Opinion
No. 1319 C.D. 2013
07-16-2014
Thomas Crosby & SCRUB: The Public Voice for Public Space v. The Zoning Board of Adjustment Appeal of: Scenic Philadelphia, Thomas Crosby and SCRUB: The Public Voice for Public Space
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Thomas Crosby and SCRUB (collectively, Appellants) appeal from an order of the Court of Common Pleas of Philadelphia County (common pleas court) that denied Appellants' appeal and affirmed the decision of the Philadelphia Zoning Board of Adjustment (Board).
Clear Channel Outdoor Inc. (Clear Channel) leases a portion of property located at 1530-32 Front Street, Philadelphia, PA (Property) and which is situated in a G-2 General Industrial Zoning District. On September 19, 1979, Clear Channel's predecessor submitted an application for a zoning permit and/or use registration permit for the erection of a double-sided, outdoor non-accessory general advertising sign (Sign) on the Property. The Sign was permitted in the zoning district and as a result the Department of Licenses & Inspections (Department of L&I) issued an over-the-counter zoning and use registration permit.
The Sign is fourteen feet by forty-eight feet with an overall height of fifty-eight feet. The Sign and support structure have remained in operation, unchanged, since 1979. The Sign was installed perpendicular to the Delaware Expressway (Interstate or I-95) and was visible in its entirety by vehicles travelling in either direction on I-95.
In December of 2010, PennDOT erected sound barriers which measured twelve feet from the I-95 roadway surface to the top of the sound barrier. The Sign is now obscured and cannot be seen in its entirety by passengers traveling in any lane on I-95. As a result, Clear Channel was unable to rent the Sign since January of 2011.
On July 12, 2011, Clear Channel filed an application for a zoning/use registration permit to raise the Sign an additional thirty-five feet. With the additional height, the Sign would be viewable to travelers on I-95. The zoning plans examiner reviewed Clear Channel's zoning permit application and denied it. Clear Channel appealed to the Board and sought, among other things, a number of variances and "reasonable adjustments to the standards of the Zoning Code . . . ." Amended Brief of Appellee at 6.
On December 14, 2011, the Board held a hearing at which time Michael Tantala, P.E. (Tantala) an expert civil engineer, and Mathew Bradley (Bradley), a Clear Channel executive, testified on behalf of Clear Channel.
Tantala testified that the additional height would not change the lighting characteristics of the Sign. Hearing Transcript (H.T.) December 14, 2011, at 13; Reproduced Record (R.R.) at 4. Tantala continued that the Sign "is principally oriented to advertise to I-95 northbound and southbound . . . [i]t is an externally illuminated [S]ign, but that lighting is shielded to minimize any spillover from the [S]ign." H.T. at 13; R.R. at 4. "There are four lights on each [S]ign face . . . [t]hey direct light directly at the [S]ign face, and they're shielded at each electrical box so that light doesn't spill over the side . . . [t]he [S]ign will be higher." H.T. at 13; R.R. at 4. Tantala stated that the additional height of the Sign would be the least minimum variance. H.T. at 19; R.R. at 6.
Bradley testified that "[c]urrently], we can't advertise it [Sign] . . . [a]dvertisers don't want to use it right now because obviously, it's blocked [and] [w]hat it's primarily used for is advertisement for people going north and southbound on I-95." H.T. at 20; R.R. at 6.
Stephanie Kindt, Esquire (Kindt), attorney for Appellants, presented the testimony of Karen Shaw (Shaw) and John Fry (Fry).
Shaw testified that "[b]ased on the existing structure, the light does shine directly into my kitchen and my daughter's bedroom . . . I see it right off my deck." H.T. at 34; R.R. at 10. Shaw continued that "[w]e directly abut the property . . . [t]he homes were built between 2005 and 2006 [and that] [w]e moved in in 2006 . . . it's [Sign] been there . . . at that height, but we're opposed to the raising of the billboard." H.T. at 35; R.R. at 10.
Fry testified that the Sign "negatively impacts my property value and negatively affects the quality of life in my neighborhood . . . [i]t detracts from people investing in my neighborhood because they see it as a warehouse area and not a residential area, which it really is." H.T. at 35; R.R. at 10. Fry concluded that "the raising of a sign 30 feet is certainly not going to help anybody, any kind of effort" from people investing in the area. H.T. at 36; R.R. at 10.
The Board made the following pertinent findings of fact:
26. Based on the record as a whole, the Board determined that the grant of the requested variances would satisfy the criteria for granting variances set forth in Section 14-1802(1) and (2) of the Zoning Code. More specifically, and without limitation, the Board finds:
a. that because of the particular physical surroundings of the Subject Property, a literal enforcement of the Zoning Code would result in unnecessary hardship, in particular,
(i) the sign at issue was originally permitted as of right and is currently a legal nonconforming sign;
(ii) but for the construction of the sound barrier on I-95, the sign would not need to be raised; and
(iii) the sign has been rendered economically valueless as a result of the construction of the sound barrier on I-95;
b. that the conditions which the appeal for a variance is based are unique to the property for which the variance is sought, in particular the construction of the sound barrier on I-95 completely erased the view of the sign from I-95 thus rendering the sign valueless;
c. that the variance will not substantially or permanently injure the appropriate use of the adjacent conforming
property especially where, as here, the condominium building was built after the sign was constructed;Board's Decision, January 5, 2012, Findings of Fact (F.F.) 26(a-e and l)-28 at 7-9.
d. that the special conditions or circumstances forming the basis for the variance did not result from the actions of the Applicant [Clear Channel] but rather from the construction of the sound barrier on I-95;
e. that the grant of the variance will not substantially increase congestion in the public streets;
. . . .
l. that the grant of the variance will not adversely affect in a substantial manner the Comprehensive Plan for the City.
