|COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY|
MANAYUNK NEIGHBORHOOD COUNCIL, : FRIENDS OF MANAYUNK CANAL, : JANE GLENN, KEVIN SMITH, : DOLORES LOMBARDI, DARLENE : MESSINA, SIERRA CLUB : Appellants : SEPTEMBER TERM, 2000 : No. 2000-001056 vs. : : SEPTEMBER TERM, 2000 ZONING BOARD OF ADJUSTMENT, : No. 2000-001057 Appellee : : vs. : : DRANOFF PROPERTIES, : Intervenor :
APPELLANTS' BRIEF IN SUPPORT OF ZONING APPEAL
The Appellants, Manayunk Neighborhood Council et al., by and through their attorneys, hereby submit the following memorandum in support of their appeal. There is an outstanding motion to take additional evidence in this matter, but this Brief is submitted as an interim brief because of the agreed upon deadline. The Memorandum in Support of Motion to Take Additional Evidence is incorporated herein.
That motion is necessary because the Board curtailed and failed to take sufficient evidence on the environmental impact of the proposed construction on the river, the ability for emergency evacuation in the event of a flood, the burden of additional traffic created by the new residences, the effect of increased
population density on the provision of emergency services to the island, and the burden placed upon the community by this proposed construction.
STATEMENT OF FACTS AND PROCEDURE
These cases involve the decision of the Zoning Board of Adjustment (the "Board") to allow the construction of a 160 unit apartment complex and private parking lot in the floodway of the Schuylkill River. On November 5, 1999 the intervenor/appellee, Dranoff Properties ("Dranoff") applied to the Department of Licenses and Inspections ("L&I") for zoning and use registration permits to construct an apartment complex of 160 units from the partial demolition and then rehabilitation and expansion of the former Namico Soap Factory located at 4601-45 Flat Rock Road on Venice Island. (N.T. 11/22/99 at 3-5). The property had been used for the manufacture of soap products until just six months before the first hearing on the appeal was held in late November, 1999.(N.T. 11/22/99 at 7, 29).
On October 5, 1999 Dranoff had applied to L&I for zoning and use registration permits to construct a parking lot on neighboring property at 4700 Flat Rock Road to serve the apartment complex. (N.T. 11/22/99 at 5-6).
The permits for both properties were refused by L&I because the proposals violated various use, area, and parking
regulations. (N.T. 11/22/99 at 5-6). Dranoff subsequently appealed those refusals to the Board and hearings were held on November 22, 1999, March 13, 2000, and June 12, 2000.
Both properties are located within the designated, mapped and approved flood-way of the Schuylkill River on an island in the River. (N.T. 11/22/99 at 7, 29, 53). Both properties are also located within the 100 year floodplain of the Schuylkill River. Id.
The Philadelphia Code Sections 14-1606(5)(a)(.1) and 14-1606(a)(.3), forbid new development within the floodway. Section 14-1606(5)(a)(.1) states;
Section 14-1606(a)(.3) mandates that the Board can never grant a variance to 14-1606(5)(a)(.1) in certain circumstances. It states;
(.l) Petroleum products--gasoline, fuel oil, and the like;
The Board made no fact findings. As conclusions of law it " that" conclusively the properties could only be used as proposed if the criteria for granting a variance are met. (Conclusion of Law 14). The Board concluded that the property was subject to a hardship because the buildings could not be utilized as residences in their "current physical condition" and there is not enough ground level parking for the size of the development. (Conclusion of Law 18). The Board also concluded that the hardships were not self imposed and were the result of the physical conditions of the subject properties. (Conclusion of Law 19).
The Board concluded that these were the minimum variances necessary to afford relief. (Conclusion of Law 20). Finally the Board concluded that the proposals would not adversely impact the public health, safety, and welfare. (Conclusion of Law 21).
The Boards did not make findings on the key, underlying facts, e.g., its findings regarding all of the testimony merely finds that each witness "opined that. . ." and gives a brief summary of some of the witnesses testimony. The Board never adopted this testimony, nor weighed its credibility, and every witness is dealt with in the same manner whether their testimony
supported the result reached by the Board or not.
STANDARD OF REVIEW
Because the Court has not conducted a hearing or received additional evidence that was not before the Board, the applicable standard of review is whether the Board committed an abuse of discretion or an error of law. See Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637, 639 (PA. 1983); PAO v. Findlay Township Board, 551 Pa. 689, 713 A.2d 70, 75 (Pa. 1998). The Board will be said to have abused its discretion if its findings are not supported by substantial evidence, meaning such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View 462 A.2d at 640.
"If a local agency, in this case the Board, has made inadequate factual findings, the reviewing court normally can and should remand the matter to the agency to obtain the essential factual determinations." Brighton Enterprises, Inc. v. City of Philadelphia, 95 Pa.Cmwlth. 409, 505 A.2d 1084, 1085 (Pa.Cmwlth. 1986).
I. THE APPLICATION REQUIRED A VARIANCE
Dranoff has argued before the Board and this Court that it was entitled to the proposed residential use of this property as
of right, and that to be granted the variance that they needed only to show that there would be no rise in the regulatory flood. (N.T. March 16, 2000 at 10). This contention is contrary to the law.
