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Callowhill Neighborhood Association v. City of Philadelphia Zoning Board

Commonwealth Court of Pennsylvania

June 17, 2015

Callowhill Neighborhood Association, Michelle Liao, Leslie Stahl, John Struble, Peter Kendzierski, Gwynne Keathly, George Brooks, Chinese Christian Church, Chinatown Development Corporation and Scenic Philadelphia
City of Philadelphia Zoning Board of Adjustment and City of Philadelphia; Callowhill Neighborhood Association, John Struble, Michelle Liao, Leslie Stahl, and Peter Kendzierski
City of Philadelphia Zoning Board of Adjustment and City of Philadelphia; Appeal of: Callowhill Neighborhood Association, Michelle Liao, Leslie Stahl, John Struble, Peter Kendzierski, Gwynne Keathly, George Brooks, Chinese Christian Church and Chinatown Development Corporation

Argued February 11, 2015

Appealed from No. January Term, 2013, Nos. 1967 and 2017. Common Pleas Court of the County of Philadelphia. Wright Padilla, J.

David S. Fineman and Lee Applebaum, Philadelphia, for appellants.

Andrew S. Ross, Chief Deputy City Solicitor, Philadelphia, for appellee City of Philadelphia.

Leslie M. Gerstein, Philadelphia, and Robert L. Byer, Pittsburgh, for appellee H.A. Steen Industries, Inc.




Callowhill Neighborhood Association (Callowhill), Michelle Liao, Leslie Stahl, John Struble, Peter Kendzierski, Gwynne Keathly, George Brooks, Chinese Christian Church and Chinatown Development Corporation (collectively " Objectors" ) appeal from the Order of the Court of Common Pleas of Philadelphia County (trial court) upholding the Decision of the Zoning Board of Adjustment (ZBA) of the City of Philadelphia (City).[1] The Philadelphia Department of Licenses and Inspections (L& I) had issued a Permit to Anter Associates, LP, on behalf of H.A. Steen Industries, Inc. d/b/a Steen Outdoor Advertising[2] (collectively " Steen" ), for a sign face and format change, from static to digital, on an existing free-standing non-accessory outdoor advertising sign. Objectors appealed the issuance of the Permit and, after multiple hearings, the ZBA denied their appeal. Because the sign at issue here is lawfully permitted and L& I properly issued the Permit in accordance with the provisions of the Philadelphia Zoning and Planning Code[3] (Zoning Code), we affirm.


The sign at issue here is a two-sided illuminated outdoor advertising sign located in the City at 1113 Vine Street (Property) in the G-2 Industrial District. (ZBA Decision at 1; Findings of Fact (FOF) ¶ 12.) All the properties within the vicinity of the sign are zoned G-2. (FOF ¶ 12.) A permit legalizing the sign as a non-accessory use was first issued in 1985. (FOF ¶ 13.) On December 17, 2007, the trial court entered a Consent Order between the City and Steen that resolved a dispute regarding the lawfulness of eight of Steen's outdoor advertising signs, including the sign at issue here. (2007 Consent Order, R.R. at 298a-300a.) In the 2007 Consent Order, the City and Steen agreed that the eight outdoor advertising signs complied with the Off-Premise Outdoor Advertising Sign provisions of the Zoning Code then in effect and that the signs were lawful in all respects. (2007 Consent Order at 3, R.R. at 300a.) In accordance with the 2007 Consent Order, the City Solicitor notified L& I by memo, dated December 17, 2007, that the eight signs in dispute, including the sign at issue here, were legally permitted. (December 17, 2007 Memorandum, R.R. at 297a.)

A. Proceedings before ZBA

On March 30, 2012, Steen applied for and L& I issued, as of right, a Permit allowing Steen to convert the sign face to a digital format. (FOF ¶ 1.) On April 25, 2012, Objectors filed a petition for appeal challenging the issuance of the Permit for a number of reasons: (1) the change to digital format did not comply with the Outdoor Advertising and Non-Accessory Advertising Controls (Outdoor Advertising Controls) of the Zoning Code; [4] (2) the format change was prohibited by the Special Sign Controls for Area Surrounding the Vine Street Parkway and Benjamin Franklin Bridge Approach[5] (Special Sign Controls) of the Zoning Code because the sign is located on Vine Street; (3) the change would have an adverse impact on surrounding properties resulting in a public nuisance; and (4) the sign, in its current location, is not in compliance with the Federal Highway Beautification Act of 1965[6] (Federal Beautification Act) " due to its proximity to other signs, and residences." (Appeal Letter, R.R. at 358a.) Two public hearings were held before the ZBA. (FOF ¶ 3.) The ZBA framed the issues before it as follows: (1) whether L& I followed proper procedures in reviewing the Permit application; and (2) whether L& I properly issued the Permit. (FOF ¶ 4.)

In support of their challenge, Objectors submitted documentary evidence, including photographs, and presented the testimony of L& I's plan examiner, Cheli Dahal, and Helen Diemer, a lighting expert.[7] Objectors also testified on their own behalf in opposition to the granting of the Permit.

