Background Information
Eller applied for a zoning permit to erect one
free-standing, doubled-faced, illuminated, non-accessory sign, replacing two
much smaller signs on the property.
L&I denied the application because the sign was not
a permitted use in the zoning district and because, in addition to not being a
permitted use in the zoning district, it violated five sections of
the Code as follows: (1) being more than 25 feet above a road surface from which
the advertising message would be visible; (2) having a height of 64
feet, which is 29 feet higher than any non-residential structure permitted in
the R-9A Residential District; (3) being within 300 feet of a
residentially-zoned property; (4) being within 660 feet of an ingress or
egress ramp of I-95; and (5) having a sign area of more than 1000 square feet
for a property with a frontage of less than 60 feet.
The ZBA said that Eller and East West established
the necessary criteria for a variance. The Board found that the Property would
have little or no value to the owner absent the grant of a variance to erect the
outdoor sign.
The Trial Court concluded that because there was
already an existing and viable usage on the Property (used car lot), there was
no evidence to support the finding that the Property was unusable or that an
unnecessary hardship existed.
The Trial Court further noted that
the current owner purchased the Property in its current size and configuration,
and that the owner’s desire to have extra income from the Property was not a
basis for granting a variance from the numerous sections of the Code.
The Commonwealth Court affirmed the holding of the Trial Court and concluded
that the evidence in the record did not support the Board’s finding that the
Property would have little or no value to the owner absent the grant of a
variance to erect the outdoor sign.
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