The Board properly rejected this argument, finding that the Zoning Code required Dranoff to show a variance factors was required. (Conclusions of Law 2) This Court should affirmthat conclusion because the plain language of the statute mandates such a reading, to hold otherwise would create an absurd result, and because the Zoning Board of Adjustment's interpretation of its own Zoning Ordinance is entitled to great weight and deference.
It is well settled law that an Ordinance must be construed according to recognized rules of construction, in order to determine and give effect to the legislative intention expressed in it. Rapaport v. Zoning Hearing Bd. of City of Allentown, 687 A.2d 29 (Pa.Cmwlth. 1996).
The Board is given the authority to grant a variance under Philadelphia Code 14-1801(c) which states;
hardship, and so that the spirit of this Title shall be observed and substantial justice done, subject to such terms and conditions as the Board may decide;
The plain language of Section 14-1801(1)(c) thus makes it clear that no variance may be granted unless the traditional variance factors of unnecessary hardship are proven. The Board does not have the power to grant a variance absent a showing that these conditions are met. Carman v. Zoning Board of Adjustment of the City of Philadelphia, 162 Pa.Cmwlth. 80, 638 A.2d 365, 369 (Pa.Cmwlth. 1994).
Further, Section 14-1802(1) goes on to expressly mandate the factors the Board must consider in determining whether a variance should be granted. It states:
the danger of fire, or otherwise endanger the public safety;
(g) that the grant of the variance will not overcrowd the land or create an undue concentration of population;
(h) that the grant of the variance will not impair an adequate supply of light and air to adjacent property;
(i) that the grant of the variance will not adversely affect transportation or unduly burden water, sewer, school, park or other public facilities;
(j) that the grant of the variance will not adversely affect the public health, safety or general welfare;
(k) that the grant of the variance will be in harmony with the spirit and purpose of this Title, and
(l) that the grant of the variance will not adversely affect in a substantial manner any area redevelopment plan approved by City Council or the Comprehensive Plan for the City approved by the City Planning Commission. Emphasis added.
The law is clear that whenever an ordinance uses the word shall it is a mandatory provision and the agencies commanded by the ordinance cannot neglect to follow its direction. Cranberry Park Associates v. Cranberry Township Zoning Hearing Board, 561 Pa. 456, 751 A.2d 165, 167 (2000)("the word "shall" denotes a mandatory, not permissive instruction."). The twelve factors listed in Section 14-1802(1) are all traditional variance requirements. 14-1802(2) goes on to list eight more factors the Board must consider. The plain meaning of these sections clearly makes it mandatory that whenever the Board considers a request for any variance it must consider each factor listed.
Dranoff, however argues that the applications fall exclusively under Section 14-1802(3)(a). That section reads;
The introductory language in this section mirrors the language of Section 14-1802(1). There is no intent expressed in the plain language of this Section to allow development within the Floodway upon a mere showing of no increase in the Regulatory Flood level and to exclude Section 14-1802(1) and (2). Section 14-1801(c) itself requires the proof that the standard variance tests are satisfied.
Because this variance, like all variances is only authorized under 14-1801(c), it is clear that the variance must be "as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this Title would result in unnecessary hardship." Section 14-1802(1)-(3) outline the factors that must be considered when granting these variances.
Additionally, the language of 14-1606(5) itself makes it clear that more than a showing of no rise is necessary. It says "No encroachment . . . is permitted except that public utilities are permitted as long as they cause no increase in the One-
Hundred (100) Year Flood level." City Counsel clearly could have considered that the traditional variance requirements would have to be met because they expressly gave public utilities a waiver from those requirements. Because they expressly gave the waiver that Dranoff claims to have to public utilities it is clear they did not intend to give the same waiver to applicants like Dranoff. Lex v. Zoning Hearing Bd. of Hampton Tp., 725 A.2d 236, 239 (Pa.Cmwlth. 1999)(Where a local ordinance enumerates permitted uses, all uses not expressly permitted are excluded by implication.).
Second, to interpret the Ordinance as Dranoff advocates would create an absurd result. It is a long standing rule of statutory construction that when interpreting an Ordinance, it is to be interpreted with the assumption that the City Council did not intend an absurd result. 1 Pa.C.S. 1922(1).
Dranoff's asserted interpretation would make it harder to grant a variance in the floodway fringe or the floodplain than in the actual floodway. The floodway is the area where water actually flows as a river during a flood. Within the floodway fringe the Board would not only have to find "that the grant of the variance will not significantly increase the danger of flooding", but also "that the grant of the variance will not endanger the loss of property, or the public health, safety or
welfare." Dranoff argues that in the floodway no consideration of loss of property, or the public health, safety or welfare is warranted. Such a result is absurd and must be refused.
II. THE BOARD EXCEEDED ITS POWER IN GRANTING A VARIANCE.
The Board specifically found that "Applicant's Proposals for both properties must comply with Section 14-1606 of the Zoning Code." (Conclusions of Law 1, 2) Section 14-1606(a)(.3) of the Zoning Code states that;
Here, Dranoff's application calls for the reconstruction and substantial improvement used for a purpose "requiring the maintenance of a supply in excess of five hundred fifty gallons of petroleum products." This residential use, with 160 units, calls for the parking of 204 cars between the two projects.
