POA Co. v. Findlay Township Zoning Hearing Board

679 A.2d 1342, 1996 Pa. Commw. LEXIS 260
CourtCommonwealth Court of Pennsylvania
DecidedJune 20, 1996
StatusPublished
Cited by1 cases

This text of 679 A.2d 1342 (POA Co. v. Findlay Township Zoning Hearing Board) 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
POA Co. v. Findlay Township Zoning Hearing Board, 679 A.2d 1342, 1996 Pa. Commw. LEXIS 260 (Pa. Ct. App. 1996).

Opinions

PELLEGRINI,1 Judge.

The Township of Findlay (Township) appeals from a decision of the Court of Common Pleas of Allegheny County (trial court) that reversed a decision of the Findlay Township Zoning Hearing Board (Board) denying POA Company's (POA) request for a variance.

POA owned 5.5 acres of land located within the business park district2 in the Township. Although POA’s land abuts State Route 60 (Airport Parkway) along its northerly line, there was no access to the property from the Airport Parkway. Abutting POA’s land at its easterly line is land owned by Martin Media (Martin). To the south of POA’s and Martin’s land, and abutting both properties, is land owned by Park Ridge II Associates (Park Ridge). Aten Road, a public roadway, runs generally in an east-west direction through part of Park Ridge’s land and passes within one-hundred feet of the southerly border of Martin’s land.

Until March of 1990, POA’s land contained various billboards. The Department of Transportation (Department) subsequently condemned approximately two and one-half acres of POA’s land that abutted the Airport Parkway. POA’s billboards, which were located on the condemned portion of the land, were removed in December, 1990.

On May 19, 1994, POA applied for a variance for the construction of two billboards on the remaining portions of its land. At the hearings, POA adduced the testimony of George Orcutt (Orcutt), its manager of real estate. Orcutt testified that, at the time the property had been acquired by POA’s predecessor in interest, Pittsburgh Outdoor Advertising, in 1952, there had been three billboards in the same portion of the property where the current billboards had been located. Orcutt explained that two of the previous billboards were combined into one billboard and then both billboards had been replaced. Orcutt testified that all of the billboards were in approximately the same location on the subject property along the [1344]*1344Airport Parkway that was condemned by the Department. Orcutt further stated that, in order to service the billboards, POA and its predecessor in title had crossed over Martin’s land in order to obtain access to Aten Road. To support this testimony, POA adduced an agreement between itself and Martin confirming that POA had a twenty-foot wide easement along the southerly line of Martin’s land for access to its property.

The Township then presented the testimony of Sanford 0. Gold (Gold), a real estate broker and developer. Gold, testifying as an expert witness, stated that, based upon his surveys, photographs, plans and the zoning ordinance, POA’s property was suitable for the development of an office building. Gold also stated that the twenty-foot easement across Martin’s land would be sufficient to support the traffic associated with such an office building.3

In rebuttal to Gold’s testimony, POA contended that the right-of-way across Martin’s land did not provide access to Aten Road. Instead, POA argued, it was also required to cross a portion of Park Ridge’s land in order to obtain vehicular access to its property. In support of its argument, POA again offered the testimony of Orcutt who stated that access to Aten Road from POA’s property required one to cross Park Ridge’s property. Orcutt testified that POA’s employees had crossed over Park Ridge’s property when they were servicing POA’s billboards.

To support its claim that it had a prescriptive easement over Park Ridge’s property, POA offered into evidence a written agreement executed in preparation for the hearings on its request for a variance. In that agreement, Park Ridge acknowledged that POA had acquired an easement by prescription over its land from Aten Road to the southerly border of Martin’s land for the “purpose of erecting, maintaining, repairing, removing, replacing and otherwise caring” for outdoor advertising devices. The written agreement specified that POA’s use of the right-of-way had been limited to no more than three instances per month by a single vehicle for the servicing of the billboards. POA argued before the Board that its prescriptive easement over Park Ridge’s property was solely for the purpose of maintaining its signs. As such, its property could not be used as an office building because such a use would require them to overburden that easement.

At the conclusion of the hearings, the Board concluded that POA’s property would be suitable for construction of an office building if it had vehicular access. The Board then concluded that POA was or should have been aware of the limited access to the property at the time that it acquired the land, and that any hardship that POA experienced because of its limited access to the land was self-inflicted or was caused by its predecessor in title. After observing that neither POA nor it predecessor ever attempted to acquire land for a street or a public road, the Board denied POA’s request for a variance.

POA then appealed to the trial court, which reversed the Board’s decision. In so doing, the trial court observed that POA’s property lacks vehicular access but for that access permitted under POA’s easements with Martin and Park Ridge. The trial court then examined those easements and determined that they only permitted a limited use solely for the purpose of servicing POA’s billboards. The trial court concluded that the limited scope of POA’s easements could not be expanded to accommodate the traffic associated with an office building. Given these findings, the trial court concluded that POA’s lack of access to its property made that property unsuitable for any permitted use under the zoning ordinance and reversed the decision of the Board, thus granting POA a variance to construct the billboards on its property. The Township appeals to this [1345]*1345Court.4

The Township contends that the trial court erred in determining that POA was entitled to a variance. The Township argues that POA created an artificial hardship by purposely limiting its access to the property. The Township contends that POA approached Park Ridge after it had filed its variance application and requested a written agreement that limited its right-of-way to no more than three vehicles per month. The Township argues that this limitation, in conjunction with the lack of any effort on the part of POA to gain access to its property, renders POA’s hardship self-inflicted, thus precluding the award of a variance.

In addition to showing that its land is virtually useless as it is presently zoned, an applicant for a use variance must also show that it did not create the hardship imposed by the zoning ordinance. Miller v. Zoning Hearing Board of Ross Township, 167 Pa. Cmwlth. 194, 647 A.2d 966 (1994). In other words, an applicant for a use variance must show that its inability to use its land in a manner consistent with the applicable zoning ordinance did not result from any conduct on its part. Id. If the landowner creates the inability to use its land according to the relevant zoning regulations, then a request for a variance must be denied. Glennon v. Zoning Hearing Board, 108 Pa.Cmwlth. 371, 529 A.2d 1171 (1987) (holding that, if a land owner creates a lot with no side or front street frontage, then the landowner cannot obtain a variance from the zoning ordinance requiring such frontage).

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Related

POA Co. v. Findlay Township Zoning Hearing Board
713 A.2d 70 (Supreme Court of Pennsylvania, 1998)

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Bluebook (online)
679 A.2d 1342, 1996 Pa. Commw. LEXIS 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/poa-co-v-findlay-township-zoning-hearing-board-pacommwct-1996.