MANAYUNK NEIGHBORHOOD COUNCIL, : COURT OF COMMON PLEAS FRIENDS OF MANAYUNK CANAL & ET AL : PHILADELPHIA COUNTY Appellants : vs. : :September Term, 2000 ZONING BOARD OF ADJUSTMENT OF THE : CITY OF PHILADELPHIA : and :Nos. 001056 and 001057 : THE CITY OF PHILADELPHIA : Appellees : FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE ZONING BOARD OF ADJUSTMENT This appeal is taken by the above named Appellants from a decision of the Zoning Board of Adjustment of the City of Philadelphia ("Zoning Board"), in the Calendar Numbers 99-1284 and 99- 1285, granting use and zoning variances with provisos for the property located at 4601-45 Flat Rock Road, Philadelphia, Pennsylvania ("subject property A") and granting a use variance with a proviso for the property located at 4700 Flat Rock Road, Philadelphia, Pennsylvania ("subject property B"). Accordingly, as provided by law, the Board makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. On November 5, 1999, legal counsel for Dranoff Properties ("Applicant"), applied to the Department of Licenses and Inspections ("L&I") for zoning and use registration permits to allow on subject property A the relocation of lot lines to create one (1) lot from two (2) lots, the demolition of four (4) portions of an existing building and a one-story structure, and the erection 1 of one (1) six-story addition, one (1) four-story addition and one (1) two-story addition to the remaining structures. Also, Applicant proposed to convert an existing structure ("E-1") to be used as a fitness area for residents and as apartment units, to convert an existing building ("E-2") to be used as a residential storage facility and as apartment units, to convert an existing building ("E-3") to be used as a residential activities facility and as apartments units, to leave an existing building ("E-4") vacant, to use a proposed building ("P-1") as residential apartments, to use a proposed building (P-2A") as a lobby and management office and as apartment units, and to use a proposed building ("P-2B") as 160 apartment units with 160 parking spaces, five (5) of which would be handicapped accessible and fifty-five (55) would be for compact vehicles (17 of the compact spaces would be crossing the existing property lines and would require either an easement agreement or proof of ownership of the abutting property). (Application for Zoning and/or Use Registration Permit No. 991018058). 2. L&I determined that Applicant's proposals for subject property A would not comply with the use, area and parking regulations for a G-2 Industrial District as set forth in the City of Philadelphia Zoning Code at Sections 14-508(3)(b), 14-1606(5)(a)(.1), 14-1401(3) and 14-1404(4). Accordingly, L&I issued one (1) zoning refusal and five (5) use refusals on November 5, 1999. In addition, L&I made a note to the Zoning Board that prior to the issuance of the requested permits, approval from the appropriate agencies would be required, and an engineering study to support the fact that there would be no net rise or negative impact would have to be submitted. (Notice of Refusal of Permit). 3. On October 29, 1999, legal counsel for Applicant applied to L&I for a use registration permit to allow on subject property B the relocation of lot lines to create one (1) lot from three (3), the erection of an eight (8) feet high fence and the creation of a private parking lot, to be used 2 by the residents of subject property A and be comprised of a total of fifty-four (54) spaces, forty-four (44) measuring 8'6" x 18', seven (7) measuring 8' x 18'and three (3) measuring 8'6" x 20'. Applicant proposed not to provide any handicapped accessible spaces. (Application for Zoning and/or Use Registration Permit No. 991029016). 4. L&I determined that Applicant's proposals for subject property B would not comply with the parking regulations for a G-2 Industrial District as set forth in the City of Philadelphia Zoning Code at Sections 14-508. Accordingly, L&I issued one (1) use refusal on November 4, 1999. (Notice of Refusal of Permit). 5. Subsequently, Applicant appealed the refusals for both subject properties to the Zoning Board. Public hearings were held before a quorum of the Board's members on November 22, 1999, March 13, 2000 and June 12, 2000. (Petition of Appeal to the Zoning Board; 11/22/99 N.T. at 1; 3/13/00 N.T. at 1; 6/12/00 N.T. at 1). 6. On December 30, 1999, Ordinance 990762 were enacted by the Council of the City of Philadelphia which changed the zoning designations from G-2 Industrial to RC-1 Residential for both subject property A and subject property B. (3/13/00 N.T. at 4; Bill No. 990762). 