2900 Ellsworth Avenue — 862 A.2d 745 (Pa.Commw. 2004)

Scenic Philadelphia and Mary Cawley Tracy, Appellants v. Zoning Board of Adjustment of the City of Philadelphia, the City of Philadelphia, 2900 Ellsworth Associates and Clear Channel Outdoor, Inc.

Case History

December 6, 2004: In an opinion by Judge Friedman, the Commonwealth Court overturned the Court of Common Pleas decision, stating the ZBA “erred or abused its discretion in granting the variances inasmuch as Ellsworth and Clear Channel failed to establish unnecessary hardship.”

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

January 2004: Scenic Philadelphia appealed to the Commonwealth Court.

December 11, 2003: Court of Common Pleas judge Hon. Matthew D. Carrafiello affirmed the ZBA’s granting of variances under the Hertzberg principle.

Scenic Philadelphia appealed to Court of Common Pleas.

November 27, 2002: The ZBA granted the variances with the condition that Clear Channel take down signs having a total sign area equal to or greater than 2,400 square feet. They also found an unnecessary hardship on the site due to the risks associated with the recycling business.

October 16, 2002: Clear Channel appealed to the ZBA seeking variances, arguing the site was distant from residential uses and was well suited for a billboard. They also offered to remove signage of equal or greater size. The property was home to a recycling business, but they argued if it cancelled its lease, the only value remaining would be from the billboard.

June 19, 2002: L&I denied the permit as it was within 660 feet of a bridge of the Schuylkill River, that at 2,400 square feet of signage was larger than the 1,200 square feet allowed, and no existing sign of equal or greater size was to be removed.

May 14, 2002: 2900 Ellsworth Associates and Clear Channel applied for a permit to erect a 98-foot high, free-standing, double-faced, illuminated billboard.

Facts

On May 14, 2002, 2900 Ellsworth Associates (Ellsworth) and Clear Channel Outdoor, Inc. (Clear Channel) applied for a permit to erect one free-standing, double-faced, illuminated, non-accessory sign on property located in a G-2 General Industrial zoning district and owned by Ellsworth. The sign was to be twenty (20) feet high and sixty (60) feet wide, i.e., 1,200 square feet on each face or 2,400 total square feet, and the top of the sign was to be ninety-eight (98) feet from grade. Currently, the property is being used for waste paper sorting and bailing and for the recycling of metal, glass and plastic products for use by subsequent producers, with accessory parking and loading.

On June 19, 2002, L & I denied the permit application for the following reasons: (1) Ellsworth Street is less than sixty (60) feet in width, which means that signs with an area of 1,000 square feet are allowed under section 14-1604(5)(a) of the Philadelphia Code, but signs with an area of 2,400 square feet are not; (2) the lower edge of the sign cannot be more than twenty-five (25) feet from the surface of the closest roadway, (see section 14-1604(6)(a) of the Code); (3) the sign would be within 660 feet of a bridge over the Schuylkill River, which is not permitted in the district, (see section 14-1604(9)(a) of the Code); (4) the sign would be within 660 feet of an ingress and/or egress ramp for the Schuylkill Expressway, which is not permitted in the district (see section 14-1604(9)(b) of the Code); and (5) no existing sign of equal or greater area would be removed, (see section 14-1604(10)(a) of the Code). Clear Channel filed an appeal with the Board seeking variances, and the Board held a public hearing on October 16, 2002.

At the hearing, Clear Channel presented the testimony of a licensed professional engineer. He testified that the property is irregularly shaped with frontages of 233, 427 and 130 feet. The Schuylkill Expressway and some railroad tracks lie northwest of the property. The property is not within 300 feet of a residentially zoned or occupied structure; the property is not within 660 feet of any historic district, playground, public or private school or Fairmount Park; and the property is not within 500 feet of another sign. Although the property is within 660 feet of a ramp for ingress to I-76, the Schuylkill Expressway, the entrance to the ramp falls outside the 660 feet. Although the distance between the proposed sign and the roadway would be 475 feet, some existing signs are between one and two feet from the Schuylkill Expressway. The sign would not block any views of the city and would not adversely affect the public health, safety or welfare. The engineer opined that the location was particularly well suited for a billboard.

A partner at Ellsworth, testified that the property was used as a paper recycling facility in 1994, but the facility was shut down, and the property was vacant from 1994 through 2001. The current tenant has expanded the old use to include cardboard, metal and plastic recycling. However, because the business is risky, the tenant has a right to cancel its lease. If the tenant were to leave the property, the rent received for the leasing of the sign would be the only income Ellsworth would derive from the property.

An employee of Clear Channel whose job included finding locations for outdoor signs, testified that the location was ideal because it was in a heavy industrial area that was distant from any residential area. He also testified that Clear Channel would be willing to remove existing signs if a permit were issued for the proposed sign. By letter dated October 25, 2002, Clear Channel informed the Board that it would remove signs having a total sign area equal to or greater than 2,400 square feet.

In opposition to the landowner, a civil engineer testified that the sign would be a distraction to motorists on the Schuylkill Expressway. The Executive Director for SCRUB, testified in opposition to the sign. The Philadelphia City Planning Commission submitted a letter opposing variances for the sign.

On November 27, 2002, the Board granted the variances with the proviso that Clear Channel take down signs having a total sign area equal to or greater than 2,400 square feet. The Board concluded that Ellsworth and Clear Channel established that strict compliance with the zoning code would constitute an unnecessary hardship because of the risks associated with the recycling business. Scenic Philadelphia and Tracy appealed to the trial court, which affirmed the Board’s grant of variances under Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh. Scenic Philadelphia then filed an appeal with the Commonwealth Court.

Issue

Whether Ellsworth and Clear Channel established an unnecessary hardship sufficient to obtain a use variance?

Rule of Law

Philadelphia, Pa., Code § 14-1802(1)(a) states that, in considering a variance request, the Zoning Board of Adjustment of the City of Philadelphia shall consider, inter alia, whether, because of the particular physical surrounding, shape or topographical conditions of the specific structure or land involved, a literal enforcement of the provisions of Philadelphia, Pa., Code tit. 14 would result in unnecessary hardship.

In the context of proof of unnecessary hardship in a variance matter, in general, 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.

The Supreme Court of Pennsylvania has set forth a more relaxed standard for establishing unnecessary hardship for a dimensional variance, as opposed to a use variance. The courts may consider multiple factors in determining whether an applicant has 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 Philadelphia, Pa., Code § 14-1604 are not dimensional. This is because § 14-1604 prohibits the use of property for non-accessory outdoor advertising signs unless its requirements are met.

Holding

Here, the Board found that the property is currently being used for waste paper sorting and bailing and for the recycling of metal, glass and plastic products. Thus, Ellsworth and Clear Channel did not demonstrate that physical characteristics of the property are such that the property cannot be used for a permitted purpose, or that the characteristics of the area are such that the property has no value with respect to a permitted use.

Because the Board erred in concluding that Ellsworth and Clear Channel established an unnecessary hardship for a use variance, we reverse.

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