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FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

Filed and Attested by the


Office of Judicial Records
COURT OF COMMON PLEAS OF PHILADELPHIA
09 FEB 2016 02:19 pm
CIVIL TRIAL DIVISION
C. FORTE
Angel Martinez,

appellant

June Term 2015

v.

#00690

:
:
:

Premises:
532 W. Annsbury Street
ZBA Calendar #24548

City of Philadelphia, and


Zoning Board of Adjustment
of the City of Philadelphia,





appellees

ORDER

AND NOW, to wit this ________ day of _____________________________, 2016,

upon consideration of the appeal by Angel Martinez from the May 20, 2015,
decision of the Zoning Board of Adjustment in such case, it is ORDERED that the
appeal is SUSTAINED.

This matter is remanded to the Zoning Board of Adjustment. The Zoning

Board of Adjustment shall issue a special exception for operation of a junk and
salvage yard and accessory building at 532 W. Annsbury Street, Philadelphia,
Pennsylvania, in this industrial district.
BY THE COURT,

_________________________________, J.

Case ID: 150600690

Pa.R.C.P. #211 ORAL ARGUMENT DEMANDED


Quinn Law Office
By: Anthony Bernard Quinn, Esquire
Attorney Reg. #26931
Suite 520 The Bellevue
200 S. Broad Street
Philadelphia, PA 19102
Telephone #215-731-0340
Attorney for appellant
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COURT OF COMMON PLEAS OF PHILADELPHIA
CIVIL TRIAL DIVISION
Angel Martinez,

appellant

May Term 2015

v.

:
:
:

Premises:
532 W. Annsbury Street
ZBA Calendar #24548

City of Philadelphia, and


Zoning Board of Adjustment
of the City of Philadelphia





appellees

APPELLANTS BRIEF SUR ZONING APPEAL FROM THE


DECISION OF THE ZONING BOARD OF ADJUSTMENT
TO THE HONORABLE, THE JUDGES OF THE SAID COURT,
Matter Before The Court

Appellant, Angel Martinez, by and through his undersigned counsel,

appeals from the notice of Decision issued by the Zoning Board of Adjustment of
the City of Philadelphia (ZBA) dated May 20, 2015. The ZBA declined to grant
Angel Martinez a special exception to expand his existing recycling facility into
adjacent 532 W. Annsbury Street, Philadelphia, Pennsylvania, in this I-2
industrial district. The Property is a narrow former railroad right of way
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Case ID: 150600690

purchased from Contrail, and varies in width from 15 to 30 feet and runs the
length of the block from W. Cayuga Street north to W. Annsbury Street.

Statement of Questions Involved


I: Is appellant entitled to a special exception to operate a junk
and salvage yard in an I-2 industrial district?

Suggested answer: Yes.

Facts

Exhibit 1 is the relevant excerpt of the official city zoning map. While

opponents argue the area is residential, the neighborhood is traditionally, and


remains mixed industrial, commercial and residential. However, adjacent
properties are in fact, industrial. The exception is a variance granted to the
church situate the adjacent northwest corner of W. Cayuga and N. 5th Streets. To
the southeast of the Property is a former catholic church which has been
rezoned, spot zoned residential. The Property, and all of the other adjacent
properties on this block, are zoned industrial.

Appellant is proposing to enter into a lease to expand his recycling facility

onto the former Conrail right of way, which has been assigned the address of 532
W. Annsbury Street by the Office of Property Assessment.

The proposed use is to occupy a 3.076 acre former railroad right of way,

which is zoned I-2, industrial. The proposed use is to expand a zoned and licensed

Case ID: 150600690

recycling facility located adjacent and to the east at 520 W. Annsbury Street.1
The application requested, use registration for salvage yard, scrap metal, auto
crushing, sale of used auto parts2, [and] accessory office trailer.

A. THE PROPERTY 3

City Council mapped the property for zoning purposes in an I-2 industrial

district. For some 130 years, the Property was operated as the Bethlehem
Branch of the Reading Railroad, taken over by Conrail in 1976 and sold to
appellants landlord.

The right of way has been out of service since 1984 when Conrail obtained

federal ICC approval to discontinue freight service.


The block in which the Property is located has 5 sides.The block is

bordered by West Annsbury Street to the north, N. Fairhill street to the east,
south to Blavis Street, N. 5th Street to the east, and W. Cayuga Street to the
1

The current zoned and licensed use will be referred to as 520 W. Annsbury

Street. L&I archives indicate zoning and licensing have been granted using
various addresses, including 4500 N. Fairhill Street, 520 W. Annsbury Street,
530 W. Annsbury Street and 532 W. Annsbury Street. This is confirmed by the
maps made a part of the applications. City OPA and DOR information identify the
property as 4500 N. Fairhill Street.
2

The findings of fact fail to note the use variance for sale of used auto parts was

withdrawn. The adjacent zoned and licensed use, at 520 W. Annsbury Street,
permits auto crushing and sale of used auto parts.
3

References herein are to the Notes of Testimony (N.T.) and exhibits admitted

in evidence at the May 20, 2015, public hearing conducted by the Zoning Board.
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south.

The Property is long and narrow, running south to north approximately 15

to 30 feet in various widths from W. Cayuga Street to the south and West
Annsbury Street to the north in the badlands section of North Philadelphia.
Exhibits 1-5.

