Brief of Intervenor (Property owner of 1601 Washington Ave)

8/9/2019 Brief of Intervenor (Property owner of 1601 Washington Ave)

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O RPHANIDES & T ONER , LLP Attorneys for Intervening Appellee, David G. Orphanides, Esquire (Atty. I.D. 57929) TVG 1601 Washington LLCPaul J. Toner, Esquire (Atty. I.D. 94185)

Two Penn Center, Suite 4001500 John F. Kennedy Boulevard

Philadelphia, PA 19102Tel.: (267) 236-7500Fax: (267) 236-7501Email: [email protected]

[email protected]

HUE MY LAM : COURT OF COMMON PLEASand : PHILADELPHIA COUNTY

HAI TUAN NGO :Appellants : APRIL TERM, 2014

v. : CIVIL ACTION NO. 01398

:ZONING BOARD OF ADJUSTMENT : Statutory AppealAppellee : Premises: 1601 Washington Avenue

and ::

TVG 1601 Washington LLC : ZBA CAL. No. 21336Intervening Appellee :

BRIEF OF INTERVENING APPELLEE

Intervening Appellee, TVG 1601 Washington LLC (the Applicant), by and through its

attorneys, Orphanides & Toner, LLP, submits this Appellee Brief in opposition to the appeal

taken by Appellants, Hue My Lam and Hai Tuan Ngo (Appellants) , from an April 3, 2014

decision of the City of Philadelphia Zoning Board of Adjustment (the ZBA) to grant a variance

for use(s) of/at a property owned by the Applicant located at 1601 Washington Avenue,

Philadelphia, Pennsylvania (the Subject Property), and the arguments made by Appellants in

their brief filed with the Court on September 2, 2014.

MATTER BEFORE THE COURT:

Before the Court is an appeal that the Appellants, who are the owners of an industrial-

zoned property located adjacent to the Subject Property that the Appellants operate as and/or rent

Case ID: 140401398

Filed and Attested by PROTHONOTARY

07 OCT 2014 08:32 am L. OWENS
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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or let out for commercial-type uses, filed from the April 3, 2014 decision of the ZBA to grant the

Applicant a use variance to utilize the by-right structure it proposes to erect on the similarly

industrial-zoned Subject Property with a mix of commercial and residential uses in keeping and

in character with the post-industrial combination of predominantly commercial and residential

uses on or at the properties situated along the same largely industrially-zoned section of

Washington Avenue where the Subject Property is located.

COUNTER-STATEMENT OF THE ISSUES:

I. WHETHER THE ZBA COMMITTED EITHER AN ERROR OF LAW OR ABUSE OFDISCRETION IN FINDING AND CONCLUDING THAT AN UNNECESSARYHARDSHIP WOULD ARISE FROM THE DENIAL OF APPLICANTS REQUESTEDUSE VARIANCE TO DEVELOP A MIXED RESIDENTIAL-COMMERCIAL BY-RIGHT STRUCTURE ON AN INDUSTRIAL ZONED PARCEL WITH UNIQUEPHYSICAL CHARACTERISTICS THAT IS LOCATED IN AN LARGELYINDUSTRIAL-ZONED AREA THAT HAS ALREADY CLEARLY TRANSITIONEDFROM INDUSTRIAL USES TO A MIX OF COMMERCIAL AND-RESIDENTIALUSES?

Suggested Answer: No. The ZBA heard extensive testimony, received aconsiderable amount of evidence, reviewed the extensiverecord, weighed the competing evidence and made

credibility determinations in coming to its reasonablysupported decision that an unnecessary hardship wouldarise from the denial of the requested use variance.

II. WHETHER APPELLANTS PERSONAL CONCERN ABOUT THE LOSS OF THEIRLEASED PARKING AT THE SUBJECT PROPERTY OR THE VIEWS OF/FROMWASHINGTON AVENUE FROM/OF THE SUBJECT PROPERTY IS A WHOLLYINSUFFICIENT AND IMPROPER BASIS TO REVERSE THE FINDINGS ANDCONCLUSIONS MADE BY THE ZBA THAT THE INSTANT PURE USEVARIANCE WOULD NOT BE CONTRARY TO THE PUBLIC INTEREST ?

Suggested Answer: Yes. Having been provided with the opportunity to matchApplicants officer to purchase the Subject Property buthaving refused to do so, Appellants have no legal right tocorrect their business decision by either compelling theApplicant to lease them parking spaces for their personal

benefit and gain at or prevent Applicant from a reasonableuse of the Subject Property.

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III. WHETHER THE ZBAS DECISION IS FU LLY IN ACCORD WITH THE BINDINGDECISION IN SOUTH OF SOUTH STREET NEIGHBORHOOD ASS'N V.PHILADELPHIA ZONING BD. OF ADJUSTMENT, 54 A.3D 115 (PA. CMWLTH.2012) AND THE BURDEN SET FORTH THEREIN FOR THE ESTABLISHMENT OFA PURE USE VARIANCE REQUIRED TO DEVELOP PROPERTY IN AN URBAN

AREA THAT HAS TRANSITIONED FROM INDUSTRIAL TO COMMERCIAL-RESIDENTIAL USES?

Suggested Answer: Yes. As in the South of South case, Applicant is seeking a pure use variance from the same industrial zoningrestrictions along the same stretch of the WashingtonAvenue post-industrial corridor.

IV. WHETHER RECENT AMENDMENTS TO THE PHILADELPHIA ZONING CODEREQUIRE AN APPLICANT TO ADOPT ALL STATEMENTS MADE DURING THEPRESENTATION OF EVIDENCE OR JUST THOSE STATEMENT MADE BYCOUNSEL WHEN PRESENTING THE PERSONAL VIEWS OR TESTIMONY OFAPPLICANT RATHER THAN THE GENERAL INTRODUCTION OF EVIDENCE?

Suggested Answer: No. Where, as below, the Applicant actually testifiedthrough two of its members, Applicant was not required toadopt statements made by counsel during the introductionand presentation of evidence.

COUNTER STATEMENT OF FACTS:

In the instant appeal, Appellants fundamental challenge is that the ZBAs de cision was

not based upon substantial evidence. A review of the record reveals the meritless nature of the

instant appeal.

Applicant seeks to develop a five-story mixed-use building with a commercial use or uses

on the first floor and thirty-five residential units on the second through fifth floors. (A copy of

the Site Plan submitted and approved by the ZBA is appended to this Brief as Appendix A. ).

Appellants summary of the layout and design of Applicants proposed five-story, mixed used

building comports with the findings of the ZBA and the plans approved by the City of

Philadelphia Department of Licenses & Inspections (L&I). A complete description is

unnecessary in this response brief.

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There is one use refusal at issue in the instant appeal. On September 10, 2013, L&I

issued a single use refusal premised on the multi-family residential and commercial use proposed

for the Subject Property, which are not permissible within the Citys I -2 Industrial Zoning

District, Code 14-602-3. Other than the use variance at issue in this appeal, Applicants

proposal is fully compliant with the height, set-back and parking provisions of the I-2 district.

A voluminous record was created before the ZBA. The transcript compiled before the

ZBA includes ninety-two (92) pages of testimony, and Applicant alone submitted eighty-seven

(87) pages of documentary evidence; and, the protestants before the ZBA, including the

Appellants, submitted over twenty-seven pages (27) of documentary evidence.In support of its application, Applicant produced the testimony of: (i) Anthony Bisicchia ,

who was the former owner of the Subject Property and who personally witnessed the transition

of Washington Avenue from an industrial to a predominantly commercial corridor (N.T. at 22-

28); (ii) Rory Scerri-Marion , who is a partner in the entity that currently owns the Subject

Property and submitted the instant application (N.T. at 28-30); James McIlhinney , who is a

partner in the entity that currently owns the Subject Property and explained the collaborative

design process that Applicant engaged in with multiple community organizations (N.T. 30-32);

Jon Adler , who is a member of the Board of Directors for the South of South Neighborhood

Association ( SOSNA ) and testified as to the general neighborhood support for mixed use

(residential/commercial) development on Washington Avenue (N.T. at 32-34). In addition to

SOSNA, Applicant presented letters of support from

1. Letter dated October 2, 2013 from the Washi ngton Avenue Property OwnersAssociation (WAPOA) , wherein the ZBA was informed that this project isdesirable in that it addresses the concerns along the Avenueby providing a

profoundly aesthetically pleasing building and bolstering our neighborhoodsfoundation with a commercial and residential mix. WAPOA noted its universal

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approval by the membership of the Association. (A copy of the WAPOA Letterof Support is appended to this Brief as Appendix B. ).

