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Monroe Land Investments v. Zoning Board of Adjustment

Commonwealth Court of Pennsylvania

March 26, 2018

Monroe Land Investments
Zoning Board of Adjustment and The City of Philadelphia and Broad Street West Civic Assoc. and John Furey Appeal of: John Furey and Broad Street West Civic Assoc.

          Argued: March 6, 2018




         John Furey and Broad Street West Civic Association (Appellants) appeal from an Order of the Court of Common Pleas of Philadelphia County (common pleas), dated March 28, 2017, which granted the appeal of Monroe Land Investments (Monroe), reversed the decision of the Zoning Board of Adjustment of the City of Philadelphia (ZBA) denying Monroe's application for a special exception (Application), and directed the Philadelphia Department of Licenses and Inspections (L&I) to issue a zoning permit. The Appellants contend that common pleas disregarded the ZBA's credibility determinations and substituted its judgment for that of the ZBA. Because common pleas correctly determined that the ZBA's decision was not supported by substantial, competent evidence, we affirm common pleas' Order.

         Monroe is the owner of property located at 2640 South Carlisle Street in Philadelphia (the Property), which is improved with a one-story, semi-detached building. The Property is located within the CMX-2, Neighborhood Commercial Mixed-Use-2 Zoning District. Monroe applied to L&I for a zoning/use registration permit to use the Property as a Dunkin' Donuts store (the Project). (ZBA Opinion (Op.), Findings of Fact (FOF) ¶ 1.) Dunkin' Donuts, because it is considered a takeout restaurant, requires a special exception under Table 14-602-2 of the Philadelphia Zoning Code (Zoning Code).[1] L&I referred Monroe's Application to the ZBA, which held a hearing.

         I. ZBA Hearing

         At the hearing, evidence was presented showing that the Property is on a corner and has frontage on both South Carlisle Street and Oregon Avenue. South Carlisle Street is a one-way street with row houses. Oregon Avenue is an east-west, five-lane arterial roadway on which numerous commercial businesses are located. (Transportation (Transp.) Analysis, Reproduced Record (R.R.) at 308a.) A few hundred feet away is South Broad Street. Around the corner, at the intersection of South Broad Street and Oregon Avenue, is the Philadelphia Performing Arts Charter School. There is another charter school at the corner of South Broad Street and Shunk Street. About three blocks from the Property, at South 18th Street and Oregon Avenue, is another Dunkin' Donuts (the 18th Street Dunkin' Donuts), which Monroe also operates. The 18th Street Dunkin' Donuts operates 24 hours a day and has a full parking lot, but no drive-thru. The Property previously had been used as a 7-Eleven and then a NAPA Auto Parts (NAPA) store. Six months after the NAPA store closed, Monroe purchased the Property.

         The building on the Property is approximately 2, 532 square feet, approximately 16 feet high, and set back from Oregon Avenue by approximately 58 feet. As part of the Project, Monroe proposed reconfiguring the parking lot to allow for three parking spaces, one of which would be designated for handicapped parking. Vehicles would enter the lot from Oregon Avenue and pull into parking spots facing west and parallel with Oregon Avenue, which would enable patrons to pull out of the lot and onto Oregon Avenue facing forward. The building would have 14 seats for patrons and 2 bathrooms. Lighting and security cameras would be installed at the Property. The Dunkin' Donuts would operate between 5:00 a.m. and 10:00 p.m. There would be no drive-thru. Deliveries would occur once a week. Garbage would be stored in tote containers rather than a dumpster in the rear yard and would be collected two or three times a week. Two new privacy fences would be erected on the Property: one to the north or rear of the Property on South Carlisle Street, and the other to the west of the Property, facing the rear of homes fronting South 15th Street. The latter would be equipped with vision stripes to block the glare from car headlights. A three-foot alley separating the rear of the Property from the adjacent residential home on South Carlisle Street would be preserved.

         Albert Taus, [2] the Project architect, testified that he had provided designs for approximately 500 Dunkin' Donuts stores over the past 25 years. The proposed Dunkin' Donuts at the Property is considered a satellite store, meaning no food is prepared on site but is merely warmed prior to consumption. Venting is necessary but only for hot air from a microwave, sandwich station, and a convection oven. (Hr'g Tr. 22, R.R. at 34a.) The vent would be located as far away as possible from the homes on South Carlisle Street and South 15th Street. Taus opined that the Project would not impair an adequate supply of light or air to any of the surrounding properties. Dunkin' Donuts satellite stores, Taus continued, have historically not had detrimental impacts on utilities, such as water, electricity, and sewer.

         Frank Montgomery (Montgomery), [3] a traffic engineer with Traffic Planning and Design, Inc., (TPD), testified regarding a traffic analysis he conducted of the area surrounding the Property. Montgomery noted that over the past 20 years he had conducted numerous traffic impact and parking studies. Montgomery conducted a traffic count during the morning (7:00 a.m. to 9:00 a.m.) and evening (4:00 p.m. to 6:00 p.m.) rush hours and also observed traffic during the early afternoon when school is dismissed. Montgomery's traffic count noted that between 7:30 a.m. and 8:30 a.m., 421 vehicles traveling east passed South Carlisle Street, while 648 vehicles traveling west passed South Carlisle Street. (Transp. Analysis, Fig.3, R.R. at 316a.) Using an industry manual and other analyses TPD had conducted in Philadelphia, Montgomery projected that approximately 130 customers would frequent the Dunkin' Donuts between 7:30 a.m. and 8:30 a.m. (Transp. Analysis, R.R. at 310a; Hr'g Tr. at 33, R.R. at 45a.) However, Montgomery continued, given that this is a densely populated area and is in close proximity to mass transit, 75 percent of patron trips or about 100 patrons to the Dunkin' Donuts will not come via a vehicle. Thus, he estimated there will be about 30 cars entering and exiting the