7. Applicant's original applications to L&I were reevaluated due to the change in both subject properties' zoning designation. Subsequently, L&I determined that Applicant's proposals for subject property A would not comply with the area and parking regulations for a RC-1 Residential District. Accordingly, L&I issued three (3) zoning refusals and two (2) use refusals on May 31, 2000. In addition, L&I made a note to the Zoning Board that the property was designated as historical, and therefore, approval from the Historic Commission was required before the requested permits could be issued. (Memorandum dated May 31, 2000 from Laura Mitchell; 6/12/00 N.T. at 91-93). 3 8. L&I determined that Applicant's proposals for subject property B would not comply with the use, area and parking regulations for a RC-1 Residential District. Accordingly, L&I issued one (1) use refusal and two (2) zoning refusals on May 17, 2000. In addition, L&I made a note to the Zoning Board that the property was located in a 100-year floodplain, and therefore, review by the City of Philadelphia Planning Commission ("Planning Commission") would be required. (Memorandum dated May 17, 2000 from Laura Mitchel. 1; 6/12/00 N.T. at 93-94). 9. On August 11, 2000, Applicant was notified in writing that the Zoning Board voted to grant use and zoning variances for subject property A with the following provisos: a) approved hydrologic study prepared by a registered engineer which satisfies FEMA requirements; b) all trash stored in an enclosed area with commercial trash pick up; c) garbage disposals in the kitchens; d) must meet the City of Philadelphia Fire Code; e) central air conditioning; and f) Historical Commission approval. On the same date, Applicant was also notified in writing that the Board voted to grant a use variance for subject property B with the proviso that two (2) handicapped accessible parking spaces must be provided. (Notices of Decision). 10. Subject property A has a zoning history. On October 6, 1980, the Zoning Board granted a variance allowing on the property the erection of an addition for the manufacturing and storage of soap. On May 17, 1984, the Board approved an addition to the property's existing soap and detergent manufacturing plant. On February 10, 1988, the Board permitted the property to be used for the manufacturing and storage of cleaning products and specialty chemicals. 4 (Application for Zoning and/or Use Registration Permit No. 21367; Application for Zoning and/or Use Registration Permit No. 76112; Application for Zoning and/or Use Registration Permit No. 03898). 11. Subject property A is an industrial complex comprised of several, multistory structures. Until six (6) months prior to the first public hearing held before the Zoning Board, the property was occupied by the Namico Company and was used for the manufacturing of soap and other cleaning products. Pursuant to Ordinance 990762, the property is zoned RC-1 Residential. Applicant is the legal owner of the property. (11/22/99 N.T. at 7 and 29; Inspector's Report; Application for Zoning and/or Use Registration Permit No. 991018058). 12. Subject property B is an open, paved parking lot. Pursuant to Ordinance 990762, the property is zoned RC-1 Residential. Applicant is the legal owner of the property. (Inspector's Report; Application for Zoning and/or Use Registration Permit No. 991029016). 13. Both subject properties are located on Venice Island, a 1.7 mile-long, man-made island situated between the Manayunk Canal (to the north) and the Schuylkill River (to the south). (11/22/99 N.T. at 7, 29 and 53; Applicant's Site Plan; Flood Hazard Analysis Prepared by Dr. John Weggel). 14. Venice Island is located within the 100-year floodplain of the Schuylkill River. Due to the surrounding high slopes, Venice Island is also located within the floodway of the Schuylkill River. (11/22/99 N.T. at 7, 29 and 5 3; 6/12/00 N.T. at 44). 15. Subject property A and B are located not only within the 100-year floodplain of the Schuylkill River but also its floodway. (Flood Hazard Analysis Prepared by Dr. John Weggel; Letter from Thomas Majusiak, Exhibit P-3; FEMA Letter dated June 9, 2000, Exhibit P-4). 5 16. The Leverington Avenue Bridge, which spans the Manayunk Canal, connects Venice Island to the mainland. Leverington Avenue intersects with Flat Rock Road, the only roadway allowing east-to- west access on the island. Subject property A is located at the northwest corner of Leverington Avenue and Flat Rock Road. Subject property B is located south of Subject property A, directly across Flat Rock Road. (11/22/99 N.T. at 7-8; Applicant's Site Plan). 17. Located to the north of Venice Island is Manayunk, a neighborhood comprised predominately of residential, row structures. However, Manayunk's Main Street, which is located directly north of the canal, is comprised of commercial properties. Manayunk's Main Street intersects with Leverington Avenue. (City of Philadelphia Zoning Map). 18. Located on Venice Island, to the east of the subject properties, is the Smurfit Stone Container Corporation, a large industrial property. Also located on the island, to the west of the subject properties, is the Arroyo Grill restaurant. (City of Philadelphia Zoning Map; 11/22/99 N.T. at 34). 