Dahal testified that she reviewed the Permit application and issued the Permit, as of right, based on: (1) the application; (2) the 1985 permit legalizing the sign; (3) the December 17, 2007 Memorandum; (4) the 2007 Consent Order; (5) her independent review of the applicable provisions of the Zoning Code; (6) the fact that the change would not increase the size of the sign in terms of area and height; [8] (7) the change would not violate Section 14-1604(7) of the Outdoor Advertising Controls governing " Sign Face Regulations" or Section 14-1604(8) of the Outdoor Advertising Controls governing " Illuminated, Animated, Flashing, and Revolving Sign Regulations" ; [9] and (9) a May 10, 2007 L& I Memorandum. (FOF ¶ ¶ 13-14.) The May 10, 2007 L& I Memorandum was issued by L& I to the zoning administrator and was based on the advice of the City's Law Department. (FOF ¶ 14; May 10, 2007 L& I Memorandum, R.R. at 101a-02a.) Therein, L& I interpreted Sections 14-1604(7) and (8) of the Zoning Code and concluded, in relevant part, that " [a] change in format or medium from a standard outdoor advertising sign to an electronically changing message shall be treated as a face/format change" because only one electronically changing message is displayed at a time and, " [i]f the distance requirements as stated in the relevant code sections are met, the permit should be issued as a matter o[f] right." (May 10, 2007 L& I Memorandum at 2, R.R. at 102a.) Dahal testified that she consulted with her supervisor and concluded that, because the sign at issue was legal, it was not subject to the Zoning Code provisions that require " illegal" signs to be removed. (FOF ¶ 15.) Dahal testified further that the zoning administrator does not receive or need to receive technical plans regarding the construction required to convert a sign because the office within L& I that issues building permits will decide the impact of the conversion on the sign's structure. (FOF ¶ 15.) Dahal testified that she does not go beyond the application to determine whether a permit should be issued. (FOF ¶ 15.)

Objectors' testimony focused mainly on the adverse impact a digital sign would have on the surrounding properties and how the conversion would be a public nuisance. (FOF ¶ ¶ 16-18, 20-22.) Diemer testified that, in order to convert the existing sign face to digital, the sign face would need to be larger and heavier and the sign would need to be thicker. (FOF ¶ 23.)

The ZBA accepted Dahal's testimony as credible and persuasive that not only did L& I have a process in place to review the Permit application, but the application complied with those requirements. (ZBA Decision, Conclusions of Law (COL) ¶ 5.) The ZBA found that it was appropriate for Dahal to rely on the December 17, 2007 Memorandum, the 2007 Consent Order, and the May 10, 2007 L& I Memorandum. (COL ¶ 5.) The ZBA rejected Objectors legal argument that, because the conversion would result in a public nuisance, the sign must be removed pursuant to the Special Sign Controls set forth in the Zoning Code. As noted by the ZBA, pursuant to Section 14-1604.1(6)(b) of the Zoning Code's Special Sign Controls, L& I was not prohibited from removing a sign that had been determined to be a public nuisance or unlawfully in existence under any other provision of the Zoning Code. (Section 14-1604.1(6)(b), R.R. at 1137a.) However, the ZBA determined that the issue before it was whether the sign face could be converted to digital, not whether the entire sign should be removed; therefore, this provision did not apply in this case. Moreover, the Special Sign Controls did not require L& I to consider whether a sign is a public nuisance, but just simply provided that L& I was not prohibited from removing a sign if it is determined that it is a public nuisance or unlawfully in existence. (COL ¶ 6.) Finally, the ZBA pointed out that the sign at issue is legal and, therefore, not " unlawfully in existence." (COL ¶ 6.)

The ZBA further accepted Dahal's testimony as credible, with respect to " sign area," and found that there was no evidence in the record to support Objectors' argument that the depth of the sign would change. (COL ¶ 7.) Accordingly, the ZBA determined that Objectors failed to present sufficient evidence of irregularity by L& I; therefore, they did not meet their burden of proof. (COL ¶ 8.) The ZBA determined that L& I performed its duties properly and took the steps necessary to issue a valid Permit. (COL ¶ 9.) As such, the ZBA concluded that Objectors' claim of error was unfounded. (COL ¶ 9.)

B. Objectors' Appeal to Trial Court

Objectors appealed to the trial court. The City filed a brief in opposition to Objectors' appeal wherein the City only addressed the merits of Objectors' appeal. Steen intervened and filed a brief addressing both the merits and whether Objectors had standing to challenge the issuance of the Permit; however, the trial court did not address the standing issue. The trial court concluded that there was no abuse of discretion by the ZBA in granting the Permit for the sign conversion. The trial court stated:

Upon examination of the record, the evidence reflects that the property at issue was zoned G-2 Industrial and all surrounding properties are zoned G-2. Raising the height or changing the area of the signs are the only alterations prohibited; the Code does not prohibit all structural changes. Although a sign with a digitally changing face may not be permitted within 500 feet of a residential district, the district in the instant case is not zoned residential, but rather G-2 industrial, and was so zoned upon the construction of the sign. The sign change was authorized by an over-the-counter permit issued by L& I as required by the Zoning Code. No code violations were committed.