This minimum 204 cars (not including staff or guests) would require the maintenance of well more than 550 gallons of gasoline alone within the gas tanks of those vehicles. If the cars had only an average of 3 gallons of gas on average (well below what
is likely) this would exceed the 550 gallon limit (612). Adding on all of the fuel oil and other petroleum products it is clear that this development requires the storage of a great deal more petroleum products than is allowed in the floodway.
Section 14-1606(a)(.3) gives the Board no discretion. They cannot grant a variance. Because it granted a variance in direct conflict with 14-1606(a)(.3), the Board abused its discretion by acting beyond its power.
III. THE BOARD ABUSED ITS DISCRETION IN GRANTING THE APPELLEES' APPLICATION FOR A VARIANCE WITHOUT SUBSTANTIAL EVIDENCE.
In order to be granted a variance the applicant must show that its properties are burdened by an unnecessary hardship that results from the properties' unique physical conditions or circumstances; that the applicant's hardship is not self imposed; that granting the variance would not adversely impact the public health, safety and welfare; and that the proposed variance represents the minimum hardship necessary to afford relief. City of Philadelphia Code 14-1802(1); Carman v. Zoning Board of Adjustment of the City of Philadelphia, 162 Pa.Cmwlth. 80, 638 A.2d 365, 369 (Pa.Cmwlth. 1994).
Here Dranoff failed to meet all of these key variance tests. Moreover, because the main variance granted is a use variance, not a dimensional variance, the lesser standard of Hertzberg v.
Zoning Board of Adjustment of Pittsburgh, 721 A.2d 43 (Pa. 1998), is not applicable.
A BECAUSE THE PROPERTY WAS BEING USED AS ZONED, THERE IS NO UNNECESSARY HARDSHIP.
To be entitled to a variance, it "is axiomatic that the applicant for a variance must prove that the subject property could not be used within the permissible limits of the existing zoning classification." Philadelphia v. Earl Scheib Realty Corp., 8 Pa. Commonwealth Ct. 11, 17, 301 A.2d 423, 426 (1973). Where the property is actually used for any purpose permitted by the zoning ordinance there is no unnecessary hardship that is required to grant a variance. Id.; Patullo v. Zoning Hearing Board of Township of Middletown, 701 A.2d 295, 298 (Comm. 1997); See also Hohl v. Caernarvon Township Zoning Hearing Board, 736 A.2d 57, 59 (Comm 1999)[holding that home for mentally and physically handicapped adults failed to prove that no other legal uses existed for restaurant built in violation of zoning ordinance and therefor no variance could be issued.]; Evans v. Zoning Hearing Board of Borough of Spring City, 736 A.2d 57, (Comm. 1999)[holding that parents who built apartment for their handicapped child above an accessory building at their home in violation of zoning ordinance could not establish unnecessary hardship because property had been used for a permitted use
before the apartment was built].
Here, the property has been and still is able to be used for industrial use, a use allowed as a continuing use under the Zoning Ordinance. Not only was no showing of infeasibility made, the applicant clearly admitted that the property could in fact be used for permitted purposes without granting a variance. Mr. Dranoff himself stated that the site "could have been used for any number of industrial or commercial uses." (N.T. 3/13/00 at 85). Because the applicant admitted that the property was useable for a permitted use there can be no reasonable finding of unnecessary hardship. Patullo, 701 A.2d at 298.
Their argument really was that residential "was the best possible use." (N.T. 3/13/33 at 85). Even if this was true, which as explained below it clearly is not, this is irrelevant to the granting of a variance. Teazers, Inc. v. Zoning Bd. of Adjustment of City of Philadelphia, 682 A.2d 856, 859 (Pa.Cmwlth. 1996). The law is clear that an owner is not entitled to the best use or the most profitable use, as long as there is some use that may be put to the property there is no right to a variance. Id.
Teazers is directly on point to this case because in Teazers the Commonwealth Court found that an adult cabaret owner was not entitled to a variance because, in its own evidence, the
applicant showed that the property had previously been used in conformance with the code and admitted that without the variance the property may be able to be used in compliance. Teazers, 682 A.2d at 859.
Here, Mr. Dranoff admitted that this property could be used for any number of industrial uses. (N.T. 3/13/00 at 85). It was further shown that the property had been in use as a permitted use for well over a year after Dranoff submitted their first plan on this project. (N.T. 3/13/00 at 87). The only difficulty Dranoff has shown is that they are not able to exploit what they term the best use of the property. "However, such economic hardship is insufficient to establish unnecessary hardship justifying a grant of variance." Teazers, 682 A.2d at 859.
Further, all of the evidence that was presented by Dranoff was purely speculative and did not show that the properties could not have been used for a permitted purpose. Without such evidence hardship cannot be established and the variance must be denied. Earl Scheib, 301 A.2d at 426.
The evidence of hardship that Dranoff offered, and the Board relied upon, was limited to Dranoff's architect stating that the property had deteriorated, that it could not be used without substantial renovation, and that the applicant's proposals would represent the highest and best use for the properties. (N.T.
11/22/99 at 35-37). Dranoff offered no proof that any of the owners had even attempted to sell or lease the property for a use that would not require a variance or that rehabilitation was not feasible. Moreover, the deterioration is self-imposed. In fact there was evidence presented that the property "immediately east" of the Dranoff property is currently being used as a large industrial use. (N.T. 11/22/99 at 34). Dranoff's property too could be used for an industrial use without a variance.