19. Subject property A encompasses 113,642 square feet in area. Subject property B encompasses 19,885 square feet in area. Together, both properties measure approximately three (3) acres in size. (11/22/99 N.T. at 20). 20. Currently, subject property A is comprised of two (2) lots. Applicant proposes to relocate the lot fines on the property and create one (1) lot from two (2). (Application for Zoning and/or Use Registration Permit No. 991018058). 21. Sometime in the last half of the nineteenth century, an industrial complex was erected on subject property A. The property's original buildings are listed in the National Register of Historic Places. Over the years, as several additions and buildings were added to the original complex, the historical appearance of the property was lost. In addition, as the buildings 6 deteriorated from lack of repair, the property's industrial complex has become a visual blight to the surrounding community. (11/22/99 N.T. at 21-22; 3/13/00 N.T. at 85; Applicant's Photographs). 22. In an effort to revitalize subject property A, Applicant proposes to demolish and remove approximately sixty percent (60 %) of the property's existing structures, including the soap factory's old storage tanks. Applicant further proposes to restore the remaining existing structures and to add to them one (1), six-story addition, one (1) two-story addition and one (1) four-story addition. The restored structures and their proposed additions would be as a multifamily, residential complex with accessory uses. (11/22/99 N.T. at 10 and 24-25 and 27-28; Applicant's Site Plan). 23. Applicant proposes that the residential complex would contain a total of 160 apartment units; four (4) studios, 103 one-bedroom, and 53 two-bedroom. Each apartment unit would be equipped with a garbage disposal. (11/22/99 N.T. at 31 and 35; Applicant's Site Plan; Application for Zoning and/or Use Registration Permit No. 991018058). 24. Because the proposed residential development would be located within the Schuylkill River's floodway, Applicant proposes: a) to locate all the apartment units fourteen (14) feet above ground, b) to erect the proposed additions on columns, constructed to resist lateral forces from flood waters and spaced at intervals of thirty (30) to thirty-five (35) feet, and c) not to use any of the existing buildings' first floors for apartments. (11/22/99 N.T. at 27,50 and 52; 3/13/00 N.T. at 40; Applicant's Site Plan). 25. The height of the proposed residential complex would vary. Applicant proposes that the complex's facade facing Flat Rock Road would measure fifty-eight (58) feet in height, and the 7 facade facing Leverington Avenue would measure sixty-five (65) feet in height. (Applicant's Site Plan). 26. Applicant proposes that the residential complex would have a total gross floor area of 210,977 square feet, which would equal 185% of subject property A's total area. (Applicant's Site Plan). 27. Applicant proposes to locate the residential complex zero (0) feet from the centerline of Flat Rock Road, which measures forty (40) feet in width, and 11'4" from the centerline of Leverington Avenue, which also measures forty (40) feet in width. Applicant further proposes that the residential complex would extend one (1) foot beyond the rear lot line of subject property A. (Applicant's Site Plan). 28. Applicant proposes to erect a pedestrian foot bridge at the second story level of the residential complex. The proposed foot bridge would be used for the sole purpose of evacuating residents in case of an emergency. It would extend from inside the walls of the proposed residential complex onto the public sidewalk located on the Leverington Avenue Bridge. (11/22/99 N.T. at 38-39 and 54; Applicant's Site Plan). 29. Applicant proposes to equip each building in the residential complex with an emergency alarm and speaker system. Applicant further proposes to maintain on site an emergency evacuation plan to be located inside the manager's office. A copy of the plan would be included with each resident's lease. (3/13/00 N.T. at 89; Applicant's Site Plan). 30. Applicant proposes to provide 160 parking spaces on subject property A. In order to minimize the parking area on the property, Applicant proposes to use stacked parking and to provide forty-three (43) spaces which would measure eight (8) feet by sixteen (16) feet (i.e. compact-sized). Seventeen (17) of the proposed compact-sized spaces would be located at the 8 northwest comer of the property and would extend beyond the property line. Applicant further proposes to provide five (5), handicapped-accessible parking spaces on subject property A. Each handicapped- accessible space would measure 13' by 18', but would not be equipped with an access aisle. All 160 parking spaces would be located at ground level, within the 100-year floodplain of the Schuylkill River. (11/22/99 N.T. at 30-3 1; Applicant's Site Plan). 