Society Created to Reduce Urban Blight v. Zoning Bd. of Adjustment for the City of Philadelphia (Callowhill Center Associates)
804 A.2d 116 (Pa. Cmwlth. 2002)
Note: Although the variance request in this case was a product of Philadelphia zoning law, which is not applicable outside of Philadelphia, the Court’s analysis reflects upon the broader issue of the showing required to establish an unnecessary hardship under Pennsylvania variance law, which does have statewide relevance.
Owner of a North 7th Street building in Philadelphia sought a zoning variance for a 65 foot by 100 foot non-accessory sign to be draped over an outdoor wall of the building. Owner argued that it would suffer an unnecessary hardship if the Zoning Board of Adjustment (Board) denied the variance, because, without the sign revenue, Owner could not have financed a $4.8 million repair of the building’s façade. Agreeing with Owner that unnecessary hardship would result if it denied the application, the Board granted the variance. The common pleas court reversed, however, arguing that the building’s commercial occupancy rate at the time of the application precluded a finding of unnecessary hardship, because the building would continue to have value even without the sign revenue.
In upholding the lower court’s decision, the Commonwealth Court affirmed prior decisions holding that 1) the party seeking a variance bears the burden of proving unnecessary hardship; 2) a financial hardship alone does not justify a variance absent a showing that the property will be rendered valueless; 3) there is no inherent right to use property in such a manner that maximizes financial gain to its owner; and 4) a loss of rental income resulting from the denial of a variance for outdoor advertising does not create an unnecessary hardship. In this case, the Court concluded that the building’s 70-80% commercial occupancy constituted “profitable use” of the property for which an unnecessary hardship exception was not justified.
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