Page index: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
COUNTY - CIVIL TRIAL DIVISION

.
MANAYUNK NEIGHBORHOOD COUNCIL,
FRIENDS OF MANAYUNK CANAL, JANE :SEPTEMBER TERM, 2000
GLENN, KEVIN SMITH, DELORES .
LOMBARDI and DARLENE MESSINA :NO. 1056
. .
v. .
. :SEPTEMBER TERM, 2000
ZONING BOARD OF ADJUSTMENT OF .
THE CITY OF PHILADELPHIA and :NO. 1057
DRANOFF PROPERTIES .

OPINION

WOLF, J. Dated: May 29, 2002

This is an appeal from this Court's Order of August 29, 2001 sustaining the appeal of the Manayunk Neighborhood Council, the Friends of Manayunk Canal, Jane Glenn, Kevin Smith, Delores Lombardi and Darlene Messina (hereinafter referred to collectively as ("Appellants") and reversing a decision of the Zoning Board of Adjustment ("Board") which had voted to granted both use and zoning variances to develop two properties on the parcel of land known as Venice Island. For the reasons set forth below, this Court's decision should not be disturbed.

FACTS

On October 29, 1999, counsel for Dranoff Properties ("Dranoff') applied to the Department of Licenses and Inspections ("L&I") for permits to relocate the lot lines on a property located at 4700 Flat Rock Road, Philadelphia, PA ("Property A") to create one lot from three; to erect an eight foot high fence; and to create a parking lot comprised of fifty-four spaces to be used

1


by the residents of the property located at 4601-45 Flat Rock Road, Philadelphia, PA ("Property B")[1]. L&I determined that Dranoff's proposals for Property A would not comply with the parking regulations for a G-2 Industrial District as set forth in the Philadelphia Zoning Code ("Code") at Section 14-508. Accordingly, L&I issued one use refusal on November 4, 1999.

On November 5, 1999, Dranoff applied to L&I for zoning and use registration permits for the relocation of lot lines on Property B to create one lot from two lots; to demolish four portions of an existing building and a one-story structure; and to erect one six-story addition, one four-story addition and one two-story addition to the remaining structures. Dranoff also proposed to convert an existing structure (hereinafter referred to as "E-1 ") into an apartment building and fitness center; an existing building (hereinafter referred to as "E-2") into an apartment and residential storage facility[2]; and an existing building (hereinafter referred to as "E-3") into an apartment building and residential activities facility. In addition, Dranoff sought to construct: an apartment building; an apartment building with lobby and management office; and a one hundred sixty (160) unit apartment building with 160 parking spaces, five of which would be handicapped accessible and fifty-five (55) of which would be for compact vehicles[3].

L&I determined that Dranoff's proposals for Property B would not comply with the use, area and parking regulations for a G-2 Industrial District as set forth in Code Sections 14- 508(3)(b), 14-1606(5)(a)(.1), 14-1401(3) and 14-1404(4). Accordingly, L&I issued one zoning


[1] Forty-four of the spaces would measure 8'6" x 18'7" and three would measure 8'6" x 20'.Dranoff s proposal did not include handicapped accessible spaces.

[2] Another existing building would be left vacant.

[3] Seventeen of the compact spaces would be across the existing property lines and wouldrequire either an easement or proof of ownership of the adjacent property.

2


refusal and five use refusals on November 5, 1999. In addition, L&I made a note to the Board that prior to the issuance of any of the requested permits, approval from the appropriate agencies would be required and an engineering study would have to be submitted to support the contention that there would be no net rise or negative impact on the water levels of the Schuylkill River.

Dranoff appealed the refusals to the Board, which held public hearings before a quorum of the Board's members on November 22, 1999, March 13, 2000 and June 12, 2000. While the appeals were pending, the Philadelphia City Council, on December 30, 1999, enacted Ordinance 990762 ("Ordinance") which changed the zoning designations for Property A and B (collectively referred to as the "Properties") from G-2 Industrial to RC- I Residential. In light of the passage of the Ordinance, L&I reevaluated Dranoff's applications for both properties. Subsequently, L&I determined that Dranoff's Proposals for Property A would still not comply with the Code, particularly those provisions pertaining to RC- I Residential Districts, and therefore issued one use refusal and two zoning refusals on May 17, 2000. In addition, L&I made a note to the Board that because the property was located in a 100-year floodplain, review by the City of Philadelphia Planning Commission ("Commission") would be required.

