SCRUB v. ZONING HEARING BD. OF ADJUSTMENT

• Citation: 858 A.2d 679
• Parties: SOCIETY CREATED TO REDUCE URBAN BLIGHT (SCRUB), Mary Cawley Tracy, Councilman David Cohen, Carol Sander and Bridesburg Civic Association, Appellants v. ZONING HEARING BOARD OF ADJUSTMENT OF THE CITY OF PHILADELPHIA, City of Philadelphia, Arsenal Business Center and Eller Media.
• Decision Date: 27 September 2004
• Court: Commonwealth Court of Pennsylvania

858 A.2d 679

SOCIETY CREATED TO REDUCE URBAN BLIGHT (SCRUB), Mary Cawley Tracy, Councilman David Cohen, Carol Sander and Bridesburg Civic Association, Appellants v. ZONING HEARING BOARD OF ADJUSTMENT OF THE CITY OF PHILADELPHIA, City of Philadelphia, Arsenal Business Center and Eller Media.

Commonwealth Court of Pennsylvania.

Argued June 10, 2004.

Decided September 27, 2004.

Samuel C. Stretton, West Chester, for appellants.

David L. Braverman, Philadelphia, for appellee, Arsenal Business Center. Glenn A. Weiner, Philadelphia, for a pellee, Clear Channel Outdoor.

BEFORE: SMITH-RIBNER, Judge, and LEAVITT, Judge, and FLAHERTY, Senior Judge.

OPINION BY Judge SMITH-RIBNER.

The Society Created to Reduce Urban Blight and certain individuals (SCRUB) appeal from an order of the Court of Common Pleas of Philadelphia County that affirmed the decision of the Zoning Board of Adjustment of the City of Philadelphia (Board) that granted a variance to Eller Media Company, which is now Clear Channel Outdoor (Applicant), to erect two large outdoor advertising signs. SCRUB raises the following issues on appeal: whether the trial court's order constituted an error of law or an abuse of discretion because the record did not support a finding of hardship for the purpose of a variance and did demonstrate that a grant of the variance was against public policy and directly violated the provisions of Philadelphia Zoning Ordinance Section 14-1604; and whether the grant of the variance constituted an error of law or an abuse of discretion when there were no dimensional variance issues.

I

The property in question is the site of the former Frankford Arsenal, which was used by the federal government to manufacture and store military hardware and munitions beginning in the 1820s. The property was allowed to decay after the end of World War II, and the federal government abandoned it in 1976. It is an irregularly shaped site of over eighty acres containing sixty-seven buildings of various sizes, some of which are over 100 years old. The property is bordered by Tacony Avenue and 1-95 to the west, Frankford Creek and Delaware Avenue to the east and Bridge Street to the south. The property is zoned G-2 Industrial, and it is surrounded by commercial and industrial properties, with a small residential area to the west. Hankin Management Company (HMC) purchased the property in December 1983. Arsenal Business Center, a commercial complex comprised of the buildings on the site, has approximately 1.8 million square feet of floor space, of which 1.3 million square feet are currently vacant. In recent years the occupancy rate has fluctuated between 28 and 32 percent.

In October 1999 Applicant filed an application with the Department of Licenses and Inspections (L & I) for zoning and use permits to erect two 20-foot by 60-foot, double-faced, freestanding outdoor advertising signs ("Sign A" and "Sign B") along the western side of the property, which would be visible to travelers on 1-95. L & I determined that the proposals would not comply with the outdoor advertising regulations set forth in Section 14-1604 of the Philadelphia Zoning Code, and it issued nine use and two zoning refusals. Applicant appealed to the Board, which, after a hearing, granted use and zoning variances. On SCRUB's appeal, the trial court reversed the grant of the variances. On Applicant's further appeal, this Court concluded that the trial court lacked the authority to issue an order without having received the findings of fact and conclusions of law of the Board, and the Court remanded with instructions for the Board to file findings and conclusions. Society Created to Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment of City of Philadelphia, 804 A.2d 147 (Pa.Cmwlth. 2002) (Arsenal I). The Board filed its findings and conclusions on December 18, 2002. The Board noted that Applicant agreed not to advertise alcohol, tobacco products or adult entertainment on the proposed signs and that the bases would be screened by trees. Albert M. Tantala, a licensed engineer, opined that the proposed signs would alleviate hardships caused by the history and circumstances of the property and that they would not impede current business activities, create traffic hazards or have an adverse impact on the surrounding area. Mark Hankin, president of HMC, testified that because of lead-based paint. and asbestos in the buildings, deterioration and deed restrictions for historic preservation, renovations had been costly. He stated that HMC has expended nearly $24 million since acquiring the property and that it lost approximately $850,000 in 1988 and about $560,000 in 1999.

