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Home My WebLink About99-2643 civilTHE GOODYEAR TIRE & RUBBER COMPANY d/b/a Goodyear Commercial Tire & Service Center, APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ZONING HEARING BOARD Of MIDDLESEX TOWNSHIP, APPELLEE V. BOARD OF SUPERVISORS OF MIDDLESEX TOWNSHIP, INTERVENOR IN RE: 99-2643 CIVIL TERM APPEAL FROM A DECISION OF THE MIDDLESEX ZONING HEARING BOARD BEFORE BAYLEY, J. AND HESS, J. OPINION AND ORDER OF COURT Bayley, J., August 27, 1999:-- Goodyear Tire & Rubber Company appeals from a decision of the Middlesex Township Zoning Hearing Board dated April 6, 1999, that granted it a variance, but did not grant it in a specific form requested, from the requirements in the Middlesex Township sign ordinance. The issues were briefed and argued on August 11, 1999, without the taking of additional evidence. 99-2643 CIVIL TERM Goodyear will operate on leased property a Commercial Tire and Service Center at 1 Roadway Drive, in an area zoned commercial in Middlesex Township. The property is located where Roadway Drive intersects with U.S. Route 11. This facility will primarily service the commercial truck tire industry, but also provide service for light trucks and automobiles. Goodyear applied to Middlesex Township on February 2, 1999, for a sign permit for three wall signs on its building with a total area of 236 square feet. These signs complied with the Middlesex Township's sign ordinance limiting the total square footage of signage to 250 square feet. The permit was granted. On February 18, 1999, Goodyear applied for a variance from the sign ordinance. It submitted three different proposals. One alternative was a pole sign having a total height of 60 feet with two separate dual-faced signs, one 8 feet high by 40 feet wide and another 8 feet high by 18 feet wide. This proposal exceeded the ordinance maximum sign height requirement of 35 feet and the total sign area requirement by more than three times that permitted. The second alternative was for a pole sign 60 feet in height with two separate attached signs having a combined area of 420 square feet. This proposal exceeded the height and area requirements in the ordinance. The third alternative was for a pole sign 27 feet in height with two separate attached signs with a combined area of 420 square feet. This proposal exceeded the area requirements in the ordinance. A manager of a Goodyear Commercial Tire and Service Center in Harrisburg, Pennsylvania, testified at a hearing before the Middlesex Township Zoning Hearing -2- 99-2643 CIVIL TERM Board that Goodyear chose the Middlesex Township location for its new service center in order to attract large commercial truck business. He stated that from a marketing standpoint, this facility should have an illuminated sign to draw business from commercial truck drivers. He stated that a 60 foot pole sign would be visible for all vehicles approaching on Route 11, as well as vehicles traveling nearby on the Pennsylvania Turnpike and exiting onto Route 11 from Interstate 81. The Zoning Hearing Board found that a pole sign would alleviate a visual obstruction for vehicles traveling west on Route 11 approaching an Appalachian Trail footbridge that crosses the highway just east of Goodyear's building that is to be set back 170 feet from the highway. The Board granted a variance to erect a pole sign not to exceed 35 feet in height with a total signage area of 100 square feet. Unsatisfied, Goodyear filed this appeal on May 3, 1999. Our scope of review is to determine if the Middlesex Township Zoning Hearing Board abused its discretion or committed an error of law. Abuse of discretion occurs when the board's findings are not supported by substantial evidence. Substantial evidence is such evidence as a reasonable mind would accept as adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550 (1983). In Colton Real Estate Corp. v. West Conshohocken Zoning Hearing Board, 119 Pa. Commw. 