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1700 Columbus Associates, LLC v. City of Philadelphia

July 24, 2009

1700 COLUMBUS ASSOCIATES, LLC
v.
CITY OF PHILADELPHIA, ZONING BOARD OF ADJUSTMENT, APPELLANT



The opinion of the court was delivered by: Judge Simpson

Argued: June 10, 2009

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.

OPINION

In this zoning appeal, the City of Philadelphia (City) asks whether the Court of Common Pleas of Philadelphia County (trial court) erred in granting 1700 Columbus Associates, LLC's (Applicant) request for a variance. Applicant sought to change the use of its existing, permitted outdoor advertising sign from an accessory advertising message*fn1 to a non-accessory advertising message.*fn2 The Zoning Board of Adjustment of the City of Philadelphia (ZBA) denied Applicant's request on the ground Applicant did not prove it would suffer unnecessary hardship absent the grant of the variance. On Applicant's appeal, however, the trial court reversed the ZBA's decision and granted the variance. Because we agree with the ZBA that Applicant failed to prove the requisite unnecessary hardship to warrant the grant of the variance, we reverse the trial court and reinstate the ZBA's decision.

Applicant, which is comprised of a partnership between Theodore Pagano and Nicholas Sponara, owns property located at 73-83 Moore Street (a/k/a 1731-1743 South Water Street), between Swanson and Water Streets, adjacent to the elevated roadway of Interstate 95 in the City (subject property). The subject property, which lies in a G-2 Industrial zoning district, is improved with a commercial building, which was formerly occupied as a showroom for retailer Mattress Giant. While not entirely clear, it appears the building on the subject property is now used by a day care or preschool. The subject property is also improved with a public parking lot. In addition, there is a 1,000 square-foot, free-standing, double-faced, accessory sign, which advertises parking on the subject property.

Applicant also owns a separate, but neighboring property located at 1700 South Columbus Boulevard (across Swanson Street from the subject property), which it rents to a tenant that operates an "adult cabaret" known as Club Risqué. Pagano, a partner in Applicant's company, is apparently a "consultant" for Club Risqué. Reproduced Record (R.R.) at 20a.

The record reveals, as early as 1989, a request was made for a free-standing, double-faced, non-accessory advertising sign on the subject property. That request was denied by the City's Department of Licenses and Inspections (L&I). R.R. at 6a-7a.

In 2005, L&I issued Applicant a permit for a free-standing, double-faced, accessory sign for "MATTRESS GIANT SIGNS." R.R. at 9a. The permit also allowed Applicant to advertise the parking lot on the subject property with a sign reading "PARKING" with an arrow pointing down. Id.

In November 2006, Applicant applied to L&I for a zoning permit and/or a use registration permit to change the use of the existing sign from accessory to non-accessory advertising. L&I refused the application on the grounds the proposed use did not comply with Section 14-1604 of the City of Philadelphia Zoning Code (Zoning Code) ("Outdoor Advertising and Non-Accessory Advertising Controls"). Specifically, L&I determined: (i) the proposed sign would be located within 500 feet of an existing outdoor advertising sign, which is prohibited; (ii) the sign would be located within 660 feet of the ingress and/or egress ramps of I-95, which is prohibited; (iii) the sign would be located within 660 feet of the outward edge of the right-of-way of lines of I-95, which is prohibited; (iv) any outdoor advertising sign exceeding 1,000-square feet in area per support structure fronting on streets of less than 60-feet in width are prohibited; (v) no general outdoor advertising sign of equal or greater size is proposed to be removed as required; and, (vi) the sign is within 660 feet of a recreation center under the jurisdiction of the City's Department of Recreation, which is prohibited. Applicant appealed to the ZBA, seeking a variance from these provisions. Hearings ensued before the ZBA in January and September 2007.

At the outset of the first hearing, the ZBA's chairman forcefully verbalized his frustration with the fact that the property utilized by Club Risqué, which Applicant also owns (but which is not involved in this matter), has an illegal sign on its premises. Applicant then presented some brief testimony by Pagano as well as the testimony of Albert M. Tantala, P.E, a civil engineer, who opined the proposed non-accessory advertising sign would not adversely affect the public interest. Applicant also submitted documentary evidence, including photographs of the subject property and the surrounding area as well as its prior application and permit for its existing, accessory advertising sign. Despite pointing out it was only seeking to change the advertising copy on the sign at issue, Applicant did not dispute a variance was needed from the Zoning Code's billboard regulations. Notes of Testimony (N.T.), 9/5/07, at 32; R.R. at 67a.

