Scenic Philadelphia and FDR Park v. Zoning Board of Philadelphia — 772 A.2d 1040

The Commonwealth Court of Pennsylvania affirmed a Court of Common Pleas determination reversing the Philadelphia Zoning Board of Adjustment’s order granting Conrail variances to erect  outdoor advertising signs on its property adjacent to Interstate Route I-95 in South Philadelphia.

The primary issue here was whether substantial evidence supported the Board’s findings that Conrail would suffer unnecessary hardship if the variances were denied.

Noting that the burden of proof falls squarely on the party seeking a variance, the Court held that Conrail was unable to show unnecessary hardship because it could not show any unique physical circumstances or conditions justifying the variance.

Click Here to read the Commonwealth Court’s opinion

The Court determined that “[a] zoning board may not grant rezoning under the guise of a variance.” It went on to explain that if a party wants to remedy what it perceives as an improper zoning, it must file a request for a curative amendment or a request for rezoning. Thus, because these are fundamentally different procedures from a request for a variance, the Court held that a variance may not be used to enact what is essentially a rezoning.

Next, the Court noted that “[t]he party seeking a variance bears the burden of proving that an unnecessary hardship will arise if the variance is not granted and that granting the variance will not be contrary to the public interest.” Thus, the burden squarely falls on the party seeking the variance.

Conrail was unable to show any unique physical circumstances or conditions justifying the variance, so the Court held that Conrail failed to establish that it faced the unnecessary hardship required to grant a variance.