The Property is abutted to the east as stated, by property leased by

appellant and zoned since 1989 as a scrap metal yard and for sale of used auto
parts. Exhibits 19-23. The abutting recycling facility is improved as well by an
accessory office trailer used in the recycling business. A number of vehicle
crushing and handling equipment are used in the scrap metal business and are
housed at the abutting property. Used auto parts are stored and sold from the
abutting property.

Also to the east, at the southerly end, between Blavis Street and W. Cayuga

Street is the former church, homeless shelter and residential addiction treatment
center. The church is at the elevation of W. Cayuga Street bridge, some 20 feet
above the former right of way. Exhibit 38 depicts the elevation of W. Cayuga
Street. The church had been granted a residential variance and zoned RM1.

W. Annsbury Street is located to the north and is the sole street access to

the Property. [Exhibit 34.] W. Cayuga Street sits to the south, atop an overpass
constructed above the railroad right of way. [Exhibits 1, 5, 38.] The W. Annsbury
Street access is merely 15 feet wide. [Exhibit 34.]

Case ID: 150600690

B. THE RECYCLING FACILITY.

Appellant leases adjoining 520 W. Annsbury Street to conduct his recycling

operation. Space limitation has caused the need to expand into the adjoining
narrow right of way. Appellant proposes to enter into a lease for the Property.
Therefore, he requires zoning to expand his business. The recycling facility will
include an accessory trailer and a weight scale, and movable heavy equipment.

A masonry and chain link fence measuring 8-12 feet in height now encloses

the facility.

The Zoning Code, 9-613(1)(a), Junk Dealers, Definitions, defines a

recycling facility as a junk dealer.


(a)Junk Dealer. An individual, partnership, association,
corporation, or other business entity doing business in the City of
Philadelphia which handles, stores, buys, sells, sorts, picks or otherwise
processes junk, as commonly defined, including but not limited to, rags,
paper, wastes, scrap metal, plumbing fixtures, and other similar
materials.

The Zoning Code,14-601(10)(e), Use Categories, Industrial Use Category,

Junk and Salvage Yards and Buildings, defines a recycling facility to include
metal scrap and automobile dismantling.
An area or building where waste or scrap materials are bought, sold,
exchanged, stored, baled, packed, disassembled, or handled for
reclamation, disposal or other like purposes, including but not limited to
scrap iron and other metals, paper, rags, rubber tires, and bottles. A
junk or salvage yard or building includes an auto wrecking yard or
building.
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Case ID: 150600690

C. NEIGHBORING USES.

This particular area is a mix of residential, commercial, industrial and

addiction treatment uses. However, this block consists of the institutional use,
the church, as well as industrial and a commercial use, and has been industrial
for more than 130 years.

To the west of the Property are three industrial properties along N. 6th

Street as well as a medical facility. At 6th and Annsbury Streets is 4525 N. 6th
Street, a trash removal and dumpster service. South of the trash business is
4455 N. 6th Street, an industrial cleaning service in a former chemical products
building. Further south is the medical building at 4431 N. 6th Street. At N. 6th
Street and W. Cayuga Street is 434 W. Cayuga Street, a glass blowing factory. The
glass blowing factory is at the elevation of the W. Cayuga Street bridge, some 20
feet above the right of way. [Exhibits 1, 3, 38.]

The block has been historically zoned for industrial uses. [Exhibit 1.] Over

time, and as described above, the Zoning Board granted a variance for the church
to operate a homeless shelter and residential addiction treatment center.

Above W. Annsbury Street is a mix of commercial and industrial uses.

Below W. Cayuga Street is as well a mix of commercial and industrial uses.


However, west of No. 6th Street and east of N. Reese Street, is residential.

D. THE ZONING PROCESS.

Initially, an application for a zoning use and registration permit was


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submitted to the Department of Licenses and Inspections on January 17, 2014.


[Exhibits 7-10.] Although not officially refused, the department did not consider
the application because an application was pending before the zoning board to
erect a monopole north of W. Annsbury Street. Despite frequent contact with the
city zoning officer, no action was was taken for almost for a year. [N.T., at p.43.]
The zoning officer then required a new application without making a decision on
the first.

Appellant filed a second application for a use and registration permit on

December 8, 2014, for Property 532 W. Annsbury Street. The identical 5 page
page application detailed the proposed use, and included two maps showing the
area where the proposed use would be located. [Exhibits 11-15.]

A notice of refusal/referral dated January 20, 2015, stated the proposed

use, retail sale of used parts is prohibited in this zoning district. The proposed
use, junk and salvage yards and building requires a special exception from the
Zoning Board of Adjustment. [Exhibits 16.] The refusal was not delivered, but
weekly telephone calls turned up the refusal.

After referral to the Zoning Hearing Board, an application for a special

exception was made on February 2, 2015, with the Zoning Board of Adjustment
for the Property 532 W. Annsbury Street, W. Cayuga Street to W. Annsbury
Street. [Exhibits 17-18.] The Property is described in the application as a section
of a former railroad right of way which operated for more than 130 years. The
tract owned by the landlord is four city blocks in length, running north from W.
Cayuga Street, crossing W. Annsbury Street, W. Courtland Street, Wyoming
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Avenue, under Roosevelt Boulevard and ending at Rockland Street. [Exhibits


4-5.] The application for a recycling facility is limited to the single block from W.
Cayuga Street to W. Annsbury Street. The situs of the monopole application,
which was granted by the zoning board, is on the tract north of W. Annsbury
Street, near W. Courtland Street.