31. Applicant proposes to use a commercial service to remove trash from the residential complex twice a week. (11/22/99 N.T. at 33). 32. Currently, subject property B is comprised of three (3) lots. Applicant proposes to relocate the lot lines on the property and create one (1) lot from three (3). (Application for Zoning and/or Use Registration Permit No. 991029016). 33. Applicant proposes to use subject property B as a private parking lot, which would be used as an additional parking area for the proposed residential complex to be located on subject property A. The proposed lot would have a total of fifty-four (54) parking spaces, none of which would be handicapped- accessible. Applicant further proposes to erect an eight (8) feet high fence around the perimeter of the proposed lot. (Application for Zoning and/or Use Registration Permit No. 991029016). 34. Jack Thrower, a registered architect in the Commonwealth of Pennsylvania, opined that Applicant's proposals for both subject property A and B would not only represent the highest and best use of the properties but would also be compatible with the surrounding uses. In addition, Mr. Thrower opined that without extensive renovation and reconstruction as proposed by Applicant, neither subject property had any economic value. (Curriculum Vitae; 11/22/99 N.T. at 35-37). 9 35. Elmore Boles, a registered civil engineer in the Commonwealth of Pennsylvania, opined that Applicant's proposals for subject property A and B would not cause a net rise in the floodwaters of the Schuylkill River, and therefore, Applicant's proposals would comply with all federal, state and local regulations governing new construction in flood ways. Mr. Boles explained that Applicant's proposals would reduce the existing obstructions on the two (2) properties by thirty (30) percent. As a result, the resistance in the flow of water would be substantially reduced, and the water level during a flood would actually be decreased by Applicant's proposals. Mr. Boles further opined that all of the proposed apartment units would be located fourteen (14) feet above the Schuylkill River's 100-year flood level, which has been calculated to be thirty-eight (38) feet. Mr. Boles used the data contained in the hydraulic study conducted by Dr. John Weggle and the 1996 study of the Schulykill. River conducted by the US Army Corps of Engineers to formulate his opinion. (3/13/00 N.T. at 18-51). 36. Dr. John Weggle, a hydraulic engineer, conducted an hydraulic analysis of the Schuylkill. River to determine what impact Applicant's proposed residential development would have on water levels during a 100-year flood on Venice Island. Utilizing the data contained in the US Army Corps of Engineers' report and adjusting it for subsequent developments along the river, Dr. Weggle opined that the proposed residential development would not only comply with FEMA's requirements by not causing an increase in the water levels during a 100-year flood but would also improve flood conditions as a result of removing obstructions from the island. (Letter and Hydraulic Analysis dated April 29, 2000; Letter dated February 21, 2000 to Elmore Boles; Letter and Hydraulic Analysis dated January 31, 2000; Hydraulic Analysis Report dated January 17, 2000; Curriculum Vitae; 3/13/00 N.T. at 58-79). 10 37. Dr. Sarah Willig, a geologist, opined that the natural configuration of the Schuylkill River and the human modifications made to the floodplain (e.g. storm sewers and paved surfaces) contribute to a dramatic rise in water levels along Venice Island as evidenced by the flooding that occurred on the island during Hurricane Floyd. Dr. Willig further opined that the proposed residential development would be subjected periodically to severe flooding and, therefore, opposed Applicant's proposals for subject property A and B. (3/13/00 N.T. at 105-113; Curriculum Vitae; Report prepared by Dr. Sarah Willig). 38. Joseph Skupien and Geoffrey Goll, both hydraulic engineers, opined that although the hydraulic analysis conducted by Dr. John Weggle satisfied FEMA's requirement in calculating the impact the proposed residential development would have on a 100-year flood, the report should have went a step further and considered the impact the proposed development would have on smaller type floods. In addition, Mr. Skupien and Mr. Goll opined that Dr. Weggle should have factored the proposed columns as solid obstructions in calculating the impact on the water flow of the Schuykill, River during a flood. The Zoning Board notes that neither Mr. Skupien or Mr. Goll opined that Applicant's proposed development would definitely cause an increase in the water levels on Venice Island during any type of flood situation. (Report and Curriculum Vitae, Exhibit P-1; 6/12/00 N.T. at 17-53). 