Proceeds of the lease with Applicant would assist with daily operating expenses and would enable Applicant to pay a loan to which it had not contributed in a year and i hall Gray Smith, an architect and urban planner, opined that the proposed signs would adversely affect the public health, safety and welfare and would substantially conflict with the purpose and the legislative intent of the Philadelphia Zoning Code. The Board considered evidence from several witnesses for and against the proposal and also expert reports. The Philadelphia Planning Commission recommended denial of the variance requests.

The Board's conclusions of law enumerated specific zoning provisions violated by the proposal. Section 14-1604(3) of the Zoning Code does not permit an outdoor advertising sign to be located within 500 feet of another outdoor advertising sign, but Sign A would be that close to two others. Section 14-1604(4) does not permit such a sign within 300 feet of any residentially zoned property, but Sign A would be. The maximum sign area per sign support structure is 1,500 square feet under Section 14-1604(5), but the proposed structures support 2,400 square feet. The bottom edge of any outdoor advertising sigh shall not be located more that twenty-five feet from the road surface under Section 14-1604(6)(a), but the bottom of Signs A and B would be at fifty-three feet and forty-three feet. Under Section 14-1604(7) no more than one sign support structure shall be permitted on any one lot, but the proposal would increase the lot's signs from two to four. Section 14-1604(9)(b) prohibits outdoor advertising signs within 660 feet of ingress and/or egress ramps for the Delaware Expressway, and both proposed signs would be in the prohibited area. Section 14-1604(9)(l) prohibits outdoor advertising within any areas designated as a National Historic District. Section 14-1604(10)(a) requires removal of an equal or greater sign area as a condition of approval of a new sign, but Applicant did not propose to remove any existing sign. Therefore, variances would be required for the proposed structures to be approved.

The Board stated that to establish entitlement to a variance an applicant must show that there is an unnecessary hardship resulting from the property's unique physical conditions or circumstances, that such hardship is not self-imposed by the applicant, that granting the variance will not adversely affect the public health, safety or welfare and that the variance, if granted would represent the minimum necessary to afford relief, citing Section 14-1802(1) of the Zoning Code and Carman v. Zoning Board of Adjustment of City of Philadelphia, 162 Pa.Cmwlth. 80, 638 A.2d 365 (1994). It noted that a dimensional variance involves a request to adjust zoning regulations to use property in a manner consistent with regulations, but a use variance involves a request to use property in a manner that is wholly outside zoning regulations; thus the quantum of proof is lesser for a dimensional variance, although for either type the applicant need not establish that the property is valueless without the variance. Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998).

The Board concluded that Applicant had demonstrated unnecessary hardship. In its Conclusion of Law 13 the Board indicated that this was not an instance of requesting a variance to obtain more profit from the use of a property but rather was simply a situation in which an owner needed some minor relief in order to maintain a historical site that otherwise would decay from want of viability. As a result, the Board determined that a variance would not adversely impact public health, safety and welfare, noting that Applicant agreed not to advertise alcohol, tobacco or adult entertainment, that the bases of the signs would be screened, that the nearby residential area was on the other side of 1-95 and that a report by Tantala established that there was no connection between outdoor advertising signs and traffic safety concerns. The Board granted zoning and use variances. Without taking further evidence, the trial court issued an order on December 5, 2003 denying SCRUB's appeal and affirming the Board's action.¹

II

SCRUB first contends that the trial court and the Board erred as a matter of law and abused their discretion in granting a variance for a proposal that violated several provisions of Section 14-1604, restating those listed by the Board. It quotes the standard for granting a variance from Valley View Civic Ass'n v. Zoning Board of Adjustment, 501 Pa. 550, 555-556, 462 A.2d 637, 640 (1983):

The 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. The hardship must be shown to be unique or peculiar to the property as distinguished from a hardship arising from the impact of zoning regulations on an entire district. Moreover, mere evidence that the zoned use is less financially rewarding than the proposed use is insufficient to justify a variance. (Citations omitted.)

Despite the fact that the Arsenal Business Center had lost revenue in recent years, SCRUB notes that some 1,400 people work...