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ROLLINS OUTDOOR ADVERTISING v. ZONING BOARD ADJUSTMENT (08/06/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 6, 1987.

ROLLINS OUTDOOR ADVERTISING, INC., APPELLANT
v.
ZONING BOARD OF ADJUSTMENT, APPELLEE

Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Rollins Outdoor Advertising Co. v. Zoning Board of Adjustment, No. 1868, October Term, 1981.

COUNSEL

John F. Raimondi, for appellant.

Claudia M. Becker, Chief Assistant City Solicitor, for appellee.

President Judge Crumlish, Jr., Judge Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry. President Judge Crumlish, Jr., dissents.

Author: Barry

[ 108 Pa. Commw. Page 278]

This is an appeal by Rollins Outdoor Advertising, Inc. (Rollins), from an order of the Court of Common Pleas of Philadelphia County affirming the Zoning Board of Adjustment of the City of Philadelphia (Board) which denied Rollins' application for a variance. We affirm.

In April, 1980, Rollins applied to the Department of Licenses and Inspections (Department) for a building permit to erect a free-standing, back to back, decked, general advertising sign on property which it leased located in a "C-2" Commercial Zone. The plans submitted by Rollins showed that the sign would conform with the zoning code. The permit was granted and the sign was erected. However, upon subsequent inspection the Department

[ 108 Pa. Commw. Page 279]

    found the structure to be in violation of zoning and use restrictions as follows: 1) the sign was forty-three feet (43') high in violation of Section 14-303(2)(r)(.5) of the Philadelphia Zoning Code*fn1 which limits free standing signs to thirty-five feet (35'); and 2) the sign was seventy-three feet (73') from a residential district in violation of Section 14-303(2)(r)(.3) of the Philadelphia Zoning Code*fn2 which requires that such signs shall not be erected within seventy-five feet (75') of residentially-zoned property.

Accordingly, in acting on Rollins' "Application for Zoning and/or Use Registration Permit," the Department issued both a use refusal and a zoning refusal. Rollins appealed the Department's refusals to the Board requesting a variance.

A public hearing was held on August 25, 1981, at which testimony was taken from both proponents and opponents of the sign. The Board denied Rollins' request for a variance from which decision Rollins appealed to the Court of Common Pleas of Philadelphia.

By consent decree dated November 10, 1981, Rollins agreed to correct the height violation. The height violation was subsequently remedied and by Order

[ 108 Pa. Commw. Page 280]

    of Judge Greenberg dated August 10, 1982, the matter was remanded to the Board for a determination on the issue of whether Rollins was entitled to a variance on de minimis grounds.

A public hearing was held on May 5, 1983, at which testimony was again taken from both proponents and opponents of the sign following which the Board made supplemental findings of fact and conclusions of law which resulted in the denial of Rollins' request for a de minimis variance. Rollins appealed the Board's decision to the Court of Common Pleas of Philadelphia which, without taking additional evidence, sustained the Board's decision and dismissed Rollins' appeal. Rollins appealed to this Court.

We must review the Board's decision denying the variance and also, its subsequent decision denying the variance on de minimis grounds.

Where, as here, the trial court, in reviewing a zoning appeal has taken no evidence beyond that presented to the zoning hearing board, the Pennsylvania Supreme Court has stated that:

[T]he scope of our review is limited to determining whether the Board committed a manifest abuse of discretion or an error of law. . . . [Citations omitted.] We may conclude that the Board abused its discretion only if its findings are not supported by substantial evidence. 53 P.S. § 11010 (1972); 2 Pa. C.S. § 754(b). [Citations omitted.] By 'substantial evidence' we mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. [Citations omitted.]

Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 554-55, 462 A.2d 637, 639-40 (1983).

Section 14-1802(3) of the Philadelphia Code (Code) provides that "[T]he applicant shall have the duty of

[ 108 Pa. Commw. Page 281]

    presenting evidence relating to the criteria set forth herein. [relating to the granting of variances]." It is well-settled that variances should only be granted in exceptional cases and that the applicant's burden of proving its need is heavy. Fretz, Inc. v. Hilltown Township Zoning Hearing Board, 18 Pa. Commonwealth Ct. 471, 336 A.2d 464 (1975). The applicant must prove that an unnecessary hardship, unique or peculiar to his property, is imposed by the zoning regulation sought to be avoided and that the variance is not contrary to public health, safety or the general welfare. Marple Gardens, Inc. v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 436, 303 A.2d 239 (1973). These principles are reflected in the Philadelphia Code at § 14-1802 which sets forth twelve (12) criteria for the Board to consider when ruling on an application for a variance.*fn3

[ 108 Pa. Commw. Page 282]

In ruling on Rollins' application here, the Board concluded that Rollins failed to present the evidence required to meet six (6) of the twelve (12) criteria set forth in the Code, specifically §§ 14-1802(1)(a), (b), (c), (d), (j) and (l).*fn4

In reviewing the evidence presented at both hearings, we find that the Board has not committed a manifest abuse of discretion inasmuch as its findings are supported by substantial evidence.

