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Michael Singer and William v. Philadelphia Zoning Board of Adjustment

September 30, 2011


The opinion of the court was delivered by: Judge McCULLOUGH

Argued: May 9, 2011



Michael Singer and William R. Piper, Jr., (Objectors) appeal from the August 5, 2010, order of the Court of Common Pleas of Philadelphia County (trial court), affirming the September 29, 2009, decision of the Philadelphia Zoning Board of Adjustment (Board), which granted Walnut Associates Realty, L.P. (Applicant) variances and certificates to construct a mixed-use building on real property located at 1213-1219 Walnut Street in Philadelphia, Pennsylvania (property).

The property is located in the C-5 Commercial zoning district and is subject to the Special Controls for the Center City Commercial Area. The property was assembled from four lots acquired individually and consists of a parking lot and vacant building. Located mid-block between Sansom Street and Walnut Street, the property is bordered by two large buildings, including a parking garage, and wraps around Fergie's Pub on Sansom Street.

On April 30, 2009, Applicant filed an application with the Department of Licenses & Inspections (Department) to create a single lot from the four lots, to demolish the existing building, and to construct a new thirty-story, mixed-use building. Applicant proposed to use the newly-constructed building to provide 152 hotel rooms, 299 apartments, two eat-in restaurants, a take-out restaurant, retail space, and other amenities, including a fitness center. Applicant also proposed a vehicular and pedestrian passageway through the middle of the building in order to provide access for guests and residents without exacerbating congestion on Walnut or Sansom Streets. In addition, Applicant proposed two forty-foot loading docks for commercial vehicles and trash pick-up off of Sansom Street.

On May 29, 2009, the Department issued a notice of refusal and referral denying the application for the following reasons: (1) section 14-1402(2)(a)(.1) of the city's ordinance (Ordinance) requires one parking space for every two units and Applicant did not propose any off-street parking for the 152 hotel rooms and 299 dwelling units proposed; (2) section 14-305(4)(c)(.2)(.c) limits the open area above ground floor to 50% while Applicant proposed an open area of 55%; (3) section 14-305(4)(g)(.1)(.b) requires a setback of twenty-five feet from the property lines to walls with legally required windows whereas Applicant proposed a setback of zero feet; (4) section 14-305(5)(b)(.2)(.a) limits the maximum building width in the zoning district to sixty feet and Applicant proposed a building width of 102 feet; (5) section 14-305(8)(a)(.2) provides a maximum floor-to-area ratio of 1,200% (267,033 square feet) and Applicant proposed 1,605% (357,165 square feet); (6) section 14-609 provides that the maximum structure height in the zoning district is 296 feet while Applicant proposed a height of 323 feet; and (7) although section 14-1607(3)(j) provides that take-out restaurants are not permitted in the Center City Commercial Area, Applicant proposed a take-out restaurant. The Department referred the application to the Board to determine if Applicant was entitled to certificates to operate two eat-in restaurants under section 14-1607(7)(b) of the Ordinance.

Applicant appealed to the Board, which held hearings on July 1, 2009, and September 22, 2009. At the July 1, 2009, hearing, Applicant presented an amended proposal that removed the upper floors from one corner of the proposed building and, consequently, eliminated the need for variances to exceed the open area above ground floor and the maximum building height. Applicant also presented testimony that the design and density of the proposed development are required as a result of the physical constraints of the property, which wraps around Fergie's Pub and is located mid-block between Sansom and Walnut streets. David Singer, son of Objector Michael Singer, testified that he is the owner of Fergie's Pub and that, in addition to concerns about light and air, he believes that the proposed development will exacerbate an existing shortage of parking in the area. Objector Rick Piper testified that he is the owner of the 12th Street Gym, that the proposed development would be good for the area, but that he too has concerns about the impact of the proposed development on the existing shortage of parking in the area. At the close of the hearing, the Board left the record open to hear from Washington Square West Civic Association and from David Singer, allowing Singer an opportunity to speak with Applicant about its proposal.

