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AMERADA HESS CORPORATION v. ZONING BOARD ADJUSTMENT (11/26/73)

decided: November 26, 1973.

AMERADA HESS CORPORATION, APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Amerada Hess Corporation v. Zoning Board of Adjustment, No. 1204 March Term, 1971.

COUNSEL

Franklin H. Spitzer, with him, of counsel, Wolf, Block, Schorr & Solis-Cohen, for appellant.

Nicholas Panorella, Jr., with him Howard D. Scher, Assistant City Solicitor, John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.

Author: Mencer

[ 11 Pa. Commw. Page 116]

This is an appeal from the order of the Court of Common Pleas of Philadelphia County, affirming the refusal of the Zoning Board of Adjustment (Board) to permit the erection of a revolving sign by Amerada Hess Corporation (Amerada).

Amerada is the owner of a gasoline station located at the southeast corner of 19th Street and Fairmount Avenue in Philadelphia. It applied to the Department of Licenses and Inspections for a zoning permit to install a revolving sign on its property. The application was refused because Section 14-303(8)(f) of the Philadelphia Code of General Ordinances (Code) prohibits revolving signs in districts zoned "C-2" Commercial.

Amerada appealed to the Board and a hearing was held on January 5, 1971, after which the Board found against Amerada on the grounds that it failed to present evidence to meet the criteria for the granting of a variance. The transcript of the hearing before the Board reveals that the only issue argued by Amerada was the constitutionality of the Code. The Board sustained the Code on the basis that Amerada had produced no evidence to rebut the presumption of constitutionality.

[ 11 Pa. Commw. Page 117]

The Court of Common Pleas affirmed, without taking new evidence, after hearing oral argument on October 5, 1972. Amerada then brought this appeal.

Our scope of review in zoning cases, where the court below took no additional evidence, is limited to a determination of whether the zoning board abused its discretion or committed an error of law. Philadelphia v. Earl Scheib Realty Corp., 8 Pa. Commonwealth Ct. 11, 301 A.2d 423 (1973).

Amerada claims that an error of law has been made. Its contention is that a zoning code which purports to regulate the use of revolving signs but which, in fact, prohibits them in every zoned district within a city is unconstitutional. We agree.

Sections 14-301 and 14-501 of the Code provide for ten different commercial districts and eight different industrial districts. In each of these districts revolving signs are specifically prohibited. In addition to these districts, the Code provides for a third district known as a residential district. The provisions with respect to residential districts specify the types of signs permitted. Revolving signs are not ...


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