L&I reached the same conclusions with regard to Property B, that is, that Dranoff's proposals would not comply with those requirements of the Code pertaining to RC-1 Residential Districts. Thus, L&I issued three zoning refusals and two use refusals on May 31, 2000. In additional, L&I made a note to the Board that Property B was designated as historical and would therefore require approval from the Historic Commission before the requested permits could be issued.

At the hearings, the following information was presented. Properties A and B are located

3


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. The Leverington Avenue Bridge, which spans the Manayunk Canal, connects Venice Island to the "mainland". Leverington Avenue intersects Flat Rock Road, the only east to west access roadway on the island. Property A is located south of Property B, directly across Flat Rock Road. Located to the north of Venice Island is Manayunk, a neighborhood comprised primarily of residential row houses. Manayunk's Main Street, however, which is directly north of the canal, is comprised almost entirely of commercial properties. Main Street intersects with Leverington Avenue.

Venice Island is also home to the Smurfit Stone Container Corporation, a large industrial property located east of the Properties. The Arroyo Grill restaurant is at the far western end of the Island. Venice Island lies within the 100-year floodplain of the Schuylkill River. Due to the surrounding high slopes, Venice Island is also within the floodway of the Schuylkill River. Thus, both Properties are located within the 100-year floodplain of the River as well as in its floodway. Property A is currently an open paved parking lot approximately 19,885 square feet in size, and Property B is an industrial complex comprised of several multistory structures and is approximately 113,642 square feet in area[4]. Together, the Properties measure approximately three acres in size. Until May 1999, Property B was occupied by Namico Company and was used for manufacturing soap and other cleaning products[5].


[4] Sometime during the last half of the nineteenth century, the industrial complex was erected.The original buildings on Property B are listed in the National Register of Historic Places.

[5] The Board found that as additional buildings were added, Property B lost its historicappearance. The Board also found that the buildings had deteriorated from lack of repair and therefore, the industrial complex had become a visual blight to the surrounding community

4


Property B currently consists of two lots which Dranoff proposes to make into one by relocating the lot lines. Dranoff, claiming an interest in revitalizing the property, proposed to demolish and remove approximately sixty percent (60%) of the existing structures, including the soap factory's old storage tanks. Dranoff also proposed to restore the remaining structures and to add to them one six-story addition, one two-story addition, and one four-story addition. The restored structures and their proposed additions would be used to create a multifamily residential development with accessory uses. The proposed complex would contain a total of one hundred sixty (160) apartment units: four studio apartments; one hundred and three (103) one-bedroom apartments; and fifty-three (53) two bedroom apartments.

Because the proposed complex would be located within both the floodway and the tloodplain, Dranoff proposed to do the following to minimize possible damage from flooding:

1. Locate all apartment units at least fourteen (14) feet above ground;

2. 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

3. Not to use first floors of any of the existing buildings for apartments.

The height of the proposed complex would vary. Dranoff proposed that the complex's facade facing Flat Rock Road would measure fifty-eight (58) feet in height, while the facade facing Leverington Avenue would measure sixty-five feet in height. Moreover, the proposed total gross floor area of the complex would be 210,977 square feet, or 185% of Property B's total area. Dranoff proposed to locate the complex directly at the centerline of Flat Rock Road which measures 40 feet in width. In addition, the complex would extend one foot beyond the rear lot line of Property B.

5


For further access to the Properties, Dranoff proposed to erect a pedestrian foot bridge at the second story level of the complex. The sole purpose of the foot bridge would be for evacuating residents in case of an emergency[6]. It would extend front one building in the complex to the public sidewalk of the Leverington Avenue Bridge[7]. Each building in the complex would be equipped with an emergency alarm and speaker system. An emergency evacuation plan would be posted inside the complex manager's office and a copy would be included with each resident's lease.

