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Callowhill Center Associates, LLC v. Zoning Board of Adjustment

August 9, 2010

CALLOWHILL CENTER ASSOCIATES, LLC, APPELLANT
v.
ZONING BOARD OF ADJUSTMENT, CITY OF PHILADELPHIA, SOCIETY CREATED TO REDUCE URBAN BLIGHT, NORTHERN LIBERTIES NEIGHBORS ASSOCIATION, OLD CITY CIVIC ASSOCIATION, MARY TRACY AND JOHN STRUBLE



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Argued: May 18, 2010

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

JUDGE McCULLOUGH

Callowhill Center Associates (Callowhill) appeals from the July 6, 2009, order of the Court of Common Pleas of Philadelphia (trial court), which affirmed an order of the Zoning Board of Adjustment of the City of Philadelphia (Board) denying Callowhill's second application for a variance to install a wall wrap advertising sign. We affirm.

Callowhill owns a commercial building located at 413-53 North 7th Street in Philadelphia, which houses twenty-two business tenants and is 60-65% occupied. Callowhill wishes to install a 9,750 square foot wall wrap advertising sign on its building. (Callowhill's brief at 8; Reproduced Record (R.R.) at 463a.) The wall wrap advertising sign proposed by Callowhill would be constructed of polyester fabric and placed over the exterior of the building. (Callowhill's brief at 8.)

Section 14-102(123) of the Philadelphia Code (Code)*fn1 defines the term sign as follows:

Sign. A name, identification, description, emblem, display, device or structure which is affixed to, or printed on, or represented directly or indirectly upon a building, structure, or parcel of land; which is illuminated or non-illuminated; visible or intended to be visible from any public place; and which directs attention to a person, place, product, institution, business, organization, activity or service. Signs shall also include any permanently installed or situated merchandise, including any banner, pennant, placard or temporary sign, with the exception of window displays and national flags..

Section 14-1604 of the Code provides that the maximum area of a sign is limited to 1,500 square feet and that the bottom edge of any outdoor advertising sign may not be located more than twenty-five feet above the road surface.

Callowhill's building is located in the L-4 Limited Industrial District, where outdoor advertising signs are not a permitted use. Section 14-506(1)(a)(.2) of the Code. Furthermore, the property is situated in the Vine Street Parkway Special Sign Control Area, where the City has imposed strict sign control regulations. Section 14-1604.1(5) of the Code.

In 1999, Callowhill erected a 9,750 square foot non-accessory wall wrap sign on its building without first acquiring a zoning and use permit. The wall wrap sign, as with all such similar signs, had the practical effect of transforming an entire side of Callowhill's building into a sign, as illustrated by the following photograph, taken in May of 2000, of the wall wrap sign that was installed on the building:

(R.R. at 1122a.) When Callowhill finally applied for such a permit one year later, its request was rejected by the City. Callowhill then applied to the Board for a variance. The variance, which was opposed by the Society Created to Reduce Urban Blight (SCRUB), was granted by the Board. However, the trial court reversed the Board's decision on the ground that Callowhill did not prove an unnecessary hardship. This Court affirmed, reasoning as follows:

[W]e conclude that the Board erred as a matter of law by granting the variance when Applicants did not demonstrate the required showing of unnecessary hardship. As noted, the building was 70 to 80% occupied by commercial tenants when the sign was erected. The building is being put to a profitable use, and the loss of the sign revenue does not render the building valueless. Because we conclude that Applicants did not prove the required hardship, we need not determine whether a variance would be contrary to the public interest.

Alternatively, Applicants argue that a variance is not necessary because the zoning code does not apply to their sign. They assert that their sign is a wall wrap, which drapes the side of the building like a banner. ...


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