39. Andreas Heinrich, a traffic engineer, opined that because Flat Rock Bridge has only two (2) lanes and is currently used by both the Arroyo Grill restaurant and the Smurfit Stone Container Company, Applicant's proposals would have a negative impact on traffic conditions in the subject area. In addition, Mr. Heinrich opined that Applicant should be required to provide a traffic impact study. (Curriculum Vitae, Exhibit P-5; 6/12/00 N.T. at 95-104). 11 40. Wendy Lathrop, a consultant in the area of floodplain regulations, opined that the best use for a floodplain was to keep it as open space and to use it as a passive, recreational purpose. In addition, Ms. Lathrop explained that if a municipality failed to comply with the National Flood Insurance Program's technical requirements, then the municipality would not be eligible for either flood insurance or flood disaster relief funds. (6/12/00 N.T. at 134-144; Curriculum Vitae, Exhibit P-7; Summary of 6/12/00 Testimony, Exhibit P-8; Report on Flood Plains and Flood Plains Management, Exhibit P-9). 41. Stephen Miller, a firefighter, opined that people are less likely to evacuate from their place of residence than their place of employment. Mr. Miller further opined that in the future someone would drown on Venice Island if the proposed residential development were allowed. (6/12/00 N.T. at 185- 192). 42. The Zoning Board has received and considered a report from Hal Schirmer, a real estate agent in the Commonwealth of Pennsylvania, in which he opined that Applicant's proposals would be the worst possible use of subject property A and B. (Curriculum Vitae and Report, Exhibit P-14). 43. The Zoning Board has received and considered two (2) letters from the Federal Emergency Management Agency ("FEMA"). In the letter dated February 8, 2000, FEMA indicated that Dr. Weggle's hydraulic report was incomplete because it failed to make reference to the floodway of the Schulykill River. In the subsequent letter dated May 15, 2000, FEMA indicated hat the proposed residential development would comply with the requisite floodway regulations set forth at Section 60.3(d) of Title 44 of the Code of Federal Regulations. FEMA further indicated, however, that the letter was not meant to be an approval of the proposed 12 project and that all other federal, state and local floodplain regulations would still be adhered to. (Letter from Erik Rourke; Letter from Thomas Majusiak, Exhibit P-3). 44. The Zoning Board has received and considered a letter to the Honorable John S. Street, Mayor of the City of Philadelphia, from James Witt, Director of FEMA. In his letter, Mr. Witt expressed his concern over the proposal to construct a residential development within the floodway of the Schuylkill River and cautioned that the City's continued eligibility for the National Flood Insurance Program could be jeopardized if the proposed development is deemed unsound by federal standards. (Letter dated June 9, 2000, Exhibit P-4). 45. The Zoning Board has received and considered letters from community representatives and organizations in opposition to Applicant's proposals. In general, the protestants opposed Applicant's proposal to build a residential development in the floodway of the Schuylkill River. (Letter dated March 13, 2000 from Councilman-At-Large Frank Rizzo; Letter dated November 22, 1999 from Councilman Michael Nutter; 11/22/99 N.T. at 13-17; Letters dated November 17, 1999 and November 21, 1999 from Manayunk Neighborhood Council; Letter dated March 13, 2,000 from 21st Ward Community Council, Inc.; Letter dated November 19, 1999 from Philadelphia Canoe Club; Letter dated November 20, 1999 from Umbria Street Neighbors Association; Letter dated March 8, 2000 from Wissahickon Neighbors Civic Association; Letter dated January 13, 2000 from Smurfit-Stone). 46. The Zoning Board has received and considered a petition signed by residents of the subject area who oppose Applicant's proposals. (Petition of Opposition). 47. The Zoning Board has received and considered letters from community residents and organizations in support of Applicant's proposals. (Letter dated November 12, 1999 from 13 Manayunk Development Corporation; Letter dated November 19, 1999 from Central Manayunk Council; Letters from Ed Weiner). 48. The City of Philadelphia Planning Commission opined that due to the change in the zoning designation for subject property A and B, the only issue for the Zoning Board to determine was whether or not Applicant's proposals would result in any increase in the flood levels of the Schuylkill River. The Commission further opined that if Applicant's hydrological study were approved by FEMA, then Applicant would be entitled as a matter of right to the requested permits because Applicant's proposals were a lawful expansion of a nonconforming use and/or building. (6/12/00 N.T. at 220; Letter dated March 13, 2000 from Barbara Kaplan). CONCLUSIONS OF LAW 1. The City of Philadelphia Zoning Code ("Zoning Code") at Section 14-1606 sets forth the special restrictions and regulations