IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Manayunk Neighborhood : Council, Friends of Manayunk : Canal, Jane Glenn, Kevin Smith, : Dolores Lombardi and : Darlene Messina : : v. : NO. 2407 C.D. : 2001 Zoning Board of Adjustment of : The City of Philadelphia and : Cotton Street Landing : Argued: November 5, 2002 Associates, L.P. : Appeal of: Cotton Street : Landing Associates, L.P. : BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE JAMES R. KELLEY, Senior Judge
| OPINION NOT REPORTED | |
|
MEMORANDUM OPINION
BY SENIOR JUDGE KELLEY |
FILED: March 14, 2003 |
Cotton Street Landing Associates, L.P. (Landowner) appeals from the order of the Court of Common Pleas of Philadelphia County (trial court) sustaining the statutory appeal of Manayunk Neighborhood Council, Friends of Manayunk Canal, Jane Glenn, Kevin Smith, Dolores Lombardi and Darlene Messina (Objectors), and reversing the decision of the Zoning Board of Adjustment (Board) of the City of Philadelphia (City) which had granted Landowner's application for use and zoning variances. We reverse.
Landowner owns 3 parcels of land on Venice Island, a man-made island situated between the Manayunk Canal and the Schuylkill River. The island lies within the 100-year flood plain of the Schuylkill River, and within the floodway of the Schuylkill River.
On November 22, 1999, Landowner submitted an application to the City's Department of Licenses and Inspections (Department) for zoning and use registration permits to reconfigure the lot lines, thereby creating 1 lot out of the 3 existing lots. The application also sought permission to demolish the existing structures on the parcel, constituting approximately 48,000 square feet of total ground floor area, and to construct 2 multi-family structures thereon, constituting approximately 4,000 square feet of total ground floor area.1 Specifically, the new complex would contain 270 apartment units, 392 accessory parking spaces, and 183 public parking spaces. The apartments would be constructed 1-1/2 feet above the Schuylkill River's 100-year flood level. The proposed parking would be located partially below grade and entirely within the river's 100-year flood level. Each apartment in the complex would be provided with an emergency evacuation plan, a copy of which would be provided to the City's Office of Emergency Management.
On December 2, 1999, the Department denied Landowner's application. The Department determined that Landowner's proposed development did not comply with the use, area, parking and floodway regulations for the G-2 Industrial Zoning District in the City's Zoning Code (Code). Specifically, the Department determined that the proposed construction would not comply with the
1
At the time of application, the parcels
of land were in a G-2 Industrial Zoning District of the City and were
used for storing baled waste paper, a permitted use in this Zoning
District.
2
provisions of Sections 14-508(3)(b)2, 14-606(5)(a)3 and 14-1404(4)4 of the Code. The Department also noted that approval from the City's Planning Commission,
2
Section 14-508(3)(b) of the Code provides:
(3) Prohibited Uses. The specific uses which are
prohibited in this district shall be the erection, construction,
alteration, or use of buildings and/or land for:
* * *
3
Section 14-1606(5)(a) of the Code provides, in pertinent part:
(5) Special Controls. The following special controls are
imposed to regulate setbacks in the flood plain, construction, and
earth-moving activity along watercourses subject to flooding. These
controls are in addition to the requirements of the Pennsylvania
Department of Environmental Resources:
(a) Within the Floodway:
(.1) No encroachment (including fill, new construction,
or any development) is permitted except that public
utilities are permitted as long as they cause no increase in
the One-Hundred (100) Year Flood level...
* * * (.3) Construction or substantial improvement of any
structure used for the production or storage of any of the
following list of materials; or used for any activity
requiring the maintenance of a supply in excess of five
hundred fifty (550) gallons or other comparable volume; or
used for any purpose involving the production, storage, or
use of any amount of radioactive substance shall be
prohibited; and no variances shall be granted by the Zoning
Board of Adjustment:
* * * (.1) Petroleum products-gasoline, fuel oil, and the like...
4
Section 14-1404(4) of the Code provides:
(4) Area per Parking Space:
(a) The minimum dimensions of each individual parking space in
any Industrial District shall be not less than nine feet by
eighteen feet.
(b) An additional area equal to 25% of the area of all the
required individual parking spaces shall be provided for aisles
and driveways as access to the parking spaces.
