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LANDAU ADVERTISING CO. v. ZONING BOARD ADJUSTMENT (ET AL. (01/17/57)

January 17, 1957

LANDAU ADVERTISING CO., INC.
v.
ZONING BOARD OF ADJUSTMENT (ET AL., APPELLANT).



Appeal, No. 215, Jan. T., 1956, from order of Court of Common Pleas No. 1 of Philadelphia County, March T., 1954, No. 7540, in case of Landau Advertising Co., Inc. v. Zoning Board of Adjustment. Order reversed.

COUNSEL

James L. Stern, Deputy City Solicitor, with him Gordon Cavanaugh and Richard, H. Markowitz, Assistant City Solicitors, and David Berger, City Solictor, for appellant.

Marvyn Gould, with him Joseph X. Yaffe, and Yaffe & Gould, for appellee.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 387 Pa. Page 553]

OPINION BY MR. JUSTICE CHIDSEY

This is an appeal from the decision of the court below reversing an order of the Zoning Board of Adjustment. The appeal was taken by the Board itself and we permitted the City of Philadelphia to be substituted as appellant.*fn1

Plaintiff is an outdoor advertising company which leased the roof area above a drugstore located in an area zoned "A" Commercial in the City of Philadelphia. Plaintiff filed an application with the Zoning Division of the Department of Licenses and Inspections for a permit to erect on the leased premises a large illuminated billbord fifteen feet high and forty-two feet wide for general advertising purposes. The Zoning Division denied the application and, on appeal, after a hearing on the merits, the Zoning Board of Adjustment refused plaintiff's request. The Board found as

[ 387 Pa. Page 554]

    facts that the area in which the sign was to be built was partly residential and partly commercial, that the proposed use was not an accessory use, that proper and orderly development of the neighborhood could best be obtained by limiting the area to accessory signs advertising business conducted on the premises, that the sign would be a distraction to motorists, and that the health, morals, safety and general welfare of the immediate neighborhood would be affected if permission were granted to erect the sign for general advertising, not accessory to any business at this location. Thereupon the plaintiff took its case to the Court of Common Pleas No. 1 of the County of Philadelphia which, without taking additional testimony, reversed the action of the Zoning Board and directed that a permit be issued.*fn2 The court held that plaintiff's billboard was permissible as an "accessory use" which is defined in Section 2(23) of Philadelphia Zoning Ordinance as "a use subordinate to the main use on the lot and customarily incidental to the main use". The court reasoned that the sue of the roof of a business building for the erection of a sign thereon is "customarily incidental"

[ 387 Pa. Page 555]

    to its main use as a business building, and that this does not turn on the kind of business conducted in the building. This appeal was then taken.*fn3

Section 5(3) of the Philadelphia Zoning Ordinance, which is a section of general application, provides that: "In each district, only such uses and uses accessory and incidental thereto, as are hereinafter specified, will be permitted." Section 16 of the Ordinance sets forth the uses allowed in an "A" Commercial District. Billboards are not among these enumerated uses. The only signs expressly permitted by Section 16 are small professional signs, bulletin boards for churches, and signs advertising the sale or rent of real estate on which they are located provided such signs do not exceed twenty-five square feet in area. Section 16(27) of the Ordinance permits "Accessory uses customarily incidental to any of the above permitted uses.". In Silver v. Zoning Board of Adjustment, 381 Pa. 41, 112 A.2d 84, we held that the failure of the Philadelphia Zoning Ordinance to enumerate signs among the permitted uses in an "A" Commercial District does not allow such use, and that the only signs permitted in

[ 387 Pa. Page 556]

    such a zoned district are those specifically enumerated by Section 16 of the Ordinance and those which could properly be classified as an accessory use.

Plaintiff maintains that its sign constitutes such an accessory use. The City, on the other hand, contends that an accessory use sign must advertise activities conducted on the premises where the sign is located, that since this sign which plaintiff proposes to erect on the space which it leased above the drugstore will be devoted to general advertising purposes, it is a non-accessory sign and therefore not permitted under the Philadelphia Zoning Ordinance. We agree with the City's contention. In Silver v. Zoning Board of Adjustment, supra, an operator of a paint store leased a vacant lot and erected thereon a large billboard, advertising his paint business and directing prospective customers to its location which was one block away. No aspect of the advertised business was conducted on the premises where the sign was placed. This Court held that the sign was not an accessory use. We said at p. 43: "There is no question that a zoning regulation is valid if it is necessary for the preservation of public health, safety, morals or general welfare: Medinger Appeal, 377 Pa. 217, 221, 104 A.2d 118. The regulation of billboards is generally accepted as a legitimate exercise of the police power by a zoning board: Liggett's Petition, 291 Pa. 109, 139 A. 619; McQuillin, Municipal Corporations (3rd Ed.), Vol. 7, sec. 24.380. ...". It is true that in the Silver ...


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