Finally, the application itself proves that the property could have been used for industrial purposes because the property was in use for the manufacture of soap products until just six months before the first hearing on the appeal were held.(N.T. Nov. 22, 1999 at 7, 29). It is truly disingenuous for the applicants to argue that this property was and is unable to be used as an industrial property because the record clearly shows that they submitted their first plan for residential use of this property in the early spring of 1998. (N.T. 3/13/00 at 87). The soap factory did not close until May of 1999. With the amount of time and effort that goes into a real estate transaction of this size and preparing a presentation for development it is clear that this property was used for a permitted industrial use for well over a year after the applicants decided to change that use. One must conclude that it is likely the property would still be
in use today as an industrial use if the applicants had not decided to close the factory so they could build apartments.
The Board made no finding on this issue. The Board committed an error of law by granting the variance when Dranoff did not show any relevant hardship.
B. THERE IS NO UNIQUE PHYSICAL CHARACTERISTIC OF THE PROPERTY CAUSING A HARDSHIP
To establish the right to a variance the property owner must demonstrate that unique physical circumstances and conditions exist that are particular to the property and that those conditions create an unnecessary hardship. Young v. Pistorio, 715 A.2d 1230 (Comm. 1998). Here Dranoff seems to allege that the property is burdened by an unnecessary hardship because the island is no longer suited for industrial use.
Even if this were true, which as shown above it is not, this alleged hardship is inadequate. "To establish the physical circumstances of a property justifying a grant of a variance, however, the owner must demonstrate that such circumstances are unique or peculiar to the property in question, and not a condition common to the neighborhood or zoning district." Patullo 701 A.2d at 300.
There was nothing on the record to show that this property in particular was unable to be used for industrial use because of its unique physical characteristics. Elmer Boles, the project
engineer, testified that the building could not be reused as an industrial use, but gave no evidence to support that conclusion. Further, Mr. Boles testimony was clouded by the fact that he is contracted to perform all of the site engineering for the project. (N.T. 3/13/00 at 16). He therefore lacks credibility because if this project is not approved he loses his contract. Id.
Jack Thrower, the architect who has been hired to design the project, testified that the property had no utility value without extensive renovation and reconstruction. (N.T. 11/22/99 at 37) He went on to baldly conclude that it had no value as zoned. Id.
Mr. Thrower's involvement with the project also calls into question his credibility. Regardless of such consideration, he also gave no evidence to support his bald conclusion. Further, his testimony also clearly states that the property will require extensive renovation and reconstruction for residential use as well as for industrial use. In fact, any project including the residential one here proposed will necessitate extensive renovation and reconstruction. Thus, there is no unnecessary hardship. The owners have simply failed to maintain their property and now must rehabilitate that property to use it. This is not a hardship, just a necessary business investment.
The Board only baldly concluded that the hardships "are the
result of the physical conditions of the subject properties." (Conclusions of Law 19) This is not a fact finding. Because Dranoff failed to satisfy its duty to provide substantial evidence, or any relevant evidence for that matter, that the property was burdened by a unique physical hardship, and the Board made no fact findings, the Board committed an abuse of discretion by authorizing the variance.
C. EVEN WERE THERE SOME PHYSICAL HARDSHIP, THAT HARDSHIP WAS SELF-CREATED.
Even if the Board were correct in finding the property was burdened by a hardship, which is legally erroneous as explained above, such conditions are the product of the Appellees' own design. To establish the right to a variance the property owner must show that the hardship complained of is not self created. Young 715 A.2d at 1233.
Here all hardships complained of are self created. Any inability to use the property as zoned would be the result of Dranoff closing the existing use while concurrently lobbying City Council to rezone the island. Mr. Dranoff himself stated that he had advocated for residential rezoning of this property. (N.T. 3/13/00 at 85). He further stated that "had the site not been rezoned it could have been used for any number of industrial or commercial uses." (N.T. 3/13/00 at 85).
Dranoff also alleges that the delapidated condition of the
buildings is a hardship on the property. However, such condition is the direct result of the neglect of the owner. Moreover, "a variance will not be granted to the applicant where he knew of the existing zoning regulations and the problems bringing about the hardship, or should have known them, at the time he purchased the property." Ottaviano v. Zoning Bd. of Adjustment of Philadelphia, 31 Pa.Cmwlth. 366, 376 A.2d 286, 287 (Pa.Cmwlth. 1977). In Ottaviano the homeowner alleged that the size of his kitchen made the kitchen dangerous to cook in and therefor created a hardship necessitating the erection of an addition on to the back of his house. Id. The Commonwealth Court held that the homeowner was not entitled to a variance and should have known of this condition at the time he bought the property. Id.
Here the problem is the same. Dranoff knew or should have know the property was delapidated. Even if the conditions are the result of the actions of the prior owner, the hardship is still self created and cannot support a variance. Camaron Apartments, Inc. v. Zoning Board of Adjustment of City of Philadelphia, 14 Pa.Cmwlth. 571, 324 A.2d 805, 807 (Pa.Cmwlth. 1974). It cannot be allowed that whenever an owner allows their building to deteriorate they then have the ability to break the zoning. This would render the zoning ordinance meaningless and encourage neglect as a means of obtaining a variance.