One hundred sixty (160) parking spaces would be provided for residents of the complex. In order to minimize the area required for parking, Dranoff proposed to use stacked parking and to make forty-three (43) of the parking spaces available to compact sized cars only. Seventeen (17) of the compact spaces would be located at the northwest corner of the property and would extend beyond the property line. All parking spaces would be at ground level and within the 100-year floodplain and floodway. Property A is comprised of three (3) lots which would be made into one and used to provide additional parking for the complex. The proposed lot would have a total of fifty-four (54) parking spaces, none of which would be handicapped accessible. Dranoff proposed to erect an eight foot high fence around the perimeter of the lot.

Jack Thrower, a registered architect, testified on behalf of and in favor of Dranoff's proposal. Mr. Thrower opined that Dranoff's proposals for both Properties would not only


[6] The very fact that Dranoff proposed to erect this footbridge is an acknowledgment ofinsufficient means of egress from Venice Island in case of an emergency such as, fire, flooding, or other disaster.

[7] Dranoff did not specify which building the footbridge would be connected to or how theresidents from the different buildings would gain access to it.

6


represent the highest and best use of the Properties but also would be compatible with the surrounding uses. In addition, Mr. Thrower opined that, without extensive renovation and reconstruction as proposed by Dranoff, neither Property had any economic value.

Dranoff also presented the testimony of Elmore Boles, a registered civil engineer, who opined that Dranoff's proposals for the Properties would not cause a net rise in the flood waters of the Schuylkill River and, therefore, that Dranoff' s proposals would comply with all federal, state and local regulations governing new construction in floodways. Mr. Boles explained that Dranoff' s proposals would reduce the existing obstructions on the Properties by thirty percent (30%), and, 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. 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. In reaching this conclusion, Mr. Boles utilized the data contained in the hydraulic study conducted by Dr. John Weggle and the 1996 study of the Schuylkill River conducted by the U.S. Army Corps of Engineers.

Dr. Weggle, the hydraulic engineer relied upon by Mr. Boles, conducted an hydraulic analysis of the Schuylkill River to determine what impact Dranoff' s proposals for the Properties would have on water levels during a 100-year flood on Venice Island. Also utilizing the data contained in the U.S. Army Corps of Engineer's 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

7


obstructions from Venice Island.

The Zoning Board also received and considered one letter from a community resident in support of the project, and letters from two organizations, the Manayunk Development Corporation and the Central Manayunk Council, also in support of Dranoff's proposals.

The protestants to Dranoff's proposals presented the testimony of numerous witnesses and experts. First to testify, 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 in September 1999. Dr. Willig further opined that these factors would cause the proposed residential development to be subjected periodically to severe flooding and, for that reason, she opposed Dranoff's requests for variances.

Joseph Skupien and Geoffrey Goll, both hydraulic engineers, testified next on behalf of the protestants. While they acknowledged that Dr. Weggle's hydraulic analysis satisfied FEMA's requirement in calculating the impact the proposed residential development would have on a 100-year flood, they argued that Dr. Weggle's report should have gone farther and considered the impact the proposed development would have on smaller floods. In addition, Mr. Skupien and Mr. Goll opined that Dr. Weggle's report was deficient as it failed to factor in the proposed columns as solid obstructions in calculating the impact on the water flow of the Schuylkill River during a flood. Thus, they contended, Dr. Weggle's conclusion that Dranoff's proposals would actually improve food conditions by removing obstructions was not supported by the record. In other words, Mr. Skupien and Mr. Goll found that although certain obstructions

8


would be removed as a result of the development, new obstructions, specifically the proposed columns, would impact on the flood conditions and must be factored into any analysis. Failure to do so by Dr. Weggle made his report and its conclusions suspect[8].

Andreas Heinrich, a traffic engineer, next addressed the traffic issues posed by Dranoff's proposed residential development. Mr. Heinrich opined that because Flat Rock Bridge has only two lanes and is currently used by both the Arroyo Grill restaurant and the Smurfit Stone Container Company, Dranoff's proposals would have a negative impact on the traffic conditions, not just on the island, but on the surrounding area. Accordingly, Mr. Heinrich suggested that Dranoff be required to submit a traffic impact study before a variance was granted[9]. Interestingly, in 1997, the owner of 100 Leverington Avenue was denied a variance to expand its operations because expansion would cause too great a change in the traffic patterns:

Wendy Lathrop, a consultant in the area of floodplain regulations, also testified on behalf of the protestants. She opined that the best plan for a floodplain was to keep it as open space and use it for passive, recreational purposes. Ms. Lathrop explained that if a municipality failed to comply with the National Flood Insurance Program's technical requirements, then the entire municipality would not be eligible for either flood insurance or flood disaster relief funds.