          Property between 7:30 a.m. and 8:30 a.m., that is, one vehicle every 2 minutes.[4] (Id.) There would be "significantly" fewer customer trips to the Dunkin' Donuts in the afternoon. (Hr'g Tr. at 33, R.R. at 45a.) Montgomery noted that the proposed parking lot at the Dunkin' Donuts was small and this encouraged people to walk there. (Hr'g Tr. at 36, R.R. at 48a.) In addition, Montgomery opined that given most patrons would be familiar with the area, if a patron drove to the Dunkin' Donuts and saw no room to park, he would drive to the 18th Street Dunkin' Donuts where there is more parking. Looking at how the vehicle traffic to the Property would impact the traffic in the area, Montgomery concluded that the Project would not increase congestion in the public streets. (Hr'g Tr. at 41, R.R. at 53a.) Regarding the Philadelphia Performing Arts Charter School, Montgomery concluded that "the limited vehicular traffic associated with the proposed Dunkin['] Donuts, especially during the afternoon pickup times, will not significantly impact traffic in this area." (Transp. Analysis, R.R. at 313a.) Montgomery also concluded that given the infrequency of deliveries and trash collection to the Property, the Project would not be detrimental to the health, safety, and welfare of the neighborhood. (Hr'g Tr. at 41, R.R. at 53a.)

         Russell Shoemaker, [5] a nearby resident, a member of the South Philadelphia Business Association, and president of the Police Advisory Board for South Philadelphia, testified that he has witnessed disturbances from kids at the 18th Street Dunkin' Donuts. Most of the kids are from outside the neighborhood and meet at the 18th Street Dunkin' Donuts. Shoemaker and the police then chase the kids from one location to the next. Shoemaker did not believe the 18th Street Dunkin' Donuts is a nuisance. He thought the Project would relieve some of the pressure on the 18th Street Dunkin' Donuts.

         In opposition to the Application, the ZBA received the following comments.[6]Peter Elliott from Councilman Kenyatta Johnson's (Councilman Johnson) office said that Councilman Johnson, having received several petitions opposing the Application, opposed it. Elliott noted that residents have complained to Councilman Johnson's office about drivers parking their cars in the middle of South Carlisle Street and then patronizing businesses on Oregon Avenue.

         John Furey of the Broad Street West Civic Association commented that, as a result of the Project, "home values will depreciate, traffic congestion will increase, and their quality of life will be affected by noise, trash, and teens hanging out there." (Hr'g Tr. at 51, R.R. at 63a.) Furey opined that the proposed parking lot "is too small for the number of cars that these stores draw." (Id.) Noting that "in South Philadelphia[] everybody knows parking is crazy, " Furey predicted that "[i]f there is a space[, ] they are going to put two or three cars in there, go in and get their coffee." (Hr'g Tr. at 54, R.R. at 66a.) Furey also claimed that the 18th Street Dunkin' Donuts has a history of ignoring neighbors' complaints about it being a "public nuisance." (Hr'g Tr. at 52, R.R. at 64a.) Furey acknowledged that Monroe had modified its proposal to satisfy community concerns, with the exception of eliminating the parking lot, but neighbors remained opposed to the Project. Furey commented, "we're opposed to it, period." (Hr'g Tr. at 57, R.R. at 69a (emphasis added).)

          Rose Mary LaCroce, whose home abuts the Property, commented that kids would loiter on the Property and hang over the privacy fence, just as they do at the 18th Street Dunkin' Donuts. She commented that "[o]n a normal day traffic is horrendous[, ]" and that "[t]raffic is crazy no matter when you go." (Hr'g Tr. at 60, R.R. at 72a.) LaCroce acknowledged, however, that she "wasn't . . . happy . . . when the 7-Eleven was there[, ]" and that the Property, being in the CMX-2 zone, could be used as a 24-hour gym as of right. (Hr'g Tr. at 61, R.R. at 73a.) LaCroce responded that "just because . . . you can do it, doesn't make it right[, ]" and that "it doesn't mean that it's not going to impact those of us who live in that area." (Id.)

         Raymond Luning, who lives across the street from the Property, commented that residents who live on South Carlisle Street, because it is so narrow, have to park on the pavement in order for the garbage truck to pass. Luning stated that with the Project he is "going to lose thousands and thousands of dollars [and] I just don't want that place there. That's it." (Hr'g Tr. at 63, R.R. at 75a (emphasis added).)

         Roseanna Lord, a local resident, commented that when the 7-Eleven was operated at the Property, "[i]t was horrible." (Hr'g Tr. at 64, R.R. at 76a.) At night, when she had to walk by the 7-Eleven, she feared for her life. (Id.) She added that there were "[b]eggers, " and "it was a very uncomfortable situation." (Id.)

         Adelina LaCroce, another local resident, commented that any of the by-right uses for the CMX-2 zone would be better than the proposed use. She did not want any use involving food except for "an eat-in restaurant" because it "brings a different client[ele]." (Hr'g Tr. at 65, R.R. at 77a.) She commented that NAPA "was great" because it had "regular business hours, no food, no loitering, no littering." (Id.)

         A letter from State Representative Maria P. Donatucci was submitted opposing the Application for the same reasons the commenters expressed.

          In rebuttal, Monroe offered the testimony of Larry Persofsky, [7] a paralegal for the attorney representing Monroe, who reviewed crime data, as reported by the Philadelphia Police Department, which showed that there was one report of a robbery at ...

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