This action might not be possible to undo. Are you sure you want to continue?
78747 (215)635-2480 dj s@darinsteinberglaw. com
Attorney for the Zoning Board of Adjustment
Filed and Attested by PROTHONOTARY 29 JAN 2013 03:14 pm R. WEISS
IN THE COURT OF COMMON PLEAS
Karen Lewis and Carmen Bolden Appellant From the decision of: Philadelphia Zoning Board of Adjustment.
Civil Division - Special Docket Program
September Term 2012 No. 0976
FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE PHILADELPHIA ZONING BOARD OF ADJUSTMENT This appeal was taken from a decision of the Zoning Board of Adjustment of the City of Philadelphia ("Zoning Board" or "Board") at Calendar No. 17519. The Board held a public hearing on August 8,2012 and granted the requested variances with proviso for the property known as 1942-58 N. Front Street, Philadelphia, PA (the "Subject Property") to relocate lot lines to create one (1) lot from five (5) lots in order to construct three (3) structures of three-story multi-family affordable housing rental units for twenty-five (25) families/units with ten off-street parking spaces and one community/office space. The Board's decision to grant the variances with proviso is based upon the following Findings of Fact and Conclusions of Law: Findings of Fact 1. On March 2,2012, Kramer Marks Architects submitted an Application for Zoning/Use Registration Permit (the "Application") to the Philadelphia Department of Licenses and Inspections ("L&I" or "Department") on behalf of the property owner Women's Community Revitalization Project ("Owner" or "Applicant") with respect to the Subject Property. The Application was identified by the Department as Application No. 392064. Detailed plans were also submitted with the Application.
Case ID: 120900976
2. According to the Application, the Subject Property consists of vacant land and an abandoned bank building. The Applicant intends to use the Subject Property for multifamily residential. More specifically, the Application seeks to consolidate five (5) lots into one lot for the construction of the following: 3 structures of three (3) Story Multi Family housing for twenty-five (25) families/units. Building one (1) Facing North Front Street, three (3) story structure comprised of 8 dwelling units for sixteen (16) families. Building two (2) Facing Morris Street, three (3) story structure comprised of 3 dwellings for six (6) families. Building three (3) Facing Hope Street three (3) story structure comprises of 2 dwellings for (3) families/unit with one unit over a community space. Buildings are slab on grade with no basement. Maximum Building Height is 3Q'-7" See Application. 3. On March 9,2012, the Application was refused by L&I (the "Notice of Refusal"). According to the Notice of Refusal, the Subject Property is located in the C-2 Commercial Zoning District L&I refused the Application for the following reasons and pursuant to the following sections of the Philadelphia Zoning Code ("Zoning Code"): 14-303(2)(a) - The proposed attached buildings used solely for dwelling purposes, are not permitted in this Zoning District. 14-1403(l)(a); 14-1402(l)(b) - With every multiple dwellings erected after the effective date of this ordinance, there shall be provided on the same lot an area containing parking spaces for the use of the occupants of the dwelling; therefore twenty-five (25) accessory parking spaces are required, whereas only ten (10) spaces are provided. 14-303 - The proposed multiple structures is not permitted in the district. See Notice of Refusal. 4. On March 15,2012, Kramer Marks Architects, on behalf of Applicant filed a Petition of Appeal to the Zoning Board ("Petition of Appeal") against the Department's Notice of Refusal. According to the Petition of Appeal, the Applicant appealed the Department's Notice of Refusal for the following reasons: The attached multifamily use is consistent with attached multifamily properties directly behind the Subject Property which front on North Howard Street with rear yards facing the [Subject] Property and additional such housing on the comer of Howard and Norris Streets. The Subject Property is located one block from the Market-Frankford El Station at Front and Berk thus lessening the need for cars and parking. Under comparable district (CMX2) in new Zoning Ordinance multifamily use requires 3 parking spaces for each 10 units. See Petition of Appeal.
