COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY MANAYUNK NEIGHBORHOOD COUNCIL,: FRIENDS OF MANAYUNK CANAL, : JANE GLENN, KEVIN SMITH, : DOLORES LOMBARDI, DARLENE : MESSINA : Appellants : SEPTEMBER TERM, 2000 : No. 2000-001056 vs. : : SEPTEMBER TERM, 2000 ZONING BOARD OF ADJUSTMENT, : No. 2000-001057 Appellee : vs. : DRANOFF PROPERTIES, : Intervenor : MEMORANDUM IN SUPPORT OF APPELLANTS' MOTION TO VACATE AND REMAND VARIANCE APPROVAL OR. IN THE ALTERNATIVE, TO TAKE ADDITIONAL EVIDENCE INTRODUCTION These cases involve the decision of the Zoning Board of Adjustment to allow the construction of a 160 unit apartment complex and private parking lot in the flood-way of the Schuylkill River. The Board 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. 1 STANDARD The Court is conferred the power to take additional evidence in a land use appeal by Philadelphia Code ºº 14-1807(4)-(b). º 14-1807(4) in relevant portion states; (4) In the event the Court determines that a full and complete record of the proceedings before the Board was not made, the Court may hear the appeal de novo or may remand the proceedings to the Board for the purpose of making a full and complete record or for further disposition in accordance with the order of the Court. This section gives the Court the authority to take additional evidence when the record is incomplete. Section º 14-1807(5) then states; (5) If the Court determines that a full and complete record of the proceedings before the Board was not made and the Court is satisfied that such additional questions could not, by the exercise of due diligence, have been raised by the party before the Board, the Court shall remand the record to the Board for further hearing on the additional questions. Section º 14-1807(5) gives the Court the authority to remand the case back to the zoning Board of Adjustment for purposes of presenting new questions to the Board. Under the Zoning Code the Court should exercise its discretion to take additional evidence if it is "necessary for making a determination of the issues presented." Korngold v. zoning Bd. of Adjustment of City of Philadelphia, 147 Pa. Cmwlth. 93, 606 A.2d 1276 Pa. Cmwlth. Apr 06, 1992) 2 ARGUMENT Both properties involved in this case are located within both the floodplain and the floodway of the Schuylkill River. (ZBA Conclusion of Law 1) The Zoning Code forbids any new development or new construction within the floodway of the Schuylkill River. 9141606(5)(x). Therefor, in order to gain approval for its projects, Dranoff Properties was required to obtain a variance from the floodway and floodplain ordinance, among others. 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 º 14-1802; Carman v. Zoning Board of Adjustment of the City of Philadelphia, 161 Pa. Cmwlth. 80, 638 A.2d 365, 369 Pa. Cmwlth. 1994). Clearly then, in order to make a proper determination of the issues presented in this case, is necessary to place on the record evidence pertaining to unnecessary hardship, whether the alleged hardship was self imposed, the effect of the proposed 3 variance on the public health, safety, and welfare, and what variance would represent the minimum variance. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637, 639 (PA. 1983). For the Zoning Board of Adjustment to make a decision without substantial evidence of each factor would be an abuse of discretion. Id. Further, because the proposed construction lies within the designated, mapped and approved flood-way of the Schuylkill River it was necessary to show that the proposed construction would not "result in any increase in flood levels during the Regulatory Flood." º 14-1802 (3) (a) . Despite the rigorous mandates of the Code with regard to variances and the grave significance of this decision, the Board inexplicably curtailed the presentations of the protestants throughout the proceedings. These limitations placed upon the protestants caused the record to be incomplete and require this court to take additional evidence to complete the record or, in the alternative, to remand the decision back to the Board to allow for a complete record to be established. 1) THE BOARD LIMITED TESTIMONY TO THE INCREASE IN FLOOD LEVELS The record was incomplete from the very beginning because the Board arbitrarily limited testimony to the issue of whether the 100 year flood level would increase. (N.T. March 13, 2000 at 4 8-10). This decision limited testimony on all other indispensable issues including included the nature and the extent of 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 emergency services to the island, and the adverse effect on the public welfare by the proposed construction. This decision also caused some of petitioner's expert to be limited to testimony as fact witnesses because they were not experts in hydrology, although each was an expert in the field that the protestants sought their testimony in. (N.T. March 13, 2000 at 107-8). 