Randolph Vine Associates v. Zoning Bd. of Adjustment of Philadelphia

• Decision Date: 12 April 1990
• Citation: 132 Pa.Cmwlth. 452,573 A.2d 255
• Parties: RANDOLPH VINE ASSOCIATES v. ZONING BOARD OF ADJUSTMENT OF PHILADELPHIA. Appeal of CITY OF PHILADELPHIA.
• Court: Pennsylvania Commonwealth Court

Page 255

573 A.2d 255

132 Pa.Cmwlth. 452

RANDOLPH VINE ASSOCIATES v. ZONING BOARD OF ADJUSTMENT OF PHILADELPHIA.

Appeal of CITY OF PHILADELPHIA.

Commonwealth Court of Pennsylvania.

Argued Dec. 15, 1989.

Decided April 12, 1990.

Marjorie Stern Jacobs, Divisional Deputy City Sol., for appellant.

Robert D. Lane, Jr., with him, Janet R. Seligman, Fox, Rothschild, O'Brien & Frankel, for appellee.

Before BARRY, COLINS, (P.) and SMITH, JJ.

SMITH, Judge.

The City of Philadelphia (City) appeals from two orders issued by the Court of Common Pleas of Philadelphia County. The first order reversed the decision of the Zoning Board of Adjustment of the City of Philadelphia (Board) and ordered that Randolph Vine Associates (Randolph Vine) be permitted to continue its use of an outdoor advertising sign. The second order denied as moot preliminary objections filed by the Board to Randolph Vine's complaint in mandamus. The trial court's orders are reversed and this case is remanded for further proceedings.

I

Randolph Vine is the owner of real estate located at 220-228 Wood Street, Philadelphia, Pennsylvania. In 1985, Randolph Vine entered into a lease agreement with Stait Outdoor Advertising Company (Stait) whereby Stait was granted the right to erect and utilize an outdoor advertising sign on the building at 220-228 Wood Street. Stait thereafter applied to the City's Department of Licenses and Inspections (Department) for a zoning permit to erect the sign which was denied pursuant to Section 14-1604 of the Philadelphia Zoning and Planning Code which prohibits outdoor advertising signs in the vicinity of the Ben Franklin Bridge and its approachways. Stait then applied to the Board for a variance to erect a roof-mounted sign, seventy-eight feet from the ground with the face of the sign measuring twenty feet by sixty feet. The Board granted Stait a variance for the sign and on April 29, 1985 issued zoning/use permit no. 331154 (permit no. 331154). On October 4, 1985, the Department issued a building permit to Stait for erection of a roof-mounted outdoor advertising sign having a face measuring twenty by sixty feet with an estimated cost of $40,000 according to Stait. Stait thereafter revised its plans to provide for a pole-supported sign with the pole to be erected in the enclosed courtyard of the building at 220-228 Wood Street. An amended building permit was issued by the Department on October 7, 1986 pursuant to Stait's application which indicated that revised drawings were being submitted.

Randolph Vine and Stait terminated their lease agreement on December 1, 1986, and Randolph Vine constructed the pole-supported sign at a cost of $150,000. During construction of the sign, an inspector from the Department visited the construction site at least once. In February of 1987, Randolph Vine received a violation notice from the Department instructing it to "cease maintaining" the pole-supported sign for the reason that it was not in accordance with permit no. 331154 issued on April 29, 1985. Randolph Vine appealed this violation notice to the Board arguing that the sign had been lawfully erected pursuant to the amended building permit issued on October 7, 1986; that Randolph Vine had accrued vested rights in the amended building permit; and that the sign was in fact a roof sign within the meaning of permit no. 331154. During the hearing on the appeal of the violation notice, the Board agreed to hear testimony in the alternative on Randolph Vine's claim of entitlement to a variance for the amended sign drawings.