On June 4, 2015, the ZBA issued a notice of decision, backdated to May 20,

2015, denying Martinez application for a special exception. Martinez filed the
appeal at bar the same day.

A local civic association, the Hunting Park Neighborhood Advisory Council

agreed to meet with appellant. The meeting took place at a former factory
building owned by Esperanza Development Corporation. Two zoning
presentations were scheduled for that evening. [Exhibits 30.] Appellant made a
presentation about his plans and the need for additional space. At this meeting,
the leadership of Esperanza made known to appellant it would oppose at the
zoning board. In fact, Esperanza had commenced litigation against the landlord,
seeking to obtain the tract of land for Esperanza. The lawsuit was quickly
dropped when it became clear Esperanza had no cause of action. Remarkably,
Esperanza leadership sought the owner to convey the parcel to Esperanza for
community use. Prior to acquisition of the Property, the community used the
former right of way to dump trash.

C. THE RECORD.

On May 20, 2015, the zoning board conducted an evidentiary hearing on


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the merits of the application. The record demonstrates that, without any
contradiction, appellant established the following.

As stated, the proposed special exception is to expand the zoned and

licensed recycling facility at adjacent 520 W. Annsbury Street, situated on the


southwest corner of W. Annsbury Street and N. Fairhill Street. Since at least
1989, adjacent 520 W. Annsbury Street has been zoned and licensed for sale of
used auto parts, auto dismantling, storage of steel drums and towing. [Exhibits
19-20.] A zoning variance was granted by the ZBA on October 13, 1989. [Exhibit
21.] Since 1949, it was an auto repair shop. [Exhibit 19.]

The SWC corner Annsbury and Fairhill is currently licensed for an auto

wrecking yard and for hazardous materials. [Exhibits 22-23.]


Exhibit 32 is a photo depicting the view of the adjacent zoned and licensed

use at 520 W. Annsbury Street. Exhibit 32 depicts a 12 foot high masonry wall
protecting the Property along N. Fairhill Street. The photo is taken from a nearby
roof, allowing views over the 12 foot masonry wall.

Another roof view over the 12 foot masonry fence depicts auto wrecking

equipment on the SWC Annsbury and Fairhill property. [Exhibit 33.]


Exhibit 34 depicts a chain link entry fence to the Property. The Property is

a narrow, 15 to 30 foot right of way. To the left of the driveway are vehicles
situate on the adjacent SWC Annsbury and Fairhill use. To the right in the photo
is the accessory office building.

Exhibit 35 and Exhibit 36 are views taken from inside the 12 foot masonry

wall on the west side of the right of way. Exhibit 35 shows the medical center
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behind the masonry wall. Exhibit 37 is a view of the adjacent and neglected 4525
N. 6th Street trash removal business property.

One opponent testified, referencing a Hunting Park neighborhood plan. No

evidence was provided concerning the any such plan. The opponent testified to
being a neighbor to the trash removal and dumpster service located adjacent
tothe Property, and heavy truck traffic created by the neighbor and appellant.
[N.T., at p. 84.]

The zoning board also received the written comments of objectors. The

zoning board accepted these certain letters, partial content of which was noted in
the zoning boards peculiar way of reciting evidence without explaining the
manner in which the zoning board relied or did not rely on the assertions. The
letters and papers are, of course, hearsay which, when uncorroborated by
competent testimony, cannot form the basis for any finding of fact. Walker v.
Unemployment Compensation Board, 367 A.2d 366, 370 (Pa. Commw. Ct. 1976).

As much as the opponents and the ZBA argue the adjacent recycling

facility looks like, well, a junk yard, incongruously, the adjacent trash removal
and dumpster service business is a rat-infested trash heap. Mr. Staten stated he
denied the special exception because he could look out his window and see a junk
yard. [N.T., at p. 52.] Exhibit 43, submitted by opponents, shows an extensive
permanent trash heap covering the greatest section of the trash removal yard.

A letter was read on behalf of the Philadelphia City Planning Commission,

that this Property is indicated for industrial use on the Comprehensive Plan. We
feel that this application will have a negative impact in both noise and health
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Case ID: 150600690

safety to the surrounding neighborhood. There is no evidence in the record of


any impact on noise, health, or safety.

Esperanze Housing and Economic Development Corporation falsely posits

itself to be the registered community organization. The trueregistered


community organization is the Hunting Park Neighborhood Advisory Council.
HPNAC held a community meeting on April 21, 2015. Only 15 persons attended
and voted on the proposed special exception. Intrinsically, the letter is dishonest.
The report letter of the community meeting to the ZBA did not break down the
vote between those who opposed and those who did not reach agreement. The
letter merely stated, 15 oppose/did not reach agreement. [Exhibit 31.]

Opponents submitted only 71 signatures in opposition. Appellant

submitted 95 signatures in support, including customers coming from miles to do


business in this economically disadvantaged area of Philadelphia.

Having heard appellants proofs and having heard the neighbors objection,

the zoning board concluded the hearing. The zoning board cast votes, all
members voting against the proposed use.