Case ID: 120900976
5. The Board held a public hearing on August 8,2012 (the "Hearing"). The Applicant was represented by Mr. Darwin Beauvais, Esq. Many people filed Appearance Statements at the Hearing both in favor of and against the proposed development of the Subject Property. The record before the Board includes, without limitation, the following documents: a. b. Photographs of the Subject Property and the surrounding neighborhood; Zoning Site Plan and revised Zoning Site Plan showing, among other things, the relocation of the proposed community facility along the first floor at the corner of Front Street and Norris Street; Renderings of the proposed development of the Subject Property; Floor plans; Deed and Tax Clearance Certificate; Zoning Map, Zoning Code and aerial photo; A Building Structural Survey prepared by William D. Elton, PE of Elton & Thompson P.C., Structural Consultants, dated May 3,2012 with regard to the existing buildings on 1942 N. Front Street (the "Applicant's Engineering Report"); Multiple letters of support/non-opposition as well as a multi-page petition of support of the proposed development of the Subject Property (represented by the Applicant to consist of 282 signatures); A "Project Fact Sheet" submitted by the Applicant; "Technical Memorandum: Retail/Commercial Market Assessment Proposed Development Site 2000 Block of North Front Street" prepared by Urban Partners for Women's Community Revitalization Project dated June 2011 (the "Technical Memorandum"); Multiple letters of opposition to the proposed development of the Subject Property including, without limitation, a letter from Karen D. Lewis dated August 1,2012 with attachments; and Petition in opposition to the proposed development of the Subject Property.
c. d. e. f. g.
6. Mr. Beauvais opened up the testimony at the Hearing on behalf of the Applicant. He told the Board that the proposed development of the Subject Property represents a re-development of a blighted and abandoned piece of property to create twenty-five (25) affordable rental units in the North Square section of the City. See N.T. 8/8/12 at 3. The plan is to develop the Subject Property with thirteen (13) three-bedroom units, eleven (11) two-bedroom units and one (1) four-bedroom unit. See N.T. 8/8/12 at 4. Three (3) of the units will be wheelchair accessible and one (1) will accommodate the hearing and vision impaired. See N.T. 8/8/12 at 4. Each unit will have a washer and dryer, garbage disposal and central air conditioning. See N.T. 8/8/12 at 4. The proposed development also calls for a community space along N. Front Street with an office for support of services as well as ten (10) off-street parking spaces, bicycle parking and landscaping. See N.T. 8/8/12 at 4. According to a letter dated July 24, 2012 from Women's Community Revitalization Project, the design of the project was re-done to move the community space from Hope Street to the comer of N. Front Street and Norris Street in response to the community's request for commercial space along Front Street which is a commercial corridor. According to the letter, "the community room would run the length of roughly two typical commercial storefronts along Front and the length of one typical storefront along Norris. This unit will be used for several purposes, including office space
Case ID: 120900976
and community gathering space." The price range for the units will be from $400.00 to $600.00 per month. See N.T. 8/8/12 at 4. The project has the support of the Pennsylvania Housing Finance Agency, the Federal Home Loan Bank and the Housing Trust Fund. See N.T. 8/8/12 at 3. The developer of the project will be the Women's Community Revitalization Project, which has developed and constructed over 240 affordable homes throughout the City. See N.T. 8/8/12 at 4. 7. With respect to the refusal for multiple structures on a lot, Mr. Beauvais explained that "because we are consolidating five lots into one to create enough common area to accommodate parking and open space, if we were to do otherwise, right, we could only get five units, one per lot, and — and that will prevent any development of this kind from happening." See N.T. 8/8/12 at 5. 8. Next to testify on behalf of the Applicant and in support of the proposed development of the Subject Property was Jeremy Philo, architect at Kramer Marks Architects. He described the proposed layout of the development and the units themselves. See N.T. 8/8/12 at 6,7. The smallest unit will be a two-bedroom at around 850 square feet. See N.T. 8/8/12 at 7. The largest unit will be almost 1500 square feet. See N.T. 8/8/12 at 8. 9. With respect to the refusal for parking, Mr. Beauvais testified as follows: We believe this is enough considering that the project sits in a transit-oriented district, where both the elevated train, specifically the Berks Station, and bus stops are both within the same block of the site, therefore, we believe that our parking ratio is fine and very suitable. In fact, what I also realized, in two weeks with the Board ~ with the new code coming in under commercial designation, I think it's now going to be called CMX-2, parking will not be required. See N.T. 8/8/12 at 8,9. 