P'ship v. Pub. Voice for Pub. Space

• Decision Date: 19 June 2013
• Docket Number: No. 1069 C.D. 2012,1069 C.D. 2012
• Court: Pennsylvania Commonwealth Court
• Parties: Stein & Silverman Family Partnership, Appellant v. Zoning Board of Adjustment of the City of Philadelphia, and SCRUB: The Public Voice for Public Space

Stein & Silverman Family Partnership, Appellant v. Zoning Board of Adjustment of the City of Philadelphia,and SCRUB: The Public Voice for Public Space

No. 1069 C.D. 2012

COMMONWEALTH COURT OF PENNSYLVANIA

Argued: May 16, 2013

June 19, 2013

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE LEADBETTER

Stein & Silverman Family Partnership (Stein) appeals from the Philadelphia County Common Pleas Court's order denying Stein's appeal from the City of Philadelphia Zoning Hearing Board of Adjustment's (ZBA) denial of Stein's variance request. There are three issues for this Court's review: (1) whether Scenic Philadelphia¹ is a valid intervenor; (2) whether the ZBA's denial of the variance was supported by substantial evidence;² and (3) whether the City's "cap" on outdooradvertising signs in Section 14-1604 of the Philadelphia Code (Zoning Code)³ is constitutional. We affirm.

Stein owns a 2.45-acre vacant parcel of land located at 3670 South Lawrence Street in the City's Food Distribution Center (FDC).⁴ The Property is a small isthmus of land "at the foot of Lawrence Street where it meets I-95 [(a/k/a Delaware Expressway), that] is adjacent to the Eagle[']s Lincoln Financial Field sports complex." Reproduced Record (R.R.) at 87. The property has been vacant for at least 10 years.

On August 31, 2010, Stein applied to the City's Department of Licenses and Inspections (Department) for a zoning permit to erect on the Property a 20 by 60-foot double-faced, free-standing, single-pole, illuminated, V-shaped, non-accessory sign⁵ with a maximum height of 76 feet. On December 2, 2010, the Department denied Stein's permit application because signs are prohibited in the City's FDC by Section 14-608(1)(a) of the Zoning Code, the proposed sign would be within 500 feet of another non-accessory sign in violation of Section 14-1604(3) of the Zoning Code, and a non-accessory sign of equal size is not being removed pursuant to Section 14-1604(10)(a) of the Zoning Code. Stein appealed to the ZBA.

The ZBA held a hearing on January 5, 2011. Although Stein's principal, Eli Stein, was present at the hearing, he did not testify. In specific response to the Department's reasons for denying Stein's variance application, Stein's counsel statedthat the FDC has been moved, so the Property is no longer in the FDC; there are signs on adjacent properties; and, Stein does not have any signs to remove, so it cannot comply with Section 14-1604(10) of the Zoning Code. As to hardship, Stein's counsel represented that the Property has been actively marketed for 10 years but has not attracted any tenants, so it has no practical use. Letters admitted from SPCCA/South Philadelphia Communities Civic Association, Whitman Council, Inc. and City Council president Anna Verna reflect their non-opposition to Stein's application. Stein's counsel also offered documentation that adjacent property owner Procacci Brothers Sales Corporation obtained a variance in 1997 for a 14 by 48-foot free-standing, double-faced, non-accessory outdoor advertising sign that is located within 300 feet of Stein's proposed sign.

Over Stein's objection, counsel for Scenic Philadelphia stated in opposition to the variance that the Property suffers no unique hardship. The City's Planning Commission also opposed the permit because the sign would violate the Zoning Code, it would undermine City Council's efforts to cap the City's number of existing signs, and the site is not unique or unusual and there is no hardship, since the site could "be used as a railroad maintenance yard or active rail lines that impact the regional rail line." R.R. at 61. By 2-1 vote, the ZBA denied Stein's application. On or about April 29, 2011, the ZBA issued findings of fact and conclusions of law. Stein filed a request for reconsideration that the ZBA denied. Stein appealed to the trial court. Scenic Philadelphia intervened.

The trial court heard argument and subsequently affirmed the ZBA's decision and denied Stein's appeal. Stein appealed to this Court.⁶ The trial courtissued its opinion on August 16, 2012. The ZBA was precluded from participating in this appeal due to its failure to file a brief.

Stein first argues that Scenic Philadelphia is not a valid intervenor. Stein argues specifically that Scenic Philadelphia does not represent a resident, tenant or property owner anywhere close to the Property, nor did any person with a connection to the area choose Scenic Philadelphia to represent him or her. Over Stein's objection, the ZBA permitted Scenic Philadelphia's counsel "to appear as an interested party, just for community comment." R.R. at 85. In its opinion, the trial court noted:

Here, the Zoning Board filed a certified record of the Zoning Board proceedings with this Court on May 2, 2011 which fully expresses the Board's reasoning to justify its denial.

