SCRUB v. Zoning Bd. of Adjustment

• Decision Date: 09 January 2003
• Parties: SOCIETY CREATED TO REDUCE URBAN BLIGHT (SCRUB), Mary Cawley Tracy, Councilman David Cohen, v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF PHILADELPHIA, The City of Philadelphia, Eller Media Company, Shirley Pilkingston, Appeal of Eller Media Company.
• Court: Pennsylvania Commonwealth Court

814 A.2d 847

SOCIETY CREATED TO REDUCE URBAN BLIGHT (SCRUB), Mary Cawley Tracy, Councilman David Cohen, v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF PHILADELPHIA, The City of Philadelphia, Eller Media Company, Shirley Pilkingston,

Appeal of Eller Media Company.

Commonwealth Court of Pennsylvania.

Argued November 6, 2002.

Decided January 9, 2003.

Glenn A. Weiner, Philadelphia, for appellant.

Cheryl L. Gaston, Philadelphia, for appellee, Zoning Bd. of Adjustment of the City of Philadelphia.

Samuel C. Stretton, West Chester, for appellee, SCRUB.

Before PELLEGRINI, J., SIMPSON, J., and MIRARCHI, JR., Senior Judge.

OPINION BY Senior Judge MIRARCHI.

Eller Media Company (Eller) appeals from the order of the Court of Common Pleas of Philadelphia County (trial court) that reversed the order of the Zoning Board of Adjustment of the City of Philadelphia (Board) granting Eller's variance application. We affirm the trial court.

On October 27, 2000, Eller filed an application with the City's Department of Licenses and Inspections (L & I) for dimensional and use registration permits for a property located at 2246 Bridge Street, Philadelphia (the Property). The permits were requested so that Eller could remove two, freestanding, single-faced, non-accessory signs and erect one freestanding, double-faced, illuminating, non-accessory outdoor advertising sign. L & I denied the application, and Eller appealed to the Board requesting a variance. The Society Created to Reduce Urban Blight (SCRUB), Mary Cawley Tracy, and Councilman David Cohen (collectively Appellees) appeared in opposition to the application at a hearing before the Board.

The Property is located at Bridge and James Streets in Philadelphia near I-95 in an R-9A Residential District. Section 14-210.1(1) of the City of Philadelphia Zoning Code (Code) does not permit outdoor advertising signs in the R-9A Residential District. The property was previously zoned C-2 Commercial, however, and in the 1960s, during the period when the property was so zoned, two free-standing, single-faced, non-accessory signs were erected on the Property. Thereafter, when I-95 was constructed, a portion of the property was condemned to make room for the highway. The original 60 by 100 foot Property was reduced to its present size of 3400 square feet. In 1972, a former owner obtained a variance to use the Property as a used car lot. That use continues to the present day, and the current occupant sells one to two cars a week from the location.

Eller's application proposed the removal of the two existing signs to be replaced by one sign in their place. The existing signs are each 12 by 25 feet, with a total height of 20 feet and a total area of 300 square feet. The proposed sign would measure 14 by 48 feet, for a total sign area of 1344 square feet. It would rise 25 feet from the road surface of I-95 to the bottom of the sign, with a frontage on James Street that would be 50 feet from the road surface to the bottom of the sign. In addition to the fact that the sign is not a permitted use in the zoning district, the proposed sign violates five sections or subsections of the Code as follows: (1) by being more than 25 feet above a road surface from which the advertising message would be visible (Section 14-1604(6)(a)); (2) by having a height of 64 feet, which is 29 feet higher than any non-residential structure permitted in the R-9A Residential District (Section 14-210-1(3)(b)); (3) by being within 300 feet of a residentially-zoned property (Section 14-1604(4)); (4) by being within 660 feet of an ingress and egress ramp of I-95 between the Bucks County line and the Walt Whitman Bridge (Section 14-1604(9)(b)); and (5) by having a sign area of more than 1000 square feet for a property with a frontage of less than 60 feet (Section 14-1604(5)(a)). The Philadelphia Planning Commission sent a letter to the Board "strongly" recommending that the requested variance not be granted because the application is not a minor departure from the requirements of the Zoning Code.

The Board found that the physical size of the Property, as a result of the portion condemned to construct I-95, prevented any permitted usage and that the Property would have little or no value to the owner absent the grant of a variance to erect the outdoor sign. The Board further found that the variances sought were the minimum necessary to afford relief, and that the proposed use would not adversely affect the public health, safety, or welfare. This latter finding was based on expert testimony that the proposed sign would not distract motorists or create a traffic hazard or block light or view. The trial court determined on appeal, however, that because there is already an existing and viable usage on the Property, there is no evidence to support the finding that the Property is unusable or that an unnecessary hardship exists. The trial court noted that the current owner purchased the Property in its current size and configuration, and that the owner's desire to have extra income from the Property is not a basis for granting a variance from the numerous sections of the Code. This appeal followed.

Our standard of review of an appeal from a zoning decision, where the trial court did not take any additional evidence, is whether the zoning board committed an abuse of discretion or an error of law. Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998). An abuse of discretion occurs when the zoning board made material findings of fact not supported by substantial evidence. Id. Eller raises the following issues:...