2. Letter dated October 7, 2013 from the South of South N eighborhoodAssociation (SOSNA) , wherein the ZBA was informed that the SOSNAZoning Committee voted 7-0 in favor, Neighbors voted 23-1 in favor, with near-neighbors 3- 0 in support SOSNA also advis ed the ZBA that the issue of theloss of parking to Appellants adjacent shopping center was considered, as well asneighbors from Point Breeze expressing concerns about the project impact on

parking and existing business. Nevertheless, SOSNA chose to ful ly support the project rather than simply issue a position of non -opposition or deferral as provided for in their standard guidelines. (A copy of the SOSNA Letter ofSupported is appended to this Brief as Appendix C . ).

3. Letter Dated October 9, 2013 from Councilman Kenyatta Johnson, 2 nd Council District, wherein the ZBA was informed that Councilman Johnsonexpress[ed] [his] support for the above -referenced project [and stated] that thisapplication will have a positive impact on the neighborhood. (A copy of theCouncilman Johnsons L etter of Support is appended to this Brief as AppendixD. ).

After Applicant presented its case, Steve Cobb from Councilman Johnsons office not

only provided the ZBA with the Councils formal letter of support but also explained that during

the extensive neighborhood review process only one person opposed it. ( N.T. at 34.) A near

neighbor, Job Itzkowitz , volunteered his own testimony in support of the instant application and

explained his personal experience with the transition of Washington Avenue into a mixed use

corridor. (N.T. at 35).

At the c onclusion of hearing, the Philadelphia City Planning Commission (PCPC)

requested that the ZBA hold its vote until the Applicant could present its plans to the PCPC.

(N.T. at 86). Following the Applicants presentation to the PCPC , the PCPC informed the ZBA

that it supported the Applicant and their instant application for a use variance, stating in a letter

issued to the ZBA that at its meeting of December 10, 2013, the Philadelphia Planning

Commission recommended support for the development as proposed [and] that this project be

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given favorable consideration. (A copy of the PCPC Letter of Supported is Appended to this

Brief as Ap pendix E . ).

In opposition to the Applicants requested variance , seven primary witnesses testified and

submitted documentary evidence to the ZBA. Indisputably, those that appeared in opposition to

the Applicants requested variance consisted mainly of the Appellants family members, owners,

operators , employees and/or customers of the commercial uses existing at the Appellants

industrial-zoned property located adjacent to the Subject Property.

Derek Patterson , who lives and works in West Philly and is a family friend of the

Appellants, presented what appeared to be historical as well as current photographs ofWashington Avenue in the area of the Subject Property to show the commercial nature . (N.T.

at 36-40.) Appellant, Hue My Lam , who is a part owner of the adjacent property, only testified

and explained that the parking lot at the Subject Property that was and had been used for parking

by or in connection with the commercial-type uses at their industrial-zoned property that the area

was already congested as it is and there are too many cares in that area (N.T. at 40-41)

Hung Ngo , the brother of Appellant Hue My Lam, simply confirmed the commercial,

non- industrial nature of the (seven) operations at the Appellants industrial -zoned property

located adjacent to the Subject Property, expressed his objection to the loss of parking and sight-

lines, stating that because of the Applicants proposed by -right five- story building you wont

see us and confirmed that the main concern is the density of the development and that the

building is going to impact air, and light, and the ability to see and claimed, without any

support or basis, that they try to chase all the low -income people out. (N.T. at 42-44 and 47)

Amy Trinh , who maintains a professional office at the Appellants industrial -zoned property

located adjacent to the Subject Property, objected to the loss of parking that had previously been

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available for her customers on/at the Subject Property and speculated that theres no way our

customers have space to park, so they force us to close down the mall. We not going to do any

business at all. (N.T. at 45-47) Tony Ngo, believed to be the sister of Appellant Hue My Lam,

stated that if they put this up, they going to kill the business (N.T. at 49). Jenny Ngo , who

purportedly oversees the commercial uses at the Appellants industrial zoned property,

speculated, without any basis or support, that the Applicants proposed building will destroy our

mall and our lives and that events at their property will, because they run late into the night, will

impact and cause conflict with the residential occupants on the Ap plicants adjacent property.

(N.T. at 54-55)Charlotte Jackson , the block captain of the nearby ten hundred block of South

Chadwick Street, testified that the concern is the parking space. (N.T. at 63-64) Sylvia

Wilkins , who resides several blocks away from the Subject Property on the 1700 block of

Federal Street, stated without basis or support that Im going to try to say what everybody else

was trying to say here today. The big issue is the density. and provided the lion share of

testimony by the protestants, mostly regarding the number of proposed dwelling units and traffic

that might have been appropriate if it had been provided by a land use expert with basis and

support, but was irrelevant and relatively unpersuasive when asserted by a lay person. (N.T. at

64-86)

It is of interest to note the complete absence of any testimony, or the introduction of any

evidence, by Appellant, Hai Tuan Ngo , who is also purportedly part owner of the adjacent

industrial zoned property, whether with or without a translator, to voice his protests of or

objection to the granting of the Applicants requested variance.

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Finally, (one of) the protestants at the ZBA hearing submitted a petition to the ZBA

signed mostly by individuals who were/are operators, employees or customers of the commercial

uses existing at the Appellants industrial zoned property , friends with the Appellants and/or live

out-of-state.

Again, it is important to note that as is the case with the Subject Property and the

Applican ts present proposal, Appellants adjacent property is situated in the I -2 Zoning District

and since being converted from a lumber yard has been and continues to be used for commercial-

typed uses. (N.T. at 57). In fact, a tenant in the adjacent commercial shopping center had just

applied for yet another variance to expand an existing commercial use at the Appellants adjacent property. (N.T. at 58.) As the sayings go, this surely seems like a case of the pot calling the

kettle black , or one of do what I say, not what I do.

In the end, the record makes it crystal clear that this is an appeal that has been taken not

because of the zoning variance at issue but because of concerns or impact unrelated thereto but,

instead, to the loss of the use of the property and the erection of a by-right building - the loss of

parking (which none of the protestants that appeared and the ZBA hearing, including the

Appellants, have a right to or can reasonably expect to every regain) and views currently existing

on, over and through the Subject Property of the Appellants industrial zoned property located on

the opposite side of the Subject Property from Washington Avenue. Appellants objections were

based on their personal desire and motivations to deny or prevent the Applicant from using its

property by and through the granting of a legitimate variance by the ZBA in order to continue to

rent Applicant s property for off-site parking for their own commercial use and maintain an

unobstructed line-of-sight to and from the commercial uses at the Appellants property over,

through and across the Subject Property from and to Washington Avenue. Nevertheless, it is

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important to note that the record made clear that the Subject Property is not the sole area used by

customers of the adjacent commercial shopping center. (N.T. at 49-50). Appellants currently

have a total of 108 parking spaces (N.T. at 52) and had leased only 35 to 40 parking spaces at the

Subject Property for about 15 years, on a month-to-month basis. (N.T. at 24, 52). Moreover, the

Board heard testimony that Appellants have the potential to provide additional on-site parking

through the construction of a parking garage on their own property. (N.T. 11) Importantly, the

record substantiated that Appellants were given the first opportunity to purchase the Subject

Property (and continue their accessory parking use). (N.T. at 25) and thereafter were provided

the opportunity to match the price offered by the Applicant herein. (N.T. at 26.) Appellantsrefused to purchase the Subject Property and have instead pursued the instant zoning appeal.

After taking testimony, and waiting for the PCPC to issue its position letter (to support),

the ZBA voted unanimously to approve the requested use variance.

COUNTER STATEMENT OF THE STANDARD OF REVIEW:

It is evident from both the substance and tenor of the Appellants brief that the Appellants

are impermissibly asking the Court to exceed its permissible standard of review, make its own,

or worse yet, adopt the Appellants, credibility determinations, (re)weigh evidence found

credible and persuasive by the ZBA and essentially retry or rehear the case. Appellants are

asking the Court to substitute its judgment for that of the ZBA made after a lengthy hearing

where all parties were afforded a full and unfettered opportunity to present and rebut evidence.

As such, Appellants are asking the Court to exceed its permissible scope of review.

Section 754 of the Local Agency Law provides, in its entirety:

(a) Incomplete record.--In the event a fu ll and complete record of the proceedings before the local agency was not made , the court may hear theappeal de novo, or may remand the proceedings to the agency for the

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purpose of making a full and complete record or for further disposition inaccordance with the order of the court.

(b) Complete record.--In the event a ful l and complete record of the proceedings before the local agency was made, the cour t shal l h ear th e

appeal wi thout a ju ry on the record cer tif ied by the agency . After hearingthe court shall affirm the adjudication unless it shall find that theadjudication is in violation of the constitutional rights of the appellant, oris not in accordance with law, or that the provisions of Subchapter B ofChapter 5 (relating to practice and procedure of local agencies) have beenviolated in the proceedings before the agency, or that any finding of factmade by the agency and necessary to support its adjudication is notsuppor ted by substantial evidence.

