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South of South Street Neighborhood v. Philadelphia Zoning Board of Adjustment

September 13, 2012


The opinion of the court was delivered by: P. Kevin Brobson, Judge

Submitted: June 1, 2012



Appellant South of South Street Neighborhood Association, Kevin Broad, Patrick Borkowski, Nicole Flaquer, and Wei Jing Lei (collectively, the Association) appeal from an order of the Court of Common Pleas of Philadelphia County (trial court). The trial court affirmed a decision of the Zoning Board of Adjustment of the City of Philadelphia (ZBA). The ZBA's decision granted a variance to Dung Phat LLC (Dung Phat), subject to certain conditions. We affirm the trial court's order.

We summarize the pertinent factual and procedural history below, based upon the ZBA's factual findings and the record. Since 1999, Dung Phat has owned a tract of land in the City of Philadelphia (City) that occupies all but one corner of the City block that is bounded by Washington Avenue, 24th Street, Carpenter Street, and 23rd Street (hereafter, the Property). (ZBA Finding of Fact (FF) No. 13.) The Property is located in a G-2 Industrial zoning district, and it consists of 138,866 square feet upon which is situated a vacant industrial building with a footprint of 94,894 square feet. (FF Nos. 12, 13.) The remaining area of the block is zoned as an R-10A Residential district, and residential uses occupy that area. (FF No. 14.) Uses along 23rd Street, 24th Street, and Carpenter Street include residential dwellings and an assisted living facility. (FF No. 15.) Washington Street has "industrial and commercial uses, with commercial uses becoming increasingly common." (FF No. 16.)

In March 2001, Dung Phat submitted an application to the City's Department of Licenses and Inspections (L&I) for a permit to use the Property for a shopping center containing a supermarket, a laundromat, and up to fifty retail stores. (FF No. 19.) L&I denied that application, and Dung Phat appealed that decision to the ZBA. (Id.) The ZBA affirmed L&I's denial. (Id.)

In September 2001, Dung Phat filed two more applications regarding the use of the Property. One of the applications sought approval to use the part of the Property located at 2301-99 Washington Street for wholesale and retail purposes permitted in areas zoned C-3 Commercial. (FF No. 20.) The other application sought approval to place parking on the part of the Property located at 2401 Washington Street. (Id.) The ZBA denied those applications. (Id.) On October 9, 2008, Dung Phat, through Michael Sharir, a design professional, submitted an application to L&I seeking a zoning/use registration permit for the Property. (FF No. 1.) In this application, Dung Phat sought approval for the following: (1) consolidation of the three lots which comprise the Property; (2) creation of individual tenant spaces for a variety of retail and wholesale uses, including uses permitted in C-2 Commercial zoning districts; (3) an accessory parking lot containing 119 spaces, including six (6) spaces for physically handicapped drivers/patrons; and (4) structural changes, including second story additions to the existing building, as well as dormers, and a forty-eight (48)-foot-high clock tower. (Id.). L&I denied the application on November 2, 2008, noting that the uses Dung Phat proposed are not permitted in G-2 Industrial districts and that the proposed accessory parking spaces did not meet the dimensional requirements for such contained in the Philadelphia Zoning Code. (FF No. 2.)

Dung Phat, through its architects, appealed L&I's decision to the ZBA. (FF No. 3.) Dung Phat asserted in its appeal that the Property was subject to a hardship by virtue of the zoning requirements, arguing that the G-2 zoning restrictions are inappropriate in the area, which, as indicated above, is becoming increasingly commercial in nature. Dung Phat also asserted that the proposed use was not contrary to the public welfare, and, in fact, was more compatible with the neighboring residential and commercial uses than the industrial uses permitted in G-2 districts. Finally, Dung Phat asserted that the proposed parking spaces are adequate. (FF No. 4.)

The ZBA conducted a hearing on Dung Phat's appeal on March 11, 2009. The ZBA voted that day to grant the variances Dung Phat requested, subject to the conditions that (1) trash is to be stored within property lines, (2) no loading docks will be located on Washington Avenue, and (3) the proposed laundromat will operate only during certain limited hours. (FF No. 5.) In response to a letter from counsel for the Association, however, the ZBA decided to reconsider its decision and held a second hearing on May 13, 2009. The ZBA proceeded to accept testimony during that hearing and during a second hearing that followed.