The zoning board created a Notice of Decision on May 20, 2015. On June 4,

2015, Angel Martinez filed this timely appeal. On October 29, 2015, the zoning
board filed its findings of fact and conclusions of law as well as the record,
prompting the submission of this brief challenging the Decision.

Argument
I: Metal scrap recycling and automobile dismantling are
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permitted uses in an I-2 Industrial District.


A. STANDARD OF REVIEW.

The scope of review where the reviewing court does not take additional

evidence is limited to determining whether the zoning board violated any


constitutional right, committed an abuse of discretion, or an error in the
application of the law in rendering its decision. Township of Exeter v. Zoning
Hearing Board, 599 Pa. 568, 962 A.2d 653, 659 (Pa. 2009); Larson v. Zoning
Board of Adjustment, 672 A.2d 286, 288-289 (Pa. 1996); 2 Pa.C.S. 754(b).

An abuse of discretion may be found only where the zoning boards findings

are not supported by substantial evidence, that is, relevant evidence which a
reasonable mind would accept as adequate to support the conclusion reached.
Township of Exeter, id.; Hertzberg v. Zoning Board of Adjustment of City of
Pittsburgh, 554 Pa. 249, 257, 721 A.2d 43, 46 (Pa. 1998). Accordingly, if a
reasonable man, acting reasonably, could not have reached the decision from the
evidence and its inferences then the decision is not supported by substantial
evidence and it should be set aside. A.P. Weaver & Sons v. Sanitary Water Bd.,
284 A.2d 515, 518 (Pa. Smmw. Ct. 1971). The rule of substantial evidence is one
of fundamental importance and is the dividing line between law and arbitrary
power. State Bd. of Osteopathic Examiners v. Barbarian, 190 A.2d 330, 333 (Pa.
Super. Ct. 1963). Appellate review of questions of law are de novo, and the
review of such questions is plenary. Robinson Twp. v. Commonwealth, 83 A.2d
901, 943 (Pa. 2013).

Further, [i]n the event a full and compete record of the proceedings
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before the local agency was made, the court shall hear the appeal without a jury
on the record certified by the agency. 2 Pa.C.S. 754(b).

The reasons for a variance must be substantial, serious and compelling,

and the party seeking the variance bears the burden of proof that unnecessary
hardship will result if the variance is denied. Valley View Civic Assn. v. Zoning
Bd. of Adjustment, 501 pa. 550, 554, 462 A.2d 637, 639 (1983). The hardship
must be shown to be unique or peculiar to the property as distinguished from a
hardship arising from the impact of zoning regulations on an entire district. Id.
Moreover, mere evidence that the zoned use is less financially rewarding than
the proposed use is insufficient to justify a variance. Id. In evaluating hardship
the use of adjacent and surrounding land is unquestionably relevant. Id. The
burden of proof is on the landowner to obtain variances. Yeager v. Zoning Hearing
Board, 779 A.2d 595 (Pa. Commw. Ct. 2001).

The appropriate tests are, 1) the physical features of the property are such

that it cannot be used for a particular purpose; or 2) the property can be


conformed for a permitted use only at a prohibitive expense; or 3) the property is
valueless for any purpose permitted by the zoning ordinance. South of South
Street Neighborhood Association v. Philadelphia Zoning Board of Adjustment, 54
A.2d 115, 121 (Pa. Commw. Ct. 2012) (citing Taliaferro v. Darby Township Zoning
Hearing Board, 873 A.2d 807, 812 (Pa. Commw. Ct. 2005). Unnecessary hardship
may be established only when it is shown that compliance with the zoning
ordinance would render the property practically useless. Evans v. Zoning
Hearing Board, 723 A.2d 686, 691 (Pa. Commw. Ct. 1999).
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Appellant seeks a special exception because he has met all requirements of

the zoning code for such. As to a dimensional variance, appellant meets the
unnecessary hardship test because the right of way is long and narrow, it sits
between adjacent industrial uses, and is below grade for most of the distance.

B. THE SPECIAL EXCEPTION

The property is located in an I-2 industrial district. [Finding of Fact #2.]


14-403. Industrial and Industrial Mixed-Use Districts.
(b)Purposes.
(.1)Philadelphias Industrial zoning districts are primarily intended to
accommodate manufacturing, warehousing, wholesale, and industrial
uses. The district regulations are intended to:
(.a)promote the economic viability of utilities, construction,
manufacturing, goods movement and warehousing, resource
production, research and development, equipment and facility services,
and other industrial uses;
***.
(.b)encourage employment growth; and
(.c)limit the encroachment of unplanned residential and other nonindustrial development within active industrial areas.
***.
(c)Descriptions.
(.4)I-2, Medium Industrial District.
The I-2, Medium Industrial district is primarily intended to
accommodate light industrial uses, moderate-impact uses, and
employment activities such as manufacturing, distribution, processing,
industrial parks, and other activities that may generate noise, odor,
vibration, after hours activities, or traffic impacts well beyond the
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subject property lines.