This property was working as an industrial property until more than a year after Dranoff first submitted his plans for residential development. The existing industrial use was closed by his plans to redevelop the site into a residential use. Any hardship that results was entirely created by Dranoff.
Further, Dranoff knew of the zoning and the floodway problems when he bought the property. Even if he did not, the "law holds that a property owner is duty-bound to check a property's zoning status and that the failure to do so when accompanied by a resulting lack of knowledge will not be sufficient for the issuance of a variance." Center City Residents' Association v. Zoning Bd. of Adjustment of City of Philadelphia, 144 Pa.Cmwlth. 545, 601 A.2d 1328, 1330 (Pa.Cmwlth. 1992).
Finally, the hardship alleged for the parking lot stems from the decision of Dranoff to include 162 units in his development. If Dranoff were to reduce the number of units, he would not be subject to any alleged hardship. Thus, this alleged hardship is entirely self created in that the need for reduced sizes of spaces and additional spaces is only necessary because of the number of units Dranoff wants to build.
Without any support, the Board concluded that the "hardships presented are not self imposed by the Applicant." (Conclusions of
Law 19) Because all hardship that Dranoff alleges are entirely self created it was an error of law and abuse of discretion for the Board to grant the variances.
D. GRANTING THE VARIANCE SUBSTANTIALLY HARMS THE PUBLIC HEALTH SAFETY AND WELFARE.
Even if a landowner can demonstrate that an unnecessary hardship exists and that the hardship was not self created, the variance must be denied if granting the variance would be detrimental to the public interest. Hohl 736 A.2d at 59. Here the evidence was overwhelming that this project would be detrimental to the public interest.
There was a great deal of evidence that this project would be injurious to the public welfare, even though the Board was clearly intent on limiting the evidence presented by the protestants. Dranoff offered as proof that this project would not hurt the public interest, only that the project would decrease the obstructions in the floodway. This was the sole basis the Board gave in support of its conclusion that the variance ould not be detrimental to the public interest. (Conclusion of Law 21) The Board relied on this argument in error, as Dranoff's own witness admitted that "the water level changes by the proposed development are very, very negligible. The changes are so small as to be almost imperceptible in the models." (N.T. 3/13/00 at 65).
In contrast, as shown below, the harms inflicted upon the public welfare by this project will be multiple and extreme. Accordingly, it was an abuse of discretion for the Board to grant this variance by ignoring the overwhelming evidence which demonstrated that it would be detrimental to the public interest.
1. Technical Compliance with FEMA Standards Does Not Mean this Project Is Sound.
14-1802(3)(a) places the additional requirement on variances from the floodway Ordinance that the applicant must show no rise in the regulatory flood. Dr. Waggle presented a model that demonstrated that the project would result in an almost unmeasurable decrease in the 100 year flood. (N.T. 3/13/00 at 65). The models submitted by Dr. Waggle were technically approved by FEMA as complying with the minimum standards established in their regulations. (Letter of May 15).
The Board relied heavily on the model and the May 15 letter from FEMA in approving the project. Such reliance was inappropriate, however, as this letter went on to expressly warn that the letter was not meant as an approval of the project and that this development was contradictory to the mission of FEMA to reduce "the loss of life and property associated with natural and man-made disasters." Id. That language should have alerted the Board to the dangers inherent in this project. However, Dranoff argued that as long as the minimum regulatory standards were met
the project should be allowed and the Board agreed.
Instead, the Board should have refused to grant the variance because the variance was shown to harm the public health safety and welfare. The evidence showed that reliance on the minimum standards of the FEMA regulations, as reflected in FEMA's own caviat, was ill advised.
Dr. Willig noted that, historically, every time that there are floods Manayunk is severely hit. (N.T. 3/13/00 at 110). In fact, during the most recent 50 year flood Main Street and River Road were so deeply flooded they had to be evacuated and guarded against looting. (N.T. 3/13/00 at 111) Both of these regions are in Manayunk at a higher elevation that Venice Island.
In fact even Dranoff's hydrologist, Dr. Waggle, admitted that his calculations were designed to satisfy the regulations. (N.T. 3/13/00 at 72). He stated that if he were trying to design the project he would have included the cars in the parking lot in his design to calculate flood resistance, but because he was trying to do a determination to satisfy the regulations he did not include the cars. (N.T. 3/13/00 at 72). He further admitted that he had never been involved with a project that called for development in the floodway before. (N.T. 3/13/00 at 56). The Board did not make any finding regarding these issues.
Dr. Waggle also said that determination of whether changing
use from industrial to residential is proper is not covered by regulations and is the job of Board. (N.T. 3/13/00 at 73). On this he was correct and the Board abused their discretion by relying on FEMA's reluctant compliance letter rather than finding according to the overwhelming weight of the evidence.
The Appellants' hydrologists, Joseph Skupien and Geoffrey Goll, warned the Board that the calculations advanced by Dranoff were misleading because they calculated the piers that supported the structures as small separate entities when in reality, during a flood the piers below the buildings will be clogged with debris and cars and will act as a solid wall, not as modeled in Dranoff's application. (N.T. 6/12/00 at 7). The appellants' hydrologists also warned that the Board should have required the development to be modeled for additional lesser floods to see the effect on those floods. (N.T. 6/12/00 at 18). He even would have done the calculations himself but he was denied access to Dranoff's input data. (N.T. 6/12/00 at 52). While the 100 year flood may not be affected by the development smaller floods may be made worse.