At the first hearing Rollins testified, through its counsel, that a refusal of the variance would create an unnecessary hardship in that the refusal would result in the necessity of moving the sign in order to bring it into compliance with the Code. Rollins testified further that the subcontractor who was responsible for the height and placement deviations is out of business providing Rollins with no recourse against it to recover its cost of moving the sign. At the second hearing Rollins testified again through counsel, that moving the sign would involve the tearing up of concrete and possible weakening of a nearby retaining wall.

Based on that evidence, the Board concluded that Rollins had demonstrated no more than economic hardship

[ 108 Pa. Commw. Page 283]

    which is insufficient to support the granting of a variance here. We agree. An applicant for a variance must show more than an economic hardship. Somerton Civic Assoc. v. Zoning Board of Adjustment, 80 Pa. Commonwealth Ct. 173, 471 A.2d 578 (1984).

On the issue of whether the variance would be contrary to public health, safety, or the general welfare the Board concluded that the grant of a variance in this case was not in the public interest. Rollins submitted letters from local businessmen and neighborhood residents in support of the sign. One of their contentions was that the additional illumination from the sign was beneficial to the corner on which it is erected. Protestants appeared at both hearings and submitted letters in opposition to the sign complaining, inter alia, that the illumination from the sign interfered with the peaceful enjoyment of their property.*fn5 Further, the Planning Commission testified that the granting of a variance in this case would result in an overuse of the property. We find that there is substantial evidence to support the Board's conclusion on this issue.

In the alternative, Rollins argues that if the traditional grounds for a variance have not been satisfied here, then the more relaxed standards for the granting of a variance on de minimis grounds should be applied and further, are met. We cannot agree.

A party seeking a variance bears a heavy burden of proof and the de minimis doctrine is an extremely narrow exception to that rule. It is rare, but on occasion,

[ 108 Pa. Commw. Page 284]

    this Court has permitted minor dimensional variances without requiring that the traditional grounds for a variance be satisfied. See, e.g., West Bradford Township v. Evans, 35 Pa. Commonwealth Ct. 167, 384 A.2d 1382 (1978). In a limited number of cases the doctrine has been applied to permit a variance where the violation of the ordinance was minor and to do otherwise would require the moving of a building*fn6 and where rigid compliance with the ordinance was not necessary to protect the public policy concerns underlying the ordinance.*fn7 King v. Zoning Hearing Board of the Borough of Nazareth, 76 Pa. Commonwealth Ct. 318, 463 A.2d 505 (1983).

The doctrine has exclusively been applied in cases where only minor deviations from dimensional zoning ordinances have been the basis for the variances sought. Because the crucial fact in this case is that Rollins' sign encroaches into the 75 foot buffer zone created by Section 14-303(2)(r)(.3) by only two feet it may initially appear that this is a dimensional variance case to which the de minimis rules apply. However, the variance being sought here is more accurately characterized as a use variance, i.e., Rollins has requested that the Board permit its sign to remain in the buffer zone where it is a non-permitted use.

[ 108 Pa. Commw. Page 285]

"There is no precedent, however, for approving a use variance based on the 'de minimis' approach." Kensington South v. Zoning Board of Adjustment of Philadelphia, 80 Pa. Commonwealth Ct. 546, 550, 471 A.2d 1317, 1319 (1984), citing Application of Burroughs Page 285} Corp., 54 Pa. Commonwealth Ct. 514, 422 A.2d 1183 (1980). Further, Rollins has not presented an argument to convince us that the de minimis doctrine is properly applied in use variance cases. In Cook v. Zoning Hearing Board of Ridley Township, 47 Pa. Commonwealth Ct. 160, 408 A.2d 1157, 1159 (1979), we stated that, "we agree with a notable authority in the field that '. . . it is difficult to conceive of a use variance which would be truly "de minimis".'" citing Ryan, Pennsylvania Zoning Law and Practice, Section 6.3.1 (Supp. 1979).

We find that the Board's decision to deny Rollins' application for a variance on both traditional and de minimis grounds to be supported by substantial evidence, that no error of law has been committed and accordingly affirm the order of the Court of Common Pleas dismissing Rollins' appeal.

Order

Now, August 6, 1987, the order of the Court of Common Pleas of Philadelphia County dated November 18, 1985, at No. 1868, is affirmed.

President Judge Crumlish, Jr., dissents.

Disposition

Affirmed.


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