***.
(2)Allowed Uses.
Principal uses are allowed in Industrial districts in accordance with
Table 14-602-3. Uses classified as accessory uses are not regulated by
the use table. Accessory uses are permitted in conjunction with allowed
principal uses, provided they comply with all applicable regulations of
14-603 (Use-Specific Standards) and 14-604 (Accessory Uses and
Structures).
(3)Dimensional Standards.
Dimensional standards that apply in Industrial districts are set forth in
14-701 (Dimensional Standards).
(4)Multiple Principal Uses and Buildings.
Multiple principal uses and buildings are allowed on a single lot in all
Industrial districts.
***.
14-602. Use Tables.
(5)Industrial Districts.
Principal uses are allowed in Industrial districts in accordance with
Table 14-602-3. Uses classified as accessory uses, such as home
occupations, are not regulated by the use table. Accessory uses are
permitted in conjunction with allowed principal uses, provided they
comply with all applicable regulations of 14-603 (Use-Specific
Standards) and 14-604 (Accessory Uses and Structures).

Junk and Salvage Yards and Buildings are permitted by special exception.

Table 14-602-3.

City Council altered the traditional manner of weighing the circumstances

necessary for a grant of variances to allow for recycling facilities.


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The Zoning Code, 14-603(9), Use-Specific Standards, Junk and Salvage

Yards and Buildings, permits metal recycling facilities as follows.


(9)Junk and Salvage Yards and Buildings.
(a)The minimum required lot size for junk and salvage yards and
buildings is two acres.
(b)Junk and salvage yards and buildings may not be located within
150 ft. of any Residential district.
(c)If the junk and salvage yard/building is located in any district other
than the I-3 or I-P, a masonry wall, not less than eight ft. in height and
not more than 12 ft. in height, shall be constructed and maintained in
good condition around all property boundaries abutting a zoning
district other than I-3 or I-P. All activities and stored materials must be
confined to the walled-in area. There may be no stacking of material
above the height of the masonry wall, but moveable equipment used in
the conduct of junk or salvage activities may exceed that height.
(d)All buildings, screening, and junk or salvage materials must be set
back at least 20 ft. from any public street, and that setback area shall be
landscaped in accordance with 14-705(2) (Street Tree
Requirements).
(e)Open burning is prohibited.
(f)No outdoor industrial processes involving the use of equipment for
cutting, shredding, compressing, or packaging may be conducted within
300 ft. of a Residential district.
(g)All roads, driveways, parking lots, and loading and unloading areas
within any junk or salvage yard or building must be surfaced with a
material to prevent wind-born dust from being carried outside the
walled area.
(h)All fluids must be drained from junk and salvage motor vehicles or
motor vehicle parts within seven days after those vehicles or parts are
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brought onto the site, and those fluids must be disposed of in compliance
with all applicable laws.
(i)Junk and salvage yards and buildings are subject to the fencing
requirements of Philadelphia Code 9-612.

Appellants facility proposes to meet all of these requirements.


9(a) is complied as the Property runs north from Cayuga Street to W.

Annsbury Street and has a lot size of 3.067 acres.


9(b) is complied as except for the former church, the Property is 228.460

feet east of the nearest western residential district; and 376.690 feet west of the
nearest eastern residential district. The area is industrial more than 600 feet to
the north and more than 600 feet to the south.

9(c) is complied as there are masonry walls on east side, north side and

masonry building walls on west side. It is proposed to complete the masonry


walls on the north side.

9(d) is complied as the accessory building is set back 100 feet from the

street. The Property is fenced and proposed to be landscaped.


9(e) is complied as no burning is done in the recycling operation.

9(f) is complied as cutting, shredding, compressing, and packaging can be

conducted in the central area, more than 300 feet from the residential church.
The church sits at the level of the W. Cayuga Street bridge, some 20 feet above the
grade of the right of way.

9(g) is complied as there are no roads or parking lots proposed, except

storage. All driveways and loading and unloading areas will be surfaced with
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Case ID: 150600690

gravel or other permeable material.


9(h) is complied as a requirement and is consistent with ongoing

drainage and storage processes.


9(h) is complied as the Property is secured by security fences and

cameras.

Two additional sections regulate the recycling facility use, street trees and

fencing.
9-612. Fences Around Automobile Wrecking Yards and Junk Yards
and Buildings. 727
(1)Definitions. In this Section the following definitions shall apply:
(a)Automobile Wrecking Yard. Same as defined in Chapter 5-300
728 of the Fire Code.
(b)Junk Yards and Buildings. Same as defined in Chapter 5-2000
729 of the Fire Code.
(2)Prohibited Conduct. No person shall own, lease to another or rent
from another or otherwise possess or operate any premises for an
automobile wrecking yard or junk yard and building unless the
premises are either:
(a)fenced with durable material around the perimeter of those
premises to the extent necessary to obscure from the view of any
person using an abutting street the activity conducted on and any
material upon those premises; or
(b)if fencing is impractical in the opinion of the Department of
Licenses and Inspections trees and shrubs may be planted in a terracetype manner if the Department finds that the premises will be obscured
from view by any persons using an abutting street.
(3)Permits. No fence shall be erected, maintained, altered or
restored unless application for approval is made to the Department of
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Case ID: 150600690

Licenses and Inspections on forms supplied by the Department. Upon


approval by the Department and the payment of a permit fee of ten (10)
dollars, a permit will be issued. No approval shall be given to any fence
which is not a masonry or aluminum fence.
(4)Penalties. Any person violating this Section shall, upon
conviction, be subject to a fine of not more than three hundred (300)
dollars.
(5)Repeat Offenders. Any person who commits, on more than one
occasion, a violation of this Section shall be guilty of a separate offense
of Repeat Violation, and for each such Repeat Violation, shall be subject
to a fine of not more than three hundred (300) dollars, or imprisonment
for not more than ninety (90) days, or both. A person shall be guilty of a
Repeat Violation regardless whether the second or subsequent violation
occurs before or after a judicial finding of a first or previous violation.
Each violation, after the first, shall constitute a separate Repeat
Violation offense.