10. With respect to the refusal for attached buildings used solely for dwelling purposes, Mr. Beauvais testified as follows: Women's Community Revitalization Project took significant amount of time to select this site, and in doing so, they did a market study that was commissioned in order to ascertain whether commercial activity was still applied. Now, as I mentioned before, we have with us Mr. James Hartley, from Urban Partners, who actually produced the study, which is marked Exhibit-16. And I'm hoping that he can come up to introduce himself and give us a summary of his conclusions. See N.T. 8/8/12 at 9. 11. Mr. Hartley then testified. He was first qualified as an expert in economic planning for development. See N.T. 8/8/12 at 10. The Technical Memorandum which was prepared by Mr. Hartley was then introduced into evidence as Exhibit-16. According to the Technical Memorandum and Mr. Hartley's testimony, the Subject Property and the area in which it is located cannot support retail development. See N.T. 8/8/12 at 10-13; see also Technical Memorandum. In particular, Mr. Hartley testified "that there was very little opportunity to
Case ID: 120900976
imagine any substantial retail development occurring on this block because of the shrinkage of the adjacent district and the increased competition coming upon on Girard." See N.T. 8/8/12 at 12. Moreover, the Technical Memorandum concludes that "a decision not to include retail/commercial space in this development would be justified by the findings of this report." See Technical Memorandum at page 9. 12. Mr. Beauvais then testified that given Mr. Hartley's conclusions "I would have to say that we do have a hardship because the area has been struggling with this blighted structure for several years, which has outlived its usefulness and has been clearly for sale. It sits as and eyesore. In order to do the amount of work needed for a proper rehab, the cost becomes prohibited for any developer or retailer to rehab the property." See N.T. 8/8/12 at 13. With respect to the existing bank building on the Subject Property, the Applicant's Engineering Report (Exhibit-13) concluded that the buildings are in "severely deteriorated, precarious condition, and, in my opinion beyond the point of being feasible for rebuilding, and are unsafe at some locations. My recommendation is demolish." See Applicant's Engineering Report; see also N.T. 8/8/12 at 14. 13. With regard to no negative impact on the surrounding neighborhood, Mr. Beauvais testified as follows: Now, given the fact that we're providing parking, open space, affordable housing, landscaping and breathing life into an area that has been blighted for years, we submit that granting our variance will not negatively impact the area or the community. Now, with respects to the community, the principals did meet with several community organizations, which resulted in letters of support, which is marked as Exhibit-14. We also obtained signatures. You'll see a list of petitions with signatures of over 280 neighbors who support this project. See N.T. 8/8/12 at 14. 14. In particular, Mr. Beauvais pointed out two letters of support, one from Youth United For Change and the Norris Square Civic Association, which is the registered community organization. See N.T. 8/8/12 at 16. According to those letters, copies of which are part of the record, the proposed development will create and preserve much needed affordable housing and will help to revitalize a dangerous corner in the community. 15. The next person to testify was Ms. Tara Cologne, 144 West Norris Street. She is a resident of the community. She believes that it is unsafe to have "that building there. There is also an abandoned building adjacent on the same — when you are walking on Norris, there is this abandoned building on my side where I live, 144. On the opposite side there is another abandoned building." See N.T. 8/8/12 at 17. Ms. Cologne continued: "To be quite honest, I'd rather have residents there, where my girls can knock, G-d forbid, if anything happens, and there is actual human beings all hours of the night that can actually come to their aid." See N.T. 8/8/12 at 18. 16. Next to testify was David Robinson, 164 West Norris Street, who told the Board that the Subject Property is "nothing but a blighted building. It is a trash heap; it smells like urine most of the time to walk past..." See N.T. 8/8/12 at 18. The next two people to testify in
Case ID: 120900976
