Spc Co. v. Zoning Bd. of Philadelphia

773 A.2d 209, 2001 Pa. Commw. LEXIS 254
CourtCommonwealth Court of Pennsylvania
DecidedApril 19, 2001
StatusPublished
Cited by22 cases

This text of 773 A.2d 209 (Spc Co. v. Zoning Bd. of Philadelphia) 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
Spc Co. v. Zoning Bd. of Philadelphia, 773 A.2d 209, 2001 Pa. Commw. LEXIS 254 (Pa. Ct. App. 2001).

Opinions

FLAHERTY, Senior Judge.

The Pennsylvania Horticultural Society, et al. (Appellants) appeal from a decision of the Court of Common Pleas of Philadelphia County (trial court). The trial court reversed a decision of the Zoning Board of Adjustment of the City of Philadelphia (Zoning Board) that denied a zoning permit request submitted by SPC Company, Inc. (SPC) and Eller Media, Inc. (Eller Media) (eohectively, Appellees) for the purpose of seeking permission to erect an outdoor advertising sign. We reverse.

On June 23, 1999, SPC filed an Application for a Zoning Permit and/or Use Registration Permit (Zoning Permit) with the Philadelphia Department of Licenses and Inspections (Department) requesting permission to erect one free-standing, double-face, illuminated, non-accessory outdoor advertising sign on its property.1 (Supplemental Reproduced Record (S.R.R.) at 0001).2 SPC operates a metal scrap yard on its property, which is located at 2600 Penrose Ferry Avenue (Penrose Avenue) in Philadelphia and is zoned LR (least restrictive) Industrial. The George C. Platt Memorial Bridge (Platt Bridge) is west of SPC’s property. On June 29,1997, the Department determined that the proposed sign would be in violation of Section 14-1604(9)(a) of the Philadelphia Zoning Code (Code), which prohibits outdoor advertising signs “[wjithin 660 feet of all the bridges over the Schuylkill River from the Girard Point Bridge northwesterly to the Belmont Avenue bridge.” (Appellees’ Brief, Exhibit 1). Because the Platt Bridge is located in the area covered by Section 14-1604(9)(a), the Department issued a Notice of Refusal of Permit. (S.R.R. at 0003). Thereafter, Appellees filed a Petition of Appeal with the Zoning Board. (S.R.R. at 0004).

On August 4, 1999, hearings were held before the Zoning Board. Appellees presented the testimony of Albert M. Tantala, who is a professional engineer licensed in Pennsylvania. He testified that:

The only determination between Pen-rose Avenue the street and Penrose Avenue the bridge is, when PennDOT let the contract for construction of the bridge and road, PennDOT assigned a certain sector and called that the bridge contract, and the rest of the construction, called the Penrose Avenue sector.
[212]*212That sector ... is approximately 1,000 feet, 1,500 feet away. So based on Penn DOT’S contractual determination, the bridge starts about 1,200 or 1,100 feet to the west of the proposed sign.

(S.R.R. at 0028-0029). Mr. Tantala also testified that the area of Penrose Avenue that is elevated approaching the Schuylkill River cannot be defined as a bridge. He also stated that the Code does not define the term “bridge.” (S.R.R: at 0029). However, a May 20, 1999 site plan prepared by Mr. Tantala indicates that:

In response to the “Prohibited Areas” listed in Paragraph 14-1604(9) of the Zoning Code, the proposed sign
(a) Is within 660 feet of a bridge over the Schuylkill River from the Girard Point Bridge northwesterly to the Belmont AVE Bridge ...

(Site plan Note 8(a); S.R.R. at 0122) (emphasis added). This inconsistency was not explained during Mr. Tantala’s testimony.

Appellees also presented the testimony of Fred Cornell, who is an engineer employed by SPC. On cross-examination, the following exchange took place:

Q: I wanted to ask you about the economic viability of your company, because you’re asking for a hardship. Can you tell me what your gross income was last year of your Company?
A: I’m not privy to that, and I would think it would be confidential information, frankly...
Appellees’ attorney: Well, I’ll object. The hardship has to do with the property and not the business.

(S.R.R. at 0042-0043). Appellees did not present any other testimony with regard to any financial hardship that SPC would suffer if it is not allowed to erect the proposed sign.

Appellants presented the testimony of Rick Sehnitzler, who has been “involved in highway perceptions and planning related to highways., since the late 1960s.” (S.R.R. at 0053-0054). However, he did not provide any testimony as to how far the proposed sign is from the Platt Bridge. Rather, Mr. Sehnitzler testified as to whether the location of the proposed sign would distract motorists. Furthermore, none of the other witnesses presented by Appellants provided testimony as to the distance from the Platt Bridge to the proposed sign.

The Zoning Board issued a Notice of Decision on November 15, 1999 refusing Appellees’ request for a zoning permit, concluding that the Code does not define the term “bridge” and that neither the Pennsylvania Department of Transportation nor the City of Philadelphia have determined at what point the Platt Bridge begins. (S.R.R. at 0090-0091). The Board cited to the dictionary definition of “bridge” as “a structure carrying a roadway over a depression or obstacle.” Therefore, the Zoning Board determined that the Platt Bridge begins at the point where Penrose Avenue becomes elevated, because this is the point where the roadway begins to be carried over the Schuylkill River. Under the definition of “bridge” advanced by the Zoning Board, SPC’s proposed outdoor sign would be within 660 feet of the Platt Bridge and therefore in violation of Section 14-1604(9)(a). Accordingly, the Zoning Board determined that the proposed sign may only be permitted if the requirements for granting a zoning variance are met. However, the Zoning Board determined that Appellees did not meet these requirements and are therefore not entitled to a use variance.

On November 29, 1999, Appellees appealed the decision of the Zoning Board to the trial court. (S.R.R. at 0097). In a June 2, 2000 decision, the trial court con-[213]*213eluded that the evidence of record indicates that the Penrose Avenue road surface becomes elevated directly in front of the location of the proposed sign. The trial court also determined that:

... A Court is not privileged to expand a deprivation of property by including the approach to the bridge as part of the bridge.
This position is consistent with general Hornbook law that any ambiguous or vague terms in an ordinance which restrict a permitted use shall be construed so as to give the landowner the benefit of the least restrictive use. This court finds that the evidence in this record establishes that the elevated section is in reality the Penrose Avenue section and that was not restricted by this ordinance.

(R.R. at 0120). Accordingly, the trial court reversed the decision of the Zoning Board. This appeal followed.

Basically, the principal issue before us is whether a word in common usage, such as “bridge” in the case sub judice, when used in the Zoning Code and not otherwise defined, is ambiguous, as held by the trial court, or whether the Zoning Board, under the circumstances, properly found that the dictionary definition and the plain, ordinary meaning of “bridge” should be used to interpret that term in their Zoning Code.

The trial court held a May 3, 2000 hearing. However, because the trial court did not take any additional evidence, our scope of review is limited to determining whether the Zoning Board committed an error of law or manifestly abused its discretion. Valley View Civic Association v.

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Spc Co. v. Zoning Bd. of Philadelphia
773 A.2d 209 (Commonwealth Court of Pennsylvania, 2001)

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Bluebook (online)
773 A.2d 209, 2001 Pa. Commw. LEXIS 254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spc-co-v-zoning-bd-of-philadelphia-pacommwct-2001.