3 Streets Department and Water Department would be required prior to the
Board's approval of the project.
On December 10, 1999, Landowner appealed the Department's
determination to the Board, and hearings before the Board ensued.5 The testimony of a number of witnesses was
presented both in support of, and in opposition to, Landowner's proposed
development on the property. Landowner presented the testimony of its
architect, Jack Thrower, who opined that Landowner's proposals for the
property would be compatible with the surrounding neighborhood. He also
opined the G-2 zoning classification was archaic and inappropriate for
the property, and that the proposals would satisfy the criteria for
granting the variances.
Landowner also presented the testimony of Elmore Boles, an expert civil
and transportation engineer. He opined that the proposals for the
property,
5
During the pendency of the proceedings before the Board, the City
Council enacted an ordinance which changed the zoning designation of
Landowner's property from G-2 Industrial to RC-1 Residential, and
another ordinance which related to the density of the units that could
be constructed. However, Landowner chose not to resubmit its application
for zoning and use registration permits to the Department in light of
these changes. Rather, Landowner proceeded with its appeal of the
Department's initial determination under the prior ordinance. In fact,
at a hearing before the Board, Landowner apprised the Board of the
changes in the Code, and argued that the proposed use was now a
permitted use in the Zoning District. See N.T. 3/13/2000 at 3-5, 9-10.
Landowner alleged that the only relevant issue for consideration by the
Board at that hearing was whether the development would affect the
floodway levels. Id. at 5, 9-10, 11-13.
4 including the construction of 270 apartment units, would not
substantially increase traffic congestion in the area. He also opined
that because the proposals would reduce the obstructions presently
existing on the property, the resistance in the flow of water would be
substantially reduced, and the water level during a flood event would
actually be decreased.
The Board also considered a flood hazard analysis from Dr. J. Richard
Weggle, an expert hydraulic engineer, to determine what impact the
proposals would have on Schuylkill River water levels during a 100-year
flood. Utilizing data received from the Army Corps of Engineers, and
adjusting it for subsequent development along the river, Dr. Weggle
opined that the proposals would not only comply with the Federal
Emergency Management Agency's (FEMA) requirements by not increasing the
water levels, but would also improve flood conditions by removing
obstructions from Venice Island.
The Board also considered a letter from FEMA which indicated that the
proposals would comply with the requisite federal floodway regulations,
but that this should not be considered as an approval of the project and
that all other federal, state and local flood regulations must still be
met. In addition, the Board considered a letter from the Director of
FEMA to the City's Mayor which stated that the City's eligibility for
the National Flood Insurance Program could be jeopardized if the
proposals were deemed to be unsound under federal standards.
The Board also acknowledged that the City's Planning Commission
recommended against granting the variances as the proposals failed to
comply with the City's comprehensive plan for the redevelopment of
Venice Island. The Commission further recommended that if the variances
were granted, the Board
5 should also impose provisos requiring Landowner to comply with all of
the screening, landscaping, setback and public access requirements of
the Code.
The Board also considered the testimony and reports of a number of
expert and lay witnesses presented by Objectors in opposition to the
grant of variances. Ultimately, on August 14, 2000, the Board issued a
decision granting the requested variances, and imposing a number of
provisos.6 However, the Board limited the
development to the construction of 153 apartment units.
On August 29, 2000, Landowner requested that the Board reconsider its
determination with respect to the number of units that could be
constructed. On September 20, 2000, a hearing was conducted before the
Board regarding Landowner's request for reconsideration.
On September 27, 2000, the Board issued a decision granting Landowner's
request, thereby permitting the construction of 270 apartment units on
the property, and imposing the same provisos. In support of this
decision, the Board issued findings of fact and conclusions of law which
states, in pertinent part:
6
The following provisos were imposed by the Board: (1) approval by the
City's Planning Commission, Streets Department and Water Department; (2)
a maximum of 153 units; (3) compliance with all federal, state and city
requirements; (4) the storage of trash in an enclosed area within the
property line; (5) the use of commercial trash pickup; (6) the
installation of a garbage disposal in each unity; (7) compliance with
the City's Fire Code; and (8) central air conditioning in each unit.
6 12. The variances with the imposed provisos are the minimum
necessary to afford relief to [Landowner].
