Scott v. Zoning Board of Adjustment

48 Pa. D. & C.5th 36
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMay 18, 2015
DocketNo. 2363; 358 CD 2015
StatusPublished

This text of 48 Pa. D. & C.5th 36 (Scott v. Zoning Board of Adjustment) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scott v. Zoning Board of Adjustment, 48 Pa. D. & C.5th 36 (Pa. Super. Ct. 2015).

Opinion

PADILLA, J.,

Appellant John Scott, appeals this court’s order denying his statutory appeal from the final adjudication of Appellee the Zoning Board of Adjustment.

FACTUAL AND PROCEDURAL HISTORY

On March 25, 2013, Moyer Street Associates, LLC (“intervenor”) applied to the Philadelphia Department of Licenses and Inspections (“L&I”) for. a zoning use/ registration permit for the construction of fourteen (14) residential units with thirteen (13) interior parking spaces at the subject Property (“the property”) located at 412-424 Moyer Street. See findings of fact, ¶ 1; application for zoning/use registration permit no. 460914, The property is a vacant industrial parcel 11,550 square feet in size, located in an ICMX district, on the same block as RSA-5 residential zoning. See findings of fact, ¶ 5; Notes of Testimony, hereinafter N. T., 6/26/13 at 3. The property was last used as an auto salvage yard with a building [39]*39covering the entirety of the lot, which subsequently fell into disrepair after its vacancy. See findings of fact, ¶ 6-7; N. T. 6/26/13 at 3, 5. The majority of the surrounding properties are residential uses. See findings of fact, ¶ 9; N. T. 6/26/13 at 9.

On April 29, 2013, L&I issued a refusal notice as the proposed residential use was not permitted within the property’s ICMX zoning district, and the proposed development did not meet the applicable requirements for; minimum rear yard depth, minimum aisle width, and provision of accessible parking spaces. See findings of fact, ¶ 2; Notice of Refusal, 4/29/13.

On May 2, 2013, intervenor filed a timely notice of appeal to appellee.

On June 26, 2013, a hearing was held before appellee.

Intervenor noted that, in 2008, appellee had granted use and dimensional variances for a proposed 14 unit residential development; the appeal eventually went to the Commonwealth Court of Pennsylvania, where that court upheld the grant of the use variance but remanded the matter for additional findings regarding the grant of dimensional variances for the project.1 See findings of fact, ¶ 10-11; N. T. 6/26/13 at 3-4. However, due to changes in marketing conditions, the project did not go forward. N. T. 6/26/13 at 3-4. Intervenor also noted that the current project proposal had been changed to a plan with twelve (12) units. N. T. 6/26/13 at 2.

[40]*40The proposed homes would have a one (1) car garage located off of the proposed center driveway between two parallel rows of homes; vehicular access would be from the Moyer Street entryway using a single 25’ 3” wide curb cut. See findings of fact, ¶ 19; N. T. 6/26/13 at 4-5. These plans were reviewed and approved by the streets department. See findings of fact, ¶ 19; N. T. 6/26/13 at 4-5. The homes, with the exception of two carriage houses, would be thirty-three (33) feet in height; the carriage houses would be thirty-nine (39) feet in height. See findings of fact, ¶ 20; N. T. 6/26/13 at 6-7. The additional height of the carriage houses was to allow for vehicle clearance. See findings of fact, ¶ 21; N. T. 6/26/13 at 6-7. Each home would be three (3) stories high, with cellars, a roof deck, and a pilot house, consisting of approximately 1800 square feet. See findings of fact, ¶ 22; N.T. 6/26/13 at 5.

Intervenor further noted that there was a required rear yard depth of twenty (20) percent of the lot; though it had originally proposed 8.25 foot deep rear yards, as a consequence of the requirements it had increased the proposed depth to approximately ten (10) feet in the revised plans. See findings of fact, ¶ 31; N. T. 6/26/13 at 4. Because the homes on the adjacent Flora Street properties were built to the existing party wall and had no rear yards, building to within 10 feet of the rear lot line would not affect the neighbors’ light or air. See findings of fact, ¶ 31; N. T. 6/26/13 at 4, 8. Intervenor argued that accessible parking spaces were more appropriately required for industrial and commercial developments with outdoor lots, not residential projects. Additionally, intervenor noted that the proposed width under the carriage house [41]*41units had been increased from 13.4 feet to twenty-two (22) feet, or two feet short of the required minimum of twenty-four (24) feet, and this revised proposal was approved by the Streets Department. See findings of fact, ¶ 34; N. T. 6/26/13 at 14.

Intervenor submitted a letter from Thomas Bond, a licensed real estate broker with twenty (20) years of experience in the Philadelphia market, stating that the small size of the site, its condition, lack of infrastructure, and constrained boundaries made it infeasible to develop the property for industrial use. See findings of fact, ¶ 24; certified record at 71; N. T. 6/26/13 at 9. Bond further noted that within a two (2) mile radius of the site there were other vacant industrial sites better suited to industrial use, and that it was unlikely the property would sell as an industrial site. See findings of fact, ¶ 24; certified record at 72.

James Moransky, the owner of the property since 2007, testified that he had listed the property for sale for over a year and that there had been no interest in it as an industrial site; almost every inquiry was for residential development and offers were contingent on zoning. See findings of fact, ¶ 26; N.T. 6/26/13 at 15.

Kevin Baird,2 the property’s equitable owner, also testified that a great deal of site work, including demolition and environmental remediation, was required at the property due to its previous use as a salvage yard and paint factory. See findings of fact, ¶ 28; N. T. 6/26/13 at 15-16. This use had resulted [42]*42in soil contamination, and preliminary estimated costs to remove that contaminated soil would exceed $100,000.00. See findings of fact, ¶ 28, N. T. 6/26/13 at 15-16, 28-29. He stated that all of the soil would need to be remediated and a steel structure would need to be taken down. N. T. 6/26/13 at 28.

Liz Zimmer, architect for intervenor, advised the board that one of the proposed garages could be revised to meet accessibility standards. See findings of fact, ¶ 33; N. T. 6/26/13 at 12.

Intervenor submitted a letter of support from the Fishtown Neighbors Association (“FNA”). See findings of fact, ¶ 35. FNA acknowledged that reaction to the proj ect had been mixed, but neighbors had been “receptive and supportive” of the residential development of a long vacant building, the aesthetics of the building, and the parking plan. See findings of fact, ¶ 36. However, neighbors were concerned with the project’s density and proximity to existing homes. See findings of fact, ¶ 36. However, the overall vote was positive. See findings of fact, ¶ 36.

Appellant testified that he objected to the back row of homes, which would block his view of Center City and turn the property “into a crime magnet.” See findings of fact, ¶ 39; N. T. 6/26/13 at 34-35. Appellant noted he did not have a roof deck, but a staircase and commercial roof hatch, as well as a roof deck on the first floor. N. T. 6/26/13 at 38,43. However, he keeps the hatch locked and does not have a permit for a roof deck. N. T. 6/26/13 at 38, 43. Appellant also admitted that there were three (3) story homes located on the block. N. T. 6/26/13 at 42.

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Bluebook (online)
48 Pa. D. & C.5th 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-zoning-board-of-adjustment-pactcomplphilad-2015.