On August 10, 1987, the Board issued a decision stating that it had unanimously voted to deny the appeal. No mention was made of Randolph Vine's request in the alternative for a variance. Randolph Vine appealed this decision to the trial court, ¹ and on February 5, 1988, over six months after the hearing, the Board issued its findings of facts and conclusions of law. Again the Board failed to address Randolph Vine's request for a variance and stated erroneously in Conclusion of Law No. 11 that inasmuch as Randolph Vine had merely appealed the violation notice and had not requested a variance, no evidence had been taken by the Board pertaining to this issue. The Board did, however, find that the City Planning Commission had recommended against a variance at the hearing for the reason that no hardship had been established. ²

On July 22, 1988 Randolph Vine filed a second action, consolidated with the original appeal, requesting that a writ of mandamus be issued compelling the issuance of a variance due to the Board's failure to rule on this matter. The Board filed preliminary objections to the mandamus action asserting essentially that Randolph Vine was not entitled to a deemed approval of its request for a variance. Following oral argument on the consolidated cases, the trial court entered the two orders which are the subject of this appeal. In its opinion in support of the orders, the trial court found that the Board's failure to address the variance request in its findings of facts and conclusions of law was contrary to Section 8 of the Zoning Enabling Act of 1929 ³ which requires the Board to decide appeals within a reasonable time. Observing that one and one-half years had passed since the hearing and the Board had yet to address this issue, the trial court concluded that the variance should be deemed approved.

II

This Court's scope of review in a mandamus action is to determine whether the trial court abused its discretion or committed an error of law and whether sufficient evidence exists to support its findings. Township of Nether Providence Appeal, 85 Pa. Commonwealth Ct. 104, 481 A.2d 692 (1984). Mandamus is an extraordinary remedy which will only lie to compel performance of a ministerial act or mandatory duty where the petitioning party has a clear legal right and respondent has a corresponding duty and where no other appropriate remedy exists. Giddings v. Tartler (Pennsylvania Board of Probation and Parole ), --- Pa. Commonwealth Ct. ---, 567 A.2d 766 (1989). Mandamus has been specifically approved by this Court as an available remedy for the effectuation of relief under the forty-five day rule of Section 908(9) of the Pennsylvania Municipalities Planning Code ⁴ (MPC) which requires that the Board render written findings within forty-five days of the last hearing. Bucks County Housing Development Corp. v. Plumstead Township, 45 Pa. Commonwealth Ct. 532, 406 A.2d 832 (1979).

The deemed approval provisions of Section 908(9) of the MPC, however, are inapplicable to the matter sub judice. Inasmuch as Philadelphia is a city of the first class, it is not governed by provisions of the MPC. Tuckfelt v. Zoning Board of Adjustment of the City of Pittsburgh, 80 Pa. Commonwealth Ct. 496, 471 A.2d 1311 (1984). In Tuckfelt, Appellants made a similar argument contending that the requirement that the Board render decisions within a reasonable time contained in 53 P.S. § 25057 ⁵ (applicable to cities of the second class) mandated a finding that decisions issued more than forty-five days after a hearing were per se unreasonable. This Court declined to so hold, stating:

Quite simply, if the General Assembly had intended to apply the deemed approval provisions of the MPC to cities of the second class, it could have done so. Instead, it simply provided that decisions rendered by zoning boards of adjustments in cities of the second class are to be rendered 'within a reasonable time.'

Id. at 499-500, 471 A.2d at 1313. The Tuckfelt reasoning applies to the instant action: the General Assembly chose not to include the deemed approval provisions of the MPC in Section 8 of the Zoning Enabling Act and thus this Court may not impose such provisions here. The trial court's denial of the preliminary objections to the complaint in mandamus is therefore reversed and the preliminary objections are sustained. ⁶

III

No additional evidence was taken by the trial court on Randolph Vine's appeal of the Board decision; consequently this Court's scope of review is limited to a determination of whether the Board abused its discretion or committed an error of law. Spargo v. Zoning Hearing Board of the Municipality of Bethel Park, 128 Pa. Commonwealth Ct. 193, 563 A.2d 213 (1989). The Board abuses its discretion when its findings are not supported by substantial evidence. Zoning Board of Adjustment v. Pasha, 118 Pa. Commonwealth Ct. 190, 544 A.2d 1101 (1988).

The first argument presented is that the Board wrongfully found that Randolph Vine had failed to meet the requirements of Petrosky v. Zoning Board of Upper Chichester Township, 485 Pa. 501, 402 A.2d 1385 (1979) wherein the Supreme Court held that vested rights can be acquired in an erroneously issued building permit. In order to acquire such rights, the property owner must establish (1) due diligence in attempting to...