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Poole v. Zoning Board of Adjustment of the City of Philadelphia

November 24, 2010

MICHAEL POOLE, JOANNE PERRONE, JOHN SCOTT AND BARBARA TARNOFF
v.
ZONING BOARD OF ADJUSTMENT OF THE CITY OF PHILADELPHIA, CITY OF PHILADELPHIA AND MOYER LOGISTICS, INC.
APPEAL OF: JOHN SCOTT



The opinion of the court was delivered by: Senior Judge Kelley

Argued: October 12, 2010

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

John Scott (Objector) appeals from the June 30, 2009 order of the Court of Common Pleas of Philadelphia County (trial court) affirming the decision of the Zoning Board of Adjustment of the City of Philadelphia (Board) granting Moyer Logistics, Inc. (Moyer) zoning variances for the residential development of property located at 412-24 Moyer Street, Philadelphia, Pennsylvania.*fn1 We vacate and remand.

Moyer is the developer of property located at 412-24 Moyer Street in the City of Philadelphia. The property is zoned as L-4 Limited Industrial District and is within the "North Delaware Avenue Special Control District". The property in question is 11,500 square feet. It is surrounded by the R-10A Residential District. In 1979, the property had been approved for use as a scrap metal warehouse. Recently, an automobile repossession yard has operated at said location, which is not an approved use.

Moyer applied for a use permit from the City, Department of Licenses and Inspections (L&I) on January 23, 2008, to demolish an existing structure and erect 8 structures for use as 14 residential units with accessory roof decks and garage parking. Six of the 8 proposed structures are 4 stories in height (approximately 46 feet). Each structure would contain 2 residential units and 2 parking spaces. The remaining 2 structures are 3 stories in height (approximately 35 feet). Each of these 2 structures would contain a single residential unit with one parking space. The property has frontage along Moyer Street and extends towards Flora Street. The proposed structures are placed perpendicular to Moyer and Flora Streets with a private driveway created in the middle. The driveway to the development will be accessed by a 22 foot curb cut.

On February 17, 2008, the L&I refused Moyer's application for a permit for the following reasons: (1) Section 14-506(1)(a)(.1) of the Philadelphia Zoning Ordinance prohibits the proposed use in the L-4 Limited Industrial District; (2) Section 14-113 of the Philadelphia Zoning Ordinance prohibits multiple uses or structures on a single lot; (3) Section 14-1405 of the Philadelphia Zoning Ordinance requires 2 off street loading spaces in an industrial district; and (4) the proposed rear yard depth was too small under the residential district requirements. Moyer appealed L&I's refusal to the Board on February 20, 2008.

A public hearing was held before the Board on March 26, 2008.

Based on the evidence presented, the Board concluded as follows:

After a review of the record and in consideration of the evidence presented, the Board finds that [Moyer] has adequately meet (sic) the criteria contained in §14-1802 of the Zoning Code. The Subject Property in its current form and use is inconsistent with the character of the neighborhood and generally detrimental to its welfare. [Moyer] has shown a willingness to significantly modify his proposed use of the property to accommodate the community. The current proposal is not beyond the size, scope or character of the surrounding neighborhood. The proposal will remove a blighted building from the neighborhood and eliminate a current illegal use of the property. In its place will be sustainable residential housing consistent with the remainder of the neighborhood. Therefore, the application is granted for the stated reasons.

Objector appealed the Board's decision to the trial court which affirmed. This appeal followed.*fn2

Herein, Objector's issues can be consolidated into three main issues:*fn3

1. Whether Moyer provided evidence of a substantial hardship.

2. Whether Moyer provided evidence that the requested variances constituted the minimum variances necessary to ...


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