Also, the piers will be subject not only to pressure of water and debris, but struck by items floating down river and damaged. (N.T. 6/12/00 at 29) Tractor Trailers were literally floating away during Floyd, only a 25 year flood. (N.T. 6/12/00
at 29) This could cause the considerable damage to the buildings, making them dangerous to live in and delaying return after any evacuation.
Moreover, the standard used by the Board ignores other more long term effects of flooding. After the immediate danger recedes, the dampness caused by a flooded building can cause health risks from molds that build up inside the walls after a flood. (N.T. 6/12/00 at 33)
Further, the risks associated with flooding are increased by placing residences in the floodway instead of industry because the management of a business can tell people to leave if floods occur during working hours and businesses will already be closed when floods occur during the night. (N.T. 6/12/00 at 36) Residents, on the other hand, will be reluctant to leave their homes, may not even know of the flood, or may be asleep. (N.T. 6/12/00 at 36).
Finally, the state and federal governments have been spending millions of dollars not in trying to lower flood waters, but to move people out of the flood plains through buyouts. (N.T. 6/12/00 at 46) New Jersey alone spent 16 Million on buyouts after Floyd. Allowing Dranoff to build in the floodway, not just a flood plain, is not sound planning or management.(N.T. 6/12/00 at 46).
Once again, the Board failed to make any finding concerning these issues. This variance creates a situation where the city not only is going against all state and federal policies, but may have to buy out the owners in the future in order to move people out of harms way.
2. The Variance Will Cause Loss of Lives.
There was overwhelming evidence that this project was against the public interest because it will put human life in peril. The record shows that floods kill more people and cause more property damage than all other natural disasters combined. (N.T. 6/12/00 at 194) Dranoff relied on the creation of an evacuation plan and a footbridge to argue that this project will not cause people to die. The evidence strongly showed that such presumptions were naive and it was an abuse of discretion for the Board to, ostrich like, stick its head in the sand and ignore this peril.
The evidence showed that 80-90 percent of people do not leave when the storm warnings go out. (N.T. 6/12/00 at 196). Further, evacuation plans, while necessary, are often not effective because they are unable to control people who will go back into the danger area to protect their homes, cars, and belongings. (N.T. 3/13/00 at 115-6) Mr. Hendrickson testified that evacuation plans such as this one, which calls for escape
via a footbridge, often do not matter because most people are lost trying to save their automobiles. (N.T. 3/13/00 at 130).
The evidence showed that in Hurricane Floyd the first flood warning came at 3:54 P.M. and the data shows that Venice Island became flooded at some time between 3 and 4 in the afternoon, meaning the warning was too late. (N.T. 6/12/00 at 25-6). Floyd was only 25 year flood. (N.T. 6/12/00 at 25-6). Since flooding was already beginning before the warning was issued the time to evacuate was extremely short.(N.T. 6/12/00 at 26). Here too, the Board failed to make any findings.
Further, the majority of the time the Island was flooded in Floyd was after dark so that the evacuation would have been much more difficult (N.T. 6/12/00 at 27). This would not happen with an industrial use because it would be closed at night.
Stephen Miller, a professional water rescue expert, could not understand why this project was even being considered. (N.T. 6/12/00 at 175). He testified that 90 percent of flood victims die in or near their car because they don't follow evacuation plans that call for residents to leave their cars behind. (N.T. 6/12/00 at 175). In this development many people will not take the footbridge, they will try to save their cars. (N.T. 6/12/00 at 175).
Mr. Miller testified that at some point someone will die as
a result of building in the floodway on Venice Island, possibly a firefighter having to rescue residents. (N.T. 6/12/00 at 185). He also testified that a firefighter is four times more likely to die in a water rescue operation than any other rescue. (N.T. 6/12/00 at 185).
Michael Kurtz, one of the few people who trains the people who train water rescuers, testified on the project. (N.T. 6/12/00 at 194) He stated that most likely the conditions on Venice Island will make it such that the only rescue option will be by helicopter, the most dangerous type of rescue. (N.T. 6/12/00 at 187-8). Multiple witnesses agreed that, in the event of a flood on Venice Island, water would be moving at a minimum speed of 8-10 feet per second which would make it impossible for rescue boats to operate. (N.T. 6/12/00 at 28).
Mr. Kurtz further stated that the pillars of the planned buildings will cause a condition rescuers call strainer when debris like trees and fences become caught on the pillars. (N.T. 6/12/00 at 188) It is a danger that kills rescuers. (N.T. 6/12/00 at 188)
The Board even cited the testimony regarding the likelihood of death in its Findings of Fact. (Finding of Fact 41). It was an abuse of discretion to grant this variance when it will result in the loss of human life and force Philadelphia firefighters to
be placed in serious peril, an obvious detriment to the public interest.
3. The variance will cause intolerable traffic hazards and congestion on roads surrounding the island, which have limited access, and which are surrounded by narrow roads, which it is impractical to expand.
The impact of this development on traffic and parking congestion harms the public interest. Several sections of the variance requirement are violated by this provision. The code requires the Board to consider "that the grant of the variance will not overcrowd the land or create an undue concentration of population", (Section 14-1802(2)(g)) "that the grant of the variance will not adversely affect transportation or unduly burden water, sewer, school, park or other public facilities", (Section 14-1802(2)(i)) and "that the grant of the variance will not substantially increase congestion in the public streets." (Section 14-1802(2)(e)).