2 Pa.C.S.A. 754 (Emphasis added.) Moreover, case law has made clear that, under Section 754

of the Local Agency Law, a common pleas court may not make its own findings of fact when ithas not taken additional evidence. Frey v. Zoning Bd. of Adjustment of City of Pittsburgh, 459

A.2d 917, 918 - 919 (Pa.Cmwlth.1983). See also Society Created to Reduce Urban Blight v.

Zoning Bd. of Adjustment, City of Philadelphia, 804 A.2d 147, 150 n. 3 (Pa.Cmwlth.2002)

(noting that under Section 1005-A of MPC a court reviewing a zoning appeal is statutorily

authorized to make its own findings of fact based on the record below; wher eas, a trial court

reviewing a zoning case under Section 754 of the Local Agency Law, can only make its own

findings after opening the record by means of remand or taking additional testimony).

Case law has clarified that a record is full and complete w hen all parties are afforded

the opportunity to present and rebut evidence. When the Local Agency Law addresses the

disposition of an appeal [i]n the event a full and complete record before the local agency was

made, by legal and logical implication, it means a full and complete record compiled before the

agency in accordance with the law. McAllister v. Civil Service Commission of City of

Philadelphia, 438 A.2d 1043, 1044 - 1045 (Pa. Cmwlth. 1982) (holding that the trial court

exceeded its authority by making findings of fact and conclusions of law and recognizing that

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full and complete record is lacking only where the underlying record hearing was in some

manner legally defective.) For the purpose of determining what constitutes a full and complete

record, the Commonwealth Court has clarified that:

A full and complete record is defined as a complete and accur aterecord of the testimony taken so that the appellant is given a base uponwhich he may appeal and, also, that the appellate court is given asuf fi cient r ecord upon whi ch to rul e on the questions presented. City ofPhiladelphia v. Board of License and Inspection Review , 139 Pa.Cmwlth.240, 590 A.2d 79, 86(quoting Springfield School District v. Shellem , 16Pa.Cmwlth. 306, 328 A.2d 535, 538 (1974)), petition for allowance ofappeal denied, 529 Pa. 625, 600 A.2d 540 (1991) . Nowhere in Section754 is the reviewing court given general authority to make its ownfindings of fact and conclusions of law when the local agency has

developed a full and complete record.... Society Created to Reduce UrbanBlight (SCRUB) v. Zoning Board of Adjustment of the City ofPhiladelphia , 804 A.2d 147, 150 (Pa. Cmwlth. 2002).

In re Thompson, 896 A.2d 659, 668 (Pa. Cmwlth. 2006) (reasoning that a court on appeal

committed a reversible error when it exceeded its statutory authority and reviewed a case de

novo despite a full and complete record having been before council below.)

Here, there is no allegation by the Appellants that they (or any other person or party that

entered their appearance at the hearing and appeared before the ZBA) attempted or sought to

present or rebut evidence and was denied the opportunity by the ZBA. Moreover, and given the

foregoing it makes sense that, the Appellants have not sought to open the record for the taking of

additional testimony; and, pursuant to the Courts scheduling order, that right to re -open the

record has passed and, as such, the issue is waived.

Given the above, in an appeal from a land use decision where the trial court does not

take any additional evidence, the standard of review utilized by the trial court is limited to

determining whether or not the administrative zoning board below committed an error of law, an

abuse of its discretion and/or made findings not supported by substantial evidence. Valley View

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Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983); see also

Upper Salford Township v. Collins, 669 A. 2 nd 335, 337 (Pa. 1995). Rhoads, v. Zoning Hearing

Bd., Bor. of Sewickley, 683 A.2d 122, 1263 n. 1 (Pa. Cmwlth. Ct. 1996), appeal denied, 548 Pa.

663 (Pa. 1997). If the evidence before the Board was such that a reasonable mind might accept

it as adequate to support the findings made, then those findings will not be disturbed on appeal.

Rhoads , 683 A.2d at 1265. Conversely, an abuse of discretion will generally only be found by

the trial court where the where the findings of the administrative zoning board below are not

supported by substantial evidence, substantial evidence being construed as being such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion. Hertzberg v.Zoning Bd. of Adjustment, 554 Pa. 249, 721 A.2d 43, 46 (1998), citing Larson v. Zoning Board

of Adjustment of the City of Pittsburgh, 672 A.2d 286, 299 (Pa. 1996) and Valley View Civic

Association v. Zoning Board of Adjustment, 462 A.2d 637 (Pa. 1983).

Furthermore, decisional law makes clear that a trial courts standard of revi ew includes

whether the administrative zoning boards decision constitutes capricious disregard of the

substantial evidence of record. As explained in Taliaferro v. Darby Twp. Zoning Hearing Board

as [a] capricious disregard occurs only when the fact -finder deliberately ignores relevant,

competent evidence. Capricious disregard of evidence is a deliberate and baseless disregard of

apparently reliable evidence. 873 A.2d 807, 814 (Cmwlth. Ct.) (citing Capasso v. Workers

Comp. Appeal Bd. (RACS Assocs., Inc.), 851 A. 2d 997 (Pa. Cmwlth. 2004)), pet. For allowance

of appeal denied , 585 Pa. 692, 887 A.2d 1243 (2005). Capricious disregards.is just another

name for [a board] abusing its discretion and is an error of law when the [board] fails to give an

indication that it has examined countervailing substantive testimony that had to be considered at

arriving at its decision. Hinkle v. City of Philadelphia, 881 A.2d 22, 27 (Pa. Cmwlth. 2005).

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With this being said, in a zoning case, a zoning hearing board is t he sole judge of the

credibility of the witnesses and the weight to be given to their testimony. Appeal of Lester M.

Prange, Inc., 647 A.2d 279, 282 (Cmwlth.Ct. 1994), citing McDonald v. Zoning Board of

Adjustment, 577 A.2d 240 (Cmwlth.Ct. 1990).

Thus, in reviewing the decision of the ZBA in this matter below, this honorable Court

must exercise a limited scope and standard of review. The Court should only determine if the

ZBAs findings are supported by substantial evidence of record - not whether there could or

should be more than a substantial amount of evidence or whether the Court, or worse yet, the

Appellants, could come to a different determination, one or both of which the Appellants wouldseemingly have the Court believe and apply given the substance and tenor of and in their brief,

but whether there is just enough evidence of and in the record to warrant a determination that it

is substantial - and whether its conclusion conflicts with established law.

ARGUMENT IN OPPOSITION TO APPELLANTS APPEA L AND BRIEF:

I. THE RECORD EVIDENCE SUBSTANTIATES THE ZBAS FINDINGS ANDCONCLUSIONS THAT IT WOULD CONSTITUTE AN UNNECESSARYHARDSHIP TO USE THE SUBJECT PROPERTY FOR AN INDUSTRIALZONED USE WHEN THAT PROPERTY HAS UNIQUE PHYSICALFEATURES, INCLUDING ITS LOCATION IN A LARGELY INDUSTRIALZONED AREA THAT HAS ALREADY CLEARLY TRANSITIONED FROMINDUSTRIAL USES TO A MIX OF COMMERCIAL AND RESIDENTIALUSES.

An applicants burden to establish a hardship variance before the Philadelphia Zoning

Code is well established, yet, as will be elaborated below, it has been misstated and confused in

Appellants Brief.

As an initial matter, it must be noted that Appellants based each of their arguments on a

underlying challenge to the substantial evidence of record premised solely on the fact that such

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evidence was first introduced or summarized by counsel for Applicant before the ZBA. As will

be retailed and thoroughly discussed below, this underlying challenge to the right of counsel to

present and summarize evidence before the ZBA is completely without merit as both the plain

language of the Philadelphia Zoning Code and the very case law cited by Appellants recognizes

the propriety of counsel both introducing and summarizing record evidence. ( Infra Argument

IV).

As just reiterated by the Pennsylvania Supreme Court, the following is a concise, and the

correct, test for whether an applicant establishes an unnecessary hardship sufficient to secure a

use variance from the terms and requirements of the Philadelphia Zoning Code:Section 14 1802(1) [1] of the Zoning Code sets forth specific criteria thatthe ZBA must consider in determining whether to grant a variance. ThisCourt has boiled down the 14 1802(1) criteria into three keyrequirements: (1) unique hardship to the property; (2) no adverse effecton the public health, safety or general welfare; and (3) ... the minimumvariance that will afford relief at the least modification possible. EastTorresdale Civic Association v. Zoning Board of Adjustment ofPhiladelphia County , 536 Pa. 322, 639 A.2d 446, 447 (1994). Thehardship must be unique to the property at issue, not a hardship arisingfrom the impact of the zoning regulations on the entire district. ValleyView Civic Association v. Zoning Board of Adjustment , 501 Pa. 550, 462A.2d 637, 640 (1983). In addition, the special conditions or circumstancesforming the basis for the variance must not have resulted from the actionsof the party seeking the variance. 14 1802(1)(d). The party seeking thevariance bears the burden of proof. Valley View , supra at 640.