that apply to floodplains and floodways. Both subject property A and subject property B are located not only within the 100-year floodplain of the Schuylkill River but also its floodway. Therefore, the Zoning Board shall apply Section 14-1606 to Applicant's proposals for both subject A and B. 2. The Zoning Board rejects the Planning Commission's assertion that Section 14-1606 of the Zoning Code does not apply to Applicant's proposals. The Board agrees that subject property A and B were both in use prior to the enactment of the Code's special controls regulating floodplains and/or floodways, and therefore, Applicant's use of both properties would be 14 permitted as a nonconforming use. However, the prior uses of both properties were industrial, and it is only such uses which would be permitted to continue as nonconforming. In other words, if Applicant were requesting to use subject property A or B for an industrial purpose, such a request would be permitted as a nonconforming use, and the Code's special controls regulating floodplains and/or floodways would not apply. But when Ordinance 990762 was enacted, changing the zoning designation of both properties to RC-1 Residential, both properties nonconforming status was discontinued. As a result, Applicant's proposals for both properties must comply with Section 14-1606 of the Zoning Code. 3. The Zoning Code sets forth that no encroachment, including any development or new construction, is permitted within the floodway of the Schuylkill River. Section 14-1606(5)(a). Subject property A and B are located within the floodway of the Schuylkill River. Applicant proposes to erect encroachments on both subject properties. Applicant proposes to erect on subject property A a multifamily, residential complex and to erect on subject property B a private parking lot. Therefore, Applicant's proposals for both subject properties do not conform to this floodway regulation. 4. The Zoning Code does not permit a property zoned as RC-1 Residential to be used as a private parking lot. Section 14-221(2). Pursuant to Ordinance 990762, subject property B is zoned RC-1 Residential. Applicant proposes to use the property as a private parking lot. Therefore, Applicant's proposal does not conform to this use regulation. 5. The Zoning Code mandates that for a property zoned as RC-1 Residential, the maximum height of a fence shall be 3'6" for the front of the property and six (6) feet for the sides and rear. Sections 14-231(4)(a)(.1) and (.2). Pursuant to Ordinance 990762, subject property B is zoned RC-1. Residential. Applicant proposes to erect around the perimeter of the property a 15 fence that would measure eight (8) feet in height. Therefore, Applicant's proposal does not conform to this area regulation. 6. The Zoning Code mandates that for any parking lot providing between 51 to 75 spaces, three (3) handicapped-accessible parking spaces shall be provided. Section 14-1401(3). Applicant proposes to erect on subject property B a private parking lot which would provide fifty-four (54) spaces, none of which would be handicapped-accessible. Therefore, Applicant's proposal does not conform to this parking regulation. 7. The Zoning Code mandates that the gross floor area for a property zoned as RC-1 Residential shall not exceed 150% of lot's entire area. Section 14-221(3)(d). Pursuant to Ordinance 990762, subject property A is zoned RC-1 Residential. Applicant is proposing a total gross floor area that would equal 185% of subject property A's entire area [210,977 sq. ft (total proposed area) / 113,642 sq. ft (subject property A's area) = 185 %]. Therefore, Applicant's proposal does not conform to this area regulation. 8. The Zoning Code sets forth that for a property zoned as RC-1 Residential, every structure shall be located from any lot line which does not face a street a minimum horizontal distance which equals one-half (1/2) the height of that point above the mean ground level at the base of the structure. Section 14-221(3)(e)(.1). Pursuant to Ordinance 990762, subject property A is zoned RC-1 Residential. The property's rear lot line faces the Manayunk Canal. L&I has calculated that for any structure located on the property, the required minimum horizontal distance from the rear lot line would be 27.5 feet. Applicant proposes to locate one of the proposed additions within one (1) foot of the property's rear lot line. Applicant further proposes to locate a proposed parking area comprised of seventeen (17) spaces over the property's rear lot 16 line, extending into the adjoining property's area. Therefore, Applicant's proposals do not conform to this area regulation. 