[8] The Board noted that neither Mr. Skupien nor Mr. Goll could state with certainty thatDranoff s proposals would definitely cause an increase in the water levels during any type of flood situation.

[9] Obviously, the construction of a 160 unit apartment complex with over 200 accessory parkingspaces would substantially increase the number of people and thus cars entering and exiting the island. As this part of Venice Island is currently unused, Dranoff s proposal to add hundreds of people to the daily population of the Island will, as a matter of course, have a significant impact on the present "occupants" of the Island, that is, their ability to get to and from work on a daily routine or emergency basis.

9


Regarding the safety of individuals living in Dranoff's proposed complex, Stephen Miller, a firefighter, testified that in an emergency people are less likely to evacuate from their place of residence than from their place of employment. Mr. Miller opined that someone would drown on Venice Island if the proposed residential development were allowed.

The Board received and considered a report from Hal Schirmer, a real estate agent in Pennsylvania, in which he stated that Dranoff's proposals would be the worst possible use of the Properties. The Board also received two letters from FEMA, one dated February 8, 2000 and one dated March 15, 2000. In the February 8th letter, FEMA indicated that Dr. Weggle's hydraulic report was incomplete because it failed to make reference to the floodway of the Schuylkill River. In the March 15th letter, FEMA indicated that the proposed residential development would comply with the literal requirements of floodway regulations set forth at 44 C.F.R. 60.3. FEMA went on to state, however, that the letter was not meant to be an approval of the proposed project and that all other federal, state and local floodplain regulations would still have to be followed. The Board also received and considered a copy of a letter from James Witt, Director of FEMA, to the Honorable John S. Street, Mayor of the City of Philadelphia. In his letter, Mr. Witt expressed 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 would be jeopardized should the proposed development be deemed unsound by federal standards.

In addition to correspondence from FEMA, the Board received and considered letters from community representatives, including Councilman-At-Large Frank Rizzo and Councilman

10


Michael Nutter, and organizations in opposition to Dranoff's proposals[10]. In general, these protestants objected to the proposal for construction in the floodway of the Schuylkill River. A petition signed by hundreds of protestants was also presented to the Board for its consideration[11], as were pictures of damage inflicted on Manayunk by Hurricane Floyd[12]. Photographs were also submitted documenting ongoing traffic jams and related problems suffered whenever there is a special event on Main Street which increases the number of cars in Manayunk.

On August 11, 2000, the Board sent a letter to Dranoff indicating that it had voted to grant the use and zoning variance for Property A with the proviso that two handicapped accessible parking spaces be provided. The letter also indicated that the Board had voted to grant the use and zoning variances for Property B with the following provisos:

1) An approved hydrologic study be prepared by a registered engineer to satisfy the requirements of the Federal Emergency Management Agency;

2) All trash to be stored in an enclosed area with commercial trash


[10] These organizations include the Manayunk Neighborhood Council, 21st Ward CommunityCouncil, Inc., Philadelphia Canoe Club, Umbria Street Neighbors Association, Wissahickon Neighbors Civic Association, and even Smurfit-Stone).

[11] The position taken by the City Planning Commission was ambiguous. It stated that with thechange in the zoning occasioned by the passage of the Ordinance, the only issue for the Commission to decide was whether Dranoff s proposals would result in the increase in the flood levels of the Schuylkill River. The Planning Commission went on to state that if Dranoff s hydrological study was approved by FEMA, then Dranoff would be entitled, as a matter of right, to the permits because the proposals were a lawful expansion of a nonconforming use.

