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Society Hill Civic Association, Concerned Citizens In Opposition To v. Philadelphia Zoning Board of Adjustment

April 9, 2012


The opinion of the court was delivered by: Judge Simpson

Argued: February 14, 2012





In this zoning appeal, Concerned Citizens in Opposition to the Dilworth Development Proposal (Concerned Citizens), the Society Hill Civic Association (Civic Association) and Donald and Barbara Haviland (the Havilands) (collectively, Objectors) ask whether the Court of Common Pleas of Philadelphia County (trial court) erred in affirming a decision of the Philadelphia Zoning Board of Adjustment (ZBA) that granted a variance and special use permit to John J. Turchi, Jr. and Mary E. Turchi and the Athenaeum of Philadelphia (collectively, Applicants) in connection with Applicants‟ proposed renovation and development of a historically designated building, the Dilworth House in the City of Philadelphia.*fn1 Objectors primarily assert the ZBA erred in: unfairly limiting the scope of the hearings; and, granting Applicants‟ variance request where Applicants‟ did not prove the requisite unnecessary hardship and any asserted hardship was self-inflicted. Because we agree with Objectors that the ZBA erred in granting the requested variance and unfairly limited the scope of the hearings, we reverse in part, vacate in part, and remand for further proceedings.

I. Factual and Procedural Background

The ZBA issued a lengthy decision, which includes 141 findings of fact and 74 conclusions of law. We summarize the ZBA‟s pertinent findings and conclusions as follows, supplemented briefly by the record where necessary.

On May 13, 2008, Applicants, through counsel, applied to the Philadelphia Department of Licenses and Inspections (L&I) for a zoning/use-registration permit to allow construction of a 16-story structure at 223-25 South 6th Street (subject property), with a breach in the wall of 219-21 South 6th Street, for 12 dwelling units and a library, with 13 accessory parking spaces.

The subject property is located in a C-4 Commercial zoning district, which permits residential use, and it is subject to the Special Controls for the Washington Square Area. The subject property is bounded by St. James Street to the north, South 6th Street to the west, and Randolph Street to the east. Reproduced Record (R.R.) at 105a. A pedestrian street, known as St. James Place (also known as Locust Walk) is located to the south. Id. St. James Street is a 14-foot wide, one-way eastbound cobblestone road that provides access from South 6th Street to South 5th Street. Id. Randolph Street is a two-way, 14-foot, 6 inch-wide road that extends from St. James Street to the St. James Place pedestrian street where it ends. Id. Randolph Street provides access to the St. James Place and Lippincott residential buildings and their parking facilities. Id. Applicants propose access to an accessory parking area at Randolph Street via St. James Street. Id. at 104a-05a; seeR.R. at 93a, 101a.

On May 23, 2008, L&I issued a refusal of Applicants‟ application because the proposal lacked an off-street loading area. L&I also referred the application to the ZBA because the proposed provision for parking would constitute a garage above grade, which required a special use permit.

Applicants appealed to the ZBA. During the pendency of Applicants‟ appeal to the ZBA, L&I reviewed its initial notice of refusal and concluded the notice erroneously classified the requested parking area as a "garage," and instead indicated the area should be classified as a "parking lot," which also required a special use permit under Section 14-305(a)(3) of the Philadelphia Zoning Code (Zoning Code). See Memorandum of 8/14/08 from Jeanne Klinger of L&I to the ZBA (Klinger Memorandum). The Klinger Memorandum also stated the refusal should contain a notice that a copy of a purported "unity of use" agreement between the Turchis and the Athenaeum must be provided before a zoning permit is issued and must be recorded before a building permit is issued.

The ZBA subsequently held hearings on Applicants‟ appeal in September and November 2008, and February 2009.

At the first hearing, both Applicants and Objectors appeared with counsel. However, because Objectors had not received a copy of the Klinger Memorandum, and because it appeared the hearing would be lengthy, the ZBA continued the hearing.

At the second hearing, the Havilands asserted that Objectors did not receive notice of the date of the hearing, and Objectors did not learn of the hearing until approximately a week before the hearing date.

For their part, Applicants asserted Objectors lacked standing to challenge L&I‟s notice of refusal as inaccurate or incomplete because Objectors did not appeal the refusal as required by Section 14-1705 of the Zoning Code (appeals to the ZBA may be taken by any person aggrieved by any decision of L&I).

