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Cmr D.N. Corp. and Marina Towers Ltd. T/A Waterfront v. City of Philadelphia

March 10, 2011

CMR D.N. CORP. AND MARINA TOWERS LTD. T/A WATERFRONT RENAISSANCE ASSOCIATE, PLAINTIFF
v.
CITY OF PHILADELPHIA, ET AL., DEFENDANTS



The opinion of the court was delivered by: Stengel, J.

MEMORANDUM

Waterfront Renaissance Associates LLP filed a motion for leave to supplement its complaint. Subsequently, Waterfront Renaissance filed a supplement to its motion for leave to supplement its complaint.*fn1

Waterfront Renaissance seeks to add count XVI, which alleges the City of Philadelphia's Central Delaware Riverfront Overlay District and plan of development regulations are unconstitutional, and seeks to supplement count III and count IV with claims of promissory estoppel and detrimental reliance based upon those same regulations. It also wants to include a claim for damages, interest, costs, and attorney fees. Waterfront Renaissance seeks to "clarify that [Waterfront Renaissance's] complaint challenges the March 2006 [o]rdinance in its entirety, including both the 65' height and the 70' width restrictions found therein."*fn2 I will grant Waterfront Renaissance's motion in part and deny it in part.

I. Background

A. The Current Action and the New Ordinance In February 2007, Waterfront Renaissance commenced this action in state court. It

was removed to this court on March 15, 2007. The complaint challenged a March 2006 ordinance that extended a 65 foot height restriction to the area north of Old City, which included property owned by Waterfront Renaissance. Waterfront Renaissance amended its complaint twice.*fn3

On March 5, 2009, Councilman Frank DiCicco introduced Bill 090170-A to create a zoning overlay for the Central Delaware Riverfront Overlay District. This is the area between I-95 and the Delaware River from Allegheny Avenue to Oregon Avenue. Waterfront Renaissance's site is within this overlay district. On August 17, 2009, the bill was approved. The Central Delaware Riverfront Overlay District is codified at Section 14-1638 of the Philadelphia Code.*fn4

Under this ordinance, an applicant for a zoning permit in the Central Delaware Riverfront Overlay District is required to submit a plan of development to the City of Philadelphia Planning Commission and the Planning Commission must approve the plan of development. The Planning Commission determines whether the plan of development is "appropriate in scale, density, character and use for the surrounding community." The

Philadelphia Code § 14-1638(12)(a). In addition, the applicant will not receive a zoning permit unless the Planning Commission determines "the requested permits are in conformity with the approved [p]lan of [d]evelopment." Id.

On April 20, 2010, the Planning Commission adopted plan of development regulations and filed the regulations with the Philadelphia Department of Records. The plan of development regulations became effective at midnight on September 27, 2010. See Notification of the Effective Date of the City's Plan of Development Regulations, CMR D.N. Corp. and Marina Towers Ltd. v. City of Philadelphia, No. 07-1045 (E.D. Pa. filed Oct. 8, 2010).

B. Waterfront Renaissance's Claims

The purpose of the Central Delaware Riverfront Overlay District is "to protect the existing characteristics of the built and natural environment that are essential to achieving the working guidelines of the Civic Vision, adopted by the Philadelphia City Planning Commission . . . , while a Master Plan for the area is developed." See The Philadelphia Code at § 14-1638(1)(h); Plaintiff's Motion at Exh. 1 at ¶ 295. The Central Delaware Riverfront Overlay District requires that the regulations governing the plan of development process be objective. See The Philadelphia Code at § 14-1638(12)(a); Plaintiff's Motion at Exh. 1 at ¶ 314. The Planning Commission will review plans of development to determine whether the "development is appropriate in scale, density, character and use for the surrounding community." See The Philadelphia Code at § 14- 1638(12)(a); Plaintiff's Motion at Exh. 1 at ¶ 314. The terms "existing characteristics of the built and natural environment that are essential to achieving the working guidelines of the Civic Vision" and "appropriate in scale, density, character and use" are not defined.*fn5

Waterfront Renaissance alleges the plan of development regulations list the base zoning classification as one of a number of factors the Planning Commission will consider. See Plaintiff's Memorandum at 8; Plaintiff's Motion at Exh. 1 at ¶ 321. It maintains the regulations do not provide quantitative or qualitative standards or guidelines for evaluation of the factors, and, therefore, provide no guidance for which developments will be approved. See Plaintiff's Memorandum at 9; Motion at Exh. 1 at ¶¶ 324-25. The regulations also provide the Planning Commission "will consider any item that will have an effect or impact on this public realm." See Notice of Effective Date of the City's Plan of Development Regulations at Exh. A at § 3.

Waterfront Renaissance concludes that the regulations "place on the applicant the burden of proving that 'the [plan of development] provides for development appropriate in scale, density, character and use for the surrounding community,' without providing a complete list of submission requirements and without providing any objective standards by which an applicant may know what it is he must prove." See Plaintiff's Memorandum at 9.

If the Planning Commission does not "approve, disapprove, conditionally approve or table a proposed [p]lan of [d]evelopment within seventy-five (75) days after submission of complete plans to the Commission, the approval of the Commission shall be presumed." See Notice of Effective Date of the City's Plan of Development Regulations at Exh. A at ยง 6(a). Waterfront Renaissance alleges, because the Planning Commission can table ...


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