After the July 1, 2009, hearing, Objector Michael Singer submitted a report prepared by Gray Smith (Smith Report) to the Department and the Board. The Smith Report alleged that Applicant's proposal does not include a sixty-foot loading dock and that three loading docks rather than two are required by the Ordinance. Subsequently, the Department notified the Board that its initial refusal and referral was in error because it did not address Applicant's failure to include a sixty-foot loading dock pursuant to section 14-305(14) of the Ordinance. Based on this new ground for refusal, the Board continued its July 1, 2009, hearing and held a second hearing on September 22, 2009, to determine if a sixty-foot loading bay was required by the Ordinance.

On September 29, 2009, the Board issued a notice of decision, which granted each of the dimensional variances requested by Applicant. The Board found that the property is unique because it is located mid-block between Sansom and Walnut Streets and has an irregular shape that wraps around Fergie's Pub. (Board's Finding of Fact No. 126.). The Board found that requiring Applicant to acquire a commitment to secure sixty-five off-site parking spaces rather than on-site parking was the minimal variance required under the Ordinance. (Board's Finding of Fact No. 131.) Next, the Board found that requiring Applicant to include a sixty-foot loading bay would result in unnecessary hardship because of the property's irregular shape and because it is impossible for a truck longer than forty feet to use any loading bay on Sansom Street. (Board's Findings of Fact, Nos. 132-33.) The Board also found that a literal enforcement of the maximum width and floor-area-ratio provisions of the Ordinance would result in unnecessary hardship as a result of the irregular shape of the property, the location of the property mid-block, and the need for a drive-through passageway to accommodate arrivals and departures. (Board's Finding of Fact No. 134.) Additionally, the Board found that the proposed structure will not have any legally required windows on a property line with a setback of less than twenty-five feet. (Board's Finding of Fact No. 137.) Finally, the Board found that, based on the record as a whole, Applicant satisfied its burden to demonstrate compliance with the variance criteria set forth in section 14-1802 of the Ordinance.

(Board's Findings of Fact, Nos. 129, 136, 139-148.) Based on these findings, the Board concluded that the requested variances should be granted, subject to the provisos adopted by the Board. (Board's Conclusion of Law No. 25.)

Objectors appealed the Board's determination to the trial court, which denied Objectors' land use appeal by order dated August 25, 2010. The trial court reasoned that the Board did not err in determining that: (1) the property is unique as a result of its irregular shape, which wraps around Fergie's Pub; (2) the proposed deviation from the maximum floor area ratio is a mere technical deviation from the space requirements of the Ordinance; and (3) Applicant was not required to provide on-site parking because numerous parking spaces are available in the area and Applicant is required to obtain a commitment for off-site parking. The trial court concluded that the Board did not err in granting the variances and certificates requested by Applicant. Objectors now appeal to this Court.*fn1

An applicant seeking a variance must prove that unnecessary hardship will result if the variance is denied and that the proposed use is not contrary to the public interest. Valley View Civic Association v. Zoning Hearing Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). When an applicant seeks a variance for a property located in Philadelphia, the Board must also consider the factors set forth in the Ordinance.*fn2 Wilson v. Plumstead Township Zoning Hearing Board, 594 Pa. 416, 936 A.2d 1061 (2007). In essence, an applicant seeking a variance pursuant to the Ordinance must demonstrate that: (1) the denial of the variance will result in unnecessary hardship unique to the property; (2) the variance will not adversely impact the public interest; and (3) the variance is the minimum variance necessary to afford relief. Hertzberg. The burden on an applicant seeking a variance is a heavy one, and the reasons for granting the variance must be substantial, serious and compelling. Valley View.

Appellants assert that the Board erred in granting each of dimensional variances requested because Applicant did not meet its burden to demonstrate that a hardship, unique to the property, prevents the reasonable use of the property in conformity with the Ordinance. Appellants submit that the property is not unique simply because it wraps around Fergie's pub and is located mid-block between Sansom and Walnut streets. Appellants also aver ...

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