Additionally, various witnesses testified briefly in opposition to and in support of Applicant's request. Among these witnesses was Mary Tracey, Executive Director of the Society Created to Reduce Urban Blight (SCRUB), who testified Applicant was previously denied its request for a non-accessory advertising sign on the subject property and no hardship existed that would justify the grant of a variance. Additionally, the objectors presented documentary evidence, including a petition generated by nearby residents in opposition to Applicant's request as well as photographs of the subject property and the surrounding area.

Ultimately, the ZBA issued an opinion in which it denied Applicant's variance request. The ZBA determined Applicant did not meet its burden to obtain a variance because granting the variance would create an "overuse" for the subject property, and Applicant did not provide any evidence of unnecessary hardship. ZBA Op., Concl. of Law No. 11; R.R. at 111a. Applicant appealed to the trial court.

Without taking additional evidence, the trial court issued an order reversing the ZBA's decision. The City appealed to this Court.*fn3

The trial court subsequently issued a three-page opinion in support of its order. In its opinion, the trial court stated the ZBA abused its discretion in denying the variance in that there were "glaring errors in the [ZBA's] findings of fact and conclusions of law .." Tr. Ct., Slip Op. at 2; R.R. at 130a. The trial court cited Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998), for the factors to be considered in determining whether Applicant proved the requisite hardship. The trial court then stated the ZBA committed errors in its findings and in its application of the law to the facts. The entire analysis of the trial court follows:

First, the [ZBA] erroneously found that the [subject property] was used as a mattress showroom with the sign and parking lot used as access thereto. The mattress showroom had moved from the [subject] property. This is an error because it directly applies to the hardship issues the [ZBA] would consider in granting a variance.

Second, the [ZBA] erroneously found that there is a strip club at the [s]ubject [p]roperty. Ignoring the obvious contradiction to the finding there is a mattress showroom on the [subject property], this is an error also because it directly applies to hardship issues the [ZBA] would consider in granting a variance.

Third, and perhaps most important, is the [ZBA's] failure to consider that the sign was already in existence in determining the hardship. The [ZBA] states that a non-accessory sign use for the sign would violate §14-1604(6)(b) of the [Zoning] Code. The accessory use sign does not violate the [Zoning] Code. The [ZBA] failed to take into account that [Applicant] is merely changing the writing on a sign that already exists. The difficulty of moving the sign further away from . I-95 so it complies with §14-1604(6)(b) falls directly into the Hertzberg factors, particularly the economic feasibility or the inability to co[n]vert or use the [subject] property. These factors should have been considered by the [ZBA]. The failure to do so is an abuse of discretion.

Tr. Ct., Slip Op. at 2-3; R.R. at 130a-31a.

The City's appeal is now before us for disposition. Among other contentions, the City argues an applicant for a variance for an outdoor advertising sign cannot establish hardship under a dimensional variance standard rather than a use variance standard. The City further contends that an applicant cannot prove the requisite hardship for a use variance where there is no evidence the property would be rendered valueless absent the grant of the variance. It also maintains an applicant cannot obtain a variance where it fails to satisfy any of the other necessary criteria required to obtain a variance.

I.

The City asserts this case is one of a long line of common confrontations between zoning regulations enacted by a legislative body for the greater good, and the desire of an individual property owner to maximize income derived from its property.

The City argues the subject property was and remains commercially viable but, as characterized in Pagano's testimony, is underperforming. See R.R. at 40a (the amount of income generated by the parking lot on the subject property was "disappointing"). The City maintains, under Pennsylvania law, "underperforming" is not recognized as hardship and does not support the grant of a variance.

The City contends Applicant is a property owner who is dissatisfied with the amount of income the subject property is currently generating while it operates within the confines of permissible zoning. It asserts Applicant, which built an accessory sign after several failed attempts to obtain an outdoor advertising ...


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