The zoning code has created a race to the Zoning Board situation. By the

earlier grant of a variance to the church, changing the zoning to RM-1, much of
appellants Property, which is properly zoned for a junk yard, is now precluded
by the zoning code by virtue of the church variance. While the Code provides that
the variance granted the church cannot infringe an adjacent conforming use, in
fact the vote of the zoning board allowed the race to the board to trump
appellants use of his Property.

The zoning board conducted a variance and special exception analysis

premised solely on these sections. This was plain error because the zoning board
made use of an incomplete reading of the pertinent zoning code requirements.
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Had the zoning board measured the application against the appropriate
standards, the record would have compelled the zoning board to reach different
conclusions.

A variance may be granted upon proof that a substantial burden attends all

dimensionally compliant uses of applicants property. Twp. of E. Caln v. Zoning


Hearing Board of E. Caln Twp., 915 A.2d 1249, 1253-54 (Pa. Commw. Ct. 2007)
(where property could continue to be used to house existing telecommunications
tower and self-storage facility).

The Zoning Board erred in not granting appellants request for a

dimensional variance in accordance with Hertzberg v. Zoning Board of


Adjustment of City of Pittsburgh, 554 Pa. 249, 257, 721 A.2d 43, 47 (Pa. 1998)
and based upon hardship. In Hertzberg, SCOPA held that, a variance applicant
must show that unnecessary hardship will result if a variance is denied and that
the proposed use will not be contrary to public policy.

The zoning board failed to consider these criteria. The zoning board failed

to demonstrate how it could mold its decision in the face of appellants hardship
and the lack of any potential uses of the right of way. Here, the narrow former
right of way varies from 15 to 30 feet in width and runs the length of the block,
bordered on each side by other industrial uses. The Property has no other street
accessible uses as industrial or residential development. The former right of way,
being long and narrow, is not suitable for residential development. At W. Cayuga
Street, the Property is some 20 feet below grade. [Exhibit 38.] At W. Annsbury
Street, the Property is approximately 15 feet wide and 400 feet in length.
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Case ID: 150600690

In addition, appellants proposed use will be located behind 3 industrial

and one commercial uses situated on 6th Street, to the west and adjacent to
appellants existing recycling facility to the east. The Property is 1 blocks from
Roosevelt Boulevard, allowing access for truck traffic. W. Cayuga Street has an
industrial character.

Advocating for one of the opponents, Mr. Pastore took up the position of the

owner of 4455 N. 6th Street that he has an easement over the railroad property.
[N.T., at 7, 26.] The position that a railroad neighbor could erect a wall or a
building on the right of way and prevent train travel is preposterous.
Nonetheless, it is asserted. No prior mention had been made in the presentation
concerning 4455 N. 6th Street, nor the claims of its owner. Leading one to the
reasonable conclusion that ex party communication had taken place.

A review of the record and the pertinent variance criteria demonstrate

that this is precisely the kind of site and combination of circumstances that City
Council intended for this kind of facility.

The homeless shelter use at the former W. Cayuga Street church is as well a

permitted use in the I-2 industrial district. Table 14-602-3.


As demonstrated in the record, the objectors oppose the expansion for

aggressive reasons. The objectors desire the Property for themselves. N.T., at
82.]

The zoning board failed to conduct the most fundamental analysis.

Accordingly, City Council determined as recently as 2012 that the

juxtaposition of the scrap metal use in a mixed commercial and industrial use
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Case ID: 150600690

with a single institutional use on the same block, as proposed, will not be an
unacceptable detriment to the community. In view of that determination and in
the absence of any competent testimony, there is nothing on the record to
conclude that adjacent property owners will be adversely affected.

Objectors raised two issues: the proposed use represents an inconsistent

use of the property with the alleged residential character; and one opponent
objected to truck traffic. The sole testimony, that of appellant, was that junk is
bright by pick-up trucks. [N.T., at p. 54.] Approximately 15 pick-up truck loads
per day. [N.T.., at p. 56.] Neither complaint can be the basis for an adverse
finding. Both require the testimony of an expert. Pa.R. Evid. #702. The rules of
evidence provide guidance that lay persons cannot testify to matters which are
technical and require specialized training. In Re Appeal of Borough of Churchill,
575 A.2d 550, 554 (Pa. 1990). The testimony of a land planner is necessary to
establish whether the land would be put to over-use or a combination of uses
results in a negative effect. There was no such testimony here.

Moreover, SCOPA has held that, neither aesthetic reason nor the

conservation of property values *** are, singly or combined, sufficient to


promote the health or morals or the safety of the general welfare. In Re Appeal
of Archbishop OHara, 131 A.2d 587 (Pa. 1957), citing Medingers Appeal, 103 A.
2d 118 (Pa. 1954). Accordingly, objectors missed the target in attempting to
establish an adverse effect.