The certified record included, inter alia, findings of fact, conclusions of law, and an itemized vote of the Zoning Board panel, which standing alone, was sufficient to convince this Court to deny the instant appeal.

. . . .

It is true that SCRUB made appearances before the Board and this Court; however, the Board and this Court made their respective decisions on grounds wholly independent of any legal proffer or factual submission made by SCRUB. Therefore, since it is apparent on the face of the Board's findings of fact and conclusions of law that the Board was persuaded by significant reasons, and since this Court adhered to the appropriate standard of review, SCRUB'S presence was a nullity....

Trial Court Op. at 4-5.⁷ Thus, Scenic Philadelphia's standing, or lack thereof, is of no moment. Scenic Philadelphia did not present any evidence before the ZBA, only community comment. The ZBA decided the case against Stein based on the evidence before it, and it was Stein that appealed to the trial court and, subsequently, here. Like the trial court, we must decide the case based on the evidence presented before the ZBA and the applicable law, whether Scenic Philadelphia participates or not.

Stein next argues that the ZBA's denial of its variance was not supported by substantial evidence. We disagree. Generally, "[t]he party seeking the 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." Valley View Civic Ass'n v. Zoning Bd. of Adjustment, 501 Pa. 550, 555-56, 462 A.2d 637, 640 (1983). "When an applicant seeks a variance for a property located in Philadelphia, the Board must also consider the factors set forth in the [Zoning Code]." Singer v. Phila. Zoning Bd. of Adjustment, 29 A.3d 144, 148 (Pa. Cmwlth. 2011) (footnote omitted).

Section 14-1801(1)(c) of the Zoning Code authorizes the ZBA to grant variances from the Zoning Code "as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of [the Code] would result in unnecessary hardship . . . ." Section 14-1802(1) of the Zoning Code sets forth the criteria the ZBA must consider when deciding whether to grant a variance. This Court has more succinctly held:

In essence, an applicant seeking a variance [in Philadelphia] pursuant to the [Zoning Code] must demonstrate that: (1) the denial of the variance will result in unnecessary hardship unique to the property; (2) the variance will not adversely impact the public interest; and (3) the variance is the minimum variance necessary to afford relief. The burden on an applicant seeking a variance is a heavy one, and the reasons for granting the variance must be substantial, serious and compelling.

Singer, 29 A.3d at 149 (citations omitted).

"While showing that a property is valueless without a variance is one way to establish unnecessary hardship, [our Supreme] Court has expressly rejected requiring such a showing." Allegheny W. Civic Council, Inc. v. Zoning Bd. of Adjustment of the City of Pittsburgh, 547 Pa. 163, 168, 689 A.2d 225, 228 (1997). However, this Court does require "an applicant [to] prove that either: (1) the physical features of the property are such that it cannot be used for a permitted purpose; or (2) the property can be conformed for a permitted use only at a prohibitive expense; or (3) the property is valueless for any purpose permitted by the zoning ordinance." S. of S. St. Neighborhood Ass'n v. Philadelphia Zoning Bd. of Adjustment, 54 A.3d 115, 121 (Pa. Cmwlth. 2012) [quoting Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807, 812 (Pa. Cmwlth. 2005)] (emphasis added). Moreover:

absent a finding that property will be rendered valueless, financial hardship alone is not a sufficient basis for granting a variance and that typically the loss of rental income from disallowed outdoor advertising signs is not an unnecessaryhardship. The applicant must also present evidence that the conditions on which the appeal for a variance is based are unique to the property and did not result from the actions of the applicant.

Soc'y Created to Reduce Urban Blight (SCRUB) v. Zoning Hearing Bd. of Adjustment, City of Phila., 858 A.2d 679, 682-83 (Pa. Cmwlth. 2004) (footnote omitted).

Here, Stein's case consisted solely of Stein's counsel's representation that the Property has been actively marketed for 10 years but has not attracted any tenants.⁸ The Planning Commission opposed the application on the basis that the Property could be used as a railroad maintenance yard or active rail lines. Before the ZBA and the trial court, Stein argued that the lack of interest in the Property as a rail yard proves that the Property is valueless for any purpose permitted by the Zoning Code. Stein also argued, for the first time to the trial court,⁹ that the Property cannot be used as a rail yard because the tracks are old and abandoned, and they would have to be...