This Court has previously held that, in the context of use variances,unnecessary hardship is established by evidence that: (1) the physicalfeatures of the property are such that it cannot be used for a permitted

purpose; or (2) the property can be conformed for a permitted use only ata prohibitive expense; or (3) the property has no value for any purpose

permitted by the zoning ordinance. Hertzberg v. Zoning Board ofAdjustment of the City of Pittsburgh , 554 Pa. 249, 721 A.2d 43, 47

1 With the 2013 reenactment of the Philadelphia Zoning Code, the criteria previously set forth inSection 14-1802 was reenacted in Section 14-303 of the Zoning Code.

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(1998) (citing Allegheny West Civic Council, Inc. v. Zoning Board ofAdjustment of the City of Pittsburgh , 547 Pa. 163, 689 A.2d 225, 227 28(1997)); see also Eighteenth & Rittenhouse Associates v. Zoning Board ofAdjustment , 26 Pa.Cmwlth. 554, 364 A.2d 973, 975 (1976) (same, in adecision affirming the Philadelphia Zoning Board's denial of a variance).

Marshall v. City of Philadelphia, __ Pa. __, 97 A.3d 323 (2014) (emphasis in original). 2

2 The complete list of factors set forth in Section 14-303 of the Zoning Code are as follows:

The Zoning Board shall grant a variance only if it finds each of the following criteria are satisfied:(.a) The denial of the variance would result in an unnecessary hardship. The applicant shalldemonstrate that the unnecessary hardship was not created by the applicant and that the criteria setforth in 14-303(8)(e)(.2) (Use Variances) below, in the case of use variances, or the criteria setforth in 14-303(8)(e)(.3) (Dimensional Variances) below, in the case of dimensional variances,have been satisfied;

(.b) The variance, whether use or dimensional, if authorized will represent the minimum variancethat will afford relief and will represent the least modification possible of the use or dimensionalregulation in issue; 102(.c) The grant of the variance will be in harmony with the purpose and spirit of this Zoning Code;(.d) The grant of the variance will not substantially increase congestion in the public streets,increase the danger of fire, or otherwise endanger the public health, safety, or general welfare;(.e) The variance will not substantially or permanently injure the appropriate use of adjacentconforming property or impair an adequate supply of light and air to adjacent conforming

property;(.f) The grant of the variance will not adversely affect transportation or unduly burden water,sewer, school, park, or other public facilities;(.g) The grant of the variance will not adversely and substantially affect the implementation ofany adopted plan for the area where the property is located; and(.h) The grant of the variance will not create any significant environmental damage, pollution,erosion, or siltation, and will not significantly increase the danger of flooding either during or afterconstruction, and the applicant will take measures to minimize environmental damage during anyconstruction.

(.2) Use Variances. To find an unnecessary hardship in the case of a use variance, the Zoning Board must make all of thefollowing findings:

(.a) That there are unique physical circumstances or conditions (such as irregularity, narrowness,or shallowness of lot size or shape, or exceptional topographical or other physical conditions)

peculiar to the property, and that the unnecessary hardship is due to such conditions and not tocircumstances or conditions generally created by the provisions of this Zoning Code in the area or

zoning district where the property is located;(.b) That because of those physical circumstances or conditions, there is no possibility that the

property can be used in strict conformity with the provisions of this Zoning Code and that theauthorization of a variance is therefore necessary to enable the viable economic use of the

property;(.c) That the use variance, if authorized, will not alter the essential character of the neighborhoodor district in which the property is located, nor substantially or permanently impair the appropriateuse or development of adjacent property, nor be detrimental to the public welfare; and(.d) That the hardship cannot be cured by the grant of a dimensional variance.

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Fundamentally, Appellants challenge the ZBAs findings and conclusions as not being

based on substantial evidence of record. In making a substantial evidence challenge,

Appellants bear a heavy burden. When reviewing a decision of the ZBA, a court must exercise a

limited standard of review to determine if findings are based on substantial evidence. That

standard is now well established and oft cited as:

where the court of common pleas has taken no additional evidence, [it] islimited to determining whether the zoning hearing board abused itsdiscretion or committed an error of law. An abuse of discretion will befound only if the zoning board's findings are not supported by substantialevidence, that is, such relevant evidence that a reasonable mind mightaccept as adequate to support a conclusion. Upon reviewing a decision of

a zoning hearing board, a court may not substitute its judgment for that ofthe board; and, assuming the record demonstrates substantial evidence, thecourt is bound by the board's findings which result from resolutions ofcredibility and the weighing of evidence rather than a capricious disregardfor the evidence.

Lamar Advertising of Penn, LLC v. Zoning Hearing Bd. of Borough of Deer Lake, 915 A.2d

705, 709 (Pa.Cmwlth.2007) (quoting Zoning Hearing Board of Sadsbury Township v. Board of

Supervisors of Sadsbury Township, 804 A.2d 1274, 1278 (Pa.Cmwlth.2002).) See also Airport

Professional Office Center 100 Condominium Ass'n v. Zoning Hearing Bd. of Moon Tp., 20

A.3d 649, 653 (Pa.Cmwlth.2011) (reiterating t hat [t]he role of the zoning hearing board is that

of fact-finder [and a] reviewing court may not substitute its judgment for that of the zoning

hearing board; rather, the court is bound by the zoning hearing board's determinations of witness

credibility and evidentiary weight.) (quoting In re Rural Route Neighbors , 960 A.2d 856, 860

(Pa.Cmwlth.2008) To determine whether the findings of the ZBA are supported by substantial

evidence, the Commonwealth Court must consider the totality of the evidence in the existing

record. North Chestnut Hill Neighbors v. Zoning Bd. of Adjustment of City of

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Philadelphia, 977 A.2d 1196, 1203 (Pa.Cmwlth.2009) (reasoning that the findings of the ZBA

must reflect that it c arefully reviewed the entire record and that there is substantial evidence

therein to support its decision). So long as the record demonstrates that there was no manifest

abuse of discretion, the judgment of the ZBA should receive deference.

From even a cursory review of the record, it is clear that Appellants are making a

substantial evidence argument that is wholly undermined by the actual substantial evidence of

record.

A. The ZBA Correctly Found and Concluded that Applicant Established anUnnecessary Hardship Relating to the Unique Physical Characteristics of

the Subject PropertyIn their first argument section, Appellants assert that the substantial evidence of record

does not support a finding: (i) that the Subject Property is irregularly shaped; or (ii) that the

shape the Subject Property does not prevent Applicant from operating a use permitted under the

I-2 Industrial Distribution, such as Wholesale Sale and Distribution and Distributor of Malt or

Brewed Beverages. (Appellants Br. at 14 -18.) Appellants first argument is without merit for

multiple reasons.

i. Substantial Evidence of Record Supports the Boards Findingsthat there are Unique physical features of the Subject Property

Appellants argue that the ZBAs reference to the irregular, triangular shape of the Subject

Property constitutes a reversible error. Appellants are wrong as a matter of law and, moreover,

have attempted to grossly obfuscate the relevance of the Subject Propertys triangular shape and

the weight afforded to that fact by the ZBA. Applicants burden was to establish the existence of

physical features of the property that limit permitted uses. As will be elaborated upon below,

the record contains more than substantial evidence on the existence of the Subject Propertys

irregular shape.

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Importantly, while the ZBA referenced the irregularly shaped features of the Subject

Property, the shape of the Subject Property, as Appellants seemingly attempt to lead the Court

to believe, was not the sole basis for the finding of a hardship. This is not a case where the

hardship solely arises from the Subject Property being irregularly shaped; rather, this is a case

where the shape of the Subject Property is but one of the contributing factors that led to the

ZBAs finding of unique physical features that create d an unnecessary hardship. Contrary to

the focal argument in their brief, the law has never made the shape of property a dispositive

element. The law and the ZBAs decision is premised on the unique physical features of the

Subject Property.Appellants extensive discussion of geometry and the design of prominent buildings like

the Pentagon is misleading to whether the ZBA correctly found that the physical features of

the Subject Property contribute to its finding of an unnecessary hardship. In their brief, after

reviewing dictionary definitions, Appellants came to the conclusion that the Subject Property is

not actually irregular because a triangle is a three sided object and such a shape has

symmetry, regularity and even boundaries (Appel lants BR. at 15) so it cannot be irregular.

(Appellants Br. at 15- 16.) Appellants contend that the mere invocation of the words irregularly

shaped, without anything further, is a hollow shibboleth [3] not supported by the substantial

evidence on the record as a whole. (Appellants Br. at 17 -18).

Foremost, the ZBA correctly found that the Subject Property is irregularly shaped and its

irregular shape was a factor in finding an unnecessary hardship. (See FOF 7, 22(a)-(b).) As

noted by the ZBA, the record substantiates that:

3 The Merriam- Webster Dictionary defines shibboleth as an old idea, opinion or saying that is commonly believed and repeated but that may be seen as old-fa shioned or untrue. MERRIAM -WEBSTER DICTIONARY (available at http://www.merriam-webster.com/dictionary/shibboleth)

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The lot is very irregularly shaped. Its not even a full triangle. It guess itwould be a trapezoid, almost looks like a baseball diamond.

