadelphia, Mary Cawley Tracy, Councilman David Cohen, Carol Sander and The Bridesburg Civic Association, (Appellants) V. Zoning Hearing Board of Adjustment of the City of Philadelphia, The City of Philadelphia, Arsenal Business Center and Eller Media

Case History

Pennsylvania Supreme Court denied Petition for Allowance of Appeal on June 19, 2006, thus confirming the ruling in favor of SCRUB.

The Supreme Court of Pennsylvania for dismissing an appeal filed by Frankford Arsenal and Clear Channel. In an Order dated June 19, 2006, the Supreme Court, after hearing oral arguments from attorneys on both sides, decided that the appeal had been “improvidently granted”.

August 4, 2005: The Pennsylvania Supreme Court granted a Petition of Allowance of Appeal.

September 27, 2004: Commonwealth Court reversed the order of the Court of Common Pleas

December 5, 2002: Court of Common Pleas affirmed the ZBA’s granting of a variance

August 2, 2002: Commonwealth Court vacated the order of the Court of Common Pleas and remanded the case to the Court of Common Pleas with orders that the case be remanded to the ZBA for the production of Finding of Fact and Conclusion of Law

February 6, 2001: Court of Common Pleas reversed the ZBA decision

April 21, 2000: ZBA granted a variance request to erect two outdoor advertising signs located on the same lot

October 19, 1999: L&I denied permit request

Facts

A landowner filed an application with L & I for zoning and use permits to erect two 20-foot by 60-foot, double-faced, freestanding outdoor advertising signs along the western side of the property, which would be visible to travelers on I-95. L&I determined that the proposals would not comply with the outdoor advertising regulations set forth in Section 14-1604 of the Philadelphia Zoning Code and denied the landowners application. The landowner appealed to the Zoning Board of Adjustments (Board) which, after a hearing, granted the landowner a use and zoning variance without issue findings of fact. Scrub along with The Bridesburg Civic Association appealed to the trial court and the trial court issued an order directing the board to make findings of fact and conclusions of law.

The Board concluded that Applicant had demonstrated unnecessary hardship. The Board pointed out that this was not an instance of requesting a variance to obtain more profit from the use of a property but rather was simply a situation in which an owner needed some minor relief in order to maintain a historical site that otherwise would decay from want of viability. As a result, the Board determined that a variance would not adversely impact public health, safety and welfare, noting that Applicant agreed not to advertise alcohol, tobacco or adult entertainment, that the bases of the signs would be screened, that the nearby residential area was on the other side of I-95 and that a report by Tanatla established that there was no connection between outdoor advertising signs and traffic safety concerns.

The trial court affirmed the Board’s decision to grant the variance. Scenic Philadelphia, appealed the decision of the trial court to the Pennsylvania Commonwealth court.

On appeal, Scenic Philadelphia argued that the trial court’s order constituted an error of law because the record did not support a finding of hardship for the purpose of a variance and demonstrated that a grant of the variance was against public policy and directly violated Philadelphia Zoning Ordinance § 14-1604. In addition, appellants argued that there were no dimensional variance issues. The appellate court concluded that variances from the provisions of § 14-1604 were use variances as opposed to dimensional variances, and evidence that a zoned use was less financially rewarding than a proposed use was insufficient to justify a variance. In addition, the proposed signs violated ordinance provisions relating to proximity to other signs or to residentially zoned property, maximum sign area per structure, height above the roadway, number of signs permitted on a lot, removal of equal or greater sign area, and prohibition of such signs in national historic districts. These multiple, substantial violations demonstrated that erecting the signs was contrary to the public interest.

Issue

Is a property subject to unnecessary hardship when the evidence demonstrates that, despite the decline in revenue over time the property has provided employment for 1,400 people through various businesses which occupy 32 percent of the property?

Can a variance be denied as contrary to the public interest solely because the proposed structure does not meet the strict requirements of the Zoning Code?

Rule of Law

The party seeking a variance bears the burden of proving that (1) unnecessary hardship will result if the variance is denied, and (2) the proposed use will not be contrary to the public interest. Mere evidence that the zoned use is less financially rewarding than the proposed use is insufficient to justify a variance. Absent a finding that property will be rendered valueless, financial hardship alone is not a sufficient basis for granting a variance. Typically, the loss of rental income from disallowed outdoor advertising signs is not an unnecessary hardship.

Holding

A landowner fails to prove unnecessary hardship where, despite declining revenues, the property would still function to provide work for 1,400 people through various business and the property has a 32 percent occupancy rate without the proposed sign postings.

Evidence that a proposed sign violates ordinance provisions relating to proximity of other signs or to residentially zoned property, maximum sign area per structure, height above the roadway, number of signs permitted on a lot, removal of equal or greater sign area, and prohibition of such signs in a national historic district, is contrary to the public interest and is sufficient grounds for denying a variance.

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