support of the proposed development were in favor of the fact that it will provide much needed affordable housing and, in particular, housing for people with disabilities. See N.T. 8/8/12 at 19,20. In particular, Ms. Patricia DeCarlo, executive director of Norris Square Civic Association testified that the cost of rentals "have gone sky high, and there is a real need for affordable housing because we still have a lot of low income families in the neighborhood. So it will be a great use." See N.T. 8/8/12 at 20,21. 17. Next to testify was Dan Dunphy from Councilwoman Quinones Sanchez's office. The Council woman supports the proposed development of the Subject Property. See N.T. 8/8/12 at 23. 18. First to testify in opposition to the Application was Andy Guerrero from East Kensington Neighborhood Association ("EKNA"). EKNA would like more commercial and are against any residential on the first floor. See N.T. 8/8/12 at 24. EKNA has been trying to revitalize this corridor "and we feel that if they put residential on the first floor, it's going to definitely set us back to attract more businesses." See N.T. 8/8/12 at 25. He said that the vote of EKNA was sixty-one (61) opposed and twenty-one (21) in support. See N.T. 8/8/12 at 26. 19. Next to testify in opposition was Jordan Rushie, Esquire on behalf of the Fishtown Neighbors Association ("FNA"). FNA "overwhelmingly" voted in opposition to the Application. See N.T. 8/8/12 at 29. One of FNA's concerns was the demolition "of a historic building when there is empty sites nearby." See N.T. 8/8/12 at 29. FNA is concerned that there is an insufficient mix of uses proposed for the Subject Property. See N.T. 8/8/12 at 29. They are also concerned with density and noise. See N.T. 8/8/12 at 29. FNA believes this is too dangerous a street to put residential. See N.T. 8/8/12 at 29,30. 20. Next to testify in opposition was Carmen Golden, 1918 Hope Street. Parking is a big concern for Ms. Golden and other neighbors who live on Hope Street. See N.T. 8/8/12 at 32. Ten (10) parking spaces for twenty-five (25) units is not sufficient. See N.T. 8/8/12 at 32. Being close to the Berk Street Station for the El "makes the parking almost impossible." See N.T. 8/8/12 at 33. There is also a school in the area which takes up parking spaces. See N.T. 8/8/12 at 33. Her next concern was "population density." See N.T. 8/8/12 at 33. "Now, there is no green space, there is no area planned, which means that they're either going to be overflowing our streets or they're going to be playing in dangerous areas." See N.T. 8/8/12 at 34. Her other concern is trash collection. See N.T. 8/8/12 at 34. 21. Next to testify in opposition was Karen Denise Lewis, 1913 North Hope Street. In addition to her testimony, Ms. Lewis also submitted a letter dated August 1,2012, a copy of which is part of the record. 22. The Planning Commission testified that the Subject Property is indicated for commercial use on the comprehensive plan, however, the Planning Commission staff had no objection to the granting of the variances. See N.T. 8/8/12 at 52. 23. Based on the record as a whole, the Board determined that the grant of the requested variances with proviso would satisfy the criteria for granting variances set forth in Section
Case ID: 120900976
14-1802(1) and (2) of the Zoning Code. More specifically, and without limitation, the Board finds: a. that because of the particular size and configuration of the Subject Property and its physical surroundings, i.e., a vacant lot with a blighted building that needs to be demolished in an area that cannot support commercial use but that supports transitoriented development with its close proximity to public transportation, a literal enforcement of the Zoning Code would result in unnecessary hardship; b. that the conditions which the appeal for a variance are based are unique to the Subject Property, in particular being a vacant lot with a blighted building that needs to be demolished in an area that cannot support commercial use but that does support transitoriented development with proposed physical improvements that would make it well suited for and blend in with the existing neighborhood and provide much needed affordable housing as well as some commercial space on the first floor; c. that the variance will not substantially or permanently injure the appropriate use of adjacent conforming property especially where, as here, the size, design and proposed use of the Subject Property would fit within the character of the neighborhood and, in particular, would cater to low income families that use public transportation; d. that the special conditions or circumstances forming the basis for the variance did not result from the actions of the Applicant but rather from the nature of the Subject Property itself and its location in a neighborhood that cannot support a commercial use at this location; e. that the grant of the variance will not substantially increase congestion in the public streets especially where, as here, the Applicant demonstrated that the residents of the Subject Property would be from low income families who primarily use public transportation; f. that the grant of the variance will not increase the danger of fire, or otherwise endanger the public safety; g. that the grant of the variance will not overcrowd the land or create an undue concentration of population especially where, as here, the community in which the Subject Property is located is in need of low income housing; h. that the grant of the variance will not have any effect on an adequate supply of light and air to adjacent property; i. that the grant of the variance will not adversely affect transportation or unduly burden water, sewer, school, park or other public facilities; j. that the grant of the variance will not adversely affect the public health, safety or general welfare;
