Scenic Philadelphia, Mary Cawley Tracy, Councilman David Cohen V. Zoning Board of Adjustment of the City of Philadelphia, The City of Philadelphia, Eller Media Company, Chirley Pilkingston
January 9th, 2003: The Commonwealth Court of Pennsylvania affirmed the decision of the trial court.
Court of Common Pleas reversed the grant of a variance.
ZBA granted a variance to Eller to erect one freestanding, double-faced, illuminating, non-accessory outdoor advertising sign on the Property.
October 27th, 2000: Eller Media filed an application with L& I and was subsequently denied.
A landowner wanted to remove two existing signs from his property and replace them with one larger sign. The landowner applied for dimensional and use registration permits. L&I denied the landowner’s application. On appeal, the Zoning Board of Adjustments granted a variance for the landowner. The Court of Common Pleas reversed the Board’s order. The landowner appealed to the Pennsylvania Commonwealth Court.
On appeal, the landowner argued that the Board’s finding that the property could not be used for any permitted use was supported by substantial evidence and that the trial court erred by determining otherwise. The appellate court concluded that the evidence did not support the Board’s finding that the property would have little or no value absent the grant of a variance to erect the outdoor sign.
It was undisputed that the property was being used by a car dealer to store and sell used cars as it had been since 1972. The dealer testified that he sold one to two cars per week from the location, and that if the variance were denied, he would simply continue as before. All the relevant evidence showed that the property was maintaining a viable use, albeit a modest one on a modest piece of ground, and that the proposed sign was merely meant to be a supplement to that use for the purpose only of obtaining additional income from the property.
Whether the board’s finding that the landowner’s property could not be used for any permitted use was supported by evidence that showed that without the variance the landowner could continue to carry on his business but would be denied the supplemental income from the proposed sign posting?
Rule of Law
The party seeking a variance must show that (1) an unnecessary burden will occur if the variance is not granted, and (2) the variance will not be contrary to the public interest. Evidence that the present or zoned use is less financially rewarding than the proposed use may not justify the granting of the variance unless the property as zoned will be rendered valueless. A demonstration that the property may be used more profitably with the proposed use is not grounds for granting a variance.
The Board’s finding that the property could not be used for any permitted use was not supported by the evidence where the facts showed that, without the variance, the landowner’s property was maintaining a viable use, even though the use was modest and the landowner would be denied the supplemental income provided by the proposed sign posting.
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