205 (1988), the Commonwealth Court set forth that a party seeking a variance must establish: -3- 99-2643 CIVIL TERM (1) that the ordinance imposes unnecessary hardship on the property; (2) that the hardship stems from unique physical characteristics of the property; (3) that the variances would not adversely affect the health, safety or welfare of the general public; (4) that the hardship was not self- inflicted; and (5) that the variances sought are the minimum that will afford relief. The Zoning Hearing Board made the following findings: The minor obstruction of view caused by the Route 11 footbridge and the set back of the property from Route 11 constitute sufficient, though minor, hardship to warrant a proportional dimensional variance. Middlesex Township Zoning Ordinance, Section 18.06 (1). The aforesaid physical conditions were not created by the applicant and were not self imposed. Middlesex Township Zoning Ordinance, Section 18.06 (3). A sign having the area requested by Applicant would exceed the area of signs in the neighborhood or district generally, and would not constitute the minimum-variance that would afford reasonable relief. Middlesex Township Zoninq Ordinance, Section 18.06 (4) (5). Applicant's desire to erect a larger sign to enhance its competitive marketing position is purely an economic circumstance unrelated to the characteristics of the property and neighborhood. Economic hardship is not a factor recognized by the Zoning Ordinance as a hardship warranting a variance. Middlesex Township Zoning Ordinance, Section 18.06 (1). In granting a variance for a pole sign not to exceed 35 feet with a total signage area of 100 square feet, the Zoning Hearing Board concluded that this variance constitutes the minimum variance that will afford reasonable relief from the sight obstruction to Goodyear's property caused by the Appalachian Trail bridge for vehicles traveling west on Route 11. The Board's findings are consistent with the nature of the 99-2643 CIVIL TERM sight obstruction and its conclusions are consistent with the standard for granting a variance as set forth in Colton, supra. Accordingly, the Board's decision did not constitute an abuse of its discretion nor did the Board commit an error of law. Goodyear argues that the Zoning Hearing Board did not properly consider evidence that it submitted as to other variances granted from the sign ordinance for a nearby Bob Evans Restaurant and Clarion Hotel. Goodyear also filed a petition to take additional evidence "[t]o present testimony of the actual size and signage permitted... in previous cases .... "In Teazers v. Zoning Board of Adjustment of the City of Philadelphia, 682 ^.2d 856 (Pa. Commw. 1996), the applicant argued that the denial of its requested variance was discriminatory and in violation of its rights to equal protection because the same zoning hearing board had granted variances to other establishments. The Commonwealth Court stated: [t]he Board's grant of a variance in other proceedings does not establish Teazers' entitlement to a variance in this matter. It is well established that a request for variance must be decided based on its own merits on a case-by-case basis. ACS Enterprises, Inc. v. Norristown Borough Zoning Hearing Board, 659 A.2d 651 (Pa. Cmwlth.1995), appeal denied, 542 Pa. 674, 668 A.2d 1136 (1995); Vito v. Zoning Hearing Board of Borough of Whitehall, 73 Pa. Cmwlth. 270, 458 ^.2d 620 (1983). In this matter, Teazers failed to satisfy all of the required criteria for granting a variance. In the case sub judice, the Zoning Hearing Board did not err in not considering variances granted in other cases because such evidence is not relevant and the Board -5- 99-2643 CIVIL TERM as bound by law to consider only the merits of this case. Accordingly, there is no basis to take additional evidence.' ORDER OF COURT AND NOW, this ~ ~ day of August, 1999, the appeal of the Goodyear Tire and Rubber Company d/b/a Goodyear Commercial Tire and Service Center from a decision of the Middlesex Township Zoning Hearing Board dated April 6, 1999, IS DISMISSED. The petition to take additional evidence, IS DENIED. Joseph D. Buckley, Esquire For Appellant By the Court, Edgar B. Bayl~'~, ~J.' / Edward W. Harker, Esquire For Zoning Hearing Board of Middlesex Township Keith O. Brenneman, Esquire For Intervenor :saa ~ It is within the discretion of this court to order the taking of additional evidence and we are under a compulsion to do so only where a party seeking a hearing demonstrates that the record is incomplete because the party was denied an opportunity to be heard fully, or because relevant testimony was offered and excluded. Eastern Consolidated and Distribution Services, Inc. v. Board of Commissioners of Hampden Township, 701 A.2d 621 (Pa. Commw. 1997). -6-