Case ID: 120900976
k. that the grant of the variance will be in harmony with the spirit and purpose of the Zoning Code; and 1. that the grant of the variance will not adversely affect in a substantial manner the Comprehensive Plan for the City especially where, as here, although the Subject Property is indicated for commercial use on the comprehensive plan the proposed residential development of the Subject Property (with some commercial space on the first floor) is supported by the Planning Commission. 24. After carefully considering all of the evidence and testimony provided at the Hearing, as well as the information provided before and at the Hearing, the Board voted unanimously to approve the variances with the proviso that it be based on the plans stamped by the Board on August 14,2012. Accordingly, the Board issued its Notice of Decision on August 14,2012 granting the requested variances with proviso. Conclusions of Law 1. The issues before the Board are whether variances should be issued for the reasons set forth in the Notice of Refusal. 2. For the reasons described in the Findings of Fact above, Applicant petitioned the Zoning Board to approve the requested variances. 3. Pursuant to§14-1801(l)(c)ofthe Zoning Code, the Board may, after public notice and public hearing, authorize upon appeal in specific cases such variance from the terms of the Zoning Code as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of the Zoning Code would result in unnecessary hardship, and so that the spirit of the Zoning Code shall be served and substantial justice done, subject to such terms and conditions as the Zoning Board may decide. 4. Sections 14-1802(1) and (2) set forth the criteria the Board must consider in deciding whether to grant a variance. These include, without limitation, the following: (a) that because of the particular physical surrounding, shape or topographical conditions of the specific structure or land involved, a literal enforcement of the provisions of [the Zoning Code] would result in unnecessary hardship; (b) that the conditions which the appeal for a variance is based are unique to the property for which the variance is sought; (c) that the variance will not substantially or permanently injure the appropriate use of adjacent conforming property; [and]
Case ID: 120900976
(d) that the special conditions or circumstances forming the basis for the variance did not result from the actions of the applicant; Zoning Code at § 14-18G2(l)(a),(b),(e) and (d). 5. The Supreme Court of Pennsylvania has defined a variance as "a departure from the exact provisions of a zoning ordinance... granted where a strict enforcement of the literal terms of the ordinance will result in unnecessary hardship upon a particular property over and above the hardship that may be imposed... on all properties in that community." Brennan v. Board of Adjustment, 409 Pa. 376, 197 A.2d 180 (1963). 6. The burden of proof in obtaining a variance is upon the landowner. Evidence in support of the variance must be presented showing a hardship unique or peculiar to the property. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550,462 A.2d 637 (1983), Yeager v. Zoning Hearing Board, 779 A.2d 595 (Pa. Cmwlth. Ct. 2001). 7. To establish entitlement to a variance, an applicant must show an unnecessary hardship resulting from the property's unique physical conditions or circumstances; that such hardship is not self-imposed by the applicant; that granting the variance would not adversely affect the public health, safety or welfare; and that the variance, if granted, would represent the minimum necessary to afford relief. Alpine, Inc. v. Abington Twp. Zoning Hearing Board, 654 A.2d 186 (Pa. Cmwlth. 1995). 8. Unnecessary hardship is established only where it is shown that compliance with the zoning ordinance could render the property practically useless. Ignelzi v. Zoning Board of Adjustment of the City of Pittsburgh, 61 Pa. Commw. 101, 433 A.2d 158 (Pa. Cmwlth. 1981)." Evans v. Zoning Hearing Board, 732 A.2d686,691 (Pa. Cmwlth. Ct. 1999). 9. The record before the Board demonstrates that the literal enforcement of the Zoning Code against the Subject Property would result in an unnecessary hardship due to the physical surroundings and particular size and configuration of the Subject Property; that the proposed residential use of the Subject Property (with some commercial space on the first floor) will have no adverse effect on the public health, safety or general welfare; and that the variances being requested represent the minimum variances that will afford relief at the least modification possible especially where, as here, the Applicant has demonstrated that the Subject Property cannot be used as zoned and where the existing building is blighted, dangerous and needs to be demolished. 