13. [Landowner] has persuasively established that the proposals for
the subject property, with the addition of the imposed provisos,
would not adversely impact the public health, safety or welfare. In
particular, the [Board] has been persuaded that [Landowner]'s
proposals would actually decrease the flood levels of the Schuylkill
River by removing obstructions to the flow of water from Venice
Island and that traffic congestion in the subject area would not be
substantially increased. In addition, the Board has determined upon
reconsideration that 270 units on the property would not be overuse
of the land.
14. For all of the foregoing reasons, the [Board] voted, at Calendar
99-1388, granting use and zoning variances with provisos for the
[subject property]
Board Decision at 14.
On October 17, 2000, Objectors appealed the Board's decision to the
trial court7, and hearings before the
court ensued. On August 29, 2001, the trial court issued an order
sustaining Objectors' appeal, and reversing the Board's decision.
Specifically, the trial court determined that: (1) Landowner had failed
to demonstrate the requisite unnecessary hardship to support the grant
of a variance; and (2) because the Board had failed to adequately
consider the risks to the public safety posed by the construction in a
floodway and floodplain, the Board lacked sufficient support for its
decision granting Landowner's request for a variance. See
7
Objectors had also filed an appeal from the prior decision of the
Board dated August 14, 2000. Pursuant to a stipulation executed by the
parties, the trial court consolidated the two appeals.
7 Trial Court Opinion at 13-19. On September 21, 2001, Landowners filed
the instant notice of appeal.8
In this appeal, Landowner claims that the trial court erred in reversing
the Board's decision as it is supported by substantial evidence. We
agree.9
As this Court has recently noted, a zoning hearing board may grant a
variance when the following criteria are met: (1) due to the unique
physical circumstances or conditions of the property, an unnecessary
hardship will result if the variance is denied; (2) due to such physical
circumstances or conditions of the property, the property cannot be
developed in strict conformity with the provisions of the relevant
zoning ordinance and a variance is necessary to enable the reasonable
use of the property; (3) the hardship is not self-inflicted; (4)
granting the variance will not alter the essential character of the
neighborhood nor be detrimental to the public welfare; and (5) the
variance sought is the minimum variance that will afford relief.
Manayunk Neighborhood Council, 815 A.2d at 656, (quoting Ruddy
v. Lower Southamton Township Zoning Hearing Board, 669
8
Absent the presentation of additional evidence after the Board's
decision, as here, our scope of review is limited to determining whether
the Board committed an error of law or abuse of discretion. Manayunk
Neighborhood Council v. Zoning Board of Adjustment of the City of
Philadelphia, 815 A.2d 652 (Pa. Cmwlth. Nos. 2301, 2302 C.D. 2001, filed
December 23, 2002). In addition, it is well settled in zoning cases that
the Board is the fact finder, with exclusive province over matters of
credibility and weight to be afforded the evidence. Id. Moreover, on
appeal, this Court will not engage in fact fording or disturb the
Board's credibility determinations. Id.
9
Landowner also offers alternative grounds to affirm the Board's
decision in this case. Namely, Landowner asserts that: (1) the G-2
Zoning of the parcels constitutes impermissible "spot zoning"; (2) it is
entitled to a "validity variance" because the G-2 Zoning was restrictive
to the point of being confiscatory; and (3) Objectors failed to present
sufficient evidence in opposition to the variances. However, as pointed
out by Objectors, all of these claims are waived as they were neither
raised in the proceedings before the Board nor in Landowner's Rule
1925(b) Concise Statement of Matters Complained of on Appeal.
8 A.2d 1051, 1053 (Pa. Cmwlth. 1995), petition for allowance of appeal
denied, 546 Pa. 651, 683 A.2d 887 (1996)).
With respect to residential development on Venice Island by a different
developer, this Court recently noted the following, in pertinent part:
Section 14-1606 of the [Code] sets forth special restrictions applicable
to floodplains and floodways. That section states that no encroachment,
including any development or new construction, is permitted within the
Schuylkill River's floodway. Section 14-1606(a)(5) of the Code. Because
Applicant proposes to construct a residential apartment complex and
parking lot, the proposal violates the floodway restriction.