[12] These pictures graphically display the havoc wreaked upon Manayunk, including, but notlimited to, flood waters reaching 3/4 of the way up traffic lights and stop signs; cars along Main Street submerged in flood water; debris from structures flowing downstream and causing damage to bridge structures. These pictures also depict Property A which Dranoff proposes to convert into a parking lot, completely submerged in multiple feet of water even nine hours after the Schuylkill River crested as a result of Hurricane Floyd.

11


pick up.

3) Garbage disposals to be installed in all kitchens;

4) All structures must meet the Philadelphia Fire Code;

5) All residential buildings must be equipped with central air-conditioning;

6) All plans must be approved by the Historical Commission These decisions by the Board were appealed to this Court on September 11, 2000. Briefs

in support of and in opposition to the appeal were submitted to the Court on March 8, 2001 and March 23, 2001, respectively. Oral argument was held on April 4, 2001, after which this Court took the matter under advisement. After considering all the evidence, the briefs, and the arguments presented, this Court entered an Order dated August 29, 2001 finding that the Board had failed adequately to consider the risks to public safety posed by construction of Dranoff's proposed development in the floodway and the flood plain and, as a result, that the Board lacked a sufficient basis to support its grant of the variances and use permits. Accordingly, the appeal was sustained and the decision of the Board was reversed. This timely appeal followed.

DISCUSSION

In its Statement of Matters Complained of on Appeal, Dranoff asserts that this Court made the following errors of law:

1. The Court applied the incorrect standard of review in that it failed to give great deference to the Board's interpretation of the Code;

2. The Court erred in reversing the decision of the Board as the Board committed no manifest abuse of discretion or error of law in approving Dranoff' s proposals;

3. The Court erred in reversing the decision of the Board as the Court failed to

12


review or even consider the evidence presented by Dranoff on the issues of public safety as a result of the construction of the residential development;

4. The Court erred in failing to issue a written opinion setting forth its own findings of fact and conclusions of law when it reversed the decision of the Board[13]; and

5. The Court erred in reversing the decision of the Board which was fully supported by overwhelming evidence that the residential development will fully comply with the requirements of Sections 14-1802(3)(a) and 14-1606 of the Code allowing for development in the floodway, as well as FEMA regulations for floodway development and the use regulations established for this property by City Council as part of the Venice Island rezoning legislation.

None of these allegations of error can withstand scrutiny and, thus, this Court's decision should stand.

Standard of Review

Under Pennsylvania law, when the trial court takes no additional evidence on appeal from a Board decision, the scope of review for the court is limited to determining whether the Zoning Board committed an abuse of discretion or an error of law. Board of Supervisors of Under Southampton Two. v. Zoning Hearing Board of Upper Southampton Twp., 124 Pa. Cmwlth. 103, 107, 555 A.2d 256, 258 (1989). Where the Zoning Board's findings of fact are not supported by "substantial evidence," the granting of a variance is an abuse of discretion. Somerton Civic Assn. v. Zoning Bd. of Adjustment, 471 A.2d 578, 580 n. l (Pa. Cmwlth. 1984); Valley View Civic Assoc. v. Zoning Bd. of Adjustment, 462 A2d 637 (Pa. 1983).

The party seeking a variance bears the burden of proving that unnecessary hardship will result if the variance is denied and that the proposed use will not be contrary to the public


[13] This Opinion should correct an error in procedure alleged in number 4 of the Statement ofMatters Complained of and will not be addressed further.

13


interest. City of Pittsburgh v. Zoning Board of Adjustment of City of Pittsburgh, 522 Pa. 44, 60, 559 A-2d 896, 903 (1989). (Emphasis added). Here, because there was virtually no evidence to support Dranoff's claims that it could safely build within a floodway and flood plain, and because what little evidence was presented was faulty, the Board's finding constituted an abuse of discretion[14].