2) THE PROTESTANTS WERE DENIED ACCESS TO INPUT DATA The appellants were denied access to the data which the intervenor based its studies on to show there would be no net rise in the 100 year flood as a result of this project. Despite requests that it be provided, the appellants were never given access to that data. (N.T. June 12, 2000 at 16, 47, 55) The Applicants then exploited the lack of access to that data in an attempt to discredit the protestants' experts. (N.T. June 12, 2000 at 47, 55) In order to properly analyze the data 5 submitted by the applicants it was necessary for the protestants to be given access to the input data. To deny the protestants access to this data denies the protestants their due process right to a fair hearing. It is therefore necessary to take additional evidence by allowing protestants' experts access to the input data used in applicant's hydrological model and analysis and then grant protestants' experts the opportunity to present their findings. Further, the data is needed because the effects of this project on the public welfare include not only the effect of a 100 year regulatory flood, but also smaller, more frequent floods which can act differently from the 100 year regulatory flood. (N.T. June 12, 2000 at 52) Protestants experts were precluded from presenting this information because of the lack of access to input data. 3) THE BOARD ARBITRARILY EXCLUDED VIDEO EVIDENCE The protestants were arbitrarily refused the opportunity to present video evidence to show the effect of flooding on the Schuylkill River. The Board simply refused to allow the evidence claiming that they do not accept video evidence. The video evidence visually showed how fast the Schuylkill River actually rose in an area adjacent to the area where the applicant proposes to build its project. This evidence was necessary to demonstrate 6 the dramatic effect of just a 25 year flood and the danger presented by building in the floodway. Because the decision to exclude this evidence was arbitrary and the evidence is necessary for a full and complete record the court should allow presentation of additional evidence. 4) THE RECORD IS VOID OF EVIDENCE AS TO THE TRAFFIC IMPACT The Dranoff application failed to present evidence of the impact of additional traffic on the Manayunk community. The Board then severely curtailed the testimony of the protestants traffic expert because he had not done his own traffic study. He had prepared a report based upon the information that he had and highlighting the need for the applicant to perform a traffic study, but was precluded in large part from presenting such information. 5) THE BOARD ARBITRARILY LIMITED PROTESTANTS EXPERTS TO TEN MINUTES OF TESTIMONY EACH 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. June 12, 2000 at 7) This limitation was imposed based only on the protestants position as protestants. This arbitrary limitation denied the protestants their due process right to a full and fair proceeding 7 and precluded the Board from creating a full and complete record. Protestants' experts repeatedly remarked about their testimony being hampered by time limitations and were on occasion told to hurry their comments by the Board. (N.T. June 12, 2000 at 17, 40, 94). While the applicant may claim that the experts were permitted to exceed this limitation the limit placed on their testimony was substantial and prevented evidence necessary for making a determination of the issues presented from being admitted into the record. 6) THE BOARD WRONGFULLY EXCLUDED THE REPORT OF THE METEOROLOGIST The protestants offered an expert meteorologist who also prepared a written report for the Board. It was offered into the record and handed to the Board on March 13 at which point the applicant objected. (N.T. March 13, 2000 at 131-3) The Board never ruled on the objection. At the Hearing of June 12 the Protestants again offered the report at which point the Board declined to admit it because the Board wrongly found that it was not offered in the prior hearing and therefore was not subject to cross examination. (N.T. June 12, 2000 at 131-3). The report should have been admitted because it was prepared by an expert meteorologist and contained data pertaining to the project that analyzed data he compiled for the National weather Service during the 13 year that he ran their 8 local. office. (N.T. March 13, 2000 at 131-3). CONCLUSION For the foregoing reasons the Court should schedule a hearing to receive supplemental evidence or, in the alternative, remand these cases for the taking of further evidence. Respectfully Submitted, ROBERT J.SUGARMAN CARL W. EWALD Counsel for Appellants SUGARMAN & ASSOCIATES, P.C. 11th Floor, Robert Morris Building 100 N. 17th Street Philadelphia, PA 19103 (215) 864-2500 Dated: February 21, 2001 9 CERTIFICATE OF SERVICE I, Carl. W. Ewald, Esquire certify that I have served a copy of the attached Memorandum in Support of Motion to Allow Taking Evidence and Memorandum upon the following, by hand delivery, on this date: Cheryl L. Gaston, Esquire Deputy city Solicitor Code Enforcement Unit One Parkway 1515 Arch Street 15th Floor Philadelphia, PA 19102-1595? Peter Kelsen, Esquire Blank, Rome, Comisky & McCauley LLP One Logan Square Philadelphia, PA 19103 CARL W. EWALD Dated: February 21, 2001 10