(Trial Ct. Op. at 9 (bold emphasis added) (citations omitted).) Accordingly, the trial court denied Objectors' appeal of the ZBA's Decision. This appeal by Objectors followed.[10]


A. Standing

Preliminarily, we address the City's and Steen's contention that Objectors lacked standing to challenge the issuance of the Permit. The City and Steen argue that Objectors were not aggrieved because they did not show a substantial, direct, and immediate interest in the issuance of the Permit. In response, Objectors assert that the City and Steen did not preserve any objections to standing before the ZBA and, even if a challenge was preserved, each of the Objectors showed they have standing to challenge the issuance of the Permit.

In order to have standing to appeal a determination of the ZBA, an appellant must demonstrate that he or she is an " aggrieved person." Spahn v. Philadelphia Zoning Board of Adjustment, 602 Pa. 83, 977 A.2d 1132, 1149-50 (Pa. 2009). For a party to be " aggrieved," the party must " show an interest that is substantial, direct, and immediate." Id. at 1151 (citing William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269, 280 (Pa. 1975)). For an interest to qualify as " substantial, there must be some discernible effect on some interest other than the abstract interest all citizens have in the outcome of the proceedings." Id.; see also William Penn, 346 A.2d at 280-81 (noting that " it is not sufficient for the person claiming to be 'aggrieved' to assert the common interest of all citizens in procuring obedience to the law" ). An interest is direct where the party demonstrates " some causation of harm to his interest." Spahn, 977 A.2d at 1151. In order for an interest to be considered " immediate, there must be a causal connection between the action complained of and the injury to the person challenging it." Id. Therefore, to meet the three requirements for an aggrieved party, the party must demonstrate that the challenged action personally harms his or her interest in a way that is greater than that of another citizen. Id. at 1151-52. In Society Created to Reduce Urban Blight (SCRUB) v. Zoning Hearing Board of Adjustment of City of Philadelphia, 951 A.2d 398 (Pa. Cmwlth. 2008), aff'd Spahn, 977 A.2d at 1152, a case that was later consolidated with Spahn, we determined that a party in a zoning case may establish he is aggrieved by either demonstrating that he will be particularly harmed by or lives in the " immediate vicinity" of a subject property. SCRUB, 951 A.2d at 404.

Here, regardless of whether an objection to standing before the ZBA was preserved,[11] because property owned by Objector Chinese Christian Church is located within the immediate vicinity of the Property upon which the sign is located, the Chinese Christian Church has standing to object to the issuance of the Permit. The record shows that the Chinese Christian Church is located a short distance from the sign and, if the sign is converted to digital, the light therefrom will shine directly onto the church building and into the skylight located on the roof. (Hr'g Tr. at 48, September 12, 2012, R.R. at 225a; Hr'g Tr. at 14-15, December 12, 2012, R.R. at 71a; Photograph, R.R. at 842a; Written Testimony of John Chin, Executive Director of Philadelphia Chinatown Development Corporation, R.R. at 65a.) Thus, the proximity of the Chinese Christian Church to the sign is " sufficient to establish a perceivable adverse impact." [12] SCRUB, 951 A.2d at 404.

B. Merits

In support of this appeal,[13] Objectors raise several issues; [14] however, the crux of Objectors' appeal is that L& I erred by issuing the Permit, as a matter of right, to convert the sign at issue here to digital because: (1) the sign is not legal or exists unlawfully; (2) L& I did not take into consideration that the conversion of the sign to digital will require structural changes to the sign and its supporting components; (3) L& I improperly relied upon the May 10, 2007 L& I Memorandum; (4) the conversion violates the Zoning Code's lighting provisions; (5) the conversion violates state and federal law; and (6) the conversion will be a public nuisance. Objectors also argue that the trial court erred by not taking additional evidence or remanding to the ZBA for further hearings. We first address whether the sign at issue is a legal or lawful sign.

i. Whether the sign is legal

Objectors argue that because of the sign's location, it is a prohibited sign and subject to the Special Sign Controls for the area surrounding the Vine Street Parkway set forth in Section 14-1604.1 of the Zoning Code. Objectors argue further that the 2007 Consent Order is not binding on Objectors because there was no public proceeding where they were provided notice and an opportunity to be heard.[15] Objectors assert that it is also not binding on the City because the provisions of the 2007 Consent Order have not been enacted into law by City Council and the City Solicitor cannot bind the City through a litigation settlement or private agreement.

A consent decree or order " has a [r]es judicata effect, binding the parties with the same force and effect as a final decree rendered after a full hearing upon the merits." Pennsylvania Human Relations Commission v. Graybill,482 Pa. 143, 393 A.2d 420, 422 (Pa. 1978). Therefore, because the City was a party to the 2007 Consent Order, it is binding on the City regardless of whether the provisions contained therein have been enacted into law by City Council. In addition, absent fraud, accident or mistake, neither the ZBA, the trial court, nor this Court has the power or authority to modify or overturn the ...

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