* * * Where an applicant demonstrates that compliance with a zoning ordinance
would render the property virtually useless, the applicant demonstrates
unnecessary hardship. Allegheny West Civic Council, Inc. v. Zoning Bd.
of Adjustment of the City of Pittsburgh, 547 Pa. 163, 689 A.2d 225
(1997). Where, as here, zoning regulations prohibit any reasonable use
of the property absent variance relief, the requisite hardship is
proven. Ruddy.
Ruddy is instructive. In Ruddy, a landowner sought
to develop a vacant lot located in a flood plain. The zoning
ordinance, however, prohibited any construction or development
within the flood plain. Therefore, the landowner applied for a
variance. The landowner presented evidence that FEMA reviewed his
proposal and had no objection. We held a variance was required to
enable the landowner to utilize the property for any reasonable
purpose, because no use of the property was permissible.
Here, as in Ruddy, the Subject Properties are located in a
floodway. Like the ordinance in Ruddy, the Code prohibits
any development within the floodway. As in Ruddy, Applicant
introduced a letter stating the proposal complies with FEMA
regulations. Moreover,
9 the Board imposed a condition that Applicant must submit a hydraulic
study prepared by a registered engineer that satisfies FEMA
requirements. Requiring compliance with the Code's prohibition on
development in the floodway would render the Subject Properties
virtually useless. Therefore, the Board correctly concluded Applicant
will suffer unnecessary hardship if the variance is denied.
The Board found the proposals are in harmony with surrounding area.
Moreover, the Board found that, because of the changes in zoning, the
variance from the floodway restriction is necessary to enable any
reasonable use of the Subject Properties and is the minimum variance
that will afford relief. These findings are supported by substantial
evidence and will not be disturbed on appeal.
* * * Objectors argue the Board abused its discretion in granting the
variances by ignoring overwhelming evidence that Applicant's proposal
would be detrimental to the community. Relying extensively on testimony
not relied on by the Board, Objectors claim no reasonable fact finder
could have found as the Board did because Objectors' witnesses were more
persuasive.
* * * In zoning cases it is well-settled that the Board is the fact finder,
with exclusive province over matters of credibility and weight to be
afforded the evidence. In re Realen Valley Forge Greenes
Assoc., 799 A.2d 938 (Pa. Cmwlth. 2002). Moreover, this Court
will not engage in fact finding or disturb the Board's credibility
determinations on appeal. In re Brickstone Realty Corp., 789
A.2d 333 (Pa. Cmwlth. 2001).
Applicant presented testimony and reports by two engineering experts,
Elmore Boles and Dr. John Waggle [sic]. Boles, a registered civil
engineer, opined the proposal would not create a rise in floodwaters;
therefore,
10
(b) Dwellings, except such as are used for the residence of a
caretaker, watchman, or custodian on the same lot with the
principal use and located at least 10 feet from any other
buildings...
10. The [Board] concludes that literal enforcement of the Zoning Code
would result in unnecessary hardship to [Landowner] which support the
granting of both use and dimensional variances for the
subject property.
11. The hardships presented are not selfimposed by [Landowner].
Applicant's proposal would comply with all regulations governing new construction in the floodway. Moreover, the proposal would reduce existing obstructions by 30 percent, causing reduced resistance in the flow of the water, resulting in decreased water levels. He further testified that all proposed units would be a minimum 14 feet above the Schuylkill River's 100-year flood level. The Board accepted this testimony as credible and persuasive.
* * *
The Board made findings and cited specific evidence in support of each material finding. The Board concluded that Applicant's proposal would not adversely impact the public health, safety and welfare. R.R. 500a 501 a. Because there is sufficient evidence to support this conclusion, the Board did not err on this issue.
Id., 815 A.2d at 656-658.
Accordingly, the order of the trial court is reversed. Id.
JAMES R. KELLEY, Senior Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Manayunk Neighborhood : Council, Friends of Manayunk : Canal, Jane Glenn, Kevin Smith, : Dolores Lombardi and : Darlene Messina : : v. : NO. 2407 C.D. : 2001 Zoning Board of Adjustment of : The City of Philadelphia and : Cotton Street Landing : Associates, L.P. : Appeal of: Cotton Street : Landing Associates, L.P. :
ORDER
AND NOW, this 14th day of March, 2003, the order of the Court of Common Pleas of Philadelphia, dated August 29, 2001 at Nos. 2000-001202 September Term, 2000 and 2000-002398 October Term, 2000, is reversed.
JAMES R. KELLEY, Senior Judge