In support of its requests for variances, Dranoff submitted the reports and testimony of two individuals. First, Elmore Boles, a registered civil engineer, opined that Dranoff's proposals for the Properties would not cause a net rise in the flood waters of the Schuylkill River, and therefore, that these proposals would comply with all federal, state and local regulations governing new construction in floodways. Second, Dr. Weggle, a hydraulic engineer relied upon by Mr. Boles, testified concerning an hydraulic analysis of the Schuylkill River which he conducted to determine impact on water levels during a 100-year flood on Venice Island. However, the testimony/evidence submitted by both these men was defective and should have been discounted by the Board[15]. Although Mr. Boles asserted that Dranoff's proposals would


[14] Because the Board did not properly consider the issue, of public safety, this Court need noteven reach the issue as to whether Dranoff sufficiently proved that without the requested variance, it would suffer a hardship not of its own making. However, it should he noted that at the time of Dranoff s applications to L&I, the Properties were being used as then zoned, and thus, there could be no finding of hardship. See Evans v. Zoning Hearing Board ofBorough of Spring City. 736 A. 2d 57 (Pa. Cmwlth. 1999) (finding that parents who built anapartment for their handicapped child above an accessory building at their home in violation of zoning ordinance could not establish unnecessary hardship because property was being used for a permitted purpose before the apartment was added).

[15] The Board did not make findings on certain key facts that certainly would have assisted thisCourt in conducting its review of the process below. Specifically, the Board made no findings with regards to the credibility of any of the witnesses or the weight to be given to any of the evidence presented. Thus, this Court is left to make the findings which might better have been reached by the Board.

14


reduce the existing obstructions on the Properties by thirty percent (30%), and thereby reduce the resistance in the flow of water, he neglected to factor into this conclusion the erection of the additional structures which would be built, the dimensions of these structures, and the fact that they would be built on oversized footings and fourteen (14) foot piers. Considering these deficiencies, this Court chose to give little weight to Mr. Boles' conclusions.

The hydraulic study performed by Dr. Weggle, the only other piece of evidence submitted by Dranoff in support of its position that the proposed residential development posed no threat to the safety of the public is similarly defective. As set forth above, utilizing the data contained in the 1996 U.S. Army Corps of Engineers report on the Schuylkill River 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 Venice Island. Again, this conclusion ignores the impact of the new structures to be built, does not consider or factor in man-made changes to the floodplain, such as storm sewers and paved surfaces which have contributed to a dramatic rise in water levels along Venice Island as evidenced by the flooding that occurred during Hurricane Floyd in September 1999- These factors would cause the proposed residential development to be subjected to flooding periodically, regardless of the removal of a few buildings and, therefore, the danger to public safety cannot be ignored.

Moreover, in granting the requested variances, the Board ignored significant evidence of factors that will, per force, negatively impact on the public safety. This evidence includes:

1. graphic pictures of flooding and the resultant property damage;

15


2. testimony and pictures indicating that the proposed residential development would significantly impact on the traffic patterns in and around Manayunk;

3. evidence that there would be only one means of ingress and egress to the development, thereby impeding emergency vehicles' access to Venice Island;

4. the letter from FEMA indicating that even though the models submitted by Dr. Weggle were in technical compliance with FEMA regulations, the development was contradictory to FEMA's mission to reduce the loss of life and property associated with natural disasters;

5. FEMA's letter expressing concern over the proposal to construct a residential development within the floodway of the Schuylkill River and cautioning 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.

Based on these factors, it was a clear abuse of discretion for the Board to find that this project would not pose a threat to the health or safety of the citizens of Philadelphia.

Dranoff argues that in light of Dr. Weggle's compliance with FEMA regulatory requirements, it has met its burden under 14-1802(3)(a) and thus the Board's decision to grant, the variances was correct. While Dranoff may have achieved technical compliance with one provision of the Code, that does not address Dranoff's duty to assure the health, safety and welfare of the City. Moreover, as set forth above, although FEMA recognized technical conformance with its regulations, FEMA's Director strongly warned both the Board and the Mayor of the City of Philadelphia that completion of this project was contrary to the goals and objectives of FEMA and that this development could jeopardize the City's entire participation in the FEMA program. It is important to note that this letter applies not just to these Properties, but to the City as a whole. In addition, Dranoff's hydrologist, Dr. Weggle, admitted that his calculations were designed to satisfy FEMA's regulations. Specifically, Dr. Weggle testified that

16


he would have included the cars in the parking lot in his design to calculate flood resistance, but, because he was trying to satisfy the FEMA regulations, he omitted the cars in his calculations. Clearly, then, Dr. Weggle's calculations which satisfied FEMA led to suspect conclusions and should have been discounted[16]. Finally, as correctly pointed out by Dr. Weggle, the determination of whether changing use from industrial to residential is proper is not covered by FEMA regulations and is the province of the Board. Thus, the Board abrogated it's responsibility and abused its discretion by relying on the FEMA letter to conclude that the requested variances should be granted.