(N.T. at 6). In addition to the summary of the physical shape of the Subject Property, the

exhibits introduced into the record, including the Citys zoning map (applicant Ex. D); an

aerial photograph (Applicant ZBA Ex. E), plans submitted and approved by the Streets

Department (Exhibi ts G); and, plans submitted to L&I and SOSNA (Exhibits H, L, and M -O)

provided the ZBA with additional evidence to review and weigh when making its determination

that the triangular/diamond like shape of the Subject Property is irregular in the context of

building parcels in the I-2 zoning district. Ultimately the ZBA found:

that because of the particular size and configuration of the SubjectProperty, i.e., an irregularly shaped corner lot with narrow corners (almostlike a triangle), the Subject Property cannot support an industrial use andliteral enforcement of the Zoning Code would result in an unnecessaryhardship;

that the conditions which the appeal for a variance are based are unique tothe Subject Property, in particular being an irregularly shaped corner lotthat has been used as parking for retail/commercial use for many years andwhich is located in an area that has been and continues to be transitioningfrom industrial to a mix of commercial and residential and such conditionsmake it impractical to use the Subject Property for industrial use.

(FOF 22(a)-(b).) Based on these findings, which are supported by the evidence of the record

evidence, the ZBA properly found that the Subject Property is irregularly shaped for

development with a permitted industrial use. This factual determination, moreover, was solely

within the province of the ZBA. See Marshal __ Pa. at __, 97 A.3d at 332 (recognizing that,

when reviewing the record as a whole and rendering its findings, the ZBA is permitted to utilize

its expertise in and knowledge of local conditions and is entitled to infer that the building

could not be used for any permitted purpose. ).

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Furthermore, and contrary to t he focus of Appellants argument, the record includes

substantial evidence that the hardship does not just arise from the shape of the Subject

Property but, more importantly, its physical features . As seen through historic pictures of

Washington Avenue that were produced by protestants , the Subject Property was originally part

of an industrial corridor of Washington Avenue that was served by multiple rail lines that

previously ran along the entire length of Washington Avenue. On parcels like the Subject

Property, the rail lines actually traversed the parcel and provided direct service to a specific

industrial manufacturer. (See Protestant ZBA Ex. A-E.) To this day, the pictures of the Subject

Property, which were entered into the record before the ZBA, depict portions of the now-abandoned rail system that served Washington Avenue. And, as was explained to the ZBA, the

Subject Property itself was acquired by its prior owner directly from CONRAIL (N.T. at 23) and

Appellants own property (now a commercial shopping center) was previously a lumber yard

when Appellants purchased it approximately 23 years ago. (Trans at 48). Not only are the

physical remnants of the corridor s industrial past documented in the record, but the testimony

and documents clearly substantiated that a industrial nature has left the Washington Avenue

corridor and the Subject Property is now surrounded by a mix of residential and commercial uses

Washington Avenue and commercial uses all along that corridor. A copy of the Zoning Map

intro into the record is appended here as Appendix F . Photographs of the uses on Washington

Avenue are appended hereto as Appendix G .

In its decision, the ZBA made several findings concerning the physical features of the

Subject Property. In finding a hardship and how the location of the Subject Property contributed

to its hardship determination, the ZBA: (i) reviewed and considered pictures and other exhibits

and documents and concluded that Washington Avenue currently includes a significant

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commercial use (FOF 7); (ii) weighed testimony and documentary evidence and came to a

reasoned determination there istransition in the neighborhood from obsolete indust rial uses to

residential uses (FOF 7); (iii) found credible the testimony of a representative from the local

RCO that SOSNA has no interest in our neighborhood having industrial uses on Washington

Avenue and that current demand is for mixed use, a combination of commercial and

residential like the instant application, (FOF 11); accord ed greater weight to the testimony

from Councilman Johnson s representative that the application for mixed use development at the

Subject Property would be a great addition to the neighborhood (FOF 12); and, even afforded

the Philadelphia City Planning Commission additional time to hear, review and make arecommendation (to support) the instant application (FOF 21).

Thus, there is simply overwhelming substantial evidence of record to support the ZBAs

conclusion that:

9. The record before the Board, demonstrates that the literal enforcementof the Zoning Code against the Subject Property would result in anunnecessary har dshi p due to the physical sur roundings and parti cularsize and conf igu rati on of the Subject Propert y; that the proposed use ofthe Subject Property as mixed use commercial and residentialdevelopment will have no adverse effect on the public health, safety orgeneral welfare; and that the variance being requested represents theminimum variance that will afford relief at the least modification possible.

10. The Owner presented sufficient evidence demonstrating the uniquenature of the Subject Property. In particular, the Owner demonstrated thatthe Subject Property is an i rr egularl y shaped corner lot with narr owcorners (almost li ke a tri angle) that cannot support i ndustri al use . TheOwner also demonstrated that the Subject Property was located in an areathat is clearly tr ansiti oning f rom i ts in dustri al r oots in to a commercialcorr idor with support fr om residential . Such evidence demonstrates thatthe Subject Property cannot and shoul d not be used for an industri al use ..

(COL 9-10.) As correctly found and concluded by the ZBA, the hardship justifying the use

variance arose from the Subject Property being zoned for I-2 industrial uses in an immediate area

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that no longer supports industrial uses. As substantiated in the record, the Board was correct in

weighing the evidence and determining that there is no viable industrial use and that the

Washington Avenue corridor has developed for the type of mixed commercial and residential

uses that are unquestionably not permitted by the applicable zoning provisions.

ii. The ZBA Weighed the Record Evidence and Properly Determinedthat the Subject Property Cannot Be Viably Used for a PermittedPurpose

Appellants make the core argument that [t]he Board failed to take any testimony, nor did

the Applicant offer any evidence that the [Subject] Property could not be used for a multitude of

other permitted uses in the I- 2 zoning district. (Appellants Br. at 20 .)

In arguing that Applicant was required to establish that no other permitted use was viable,

Appellants are making precisely the same argument that the Pennsylvania Supreme Court

rejected in Marshall. In Marshall, the Pennsylvania Supreme Court squarely rejected the same

argument being relied upon now by Appellants, in relevant part, when it reasoned:

This Court has repeatedly made clear that in establishing hardship, anapplicant for a variance is not requi red to show that the property at issueis valueless without the variance or that the property cannot be used forany permitted purpose.

Marshall v. City of Philadelphia, __ Pa. __, 97 A.3d 323 (2014) (Italics in original.) A copy of

the Marshall decision is appended hereto as Appendix H. Accordingly, Appellants are

presenting an argument that was expressly rejected by our Supreme Court on July 24, 2014 in the

Marshall decision.

Furthermore, a detailed review of the Supreme Courts recent de cision in Marshall is

particularly instructive on the deference that should be accorded to the ZBA in making its

findings and conclusions, as well as the impropriety of demanding that an applicant produce

evidence on the unviability of the score of uses permitted in any given zoning district. In

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Marshall, the zoning applicant sought to convert an existing school building into housing for

low-income seniors in a single-family zoning district. The objector in Marshall based his

opposition on an alleged failure of the applicant to establish a hardship unique to the school

building because, in seeking a variance, the Archdiocese [applicant] had the burden to show

why it was impractical to build single- family houses in that single-family residential district.

The ZBA disagreed with the protestant and granted the requested variance. The trial court

affirmed on appeal.

On appeal to the Commonwealth Court, the underlying decision to grant the requested

variances was reversed. In its decision, the Commonwealth Court reasoned that the applicant inMarshall:

had completely failed to address how the physical characteristics of the property would prevent it from being utilized as one of the many other permitted uses in an R 10A Zoning Distr ict, the court held that the ZBAhad improperly found that a unique hardship existed, and its grant of thevariances was not based on substantial evidence.

Marshall v. City of Philadelphia, __ Pa. __, 97 A.3d 323, 328 (2014). The Supreme Court then

granted allocatur and reversed the decision of the Commonwealth Court. In relevant part, the

Supreme Court strongly rebuked the Commonwealth Court and its disregard of the findings and

conclusions made by the ZBA and reasoned:

This Court has repeatedly made clear that in establishing hardship, anapplicant for a variance is not required to show that the property at issue isvalueless without the variance or that the property cannot be used for any

permitted purpose. On several occasions, we have reversed theCommonwealth Court when it had relied on such a standard forunnecessary hardship in reversing the grant of a variance. See,e.g.,Hertzberg, supra at 50 (rejecting the Commonwealth Court'sunnecessary hardship standard, which required an applicant for a varianceto demonstrate that the property at issue could not be used for any

permitted purpose); Allegheny West, supra at 228 & n. 3 (rejecting theCommonwealth Court's holding that unnecessary hardship can beestablished only by showing that the property at issue is practically

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valueless as zoned); Valley View, supra at 641 (rejecting theCommonwealth Court's view that evidence of unnecessary hardship is notconclusive absent a showing that the property at issue is practicallyvalueless as zoned). Show ing that the property at issue is valuelessunless the requested variance is granted is but one way to reach a finding

of unnecessary hardship; it is not the only factor nor the conclusive factorin resolving a variance request. Hertzberg, supra at 48. Rather, multiplefactors are to be taken into account when assessing whether unnecessaryhardship has been established. Id. (citing Allegheny West ).

