Citation:

Society Created to Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment, 908 A.2d 967 (Pa. Commw. 2006).

Summary:
There must be substantial evidence of record supporting the elements of a variance in order to uphold the grant of such relief by a zoning hearing board.
Case Details:

In this case, the Commonwealth Court was faced with the issue of variances as they applied to billboard signs.  Specifically, this appeal involved SCRUB’s contentions that the Philadelphia Zoning Board of Adjustment’s (“ZBA”) approval of a variance to allow wrap around advertising signs on a vacant building along the Delaware River — and the Common Pleas Court’s affirming of that decision — were erroneous.  The landowner filed a cross appeal challenging SCRUB’s standing to litigate the matter and alleging that certain sections of Philadelphia’s Zoning Code were unconstitutional.

Addressing the issue of standing, the Commonwealth Court, over the dissent of President Judge Collins and Judge Leadbetter, concluded that SCRUB did have standing.  Notably, the City of Philadelphia had amended its Zoning Code to disallow standing to entities such as SCRUB that, while being taxpayers, were not specifically aggrieved by a decision.  The Commonwealth Court concluded, however, that such an amendment would be unconstitutional as it would deprive SCRUB of its initial right to appeal from the adverse decision of the ZBA.

Moving on to the substantive portion of the case, the Commonwealth Court set forth the well settled standard for variances:  “The party seeking a variance bears the burden of proving that (1) unnecessary hardship will result if the variance is denied, and (2) the proposed use will not be contrary to the public interest….The hardship must be shown to be unique or peculiar to the property as distinguished from a hardship arising from the impact of zoning regulations on the entire district….Moreover, mere evidence that the zoned use is less financially rewarding than the proposed use is insufficient to justify a variance.”

Applying this standard, the Court reversed the lower court’s approval of the variance.  In so doing, the Court noted that the property was currently being used to load concrete pipes onto barges and that the landowner was awaiting approval from the Department of Environmental Protection so that it could begin a tire recycling business.  The Court also found that the landowner intended to use the revenues from the advertising to rehabilitate the Pier.  Such facts were determinative as the Court concluded:  “the loss of rental income from disallowed outdoor advertising signs is not an unnecessary hardship.”  With respect to the issue of public interest, the Court concluded that the Zoning Code’s restrictions on billboards furthered the public interest and that the variance sought did not do so.

Finally, the Court addressed the landowner’s claim that the Zoning Code’s restrictions on billboards amounted to exclusionary zoning.  The Court summarily dismissed this challenge noting that the Zoning Code allowed billboards in various zones and that there were such uses throughout the City and, thus, the Zoning Code did not constitute de jure exclusionary zoning.  As for the issue of a de facto exclusionary zoning, the Court concluded that the property at issue was zoned to allow some billboards, just not the type and size advocated by the landowner.

NOTE:  This case originated under the Philadelphia Zoning Code and may have limited applicability to jurisdictions governed by the MPC.

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