On October 29, 2015, the Zoning Board issued its Findings of Fact, etc.,

concluding appellant did not present evidence to establish hardship and was not
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Case ID: 150600690

entitled to a variance. In similar and summary fashion, the zoning board


concluded:
16. Applicant has not identified any unique physical characteristic or
circumstances of the Property that would prevent its use for a purpose
permitted by right in the applicable I-2 zoning classification.
[ZBA Conclusions #16.] The ZBA shared little to provide insight linking the facts
of record to its decision. This conclusion is clearly wrong. The Zoning Code
requires the zoning board to explain concisely the basis of its decision, and here,
it did not do so. See Zoning Code, 14-1807(3) (The record of the Board shall
concisely set forth the Boards finding of fact an cconlcusiions of law showing the
basis of the decision appealed from). In fact, the record compels a different
result.

In East Torresdale Civic Association v. ZBA, 639 A.2d 446, 447 (Pa. 1994),

SCOPA distilled the 14- criteria into three key prongs: (1) unique hardship to
the property; (2) no adverse effect on the public health, safety or general welfare;
and (3) the variance will represent the minimum variance that will afford relief
at the least modification possible. Id. Here, the only substantial evidence of
record supports findings of hardship, as well a the absence of adverse effect on
the public interest and compliance with the minimum variance standard.

From a public policy perspective, a review of the record and the pertinent

variance criteria demonstrates that this is precisely the kind of site and
combination of circumstances that City Council intended for a recycling facility.

Angel Martinez met the standards for hardship.


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Case ID: 150600690

Notwithstanding the Zoning Code requires it to consider the many factors

set forth in the Zoning Code, the zoning board concluded that appellant needed to
meet each and every criteria. [ZBA Conclusion #8.] The zoning board needed to
but did not look to the rules of statutory construction to resolve the conflict.
See In re Thompson, 896 A.2d 659, 669 (Pa. Commw. Ct. 2006) (rules of
statutory construction apply to ordinance).

In Appeal of Johna Holtz, 8 A.2d 374, 378 (Pa. Commw. Ct. 2010), the

court observed the Statutory Construction Act 1972, which provided the
following.
Whenever a general provision in an ordinance shall be in conflict with a
special provision in the same ordinance, and the conflict is not
reconcilable, the special provision shall prevail and shall be construed an
an exception to the general provision.
1 Pa.C.S. 1993. The court held to rule otherwise would result in an absurd result
which the court presumed could not be the intent of the legislative body. Id, at
378 (relying upon 1 Pa.C.S. 1922(1)).

Here, the zoning board impermissibly ignored the substantial record in

order to short-circuit the criteria. See In re Realen, 838 A.2d 718, 731 (Pa. 2003)
(at some point, a zoning board deprives an applicant a fair proceeding where the
board capriciously and without reasonable explanation disregards overwhelming
evidence.

With its narrow profile, the recycling facility will not be so broad as to

dominate the skyline and is consistent with surrounding uses. It is located on an


24

Case ID: 150600690

industrial property and in an industrial neighborhood, in a manner that will not


interfere with the heavy truck traffic in the neighborhood.

In view of that determination and in the absence of any competent

testimony, there is nothing on the record to conclude that a different placement


would have less of an impact. Therefore, the application calls for the minimum
variance that will afford appellant relief.

There is no adverse effect to the public interest.

Notwithstanding the absence of credible evidence, the zoning board

concluded that the proposed recycling facility would adversely affect the public
health, safety or (sic) welfare. [ZBA Conclusion #27.] Apparently, the zoning
board, having nothing in the record, could only support its conclusion by
inferring that the dimensional limitations were intended to safeguard the public
and any failure to conform would pose a threat. [ZBA Conclusion #25.] Accepting
this leap of faith would result in the zoning board ever granting a dimensional
variance. Fundamentally, the zoning board had no substantial evidence upon
which to make this finding.

The use of private property is thoroughly protected by Article I, Sections 1

and 10 of the Pennsylvania Constitution. The right to acquire and own property,
and to deal with it and use it as the owner chooses, so long as the use harms
nobody, is a natural right. Robinson Twp. v. Commonwealth, 83 A.2d 901, 948
(Pa. 2013), quoting Appeal of White, 134 A. 409, 412 (Pa. 1926); see also, In re
Realen, 838 A.2d 718, 727-728 (Pa. 2003) (The right of landowners to use their
property unfettered by government interference except as necessary to protect
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Case ID: 150600690

the interests of the public is of ancient origin). Zoning regulations are a limitation
on the fundamental property right of landowners and the common law and must
be strictly construed. Cf. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 390
(1926). Regulations on use must be underpinned by comprehensive planning and
must have a substantial relation to the public interest. Appeal of White, 134 A. at,
412 (Pa. 1926); Euclid, 272 U.S. at 390. The zoning board cannot be heard to say
that, while it doesnt know what the publics interest is, an interest must be there
because there is a restriction. There must be evidence in the record on a uses
detrimental effect on the public. Herein, in order to balance the property rights
against the public interest, the zoning board needed to understand and then to
identify what interest was served. Indeed, the zoning board identified no public
interest in the record.

By enforcing the zoning classification of the adjacent church of RM1 where

the adjacent properties are industrial, City Counsel is presumed to have


determined that any ordinary effects of juxtaposition of the permitted uses is
satisfactory for zoning purposes. In addition, appellant demonstrated that the
facility creates no change in sound, no odors and no more noise than the adjacent
trash removal facility.

