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SCRUB v. ZHB of the City of Philadelphia (Ellsworth Associates and Clear Channel Outdoor, Inc.)
862 A.2d 745 (Pa. Cmwlth. 2004)
And
SCRUB v. ZHB of the City of Philadelphia (Oregon Avenue Associates and Clear Channel Outdoor, Inc.)
862 A.2d 731 (Pa. Cmwlth. 2004)
Editor's note: These two opinions are nearly identical except for the fact that lot in Ellsworth Associates was already occupied by a conforming use (a recycling facility), and a conforming use (a self storage facility) that was proposed to be constructed on the lot in Oregon Avenue. The holding in the two opinions is identical except for the language reflecting the difference in a present use and a proposed use. The following summary is of the Ellsworth Associates; however, the Court in Oregon Associates held that a proposed conforming use of the land would prevent the landowner from being able to prove "unnecessary hardship."
The landowner requested a variance for a billboard to be erected on the property. At that time, the property conformed to the zoning ordinance and was being used by a tenant as a recycling facility for various materials. The landowner sought to generate income through leasing property to Clear Channel Outdoors, which would erect the proposed billboard. The Court reversed the ZHB's decision to grant the variance. It held that the ZHB abused its discretion because the landowner could not show that the ordinance created an "unnecessary hardship" because the land was already being used in a manner that conformed to the ordinance.
The Court reiterated earlier decisions that held that the landowner was requesting a "use variance," as opposed to a "dimensional variance," because the ordinance prohibits the use of property for non-accessory outdoor advertising signs unless its requirements are met. The Court stated that to show "unnecessary hardship" for a use variance, the landowner must show that the property could not be used for any permitted use without prohibitive expenses or the ordinance renders the property valueless. Because the property was being used for a recycling use, the Court held that the landowner failed to prove that the ordinance creates an "unnecessary hardship."
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