Furthermore, we have never required a property owner seeking a varianceto present direct evidence as to the value of the property as zoned. ValleyView, supra at 641 42. In addition, although evidence of a propertyowner's inability to sell may be probative, id., we have concluded that it isunreasonable to force a property owner to try to sell his prop erty as a

prerequisite to receiving a variance. Allegheny West, supra at 228.

Marshall, 97 A.3d at 330.

Accordingly, Appellants wrongly assert that Applicant had to offer evidence that the

Property could not be used for one or more of the no less than thirty-nine (39) permitted uses in

the I-2 zoning district. (Appellants Br. At 21). As can be seen above, that clearly was not

Applicants burden. In effect, Appellants are impermissibly asking that this court substitute its

judgment for that of the ZB A that the Subject Property cannot be used as zoned. (Appellants

Br. At 20 (quoting COL 11).)

Here, a decision to reverse the ZBA would necessarily require the same level of disregard

of the ZBAs factual findings and legal conclusion s as was specifically and strongly rejected in

Marshall. As already detailed above, the ZBA issued a thorough decision that included

recognition of all elements set forth in Section 14-303 of the Philadelphia Code, weighed several

factors in finding an unnecessary hardship, including, the shape of the Subject Property, its

inclusion in a former industrial corridor that has long-since transformed into a mixed-use

corridor, the broad and strong support of the Philadelphia City Planning Commission,

Councilman Kenyatta Johnson, the Washington Avenue Businesspersons Association and

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SOSNA. And, as has been long recognized, evidence like the support of local neighborhood

associations, while not dispositive, is considered significant evidence for the ZBA to base its

decision. See City of Philadelphia Zoning Bd. of Adjustment v. Earl Scheib Realty Corp., 301

A.2d 423, 426 (Pa. Cmwlth. 1973) ( citing Riccardi v. Plymouth Township Board of Adjustment,

393 Pa. 337, 142 A.2d 289 (1958).)

In furtherance of the Appellants aforementioned flawed and erroneous line of

contentions and arguments regarding the ability to actually utilize the Subject Property for a use

or uses permitted in the I-2 zoning district, the Appellants also attempt to advance the

unsubstantiated and seemingly illogical proposition that the Subject Property can be used for an

I -2 permit ted use simply because the Applicants underlying zoning permit application

in cluded a request, in part, for the approval of uses that ar e permitted in the CMX-2 zoning

district, a few of whi ch could be permissibl e in the I -2 zoning distri ct, in the designated non-

residential portion(s) of the structure proposed to be erected upon the Subject Property -

specifically business and professional office, group medical, dental or health practitioner

office, business support, financial services and maintenance and repair of con sumer.

(Appellants Br. at 20) Based upon a review of the record before the ZBA, as well as common

sense and logic, it is clear that here again, as above, there are serious deficiencies in the

Appellants assertion.

First, as expressly found by the ZBA, the Applicants underlying zoning permit is not just

for commercial uses but for residential uses as well, and residential uses are clearly not permitted

in the I-2 zoning district. (See FOF 3.) In fact, the proposed residential uses consume far more

of the proposed mixed-use structure, approximately four-fifths of the gross floor area, than the

proposed non- residential uses. (Applicants ZBA Ex. O.) Second, there was an extensive and

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detailed exchange at the Hearing between two of the members of the ZBA and counsel for the

Applicant regarding the need for further or additional zoning permit applications for a

commercial use. In that exchange, it was acknowledged that further or additional review by

L&I, and possibly further or additional appeals to the ZBA in connection with other or additional

requirements of the Zoning Code related to or triggered by those non-residential uses in the

Applicants zoning permit application, including, but possibly not limited to, off -street parking

requirements. (See FOF 10, N.T. 85- 92) For reasons well known and obvious to both parties

counsel and the Court, there is no guarantee that these additional requirements can or will be met

or satisfied, particularly (given the opposition in/to this case) if relief of or from the ZBA isrequired, and, as such, it is clearly not a given that the Subject Property can be used for any of

the non- residential uses proposed in the Applicants zoning permit application, not just those

referenced by the Appellants. Third, and finally, just because a use is permitted by-right under

the Zoning Code does not necessarily mean that such use is actually viable at a particular

property, in a particular building, in a particular location or area and that said property can or

will actually be used as such.

Given the foregoing, it is more than evident that it is pure speculation on the part of the

Appellant to (and a reasonable mind could not) generally conclude that the mere inclusion of by-

right uses in a zoning permit application whether such uses permitted in the applicable zoning

district or in any other zoning district means or proves that the property for which such use(s)

are proposed can actually be used for or as such. As was thoroughly discussed before the ZBA,

any commercial use will be realize at the Subject Property only following a second zoning

application.

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Furthermore, in attempting to make their point in this regard the Appellants have clearly

chosen to focus or look only at the Applicants proposed non -residential uses, by themselves and

separate and apart from the larger residential component of the Applicants proposed project.

(Appellants Br. at 20) The purely speculative nature of the Appellants proposition is even more

obvious when applied to this specific scenario, i.e., to (incorrectly and erroneously) conclude that

the mere inclusion of possible or potential commercial uses, as part of a project with a far larger

residential component, in a zoning permit application means that the Subject Property could be

feasibly used independently for said commercial use(s), particularly, as in this case, where the

property is shaped as it is, is located where it is and will have a building as is proposed erectedupon it. It is clear that Applicants submission of a list of perm itted CMX-2 type commercial

uses in conjunction with the far larger residential component (of 35 residential units) in the

instant zoning permit application does not substantiate that the Subject Property can be used

independently for one or more or any of the CMX-2 type commercial uses that are also

permitted in the I-2 zoning district.

It is simply a non sequitur that a commercial use found viable as part of a large, mixed

residential/commercial development would necessary be viable as a stand-alone commercial use

of the Subject Property. The intangibles to viably developing a stand-alone commercial use at

the Subject Property are both well beyond both the proper scope of this brief and (more

importantly) what was submitted to in the underlying application and present to the ZBA.

Appellants are again speculating as to the viability of a laundry list of permitted uses (which, as

reiterated in Marshall , was not Applicants burden to satisfy before the ZBA) and confuses the

viability of a mixed-use proposal for the Subject Property (which was before the ZBA) with

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speculation on the viability of independent commercial uses of the Subject Property (which

undoubtedly was not before the ZBA).

Finally, Appellants assert that the current month-to-month rental of the Subject Property

for accessory parking for Appellant owner s commercial center constitutes a viable by-right non-

accessory parki ng lot . Nevertheless, the record is clear that parking at the Subject Property

was completely accessory to Appellant s commercial center; and, as a matter of law, accessory

parking is not a permitted use within the I-2 zoning district.

The only type of by-right parking permissible within the I-2 Industrial District is non-

accessory park ing . The Philadelphia Zoning Code defines non -accessory parking and draws adistinction between non -accessory parking and accessory parking. The Code provides that

non- accessory parking is limited to :

Parking that is not provided to comply with minimum off-street parki ngrequirements and that is not pr ovided exclusively to serve occupants of orvisitor s to a par ticular use , but rather is available to the public at-large. A

parking facility that provides both accessory and non-accessory parkingshall be classified as non-accessory parking if it leases 25% or more of itsspaces to non-occupants of or persons other than visitors to a particularuse.

(Code 14-203(213) (incorporating Code 14-601(7)(k) (Parking, Non-Accessory)).)

Here, the facts of record make it unequivocally clear that Appellants used the Subject

Property for accessory parking to their adjacent commercial shopping center. First, the I -2

Zoning District does not have a minimum parking requirement, so their prior use of the Subject

Property could not have been to comply with minimum off -str eet park in g requi rements.

Second, the record pictures make clear that the Subject Property was previously fenced off,

except for those accessing it through a curb cut on Ap pellants commercial shopping center (N.T.

at 21), so is was clearly provided exclusively to serve occupants of or visitor s to a particular

use i.e., Appellants shopping center. Furthermore, the reality of the current accessory use

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is revealed when Appellants acknowledged in their brief that the [Subject Property] is being

used as an accessory, open ai r par ki ng lot . (Appellants Br. at 30 (emphasis added).)