It is well settled that the generalized complaints of neighbors do not

amount to substantial evidence upon which an adjudicator may make a finding of


fact. See Ogden Fire Company No. 1 v. Upper Chichester Township, 504 F.3d 370,
389-393 (3rd Cir. 2007) (interpreting substantive evidence standard).

Hertzberg showed that, when it comes to dimensional variances, a


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Case ID: 150600690

combination of factors, not susceptible to a particular formulas, will justify


variances.

Further, the ZBA contends appellant had the burden of proof to negate all

impact conditions.
23. Under Section 14-303(7)(e)(.2), an applicant shall have the initial
duty of presenting objective evidence, and the burden of proof, that the
grant of a special exception will not cause [seven] specific detrimental
impacts to the neighborhood beyond that which normally might be
expected from the proposed use.
24. The specific impacts listed in Section 14-303(7)(e)(.2) are:

(.a) Congestion in the public streets or transportation systems;

(.b) Overcrowding the land;

(.c) Impairing an adequate supply of light and air to adjacent

property;

(.d) Burdening water, sewer, school, park, or other public facilities;

(.e) Impairing or permanently injuring the use of adjacent

conforming properties;

(.f) Endangering the public health or safety by fire or other means;

or

(.g) Inconsistency with the Comprehensive Plan of the City.

Appellants evidence showed no detrimental impact on the neighborhood

and there is no evidence of any. There is no evidence of congestion caused by the


proposed special exception. Public transportation is available on 5th Street, 2
blocks away.

There is no evidence the land would be overcrowded. The Property is an


27

Case ID: 150600690

approximately 15-30 foot wide strip of land, a former railroad right of way
running north from Cayuga Street to Annsbury Street. The former right of way
continues unimproved to the north and south of the Property. To the east, 520 W.
Annsbury is licensed and zoned for the same use. Appellant proposes to expand
his zoned and licensed use to the right of way.

Overcrowding is not expected as fewer than 20 workers are expected to

work onsite. Little effect is expected on public transportation. The adequate


supply of light and air would not be impacted as the former right of way is below
grade for most of the site. Adjacent unrelated properties are above this site. The
site has a gravel surface and the sole impervious surface is an accessory office
trailer.

The proposed use would not impact stormwater runoff. No schools, parks

or public facilities are adjacent to the Property. The adjacent properties to the
west at 4400, 4455 and 4525 N. 6th Street are industrial. The city purchased,
built and donated at taxpayer expense for private use a medical office at 4433 N.
6th Street. To the southeast is a church which received from the ZBA a variance
to operate a homeless shelter. The church was rezoned to RM1. To the north and
south are the former right of way.

The proposed expansion proposes no height requirements so as create a

detrimental impact on the supply of light and air to adjacent property.


The surrounding neighborhood includes public services such as 3

churches, a homeless shelter and 2 drug treatment centers.


Despite objections, there has been no specific articulation how the adjacent
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Case ID: 150600690

trash removal and dumpster service, or other uses would be injured by the
proposed economic development.

Scrap metal recycling imposes no risk of fire or safety.

The city has proposed no comprehensive plan for the former right of way.

The objectors own evidence showed appellants proposed use is for the

greater portion of the Property essentially by right under the zoning code. All of
the area from W. Annsbury Street south and adjacent as far south as the SWC of
W. Annsbury and Fairhill Streets is permitted by the zoning code. [Exhibits 41
and 42.] As the opponents own legend shows, the red hatch-marked area [is]
able to be used for Junk and Salvage Yard under Zoning Code 14-603-9(b).
Incredibly, inconsistent with this evidence, the ZBA denied the Special Exception.

Relief

For the reasons set forth above, Angel Martinez respectfully demands this

Court reverse the decision of the Zoning Board of Adjustment and order the
Zoning Board of Adjustment to grant the special exception requested.
Respectfully submitted,

Anthony Bernard Quinn


Attorney for appellant
Angel Martinez

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Case ID: 150600690

Pa.R.C.P. #211 ORAL ARGUMENT DEMANDED


Quinn Law Office
By: Anthony Bernard Quinn, Esquire
Attorney Reg. #26931
Suite 520 The Bellevue
200 S. Broad Street
Philadelphia Pa 19102
Telephone #215-731-0340
Attorney for appellant
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COURT OF COMMON PLEAS OF PHILADELPHIA
CIVIL TRIAL DIVISION
Angel Martinez,

appellant

June Term 2015

v.

#00690

:
:
:

Premises:
532 W. Annsbury Street
ZBA Calendar #24548

City of Philadelphia, and


Zoning Board of Adjustment
of the City of Philadelphia





appellees

CERTIFICATE OF SERVICE

I certify that service of the APPELLANTS BRIEF SUR ZONING APPEAL

FROM THE DECISION OF THE ZONING BOARD OF ADJUSTMENT and all


attachments was made this February 8, 2016 upon all persons entitled thereto or
to their attorneys of record by the civil electronic filing system. Such service
satisfies the requirements of Pa.R.C.P. ##205.4(g)(2)(ii) and 440.

_______________________
Anthony Bernard Quinn

Case ID: 150600690

Case ID: 150600690