27. After careful consideration of the testimony and other evidence presented at the Hearing, and based on the record as a whole, the Board voted to approve the variances and issued its Notice of Decision on January 5, 2012 . . . . (emphasis added).
28. Subsequent to the Notice of Decision, Ms. Kindt submitted a letter to the Board dated January 27, 2012 requesting a reconsideration which request was denied by the Board.
Appellants appealed to the common pleas court.
On June 25, 2013, the common pleas court denied Appellants' appeal and concluded:
Appellants argue that the ZBA erred in its determination that a hardship existed at this property. Appellants claim there are currently other businesses on the property, and Clear Channel may terminate the lease, remove the sign and move it to a location away from residential districts
and multiple uses. They also claim there was evidence that community organizations and residents opposed the application and the ZBA erred in failing to find that the grant of the variances was contrary to public policy. These arguments essentially raise the argument that ZBA's findings of fact are not supported by substantial evidence. (emphasis added).Opinion of the Common Pleas Court, June 25, 2013, at 5-6. The common pleas court denied Appellants' appeal. On July 29, 2013, the common pleas court also denied Appellants' motion for reconsideration.
. . . Here Clear Channel is not merely trying to eke more profit from the property, but instead has testified that it has not been able to rent the sign at all since the erection of the sound barrier . . . .
ZBA found Clear Channel's expert testimony credible that the proposed height above the sound barrier is the minimum variance necessary to afford relief at the least modification possible, and Crosby does not dispute that finding. ZBA's findings were clearly supported by substantial evidence and the fact that the ZBA was unconvinced by Crosby's evidence does not constitute an abuse of discretion. (emphasis added).
Before this Court, Appellants contend that the Board erred as a matter of law when it prevented Appellants' counsel from cross-examining Clear Channel's witnesses, Tantala and Bradley, at the hearing before the Board. Appellants assert that the Board "made no effort to explain its directive, since it was presented to counsel off the record prior to the hearing." Appellants' Brief at 8.
"In reviewing the decision of a zoning hearing board where the trial court has not taken any additional evidence . . . appellate review is limited to determining whether the board abused its discretion or committed a legal error." In Re Realen Valley Forge Greenes Associates, 838 A.2d 718, 727 (Pa. 2003). The governing body abuses its discretion when its findings of fact are not supported by substantial evidence. Herr v. Lancaster County Planning Commission, 625 A.2d 164 (Pa. Cmwlth. 2006), petition for allowance of appeal denied, 649 A.2d 677 (Pa. 1994). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Valley View Civic Association v. Zoning Board of Adjustment, 462 A.2d 637, 640 (Pa. 1983).
This Court notes that Appellants do not assert that the Board erred as to the merits of the substantive zoning issues raised before the common pleas court. Instead, Appellants have elected to raise a due process challenge on appeal to this Court. Therefore, any argument that the Board erred when it granted Clear Channel a variance has been waived. "No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby." Pa. R.A.P. 2116(a).
"Due process principles require an opportunity, among other things, to hear evidence adduced by an opposing party, cross-examine witnesses, introduce evidence on one's own behalf, and present argument." Piccolella v. Lycoming County Zoning Hearing Board, 984 A.2d 1046, 1059 (Pa. Cmwlth. 2009).
2 Pa. C.S. § 554 provides that "[l]ocal agencies shall not be bound by technical rules of evidence at agency hearings, and all relevant evidence of reasonably probative value may be received . . . [r]easonable examination and cross-examination shall be permitted." (emphasis added).
Appellants contend that although this issue was raised before the common pleas court, the court never addressed the Board's prohibition of cross-examination of the witnesses.
Appellee responds that "aside from its bald allegations, SCRUB [Appellants] can point to no facts in the record to support its claims [and] [w]hen SCRUB [Appellants] sought reconsideration from the Zoning Board, it did not make any due process accusation against the Zoning Board in its petition." Amended Brief of Clear Channel, Summary of Argument at 11.
A review of the record indicates that Appellants' allegation that the Board prevented it from cross-examining Clear Channel's witnesses is not supported by the record. What the record does reveal is the following exchange between Lynette M. Brown-Sow (Ms. Brown-Sow), Chairperson, and Ms. Kindt, attorney for Appellants:
Ms. Brown-Sow: What are the other issues you have? (emphasis added).
Ms. Kindt: I do have some information, which is also in my packet as Exhibit 4 . . . the study . . . on property values.
. . . .