Accordingly, the plain language of Section 14-601(7)(k) preludes the prior parking use

from being construed as a non-accessory use (which is permitted in the I-2 district) rather than

an accessary parking use (which is not permitted in the I -2 district).

iii. The Valley View Analysis is Applicable to this Case and Supportsthe Decision of the ZBA to Grant the Use Variance .

Appellants assert that the ZBA improperly made findings relating to surrounding post-

industrial uses. (Appellants Br. at 23) (arguing that [w]hile the Bo ard hear testimony on the

nature of adjacent surrounding land, the Board did not hear or receive suf fi cient evidence .

(emphasis added)). For example, Appellants believe that the record evidence of a prior variance

granted to allow a mixed-used structure at 1731-37 Washington Avenue was inexplicable

(Appellants Br. at 36-37); Appellants challenged whether the pictures of the surrounding area

depicted mixed use or single use residential or commercial buildings (Appellants Br. at 24);

Appellants sought to distinguish the conversion of the Marine Club as being part of an existing

building (Appellants Br. at 25, 37); and, Appellants contended that the ZBA did not properly

comprehend the pictures introduced into the record of the surrounding uses and rather made their

own, different observations from those picture (Appellants Br. at 37) Nevertheless, with this

argument, Appellants are plainly and impermissibly asking the Court to substitute its judgment

on matters such as the weight afforded to evidence and the credibility of witnesses for findings

made by the ZBA.

As properly concluded by the ZBA below, the Supreme Courts deci sion in Valley View

Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983) allowed the

ZBA to consider the impact of the surrounding uses on the Subject Property and supports the

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grant of the use variance at issue in this appeal. In Valley View, the Supreme Court upheld a

decision of the ZBA to grant a use variance to convert a three story detached dwelling, located in

a residential district, to a takeout sandwich shop with a residence on the second and third floors.

In reaching its decision, the Supreme Court concluded that the ZBA s decision that the property

was unfit for residential use was supported by substantial evidence that the property was located

on a busy street, abutted by a gas station and convenience store, and virtually surrounded by

disharmonious commercial and industrial properties.

Like the analysis in Valley View, the ZBA below was correct in reviewing the

surrounding post-industrial uses in reaching its decision that the Applicant would suffer anunnecessary hardship from being denied the requested use variance. As specifically cited by the

ZBA, the substantial evidence of record fully supports the ZBAs find ing:

(i) that the record as a whole substanti ates that the Subject Propertyis located in an area that has been and continues to betransitioning from industrial to a mix of commercial and residentialand such condition make it impractical to use the Subject Propertyfor an industrial use. (FOF 22 (b));

(ii) that SOSNA has no interest in our neighborhood having industrialuses on Washington Avenue. There is really only interest in mixeduse, a combination of commercial and residential. (FOF 11(citing See N.T.at 34));

(iii) that Mr. Bisiccia has personally seen the transition from industrialto commercial over the past forty years. (FOF 13 (citing N.T. at27));

(iv) that the photographs presented by the Applicant indicate that thereis significant commercial use along Washington Avenue, most ifnot all of which is zoned industrial. (FOF 7)

(v) that there is a transition in the neighborhood from obsoleteindustrial uses to residential uses. (FOF 7 (citing N.T. at 6, 18));

(vi) that Washington Avenue is more of a commercial corridor nowwith residential surrounding it than it is an industrial area. (FOF 7) (citing N.T.at 19)); and,

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(vii) that the PCPC, after a separate post-hearing presentation byApplicant and opposed by Appellants made a recommendation thatthe ZBA support the instant application. (FOF 21).

iv. Appellants Rely Heavily on a Case that Actually Supports the

ZBAs DecisionAppellants rely heavily on North Chestnut Hill Neighbors v. Zoning Board of

Adjustment of the City of Philadelphia, 977 A.2d 1196 (Pa. Cmwlth. 2009). A review of that

case only lends support to the thorough decision issued by the ZBA below.

In North Chestnut I, the Commonwealth Court was presented with an appeal challenging

whether the applicant has established an unnecessary hardship North Chestnut Hill Neighbors

v. Zoning Bd. of Adjustment of City of Philadelphia, 928 A.2d 418, 426 (Pa.Cmwlth.2007).

After reviewing the record, the Court, as is clear in this case, found that the ZBAs findings were

supported by substantial evidence of record. In North Chestnut I & II, the building in questions

was currently a viable structure where the applicant proposed expansion of a currently

operational museum use located in a gilded aged mansion. Nevertheless, a hardship was found

in Chestnut Hill I and the ZBA granted inter alia the requested variance to legalize the existing

museum use and allow for its expansion. Then, after remanding the case for the ZBA to

determine if the request to expand the currently operational museum use was the minimum

variance that would afford relief, the ZBA weighed the evidence of record as a whole and

found that variance requested to expand the currently operational museum to meet modern

standards was the minimum variance. Chestnut Hill II, 977 A.2d at 1202. Importantly, in its

decisions to affirm, the ZBA in both North Chestnut I & II, as in this case, weighed the record

evidence of broad community support in making its findings and conclusions on unnecessary

hardship.

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B. Appellees Purchase Did Not Create the Hardship and the Purchaser-With-Knowledge Doctrine Has No Application .

Appellants rely heavily on the Supreme Courts decision in Wilson v. Plumstead Tp.

Zoning Hearing Bd., 594 Pa. 416, 430-431, 936 A.2d 1061 (2007). Appellants argue that

Applicants only hardship here is that it desires greater uses than that which currently exists on

the [Subject] Property or could exist in compliance with the existing zoning. (Appellants Br. at

29.)

In effect, A ppellants seek to misconstrue Applicants purchase with knowledge of the

zoning restrictions applicable to the I- 2 Industrial District as barring Applicants from the relief

rightly granted by the ZBA. (Appellants Br. at 28-29) Appellants reliance on Wilson and their

argument that this case involves a self- inflicted hardship or an attempt by Applicant to

maximize its financial gain based on its pre -sale knowledge of the zoning restriction is

misplaced.

In Wilson, the Supreme Court squarely held: pre -purchase knowledge of zoning

restrictions limiting development, without more, does not create a hardship. Wilson, 594

Pa. at 430-431, 936 A.2d at 1069 (emphasis added) (recognizing that the hardship was

established through the property and surrounding environment and was not created by the

purchase).) In relevant part, the Supreme Court in Wilson, in rejecting an argument that a new

owner who sought to operate an office in a residential district could not be granted a variance

because of pre-sale knowledge, explained:

With respect to a landowner who purchases with knowledge of the property's condition and existing zoning restrictions, the hardship isdeemed self-inflicted only where he has paid an unduly high price becausehe assumed the anticipated variance would justify the price, or where thesize and shape of the parcel was affected by the transaction itself.

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Wilson, 594 Pa. at 416, 936 A.2d at 1, 936. Moreover, in reaching its conclusion, the Supreme

Court cited and quoted Manayunk Neighborhood Council v. Zoning Board of Adjustment, 815

A.2d 652 (Pa.Cmwlth.2002), wherein the Commonwealth Court explained:

While older cases explain the "purchaser with knowledge" concept ...,more recent cases recognize that where hardship arises from intensity ofrestriction, the right to relief runs with the land ... Unless the hardshiparises from the purchase itself, as where the purchase price was too dear,transfer of the property does not create the hardship ... Thus, pre-purchaseknowledge of zoning restrictions limiting development, without more,does not create a hardship.

Id. at 657 (citations omitted and emphasis added).

Here, as in Wilson and Manayunk, Applicant had presale knowledge of the applicable provisions of the I-2 Industrial District, but no evidence was present to indicate, let alone

substantiate, that Applicant paid too high a price or that the purchase price was too dear .

Moreover, as extensively discussed supra , Applicants hardship arises from intensity of

restriction i.e., being zoned I-2 on a former industrial corridor of Washington Avenue that no

longer is viable for industrial uses and the right to relief runs with the land. As correctly found

by the ZBA, the record substantiates that Applicant desires a reasonable, viable use of Subject

Property and, contrary to the argument raised by Appellants (Appellants Br. at 29), is not seeking

an optimum use. In fact, Applicants proposal does not require height or parking variances, as

the instant application otherwise complies with the applicable dimensional restrictions of the I-2

Industrial District.

Therefore, before the ZBA, no evidence was produced of impermissible pre-sale

knowledge and the instant case is in full accord with Wilson, and the modern judicial view of the

relevance of pre-purchase knowledge.

