Argued October 10, 2013.
Appealed from No. June Term, 2012, No. 02091. Common Pleas Court of the County of Philadelphia. Tucker, J.
Matthew J. Wolfe, Philadelphia, for appellant.
Daniel P. McElhatton, Philadelphia, for appellee FT Holdings L.P.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY JUDGE McGINLEY.
BERNARD L. McGINLEY, Judge.
John Scott (Scott) appeals the order of the Court of Common Pleas of Philadelphia County (common pleas court) that granted FT Holdings LP's (FT) motion and quashed Scott's appeal and dismissed Scott's appeal with prejudice.
FT developed a condominium complex located at East Thompson and Columbia Avenue in the City of Philadelphia. On March 9, 2012, FT submitted an application for Zoning/Use Registration Permit on properties it owned located at 1247 E. Columbia Avenue, 413 Moyer Street, and 415 Moyer Street in the City of Philadelphia. FT sought to relocate lot lines to consolidate and merge two lots (413 Moyer and 415 Moyer) into 1247 E. Columbia Avenue as part of a previously approved residential development, demolition of the all existing structures on 413 and 415 Moyer Street, erection of one four story residential structure containing nine residential dwelling units with accessory decks, green roofs, and bicycle storage, for a total of thirty-five residential units and one commercial unit with accessory parking for thirty-two vehicles, as previously approved.
On April 9, 2012, the City of Philadelphia, Department of Licenses and Inspections (L & I) denied the application pursuant to the Philadelphia Zoning Code (Code). The Application violated Section 14-205 of the Code because the proposed use of thirty-five dwelling units was not permitted in the Zoning District; thirty percent open area is required and the application only proposed 2.2%; a maximum height of thirty-five feet is permitted but the Application proposed forty-nine feet, four inches; and the maximum number of stories was three but the application proposed four. Further, the application violated Section 14-113 of the Code because it created a condition of multiple structures with no structure having its own front, side or rear yard which was not permitted in the Zoning District. The Application also violated Section 14-1402(1)(a) of the Code because the Code required thirty-five off-street parking spaces while the Application only proposed thirty-two.
On April 10, 2012, FT appealed the denial to the City of Philadelphia Zoning Board of Adjustment (Board) and sought variances. The Board conducted a hearing on May 2, 2012. At the hearing, FT's counsel, Peter F. Kelsen (Attorney Kelsen) explained that the Board had previously authorized the development of twenty-six residential units and that FT sought the authorization of " Phase 3" of the project. Notes of Testimony, May 2, 2012, (N.T.) at 2; Reproduced Record (R.R.) at 2a. Attorney Kelsen further explained that Phase 3 would include the construction of a four story approximately forty-nine foot tall building that would contain nine residential units. There was also provision for a " dedicated bike room for 35 bikes." N.T. at 3; R.R. at 3a. Of the nine units, six would be two bedroom and three would be one bedroom. N.T. at 4; R.R. at 4a. Attorney Kelsen also asserted that the project had the support of the Fishtown Civic Association, the Fishtown Neighbors Association, and Council President Clark. N.T. at 5-6; R.R. at 5a-6a.
Jonathan Newcomb (Attorney Newcomb), attorney for Scott, appeared at the hearing on behalf of Scott and asserted that there was a lack of notice because " [t]here was supposed to be notice posted on all frontages for 12 days up until and including today. We have evidence that there was not sufficient notice posted in a proper location, and not posted at all and taken down." N.T. at 7-8; R.R. at 7a-8a. Attorney Newcomb also stated that FT failed to demonstrate an undue hardship that would entitle it to a variance and that " [i]t's a violation of height restrictions . . . it's not within the character of the neighborhood. Light. There will be less light on the street for people for visibility purposes and to view the City. There will be constraints on traffic and parking." N.T. at 10; R.R. at 10a.
James Moransky (Moransky) of FT testified that the property was properly posted but the posters were torn down. N.T. at 22; R.R. at 22a.
The Planning Commission indicated that it had no objection to the grant of the variances. N.T. at 26; R.R. at 26a.
The Board granted the variances and made the following conclusions of law:
9. The record before the Board, demonstrates that the literal enforcement of the Zoning Code against the Subject Property would result in an unnecessary hardship due to the physical surroundings and particular size and configuration of the Subject Property; that the proposed residential use of the Subject Property with one commercial unit will have no adverse effect on the public health, safety or general welfare; and that the variances being requested represent the minimum variances that will afford relief at the least modification possible.
10. The Applicant [FT] presented sufficient evidence demonstrating the unique nature of the Subject Property. In particular, the Applicant demonstrated that the Subject Property cannot comply with the requirements of the Zoning Code set forth in the Notice of Refusal because the Subject Property is an oddly-configured property consisting of multiple lots to be used in unity and conformity with two previously approved phases of development as evidenced by the Previously Issued Zoning Permits.. . . .14. The Board also determined that granting the variance would not (i) substantially or permanently injure the appropriate use of adjacent conforming properties; (ii) substantially increase congestion in the public streets; (iii) increase the danger of fire, or otherwise endanger the public safety; (iv) overcrowd the land or create an undue concentration of population; (v) impair an adequate supply of light and air to adjacent property; or (vi) adversely affect transportation or unduly burden water, sewer, school, park or other public facilities.
15. The Board concluded that the testimony, as well as other documentary evidence support the conclusion that the granting of the variances will keep the Subject Property in harmony with the spirit and purpose of the Zoning Code and will not (i) substantially or permanently injure the appropriate use of adjacent conforming property; or (ii) adversely affect the public health, safety or general welfare.
Findings of Fact and Conclusions of Law of the Philadelphia Zoning Board of Adjustment, May 17, 2012, Conclusions of Law Nos. ...