Ms. Brown-Sow: You may make a final statement, if you want to. (emphasis added).
Ms. Kindt: I'd like to make a final statement, Madam Chair. (emphasis added).
Ms. Brown-Sow: That's fine.
Ms. Kindt: This nonconforming use is not allowed under current Code to be altered in any way. It's absolutely crystal clear what the intent of the Code was, and that's in the legislative finding, which is Exhibit-5. Also, the court case Fishtown Civic, which overturned the Zoning Board's decision to expand the Club Maui sign, which was a nonconforming sign and cannot have more rights than a conforming use in the area. So that is controlling.
It's a nonconforming use. How can it have more rights than a conforming use? (emphasis added).H.T. at 33 and 40-45.
Clearly, the hearing transcript reveals that Ms. Kindt after she was offered a number of opportunities by the Board Chairperson did not request to cross-examine Clear Channel's witnesses or offer an objection on the record that she was denied the right to cross-examine Clear Channel's witnesses.
Next, Appellants assert that the due process issue was raised before the common pleas court in its brief. Again, this assertion is not supported by the record. Appellants filed a brief with the common pleas court and presented the procedural and factual history as follows:
9. Ms. Quigley [Clear Channel's attorney] presented witnesses (Mr. Tantala, industry engineer presented as a witness, without any stipulation and Mr. Bradley, Real Estate manager for Clear Channel) and presented exhibits in support of a finding of hardship due to the sound barrier.Matter Before the Court, September 5, 2012, Paragraphs 9 and 10 at 8; R.R. at 39.
10. Ms. Kindt presented evidence refuting the evidence of hardship, but was not given the opportunity to cross examine Mr. Tantala or Mr. Bradley. (emphasis added).
Although Appellants allege that they were denied due process in the procedural and factual history of their brief, they failed to raise it in the "Issues on Review" in its brief filed with the common pleas court. Appellants stated the following arguments to the common pleas court:
1. Did the ZBA err in applying the Philadelphia Zoning Code and applicable L&I Regulations? Suggested Answer: Yes. (emphasis added).Matter Before the Court, Issues on Review at 10; R.R. at 41. As a result, the common pleas court only addressed the merits of the issues present to it by Appellants.
2. Did the ZBA err in its review of factual information? Suggested Answer: Yes. (emphasis added).
3. Did the applicant [Clear Channel] present evidence to show that the new billboard would not infringe on the public interest or public policy? Suggested Answer: No. (emphasis added).
Additionally, Clear Channel states that Appellants failed to repeat the due process argument during oral argument before the common pleas court. Clear Channel contends that Appellants have never substantiated by either affidavit or by clear description i.e. the content, date and time of any prohibiting instruction by the Board's Chairperson that prevented Appellants from cross-examining Tantala and Bradley, i.e. who said what, to whom, where, and who heard this.
Lastly, at the conclusion of argument on May 12, 2014, this Court gave Appellants one week to file a supplemental submission to show where in the record there was support for their position that the Board prohibited Appellants' attorney from cross-examining Clear Channel's witnesses. This Court also gave Clear Channel one week to respond. Appellants failed to file a supplemental submission to the Court, however, Clear Channel did:
While counsel for SCRUB accepted the offer, the one-week deadline has long expired, and SCRUB filed nothing with the Court. The silence is deafening.
Final resolution of this matter has been unnecessarily delayed by a frivolous appeal. There was never a basis
for SCRUB's outrageous claim against the Zoning Board. If, indeed SCRUB's counsel on appeal discovered the absence of any basis for SCRUB's claim, he should have promptly disclosed his discovery to the Court. In any event, there is no dispute remaining before the Court. (emphasis added).Supplemental Submission of Appellee Clear Channel Outdoor, Inc. at 1.
Here, the record is devoid of any evidence to support Appellants' claim that they were denied the right of cross-examination either before the Board or the common pleas court.
Appellants did allege in their concise statements of errors complained of on appeal that "Counsel for Appellants was not permitted to cross-examine expert witnesses, and therefore a complete record was not created." Appellants Concise Statement of Errors Complained of on Appeal, Paragraph 4 at 2; R.R. at 90. --------
In 1700 Columbus Associates, LLC v. City of Philadelphia, Zoning Board of Adjustment, 976 A.2d 1257, 1268 (Pa. Cmwlth. 2009), this Court stated:
Like the applicants in Appeal of Callowhill Center [Associates and Metro Lights, LLC., 804 A.2d 116 (Pa. Cmwlth. 2002)], Applicant here did not raise its constitutional challenge before the ZBA, thus depriving the ZBA an opportunity to make a full record on this issue and preventing the City from making a record in defense of the challenged Zoning Code provisions. As such, as in Appeal of Callowhill, we conclude that Applicant waived its constitutional challenge. (emphasis added).
Because "the record demonstrates the existence of substantial evidence, the court is bound by the municipal body's findings which are the result of resolutions of credibility and conflicting testimony." Appeal of: Orleans Corporation and Orleans Homebuilders, Inc., 896 A.2d 659, 668 (Pa. Cmwlth. 2006).
Accordingly, this Court must affirm.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 16th day of July, 2014, the order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge