Armstead v. Zoning Board of Adjustment

115 A.3d 390, 2015 Pa. Commw. LEXIS 178
CourtCommonwealth Court of Pennsylvania
DecidedApril 23, 2015
StatusPublished
Cited by16 cases

This text of 115 A.3d 390 (Armstead v. Zoning Board of Adjustment) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Armstead v. Zoning Board of Adjustment, 115 A.3d 390, 2015 Pa. Commw. LEXIS 178 (Pa. Ct. App. 2015).

Opinions

OPINION BY Judge RENÉE COHN JUBELIRER.

William Armstead, Tully J. Speaker, Barbara Krassenstein, Gail Ober, Annyah Hasler, Roger Hasler, Bernard Bondi, Roseanne Stagno Adams, Jovida Hill, and Scenic Philadelphia (collectively, “Objectors”) appeal from the April 1, 2014 Order of the Court of Common Pleas of Philadelphia County (trial court) quashing, for lack of standing, Objectors’ appeal from a Decision of the Philadelphia Zoning Board of Adjustment (ZBA). Objectors’ appeal to the trial court challenged the ZBA’s granting of a variance to permit the Franklin Institute (Applicant). to change the sign faces on Applicant’s accessory, free standing sign located on its property at the corner of 20th Street and Winter Street (Property) from vinyl to digital. On appeal, Objectors argue that (1) the trial court erred in concluding they lack standing; and (2) the ZBA erred in granting the variance to Applicant. In contrast, Applicant argues it was entitled by right to modify its vinyl sign to digital and that the Philadelphia Department of Licenses and Inspections (L & I) erred in requiring it to obtain a variance. Because we agree that under current Supreme Court jurisprudence Objectors lack standing, we are constrained to affirm the Order of the trial court.

I. BACKGROUND

Applicant initially applied, on July 16, 2012, to L & I “for a zoning/use registration permit for the proposed modification of an existing sign from vinyl to digital.” (ZBA Decision, Findings of Fact (FOF) ¶ 1.) The existing sign at issue is accessory to Applicant’s building and is located on its Property. (FOF ¶ 5-6.) The existing sign is double-sided, each sign face has approximate dimensions of 6 x 10 feet, and each sign face has an area of approximately 64 square feet. (ZBA Hr’g Tr. at 13, 36, R.R. at 68, 74.) Applicant sought to change the two faces of the sign from vinyl to digital. (FOF ¶ 7.) Under Applicant’s plan, “there would be no change in height, size or orientation of the sign faces and no change in structure.” (FOF ¶ 8 (quotation omitted).)

L & I determined that Applicant’s plan to modify its existing sign was not permitted in the zoning district where the Property is located and is prohibited by the Benjamin Franklin Parkway Special Con[393]*393trols set forth in the Philadelphia Zoning and Planning Code1 (Zoning Code); therefore, L & I “issued a notice of refusal on July 21, 2012.” (FOF ¶ 2.) In particular, L & I found that Applicant’s sign conversion would result in a sign with “flashing and intermittent” illumination. (L & I Notice of Refusal, R. at Applicant Ex. 5.) Thereafter, Applicant appealed to the ZBA, requesting a variance for its proposed sign. (FOF ¶¶ 3-4.)

a. Proceedings before the ZBA

On April 17, 2013, the ZBA conducted a hearing. (FOF ¶ 4.) At the ZBA hearing, Applicant stated that the existing sign is “ ‘neither functional, nor reflective of the [Applicant's] mission.’ ” (FOF ¶ 9 (quoting ZBA Hr’g Tr. at 4, R.R. at 66).) Applicant explained that its “ ‘mission is education ]’ ” and that the modification of the existing sign would allow it “ ‘to present to the world a series of messages to showcase the wide range of educational programs offered within the building throughout the year.’ ” (FOF ¶ 10 (quoting ZBA Hr’g Tr. at 4, R.R. at 66).) Consequently, because with its existing sign Applicant could not disseminate its message to the public in order to accomplish its mission in the digital age, Applicant asserted that a hardship existed. (FOF ¶ 11.) In addition, Applicant argued that “‘there is a hardship here, and the hardship is that this is an historic building, and we can’t put signs on the roof or ‘throughout the campus.’” (FOF ¶ 12 (quoting ZBA Hr’g Tr. at 8, R.R. at 67).) Applicant submitted a letter to the ZBA setting forth five restrictions to which it would agree in order to obtain approval of the proposed sign, including: (1) reducing the sign’s brightness; (2) equipping the sign with automatic dimming control, which adjust the sign’s light levels to changing conditions; (3) extending the duration of each digital message to at least 20 seconds; (4) limiting the change time between messages to .25 seconds; and (5) prohibiting movement between messages. (FOF ¶ 13.)

Applicant presented Peter Saylor, an architect and planner, as an expert witness. (FOF ¶ 15.) Saylor testified that the existing sign had been on the Property for twenty years, was an appropriate size, would not change, and that “ ‘only the face inside the existing structure’ ” would change. (FOF ¶ 15 (quoting ZBA Hr’g Tr. at 13, R.R. at 68).) Saylor also testified that the existing sign must be “ ‘manually changed,’ requiring that the sign ‘be taken down [and] pasted up, as opposed to electronically’ ” changing it. (FOF ¶ 16 (alteration added) (quoting ZBA Hr’g Tr. at 14, R.R. at 69).) When Saylor was asked if this represented a hardship he stated:

“I would say that it is, only in the sense that they cannot achieve their mission to be able to showcase and educate the public about the programs, which is the purpose of their mission, and because we cannot add other signs to the property, given the historic nature of it and the limitations placed on that.”

(FOF ¶ 17 (quoting ZBA Hr’g Tr. at 14, R.R. at 69).) Saylor also noted that the nearest residents to the existing sign live about 700 to 800 feet away, which he does not consider to be adjacent to the Property. (FOF ¶ 18.) Moreover, Saylor testified that, due to the physical surroundings of Applicant, “a literal enforcement of the [Zoning] Code would result in hardship in that ‘because of the limitations of the historic site and building that they cannot, in fact, put more message[s] out to the pub-[394]*394lie.’ ” (FOF ¶ 19 (alterations added) (quoting ZBA Hr’g Tr. at 16, R.R. at 69).) Further, Saylor testified that he believed the conditions on which the appeal was based are unique to the Property and that granting the variance would not cause injury to any adjacent properties. (FOF ¶¶ 21-22.)

Additionally, Saylor testified that, in his opinion, granting the variance would not cause an increase in traffic congestion, impair the light or air adjacent to the proposed sign, or adversely affect transportation, public facilities, public health, safety, or welfare. (FOF ¶¶ 23-26.) Saylor also stated he believed that granting the variance “would be ‘in harmony with the spirit of the [Zoning] Code.’ ” (FOF ¶ 27 (alteration added) (quoting ZBA Hr’g Tr. at 20, R.R. at 70).)

On cross-examination, Saylor testified that he was aware that the Benjamin Franklin Parkway (Parkway), the location of the Property, is an extremely difficult crossing for pedestrians. (FOF ¶ 32.) Further, Saylor testified that he had not seen performing models for the proposed sign, had not conducted environmental impact studies for the proposed sign, and had not done any studies examining the effect the proposed “sign might have ‘in changing the nature of the Parkway at night.’ ” (FOF ¶¶ 34-36 (quoting ZBA Hr’g Tr. at 32, R.R. at 73).)

Applicant next presented Michael Tanta-la, an engineer and architect, to testify about his considerable experience with outdoor signage. (FOF ¶¶ 37-38.) Tantala testified that he prepared a report describing the proposed sign’s conversion to digital, its appropriateness for the area, and its potential for posing a traffic or safety hazard.

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Cite This Page — Counsel Stack

Bluebook (online)
115 A.3d 390, 2015 Pa. Commw. LEXIS 178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armstead-v-zoning-board-of-adjustment-pacommwct-2015.