Counsel for Concerned Citizens argued that when his clients, who are owners and residents of nearby properties, learned of the issuance of L&I‟s notice of refusal, they attempted to file an appeal on August 15, 2008, but the appeal petition was refused as untimely by the ZBA Administrator.

The ZBA then called Jeanne Klinger, the head of L&I‟s zoning section, to testify regarding L&I‟s action on Applicants‟ proposal. With regard to the parking area, Klinger testified the proposal contemplates that four parking spaces would be completely uncovered, eight parking spaces would be partially covered, and only two parking spaces would be completely covered by the proposed building, so she determined the proposed parking area should be classified as an "accessory parking lot" rather than a "garage" as initially noted in the refusal.

Klinger further testified that both the Turchis‟ lot and the Athenaeum‟s lot were considered as one lot because of a "unity of use" agreement between those parties. Klinger testified that when applicants propose a unity of use for two or more properties, L&I reviews the application with the understanding that the unity of use will take place as described, but it does not require a copy of the unity of use agreement until just before issuance of a zoning permit.

For their part, Applicants presented the testimony of Carey Jackson Yonce, an architect. By way of background regarding the area at issue, Yonce explained the existing Athenaeum building houses architectural archives and is one of the few national historic landmarks in Philadelphia. He also identified the building known as the Dilworth House, which was built in 1957 for then-Mayor Richardson Dilworth. He testified the Dilworth House is listed on the Philadelphia Historic Register. According to Yonce, when the Dilworth House was built, two existing row homes were demolished, causing the south wall of the Athenaeum to deteriorate slowly over time. Among other things, Applicants planned to address that deterioration and provide storage space for the Athenaeum‟s collection in the proposed building on the subject property.

Yonce explained that Applicants propose to erect a 16-story residential tower with 12 full floor dwelling units (including a double-height penthouse on the top two floors) behind the existing Dilworth House. Due to the height of the penthouse, L&I classified the structure as a 17-story building. Applicants plan to renovate the existing Dilworth House, with the ground floor constituting part of the lobby and the upper floors housing office and possibly additional condominium uses. The existing "L" on the back of the Dilworth House would be removed, which is the subject of a pending appeal following the Historical Commission‟s approval. Applicants also plan to construct a "connection from the second level of the Athenaeum over to a storage level in the new project that will provide some valuable conditioned, easily accessible storage space for the Athenaeum to use." R.R. at 311a.

According to Yonce, there is insufficient space between the buildings facing 6th Street to provide a driveway. Thus, Applicants propose to provide surface parking at the rear of the subject property, entering from Randolph Street. The proposed parking area would contain 13 spaces, one for each apartment, and one additional space. Yonce explained his firm also considered an option, which included 12 parking spaces and a loading dock, but the firm determined "a truck that was designed for a space [the size of the loading area] would never be able to maneuver into the property." R.R. at 314a. Significantly, on cross-examination, Yonce conceded the subject property could be used as a single-family home. R.R. at 313a.

Counsel for the Civic Association stated Objectors intended to cross-examine witnesses and present evidence on other grounds for refusal they believed L&I overlooked when considering Applicants‟ application. However, the ZBA ruled the hearing would be limited to the issues raised by L&I‟s refusal, as corrected by the Klinger Memorandum.

Counsel for the Havilands sought to elicit testimony from Yonce regarding the amount of space, if any, Applicants proposed for the area between the wall of their new building and the wall of the existing Lippincott Building, which is located immediately to the south of the subject property. The ZBA did not allow this questioning on the ground the questions were beyond the scope of the direct examination of Yonce.

Applicants also presented the testimony of Karen Jehanian, President of KMJ consulting, who is an experienced traffic engineer. Jehanian testified her firm performed a traffic impact analysis, and concluded the proposed residential units and parking area would not substantially increase congestion, adversely affect transportation or unduly burden public facilities. As to the loading space requirement, Jehanian testified the maximum size truck that could access the proposed parking area would be a standard passenger van. She testified a garbage truck could not gain access.

Applicants also presented the testimony of G. Craig Schelter, a city planning expert. Schelter testified he believed a variance from the loading area requirement was justified. Schelter testified the access problem along narrow Randolph Street is a unique hardship that is related to the property, and the only alternative would be to alter the wall of the Athenaeum, which is a national landmark property. R.R. at 323a. According to Schelter, the application met all the Zoning Code‟s variance criteria, and the absence of a loading dock would not adversely affect the public interest. Also, according to Schelter, the proposed parking lot met all the Zoning Code requirements for a special use permit.