Amazingly, with these three clear directives, the record contains no study of the traffic impact. (N.T. 6/12/00 at 99-100). The Appellants introduced evidence of severe congestion and parking problems in the surrounding community but were limited in their testimony by the fact that no traffic study was performed. (N.T. 6/12/00 at 106). Moreover, the plans provide only enough parking spaces, assigned to individual units, for the actual residents of the building. There is no clear
consideration of staff or deliveries and no provision at all for guests of the residents. (Plans submitted by Dranoff).
The Board made no findings on this issue. Because this variance will harm public welfare by increasing the burden of traffic on an already congested and overcrowded area, in direct conflict with Section 14-1802(2)(e),(g), and (i), it was an abuse of discretion to grant the variance.
4. The variance is contrary to the public welfare in that there is very limited access to the island and the increase in traffic congestion and accidents could prevent emergency response personnel from being able to respond to a fire or medical emergency on Venice Island.
The uncontradicted evidence demonstrated that traffic congestion will be a real problem with regard to the provisions of emergency services. The project has only a single access from the land and a single accident at the bridge could prevent all emergency access to the site. (N.T. 6/12/00 at 101). That single two-way, two-lane bridge would have to provide evacuation for Arroyo Grille Restaurant, this development with 162 units, and all of the tractor trailer and other traffic from the Smurfit Stone Factory (N.T. 6/12/00 at 104-5) Andreas Heinrich, a traffic expert, testified that it is a great danger to have only a single access once a project exceeds 20 or 25 units. (N.T. 6/12/00 at 101). This project has 162 units.
Section 14-1802(1)(f) mandates that when considering a
variance the Board must consider "that the grant of the variance will not increase the danger of fire, or otherwise endanger the public safety" as a factor. Here the record reflects that this project will place a large development in a position where emergency services could be easily compromised in direct conflict with the mandate of 14-1802(1)(f). The Board recognized the limited access to the island yet ignored the implications of that limited access for emergency services. (Finding of Fact 16). It was an abuse of discretion for the Board to approve this variance in conflict when it could compromise emergency services.
5. The variance is contrary to the public welfare in that if allowed Philadelphia may lose its right to the National Flood Insurance Program (NFIP); which loss would prevent residents and businesses in Philadelphia from the right to purchase flood insurance and disqualify them from receiving any disaster relief funding.
The Federal Flood Insurance Program was created because United States citizens were unable to obtain flood insurance through private sources. (N.T. 6/12/00 at 134-5) This program allows residents and businesses to purchase insurance through the federal program if their community meets minimum standards of planning and flood mitigation. (N.T. 6/12/00 at 135)
If the city is found to be out of compliance with the federal standards for preventing flood damage just in this neighborhood, every resident and business in the entire city will no longer be eligible for flood insurance and will not be able to
receive federal disaster relief. (N.T. 6/12/00 at 137-8). This project goes against FEMA's policy which is "intensely engaged in encouraging communities around the country to reduce their vulnerability to flooding" because the project "knowingly approving the location of residences in an area where future flooding is a certainty." (Letter dated June 9, 2000, Exhibit P-4)
Philadelphia received $16 million in federal disaster relief after Floyd. (N.T. 6/12/00 at 7). James Witt, Director of FEMA, specifically warned Mayor Street and the Board that by approving this project the Board risks forfeiting the rights of all Philadelphians to obtain flood insurance and federal disaster relief funds if it was found that the technical figures used to gain compliance were unsound. The Board made no finding regarding flood insurance or Federal Disaster Relief Funds. It was an abuse of discretion for the Board to approve this project with such a demonstrated harm to the public interest.
6. The variance is contrary to the public welfare in that Philadelphia will incur potential legal liability for allowing the construction of residences where the possibility of substantial loss of life is not only possible, but likely.
The evidence on the record showed that someone will die as a result of building in the floodway on Venice Island, possibly a firefighter having to rescue residents. (N.T. 6/12/00 at 185). During Hurricane Floyd the high water rose 5-6 feet over Venice
Island. (N.T. 6/12/00 at 39).
The Director of FEMA, James Witt, warned the City that the city may face legal liability if they are found to have allowed construction where the loss of life and property are not only possible, but likely. (Letter dated June 9, 2000, Exhibit P-4) Here the evidence shows that property will be lost and that someone will die as a result of building these residences in the floodway. The Board did not make a finding regarding legal liability. It was an abuse of discretion for the Board to approve this variance when the evidence showed that the project would be detrimental to the public interest because it would subject the City to legal liability.
7. The variance is contrary to the public welfare in that it adds economic hardship to the community as the City will be forced to absorb the burdens associated with flood emergencies, such as evacuation, rescue, and temporary shelters.
There was substantial evidence on the record to show that this project would cause the city and the people of Philadelphia to incur great expenses in flood relief. Michael Kurtz, a water rescue expert testified that the project would force the Philadelphia Fire Department to develop an entirely new water rescue program which would amount to "a costly ball for wages, salary, equipment" and it would take the Department "typically, several years to gain the competence and the skills to master to be able to do the technical water rescue." (N.T. 6/12/00 at 199;
Letter dated June 9, 2000, Exhibit P-4).
