2600 Penrose Avenue — 773 A. 2d 209 (Pa. Commw. 2001)

SPC Company, Inc. and Eller Media Company v. Zoning Board of Adjustment of the City of Philadelphia and The City of Philadelphia Appeal of: Pennsylvania Horticultural Society, Councilman David Cohen, Scenic Philadelphia, Mary Tracy, The Center City Residents Association (CCRA) and Judith Eden

Case History

April 19, 2001: Commonwealth Court of Pennsylvania reversed the trial court decision, by adopting the ZBA’s definition of a bridge. Additionally, the court held in order to be granted a use variance, unnecessary hardship must be established, and it was not done so in this case. SPC’s property is being productively used as a metal scrap yard and they–SPC–did not present any evidence that it will suffer severe financial hardship if the use variance is not granted.

June 2, 2000: Court of Common Pleas reversed the decision on appeal, deciding that the approach to the bridge is not to be considered part of the bridge.

November 15, 1999: ZBA refused Appellees’ request for a zoning permit by determing that the dictionary definition of a bridge includes the point at which the road begins to be elevated.

L&I denied permit on grounds the application violated the Philadelphia Code by being within 660 feet of a bridge across the Schuylkill River. SPC filed an appeal with the ZBA and argued that the beginning of a bridge is actually located 1,000 – 1,500 feet from the proposed sign.

June 23, 1999: SPC filed an Application for a Zoning Permit with L&I.

Facts

On June 23, 1999, SPC filed an Application for a Zoning Permit and/or Use Registration Permit with L & I requesting permission to erect one free-standing, double-face, illuminated, non-accessory outdoor advertising sign on its property. SPC operates a metal scrap yard on its property, which is located at 2600 Penrose Ferry Avenue (Penrose Avenue) in Philadelphia and is zoned LR (least restrictive) Industrial. The George C. Platt Memorial Bridge (Platt Bridge) is west of SPC’s property.

On June 29, 1997, L & I determined that the proposed sign would be in violation of Section 14-1604(9)(a) of the Zoning Code, which prohibits outdoor advertising signs “within 660 feet of all the bridges over the Schuylkill River from the Girard Point Bridge northwesterly to the Belmont Avenue bridge. Since the Platt Bridge is located in the area covered by Section 14-1604(9)(a), L & I issued a Notice of Refusal of Permit. Thereafter, SPC filed a Petition of Appeal with the Zoning Board.

On August 4, 1999, hearings were held before the Zoning Board. SPC presented testimony of a professional engineer. He testified that the only determination between Penrose Avenue the street and Penrose Avenue the bridge is, when PennDOT let the contract for construction of the bridge and road, PennDOT assigned a certain sector and called that the bridge contract, and the rest of the construction, called the Penrose Avenue sector. He also testified that the area of Penrose Avenue that is elevated approaching the Schuylkill River cannot be defined as a bridge. He stated that the Code does not define the term “bridge.” However, a May 20, 1999 site plan prepared by the engineer indicates that, in response to the “Prohibited Areas” listed in Paragraph 14-1604(9) of the Zoning Code, the proposed sign (a) Is within 660 feet of a bridge over the Schuylkill River from the Girard Point Bridge northwesterly to the Belmont AVE Bridge. This inconsistency was not explained during the engineer’s testimony.

In opposition SCRUB presented the testimony of an individual, who had been “involved in highway perceptions and planning related to highways since the late 1960s. However, he did not provide any testimony as to how far the proposed sign is from the Platt Bridge. Rather, he testified as to whether the location of the proposed sign would distract motorists. Furthermore, none of the other witnesses presented by SCRUB provided testimony as to the distance from the Platt Bridge to the proposed sign.

The Zoning Board issued a Notice of Decision on November 15, 1999 refusing Appellees’ request for a zoning permit, concluding that the Code does not define the term “bridge” and that neither Penn DOT nor the City of Philadelphia have determined at what point the Platt Bridge begins. The Board cited to the dictionary definition of “bridge” as “a structure carrying a roadway over a depression or obstacle.” Therefore, the Zoning Board determined that the Platt Bridge begins at the point where Penrose Avenue becomes elevated, because this is the point where the roadway begins to be carried over the Schuylkill River. Under the definition of “bridge” advanced by the Zoning Board, SPC’s proposed outdoor sign would be within 660 feet of the Platt Bridge and therefore in violation of Section 14-1604(9)(a). Accordingly, the Zoning Board determined that the proposed sign may only be permitted if the requirements for granting a zoning variance are met. However, the Zoning Board determined that SPC did not meet these requirements and are therefore not entitled to a use variance.

On November 29, 1999, SPC appealed the decision of the Zoning Board to the trial court. In a June 2, 2000 decision, the trial court concluded that the evidence of record indicates that the Penrose Avenue road surface becomes elevated directly in front of the location of the proposed sign. The trial court also determined that: “a Court is not privileged to expand a deprivation of property by including the approach to the bridge as part of the bridge. Accordingly, the trial court reversed the decision of the Zoning Board. This appeal followed. SCRUB argues that the trial court erred by rejecting the Zoning Board’s findings of fact and conclusions of law with regard to where the Platt Bridge begins.

Issue

Whether a word in common usage, such as “bridge” in the case sub judice, when used in the Zoning Code and not otherwise defined, is ambiguous, as held by the trial court, or whether the Zoning Board, under the circumstances, properly found that the dictionary definition and the plain, ordinary meaning of “bridge” should be used to interpret that term in their Zoning Code?

Rule of Law

Words and phrases shall be construed according to rules of grammar and according to their common and approved usage; but technical words and phrases and such others as have acquired a peculiar and appropriate meaning or are defined in this part, shall be construed according to such peculiar and appropriate meaning or definition.

When a term in a zoning code is not defined, Pennsylvania courts use dictionaries as source material to determine the common and approved usage of a term. The term “bridge” is defined as “a structure carrying a pathway or roadway over a depression or obstacle.”

Additionally, “in interpreting provisions of a zoning ordinance, undefined terms must be given their plain, ordinary meaning … and any doubt must be resolved in favor of the landowner and the least restrictive use of the land.

Holding

We agree with the appellants (SCRUB) that the trial court erred by rejecting the Zoning Board’s findings of fact and conclusions of law with regard to where the Platt Bridge begins.

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