Importantly, on cross-examination, Schelter explained the Zoning Code‟s loading area requirement was triggered by the fact that the proposed building exceeds 50,000 square feet. He conceded a variance would not be necessary if the proposed building was less than 50,000 square feet. R.R. at 328a.

At the conclusion of the second hearing, and prior to Objectors‟ presentation of their case, the ZBA indicated it would limit the evidence to issues raised by L&I‟s refusal, as corrected by the Klinger Memorandum.

At the third hearing, Objectors presented evidence in opposition to the requested variance. Specifically, Objectors presented the testimony of Benita Fair-Langsdorf, who resides at 227 South 6th Street at the Lippincott Building, which adjoins the subject property. Fair-Langsdorf testified she is a member of the condominium association in the Lippincott Building as well as a member of the Civic Association. Fair-Langsdorf testified her major concern regarding Applicants‟ proposed project is traffic congestion because Randolph Street is extremely narrow, and the residents of the 27 units in her building have basement parking spaces that depend on Randolph Street for ingress and egress. Fair-Langsdorf testified that residents in her building already compete with residents of St. James Court, who often stop on Randolph Street while they unload groceries, receive deliveries and go in and out for other reasons. Additionally, according to Fair-Langsdorf, the residents of her building have to cope with many delays resulting from trucks servicing the Penn Mutual Building on St. James Street.

Donald E. Haviland, Jr., testified he is a lawyer who appeared on his own behalf because his lawyer was unavailable. He resides with his wife and three children in the unit he owns in the northeast corner of the second floor of the Lippincott Building, which has four windows that directly overlook the subject property. Haviland testified regarding his concerns over traffic congestion in the area. He also submitted various exhibits, including a letter from City Councilman Frank DiCiceo in opposition to the proposed project, as well as photographs and a DVD with video clips of traffic conditions in the area.

Haviland testified it was not necessary for Applicants to have the entrance of their parking lot on Randolph Street. Instead, Applicants could use an entrance from St. James Street and the parking lot at the rear of the Athenaeum to enable trucks to reach a loading dock and parking lot in the rear of the proposed building. According to Haviland, providing access through the Athenaeum parking area to the proposed parking lot would alleviate a great deal of interference he anticipates would affect residents of the Lippincott Building as a result of the addition of a 12-vehicle parking lot on Randolph Street.

Haviland also disagreed with three opinions expressed by Applicants‟ traffic engineer: (1) that Applicants‟ proposal would not have a material impact on traffic during peak hours; (2) that there is no problem regarding sight distance; and, (3) that it is impossible for a truck to gain access to a loading dock in the proposed parking area. With regarding to the loading area, Haviland testified he observed a loading dock in the rear of the Lippincott building when it was previously used as a publishing house. Further, Haviland presented photographs and video of a full-sized garbage truck making a pickup at the Lippincott building. Contrary to Jehanian‟s testimony, Haviland also testified trucks of all types shown in his photographs routinely make the turn from 6th Street onto St. James Street. Haviland testified existing traffic congestion blocks his own access at least twice a week. According to Haviland, adding a 12-space parking lot in the unusually narrow, dead-end block of Randolph Street would create a unique burden, especially because the possibility of access directly from St. James Street makes it unnecessary.

In addition, Haviland pointed to an engineering report from Pennoni Associates, Inc. detailing substantial structural and maintenance issues with the north wall of the Lippincott Building. He asserted L&I should have refused Applicants‟ proposal based on its alleged failure to comply with the Zoning Code‟s side yard requirement.

Objectors then briefly cross-examined Klinger regarding the issues raised in L&I‟s refusal.

Objectors also presented the testimony of Larry Burstein on behalf of Concerned Citizens. Burstein testified he lives in a unit at 233 South 6th Street, which is known as Independence Place Towers. Burstein testified Concerned Citizens are individuals who live at Independence Place as well as in the Lippincott Building and in St. James Place, and who are vehemently opposed to Applicants‟ proposal. According to Burstein, he overlooks the subject property, and he can see both the front and back of the existing house from his unit on the 23rd floor. Burstein testified that the proposed construction would decimate the area for perhaps up to two years, ...

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