Quite simply Philadelphia is not prepared to deal with the technical water rescues this project would make necessary and it would be several years before Philadelphia could even become prepared. Further, both Mr. Kurtz and Mr. Miller testified that a firefighter is four times more likely to die in water rescue than in other rescue operations. (N.T. 6/12/00 at 201). Not only will this project create a situation where the public is both in harms way without adequate protection and bearing the cost of developing an entirely new program for technical water rescue, but the city will also be putting its firefighters into a situation where their lives are in tremendous peril even compared to their already heroic and death defying careers.
Finally, Mr. Kurtz testified that if this project is allowed the City should require both an evacuation plan and for developer to pay for the cost of additional rescue equipment and training that will be "essential" as a result of this project. (N.T. 6/12/00 at 202). The Board found that Dranoff would devise an evacuation plan, but did not require any such contribution and Dranoff has not included a provision to provide any funding for a water rescue unit. (Conclusion of Law 29).
The Board abused its discretion by approving the variance when the public interest is undermined by the costs and dangers
of forcing the Fire Department to develop an entirely new program of technical water rescue.
Because the evidence showed that the variance, even if permissible at all, is a detriment to public health, safety and welfare, in that it will create adverse and unsafe conditions, will lead to the loss of life and property, cause additional flooding, cause vehicles and other property to be carried into the Schuylkill River, and cause the city to incur great costs in rescue and remediation efforts to the detriment of the appellants and the public it was an abuse of discretion for the Board to approve the variance.
F. No Showing was Made that this Variance Would be the Minimum Variance Necessary to Provide Relief.
Finally, even if a relevant hardship existed, which clearly is not the case as outlined above, Dranoff made no showing that this variance would be the minimum variance necessary to afford relief. The law clearly requires that the variance, if authorized, "would represent the minimum variance necessary to afford relief" and is the least modification of the regulation in issue. Carman v. Zoning Board of Adjustment of the City of Philadelphia, 162 Pa.Cmwlth. 80, 638 A.2d 365, 369 (Pa.Cmwlth. 1994).
Further, the burden for proving the right to a variance is a
heavy one and that burden lies on the applicant to prove each element by substantial evidence. Teazers, 682 A.2d at 859. Because there was no showing that the variance proposed was the minimum variance that would afford relief and is the least modification of the regulation in issue it was an abuse of the discretion of the Board to grant Dranoff the variance requested.
G. THE BOARD WAS PREDISPOSED AGAINST APPELLANTS' PRESENTATION
The Board abused its discretion by failing to actually consider all of the evidence before the Board. Its decisions were repeatedly hostile towards the appellants based not on appellants' concerns or arguments but merely on their position as protestants.
This was evidenced multiple times in the transcript. Most notably were the arbitrary limitations placed upon the time and scope of their testimony. The Board limited the appellants' witnesses to ten minutes of testimony each, much of which was taken up by applicants' counsels' objections, while allowing Dranoff's witnesses unfettered opportunity to testify. (N.T. 6/12/00 at 7).
It was also apparent that the Board did not consider the concerns appellants were allowed to present. Chairman Kelly mocked the concerns of residents. (N.T. 3/13/00 at 103) The Board also berated and cut them off. Examples litter the transcript
like when the Board states "Mr. Krakower, you are wasting the time of the Board" (N.T. 06/12/00 at 140) or "Ten Minutes and the clock is running, sir." (N.T. 6/12/00 at 7). Counsel for appellants was told "Please be quite sir. Sit Down." when he attempted to raise an objection. (N.T. 6/12/00 at 129). The Board chided repeatedly with comments like "I think we heard enough. Let's move along." (N.T. 6/12/00 at 141)
While the Board has the discretion to evaluate the credibility of the witnesses, the record shows that the Board did not even consider the appellants witnesses, it prejudged them before they were even seated as irrelevant and a waste of the Board's time. The Appellants had a codified right to appear before the Board and to present evidence. Philadelphia Code 14-1805. For the Board to ignore that evidence before it is even presented destroyed the appellants rights under the Philadelphia Code and unconstitutionally denies their due process rights to a full and fair hearing.
The examples listed above are just a few of many instances where the board exhibited unmerited bias against the appellants. The Board has a duty to at least weigh the evidence and by not doing so it committed an abuse of discretion.
As demonstrated above, even without the key additional
evidence erroniously excluded by the Board, the Board committed an abuse of discretion and an error of law because it's decision is either unsupported by substantial evidence or in direct conflict with controlling precedent on every element necessary to grant a variance. Further, even if the Court finds that the Board's decision was supported by substantial evidence on one or more of these factors, the Court must reverse if any single element was not supported. The record clearly shows that the record does not support the decision of the Board on most, if not all of the elements of variance relief.
For these reasons appellants, Manayunk Neighborhood Council et al., by and through their attorneys, respectfully requests that this Court allow additional evidence, and reverse the decision of the Zoning Board of Adjustment of Philadelphia and reject Dranoff Properties' application for a variance.
ROBERT J. SUGARMAN
CARL W. EWALD
Counsel for Appellants
SUGARMAN & ASSOCIATES, PC
Robert Morris Building, 11th Floor
100 N. 17th Street
Philadelphia, PA 19103
Dated: March 8, 2001