9. The Zoning Code sets forth that for a property zoned as RC-1 Residential, every structure which faces a street shall be located from the centerline of said street a minimum horizontal distance which equals one-half (1/2) the height of that point above the mean ground level at the base of the structure. Section 14-221(3)(e)(.2). Pursuant to Ordinance 990762, subject property A is zoned RC-1 Residential. Both Flat Rock Road and Leverington Avenue measure 40 feet in width. L&I has calculated that for any structure located on the property, the required minimum horizontal distance from either roadway's centerline would be twenty (20) feet. Applicant proposes to locate one of the proposed additions zero (0) feet from the centerline of Flat Rock Road and another of the proposed additions 11'4" from the centerline of Leverington Avenue. Applicant further proposes to erect a second-floor-level, pedestrian bridge that would extend over the property's lot line onto the public sidewalk on Leverington Avenue. Therefore, Applicant's proposals do not conform to this area regulation. 10. The Zoning Code sets forth for a property zoned as RC-1 Residential, there shall be no height regulations. Pursuant to Ordinance 990762, subject property A is zoned RC-1 Residential. Applicant proposes that the height of the proposed residential development's fronting Flat Rock Road would be fifty-eight (58) feet and the height fronting Leverington Avenue would be sixty-five (65) feet. Therefore, Applicant's proposals does conform to this area regulation. 11. The Zoning Code sets forth that for any parking lot located in a residential district, the number of parking spaces measuring eight (8) feet by sixteen (16) feet (i.e. compact-sized) shall not exceed twenty-five (25) percent of the total parking spaces provided. Section 14-1402(4)(a)(.2). Pursuant to Ordinance 990762, subject property A is located in a residential 17 district. Applicant proposes to provide a parking lot with 160 spaces on the property. In order to minimize the area used for parking, Applicant proposes that forty-three (43) of the proposed parking spaces would measure eight (8) feet by sixteen (16) feet, which would be equivalent to twenty-seven (27) percent of the total parking spaces proposed. Therefore, Applicant's proposal does not conform to this parking regulation. 12. A handicapped-accessible space shall measure a minimum of twelve (12) feet by eighteen (18) feet with a five (5) feet wide access aisle. Zoning Code at Section 14-1401(3) and CABO/ANSI A117.1. In the aforementioned parking lot to be located on subject property A, Applicant proposes to provide handicapped-accessible spaces which would measure thirteen (13) feet by eighteen (18) feet but would not be equipped with an access aisle. Therefore, Applicant's proposal does not conform to this parking regulation. 13. The Zoning Code sets forth that for dwellings containing twenty-five (25) or more families, a minimum of one (1) parking space for each family shall be provided. Section 14- 1402(2)(a). Applicant proposes to erect on subject property A a residential development which would house 160 families. In order to minimize the area used for parking, Applicant proposes not to provide 160 individual parking spaces. Instead, Applicant proposes to use stacked parking, which would require families to share a space by parking their vehicles in stacked fashion. Therefore, Applicant's proposal does not conform to this parking regulation. 14. For all the foregoing reasons, Applicant's proposals for subject property A and B may be permitted only if the criteria for granting a variance are met. 15. To establish entitlement to a zoning variance, an applicant must show an unnecessary hardship resulting from the property's unique physical conditions or circumstances; that such hardship is not self-imposed by the applicant; that granting the variance would not adversely 18 impact the public health, safety or welfare; and that the variance, if authorized, would represent the minimum variance necessary to afford relief City of Philadelphia Zoning Code at Section 14-1802(l); Alpine Inc v. Abbington Tp. Zoning Hearing Board 654 A.2d 186 (Pa. Commw. Ct 1995); Carman v. Zoning Board of Adjustment of the City of Philadelphia 161 Pa. Commw. 80, 638 A.2d 365 (1994). 16. Unnecessary hardship may be established through evidence that a property, because of its physical features, cannot be used for a permit purpose, or can be conformed for such purpose only at prohibitive expense. Unnecessary hardship may also be established through evidence that the property has no value for any purpose permitted by the Zoning Code. Anderson v. Witt 692 A.2d 292, 294 (Pa. Commw. Ct 1997); Commonwealth Department of General Services v. Zoning Hearing Board of Susquehanna Township, 677 A.2d 853, 855 (Pa. Commw. Ct. 1996). 17. When determining whether an unnecessary hardship exists, the fact finder must consider if the variance sought is dimensional or use. A dimensional variance involves a request by an applicant to adjust zoning regulations in order to utilize property in a manner consistent with applicable regulations. In contrast, a use variance involves a request by an applicant to use property in a manner that is wholly outside zoning regulations. As a result, the quantum of proof required to establish an unnecessary hardship is lesser when an applicant requests a dimensional variance. Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh v. Miryam's 721 A.2d 43 (1998). 18. In the present case, Applicant has met the criteria for granting the requested variances for both subject properties. First, the Zoning Board concludes that there are unnecessary hardships to support the granting of both use and dimensional variances for subject property A. 19 When Ordinance 990762 was enacted, Applicant was permitted as a matter of right to use the property for a residential purpose. However, the Zoning Code's area and parking regulations, along with the special controls on floodplains and/or floodways due to the location of the property in the floodway of the Schuylkill River, do not permit Applicant to erect the necessary improvements to utilize the property for a residential purpose. Can Applicant be expected to use an old, dilapidated, industrial property in its current physical condition as a multifamily residential development? Clearly not, and therefore, to enforce the Code's special controls on floodplains and/or floodways would result in an unnecessary hardship to Applicant. Second, the Board concludes that there is the requisite unnecessary hardship supporting a use variance for subject property B. Due to the size of subject property A, Applicant is unable to provide on site the necessary amount of parking spaces, at ground level, for the proposed residential development. Although Applicant could propose to erect a multilevel structure on the property to provide the additional parking spaces, it would mean there would be an additional obstruction in the floodway of the Schuylkill River. Therefore, in order to minimize the impact on the floodway, Applicant proposes to utilize the adjoining property to provide the additional parking spaces. To prohibit Applicant from doing so would result in an unnecessary hardship. 19. The hardships presented are not self-imposed by Applicant; they are the result of the physical conditions of the subect properties. 20. The variances, each with imposed provisos, are the minimum necessary to afford relief to Appellant. 21. Applicant has persuasively established that the proposals for subject property A and B, with the addition of the imposed provisos, would not adversely impact the public health, safety or welfare. In particular, the Zoning Board has been persuaded by the reports and testimony from 20 Elmore Boles and Dr. John Weggle which establish that Applicant's proposals would substantially reduce the resistance in the flow of the Schuylkill River and, therefore, would actually decrease the flood levels on Venice Island. 22. For all of the foregoing reasons, the Zoning Board voted, at Calendar 99-1284, to grant use and zoning variances with provisos for subject property A located at 4601-45 Flat Rock Road, Philadelphia, Pennsylvania and, at Calendar 99-1285, to grant a use variance with a proviso for subject property B located at 4700 Flat Rock Road, Philadelphia, Pennsylvania. Respectfully submitted, Robert J. D'Agostino Administrator Zoning Board of Adjustment 21 VOTE OF THE BOARD REGARDING SUBJECT PROPERTY A THOMAS J. KELLY YES Provisos as below SUSAN 0. W. JAFFE YES Approved hydrologic study prepared by a registered engineer which satisfies FEMA requirements; all trash stored in an enclosed area with commercial trash pick up; garbage disposals in the kitchens; must meet Philadelphia Fire Code; central air conditioning; Historical Commission approval. THOMAS LOGAN YES Provisos as above ROSALIE M. LEONARD YES Provisos as above DAVID AUSPITZ YES Provisos as above VOTE OF THE BOARD REGARDING SUBJECT PROPERTY B THOMAS J. KELLY YES Proviso as below SUSAN 0. W. JAFFE YES Must provide two handicapped accessible parking spaces THOMAS LOGAN YES Proviso as above ROSALIE M. LEONARD YES Proviso as above DAVID AUSPITZ YES Proviso as above 22 CITY OF PHILADELPHIA, LAW DEPARTMENT CHERYL L. GASTON CHIEF DEPUTY CITY SOLICITOR ATTORNEY IDENTIFICATION NO. 51192 1515 ARCH STREET -16TH FLOOR PHILADELPHIA, PA 19102-1595 215/683-5118 MANAYUNK NEIGHBORHOOD COURT OF COMMON PLEAS COUNCIL & FRIENDS OF MANAYUNK: PHILADELPHIA COUNTY CANAL, ET AL., CIVIL TRIAL DIVISION Appellant, vs. SEPTEMBER TERM, 2000 ZONING BOARD OF ADJUSTMENT OF THE CITY OF PHILADELPHIA AND THE CITY OF PHILADELPHIA, Appellees. NO. 1056 and 1057 TO THE PROTHONOTARY: The enclosed file constitutes the completed record of the Zoning Board of Adjustment of the City of Philadelphia in connection with the above-captioned matter, which is being filed with your office in accordance with Local Rule 320 and the Philadelphia Zoning and Planning Code, Title 14 of the Philadelphia Code, at  14-1807. KENNETH 1. TRUJILLO CITY SOLICITOR CHERYL L. GASTON Chief Deputy City Solicitor