On January 12, 2010, the ZBA issued a decision, granting Dung Phat the variance relief it had requested, subject to conditions identified in a December 14, 2009 letter the City's Planning Commission sent to the ZBA. (FF No. 11.)

Those conditions were: (1) Dung Phat must keep a four-foot wall in front of the parking lot; (2) Dung Phat will use a trash enclosure as part of the building, rather than fencing in trash; and (3) all deliveries and trash pick-up will be conducted from inside the parking lot, and not from Carpenter Street, 23rd Street, or 24th Street. (Id.)

In reaching this decision, the ZBA concluded that Dung Phat had demonstrated the existence of an unnecessary hardship and that granting Dung Phat the requested variance relief would not substantially affect adjoining landowners or the general public in an adverse manner. The Association appealed the ZBA's decision, and the trial court affirmed the ZBA.

The Association now appeals from the trial court's order,*fn1 raising the following issues: (1) whether the trial court erred in concluding that (a) Dung Phat established the existence of an unnecessary hardship, (b) granting the variance would not alter the character of the neighborhood, (c) the grant of the variance would not be detrimental to the public welfare, and (d) the grant of a variance will not substantially increase congestion in the public streets; (2) whether the trial court erred in concluding that the doctrine of res judicata does not bar the ZBA's consideration of Dung Phat's application; and (3) if the trial court correctly concluded that an unnecessary hardship exists, whether it erred in concluding that the relief Dung Phat requested was the minimum variance that will afford relief from the hardship. If the trial court erred in its analysis concerning res judicata, such a result would render consideration of the other issues unnecessary. Before considering these issues raised by the Association, however, we will first address an issue Dung Phat has raised in its brief.

Dung Phat argues in its brief that the Association lacks standing to bring this appeal, and, therefore, this Court should reject the Association's appeal. In Thompson v. Zoning Hearing Board of Horsham Township, 963 A.2d 622 (Pa. Cmwlth. 2009), we rejected a standing challenge in an appeal where a trial court concluded that a party could not raise an objection to an opponent's standing when the party whose standing was questioned participated before the zoning hearing board without objection. We concluded that a party is "necessarily . . . aggrieved by" a zoning hearing board's "adverse decision and had standing to appeal that decision to the trial court." Thompson, 963 A.2d at 625 (citing Baker v. Zoning Hearing Bd. of West Goshen Twp., 367 A.2d 819 (Pa. Cmwlth. 1976)). Moreover, a challenge to standing is not one that is jurisdictional in nature. Housing Auth. of the City of Pittsburgh v. Van Osdol, 40 A.3d 209, 214 (Pa. Cmwlth. 2012). Consequently, because the Association participated in the proceeding before the ZBA, without objection from Dung Phat, we conclude that the Association has standing. Therefore, we will proceed to discuss the merits of the issues the Association has raised in its appeal.

First, we will address the Association's argument that trial court erred in concluding that Dung Phat's claims are not barred by the doctrine of res judicata. The doctrine of res judicata, or claim preclusion, will bar litigation of a claim when an identity exists as to four factors between an earlier and subsequent claim or cause of action. Tobias v. Halifax Twp., 28 A.3d 223, 226 (Pa. Cmwlth. 2011), appeal denied, ___ Pa. ___, ___ A.3d ___ (No. 706 MAL 2011, filed May 30, 2012). Those four factors are: (1) the identity of the thing sued for; (2) the identity of the cause of action; (3) the identity of the persons and parties to the action; and (4) the identity of the quality in the persons for or against whom the claim is made. Id. Recognizing the need for flexibility in zoning matters, courts apply the doctrine sparingly in zoning cases. Price v. Bensalem Twp. Zoning Hearing Bd., 569 A.2d 1030, 1032 (Pa. Cmwlth. 1990). In zoning matters, the doctrine will not apply if substantial changes in circumstances relating to the land itself have occurred. Grim v. Borough of Boyertown, 595 A.2d 775, 778 (Pa. Cmwlth. 1991).

The Association argues that the distinctions between Dung Phat's earlier applications and the current application represent merely a change in the general theme of the application, and that the substance underlying all of the application is the same. The Association characterizes the applications as seeking essentially the same relief--i.e., the right to use the Property for a retail shopping center with accessory parking. The Association views this present application as a "variation on the central request, rather than [a variation on] the theory behind the request." (Association Br. at 38.) Based upon this ...

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