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SIMON KONOVER AND ASSOC. C/O LAWRENCE KRAIN v. ZONING BOARD ADJUSTMENT CITY PHILADELPHIA. CITY PHILADELPHIA (05/22/85)

decided: May 22, 1985.

SIMON KONOVER AND ASSOC. C/O LAWRENCE KRAIN
v.
ZONING BOARD OF ADJUSTMENT CITY OF PHILADELPHIA. CITY OF PHILADELPHIA, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Simon Konover & Associates v. Zoning Board of Adjustment, No. 758 August Term, 1982.

COUNSEL

Marjorie Stern Jacobs, with her, Barbara Mather, City Solicitor, and Mary Rose Cunningham, Chief Assistant City Solicitor, for appellant.

Henry I. Jacobson, for appellee.

Judges Craig and Colins and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 89 Pa. Commw. Page 397]

Where a zoning appeal has proceeded before the administrative board solely upon issues of compliance in relation to a permit revocation, may the trial court, without taking any additional evidence, reverse the board on a vested rights basis?

In this zoning case, Simon Konover & Associates (Konover), the applicant, appealed to the Zoning Board of Adjustment of the City of Philadelphia from the city's revocation of a permit which it had issued

[ 89 Pa. Commw. Page 398]

    to Konover for the erection of a replacement advertising sign. From the board's denial of the appeal, the applicant appealed to the Court of Common Pleas of Philadelphia County, which reversed the board, thus reinstating the permit. The city has appealed to this court.

According to the exhibits and undisputed testimony, Konover, as lessee of property at 2601 South Front Street in Philadelphia's G-2 Industrial District, filed, on March 18, 1981, an application for the erection of a new 62-foot high advertising sign, to replace a sign then existing at that location. With the application, Konover submitted a plot plan (Exhibit D) showing that the sign would be located thirty feet from the right-of-way line of Interstate 95, an expressway; the plan also declared that the sign "WILL SHOW TO I-95," that no other signs were within 500 feet of the proposed location, and that there was no residence within 100 feet of the proposed sign. The city issued a building permit and a zoning permit for the requested development on March 31, 1981. Konover proceeded to remove the existing sign and replace it with a new one, at an approximate cost of $35,000. About 45 days later, on May 15, 1981, the city issued a letter revoking the permit because of noncompliance with Philadelphia Zoning Code § 14-1604(2)(a), prohibiting advertising signs within 660 feet of the outward edge of the right-of-way lines of expressways and § 14-104(6), (7), (8) which prohibits replacement of nonconforming structures intentionally demolished.

In the appeal hearing before the board, a Konover representative, the sole witness who testified, presented all of the evidence summarized above. Although the board's Finding No. 8 states that the "applicant admitted that he removed an existing nonconforming free standing sign," the record contains

[ 89 Pa. Commw. Page 399]

    no such express admission; of course, the nonconforming status of the previous sign, in the same location, can be deduced from the plot plan information ...


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