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II. APPELLANTS PERSONAL CONCERN ABOUT THE LOSS OF THEIRPREVIOUSLY LEASED PARKING IS INSUFFICIENT TO RENDER THEAPPLICANTS USE VARIANCE AS BEING CONTRARY TO THE PUBLICINTEREST

With their second issue, Appellants argue that ZBA committed an error of law by not

finding that the proposed will not be c ontrary to the publi c in terest . (Appellants Br. at 30

(emphasis added).) Appellants assert that the loss of their accessory parking will injure the use

of their adjacent property by limiting their customers parking options and altering the view of

their commercial property from Washington Avenue.

i. Appellants O pposition to Applicants Proposed Mixed

Commercial/Residential Use Based Solely On Their Loss ofParking For Their Adjacent Commercial Use Is Not a Good FaithBasis to Oppose the Instant Application, Let Alone a Legal Basisto Reverse the ZBA .

Foremost, it is telling that Appellants fail to cite to any case law to support their unique

proposition that the ZBA should deny Applicant a use variance because any development of the

Subject Property would cause Appellants to lose access to parking it had rented for a number of

years. There is none.

As a general matter, a property owner has no vested right in the use of anothers property

to satisfy a parking requirement in his or her own property. See Ken-Med Associates v. Bd. of

Tp. Sup'rs of Kennedy Twp., 900 A.2d 460, 467-468 (Pa.Cmwlth.2006) (reasoning that where an

applicant had the opportunity to renew parking license for 28 off-site parking spaces previously

utilized by applicant, that business owner could not claim an unnecessary hardship sufficient to

justify the grant of dimensional variances to allowed for the construction of an on-site parking

garage and that the actions/inactions on the part of applicant, at the very least, contributed to the

current parking difficulties for the Property and the claimed hardship by Landowner) The

Commonwealth Court has also recognized the impropriety of opposing the development of a

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neighbor property to continue an off-site benefit enjoyed by a neighboring, protestant property

owner. See Ruddy v. Lower Southampton Tp. Zoning Hearing Bd., 669 A.2d 1051, 1055 (Pa.

Cmwlth. 1995) (noting that the requirement that a variance be consistent with the public interest

cannot be used as a substitute for condemnation where testimony established that the proposed

developed would increase flooding on adjacent property owned by the municipality).

Here, the almost singular basis for Appellants opposition is the loss of the use of the

Subject Property for accessory parking to its adjacent commercial shopping center.

Unquestionably, Appellants had been utilizing the Subject Property since its prior owner

acquired it from CONRAIL as accessory parking pursuant to a month-to-month lease. TheSubject Property, however, was not the sole area used by customers of the adjacent commercial

shopping center (N.T. at 49-50), with the Subject Property accounting for only 35 to 40 parking

spaces of the their current total of 108 parking spaces. (N.T. at 52). The record moreover

substantiated that Appellants have the potential to provide additional on-site parking through the

construction of a parking garage. (N.T. 11) Appellants were given the first opportunity to

purchase the Subject Property (and continue their accessory parking use). (N.T. at 25.)

Appellants were even provided the opportunity to match the price offered by the Applicant

herein. (N.T. at 26.)

Most important for the purpose of the instant appeal, the ZBA was well aware of the then

current accessory parking use of the Subject Property by Appellants. (FOF 7) (recognizing that

the Subject Property is currently rented on a month -to-month basis by the [Appellant] owners of

the supermarket/mall that is located directly to the North of and adjacent to the Subject Property

for parking). Nevertheless, the ZBA , after eliciting testimony on the accessory parking use and

making specific findings of fact, concluded that such a past accessory use did not preclude the

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finding of a hardship. At the conclusion of Appellants individual testimony, ZBA Board

Member Staten made the pertinent observation on the central object to the loss of parking at the

adjacent commercial shopping center:

At the end of the day, its their property. Its their property. You cantsay they cant build anything. I dont care what they build there. Its their

property to build on. You can be objecting to them building the building because its certain things they need from zoning, but you cant stop themfrom building because they can build on the parking lot Parking will goaway regardless. It will go away. They have a right to build on their

property.(N.T. at 46).

Therefore, the central complaint made by Appellants i.e., that they will lose the former

contractual benefit of accessory parking at the Subject Property is insufficient to justify the

denial to Applicant of its requested use variance. As aptly and correctly noted by Mr. Staten, any

development of the Subject Property would cause Appellants to lose their prior enjoyment by

contract of the Subject Property for their personal benefit. A reversal of the ZBA would

effective ly sanction a private taking of Applicants property.

ii. Appellants Have No Legal R ight to a View of WashingtonAvenue

In addition to the loss of their contractual right to accessory parking, Appellants also

objected based on a limitation of an existing line-of-sight of their commercial shopping center to

Washington Avenue. (Appellants Br. at 31)

As with the loss of their prior contractual use of the Subject Property, the ZBA elicited

testimony, made findings of fact and concluded that the loss of visibility did not justify the denial

of the requested use variance. As a matter of law, it is well established in Pennsylvania thatan

adjacent owner has no right to a view th r ough or on a neighboring property owners land. See,

e.g., Maioriello v. Arlotta, 364 Pa. 557, 558, 73 A.2d 374, 375 (Pa.1950) (recognizing that

Cohen et ux. v. Perrino et ux., 355 Pa. 455, 50 A.2d 348, this Commonwealth Court decided that

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an owner has the privilege of building, upon his own land, a structure which obstructs the light,

air and view of an adjoining owner, even though such structure serves no useful purpose and is

erected solely to annoy the adjoining owner and interfere with the use and enjoyment of his

land). As noted by the Supreme Court:

a property owner cannot assert a right to preserve the view from his property. It is well established that adjoining landowners can erectstructures that interfere with one's view and that no cause of action therebyarises.

Larsen v. Zoning Bd. of Adjustment of City of Pittsburgh, 543 Pa. 415, 429, 672 A.2d 286, 293

(1996) (citing Maioriello v. Arlotta , 364 Pa. 557, 73 A.2d 374 (1950); Cohen v. Perrino , 355 Pa.

455, 50 A.2d 348 (1947).)

iii. The ZBA Weighed the Competing Facts and Found That TheProposal Will Neither Increase Congestion Nor Overcrowd theLand or Create an Undue Concentration of Population

Appellants contend that the ZBA did not properly accord sufficient weight to testimony

on the potential increase in traffic congestion and parking demand at, and around, the Subject

Property, as well as block light and impact walkability. (Appellants Br. At 32 -35)

Appellants are again asking the Court to substitute its judgment for that of the ZBA,

which, as previously discussed is impermissible and would constitute reversible error. See.

Marshall. In its decision, the ZBA recognized the objections and competing evidence based on

parking, traffic, congestion, shadows and walkability (FOF 15-20, 22(e)-(j)) and did not find

that those objections substantiated an actual detriment to the public welfare. Furthermore, the

ZBA could not base its decision on the lack of a shadow study, which was not a requirement

imposed upon Applicant by the Zoning Code. See South of South, 54 A.3d at 123 (recognizing

that the Philadelphia Zoning Code contains no requirement for an owner seeking a variance to

conduct a formal traffi c study) . And, in South of South, the Commonwealth rejected the precise

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argument being raised by Appellants here as to an alleged increase in traffic congestion. The

Commonwealth Court explained that:

the ZBA, in considering [Section 303 of the Zoning Code criteria],

evaluates certain of those criteria in light of the umbrella of the public-interest prong of the three-part standard for the granting of a variance. Inthis regard, the ZBA's responsibility is to consider whether congestionwill affect the public welfare. In exercising the discretion that the ZoningCode grants the ZBA, the ZBA may grant a variance, even if congestionis expected, as long as the ZBA also concludes that such congestion willnot be detrimental to the public welfare.

South of South Street, 54 A.3d at 123.

Therefore, Appellants argument that the ZBA erred in not affording sufficient weight to

protestants objections based on traffic, parking, congestion and light are without merit.

iv. The ZBAs Finding That the Proposed Development Will NotAdversely Affect the Supply of Air and Light to the AdjacentCommercial Property is Supported by Substantial Evidence

Finally, Appellants argue that the ZBA abused its discretion in finding that the proposed

development will not affect the adequate supply of light and air to their adjacent commercial

shopping center. Appellants contend that Applicants should have been required to prepare and

produce a shadow study. (Appellants Br. at 35 )

Foremost, it cannot be ignored that Appellants fail to provide any legal authority to

support their argument that Applicant was required to produce a shadow study. As a matter of

law, there is no such requirement and the ZBA properly weighed the competing evidence on the

impact of the proposed development on the supply of air and light to the adjacent commercial

property.

Appellants are plainly and impermissibly asking the Court to substitute its judgment for

that of the ZBA.

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III. APPELLANTS ARGUMENT AS T O MINIMUM VARIANCE IS DIRECTLYIN CONFLICT WITH THE COMMONWEALTH COURT S DECISION INSOUTH OF SOUTH STREET NEI GHBORHOOD ASS'N V. PH I LA DEL PHI AZONIN G BD. OF ADJUSTM ENT , 54 A.3D 115 (PA. CMWLTH. 2012)

With their third argument, Appellants contend that the ZBAs decision should be

reversed because Applicant did n

Documents

Brief of Intervenor (Property owner of 1601 Washington Ave)