10. The Applicant presented sufficient evidence demonstrating the unique nature of the Subject Property. In particular, the Applicant demonstrated that the Subject Property cannot comply with the requirements of the Zoning Code set forth in the Notice of Refusal because the Subject Property cannot be used for commercial use. Moreover, the Applicant demonstrated that the parking being provided was more than adequate for the proposed residential development especially where the residents will be from low-income families and will primarily use public transportation. The Applicant also demonstrated that the proposed consolidation of five (5) lots into one (1) with multiple buildings along with parking and
Case ID: 120900976
common areas (including landscaping) was the minimum needed to properly develop the Subject Property otherwise the Subject Property could not be used as zoned. The Applicant also demonstrated that the existing buildings on the Subject Property were blighted, dangerous and needed to be demolished in order for any development to occur. 11. The evidence demonstrates that the proposed use of the Subject Property will not overcrowd the neighborhood. The evidence supports the conclusion that the proposed use of the Subject Property is consistent with the other uses in the neighborhood in which the Subject Property is located and will provide much needed affordable housing to the community. In other words, the proposed use of the Subject Property would be in harmony with the surrounding neighborhood. Clearly, using the Subject Property for low-income housing represents a higher and better use of the Subject Property which cannot be used as zoned and has been nothing more than vacant ground, a blighted building and an attractive nuisance for many years. 12. The Applicant provided sufficient evidence to overcome its burden of proof to demonstrate why the Subject Property has sufficient off-street parking. The Applicant also provided sufficient evidence to support the need for multiple buildings on one lot. Moreover, the Applicant provided sufficient evidence that the Subject Property could not be used as zoned. 13. Such evidence demonstrates that the special conditions or circumstances forming the basis for the variance did not result from the actions of the Applicant. Furthermore, this evidence establishes that the conditions which the appeal for the variance are based are unique to the Subject Property. As a result, the Board determined that literal enforcement of the Zoning Code would result in an unnecessary hardship. The Board also determined that the variances were the minimum variances necessary to afford relief. 14. The Board also determined that granting the variance would not (i) substantially or permanently injure the appropriate use of adjacent conforming properties; (ii) substantially increase congestion in the public streets; (iii) increase the danger of fire, or otherwise endanger the public safety; (iv) overcrowd the land or create an undue concentration of population; (v) impair an adequate supply of light and air to adjacent property; or (vi) adversely affect transportation or unduly burden water, sewer, school, park or other public facilities. 15. The Board concluded that the testimony, as well as other documentary evidence support the conclusion that the granting of the variances with the proviso will keep the Subject Property in harmony with the spirit and purpose of the Zoning Code and will not (i) substantially or permanently injure the appropriate use of adjacent conforming property; or (ii) adversely affect the public health, safety or general welfare. 16. In granting the variances, the Board carefully weighed all of the evidence before it. The Board determined that the Applicant had satisfied its burden of proof. 17. Based upon the record as a whole, the Board concludes that Applicant has met its burden of establishing entitlement to the variances as set forth in Sections 14-1802(1) and (2) of the 10
Case ID: 120900976
Zoning Code. More specifically, the Board determined that the issues presented in this matter are unique to the Subject Property, the proposed use of the Subject Property is consistent with the area surrounding the Subject Property, that literal enforcement of the Zoning Code would create an unnecessary hardship to the Subject Property, that there would be no adverse impact on the public health, safety or general welfare and that the variances represent the minimum variances that will afford relief at the least modification possible.
Case ID: 120900976
BOARDS D I V I S I O N
Jan 29 2013 13:16
18. For the foregoing reasons, the Board concludes that the requested variances should be granted. Respectfully submitted,
Marf Jdife McKinney Zoning Board Administrator
VOTE OF THE BOARD Lynette M. Brown-Sow Samuel Staten, Jr. Martin Bednarek Yes with proviso Yes with proviso Yes with proviso
Case ID: 120900976