Moreover, the Board's reliance on the report of Dr. Weggle constituted an abuse of discretion. As pointed out by Mssrs. Skupien and Goll, the calculations prepared by Dr. Weggle were misleading as they considered the piers supporting the structures as small separate entities when in reality, during a flood, the piers below the buildings would be clogged with debris and cars and would act as a solid wall. For example, during Hurricane Floyd, which was only a 25 year flood, tractor trailers were literally swept away. Certainly, the impact of such heavy vehicles on the piers could cause considerable damage to the buildings, making them dangerous to live in and substantially delaying return after any evacuation. Mssrs. Skupien and Goll also warned that the Board should have required modeling for additional lesser floods to determine the effects of such floods on the development. In other words, while the 100 year flood might not be affected


[16] A further challenge to the accuracy and credibility of Dr. Weggle's report was his owntestimony that he had never been involved in a project that called for development in a floodway until this time.

17


by the development, smaller floods might be made worse[17].

In reaching its decision, the Board chose to ignore the testimony that placing residential uses instead of industry in floodways increases the risks associated with floods. Specifically, when industry is located in a floodway, management can direct employees to evacuate if flood waters begin to rise during the day and the businesses will be closed and largely vacant at night. Residents, on the other hand, would be reluctant to leave their homes, assuming that they even knew of the impending flood. Moreover, should a flood occur at night, potentially thousands of people would be trying to leave Venice Island by the only means of egress available, one two lane bridge[18]. Although an evacuation plan might be in place, Dranoff's ability to implement the plan would be totally dependant on voluntary compliance by the residents. In the case of Hurricane Floyd, the first flood warning came at 3:54 p.m, and the data shows that Venice Island was flooded sometime between 3 and 4 that afternoon. In other words, the warning came too late. Since flooding had already begun prior to the warning, the time to evacuate was extremely short. Additionally, the majority of the time that the Island was flooded was after dark, making any evacuation much more difficult.

Further, as pointed out by Mr. Miller, a professional water rescue expert, 90% of flood victims die in or near their cars because they won't follow evacuation plans. He also testified


[17] Mssrs. Skupien and Goll advised the Board that they would have performed the calculationsthemselves but, tellingly, they were denied access to Dranoff s data.

[18] Although Dranoff has committed to provide a footbridge connecting Venice Island to the"mainland", this Court is not convinced that residents would leave their homes and abandon their cars and possessions. Of particular concern to this Court is the testimony presented to the Board by a water rescue expert to the effect that most people are injured or killed trying to save their cars and possessions. Interestingly, the Board omitted this testimony altogether from its findings of fact and conclusions of law.

18


that at some point someone will die, possibly a firefighter trying to rescue a resident of the development[19].

The Board also abused its discretion in granting the variances without requiring Dranoff to submit traffic studies as required by Section 14-1802(2)(8) of the Code. This was in spite of the presentation of evidence of severe congestion and parking problems in the area surrounding Venice Island. Moreover, the plans submitted by Dranoff provide only enough parking for residents of the development, making absolutely no provisions for visitors, business invitees or other guests. The uncontroverted testimony in this case is that there is only one two lane road connecting this section of Venice Island to Manayunk which, with the approval of the variances, would have to serve the Arroyo Grill, the occupants of the development, and the tractor trailers going to Stone Smurfit, the remaining business on Venice Island. From this testimony, it is logical to conclude, especially without any evidence to the contrary, that the construction of the residential development will increase the risk of danger not only to the residents, but to firefighters, police and other emergency personnel.

CONCLUSION

While at first blush, this proposal seems desirable: a residential development adjacent to a burgeoning commercial district with charming waterfront ambience adding new residents to the City's tax roles. On closer inspection, however, the .residential development proposed by Dranoff poses too great a risk to human life and property even to approach the high standard for


[19] Mr. Stephens [Miller... KBS] testified that a firefighter is four times more likely to die in a water rescueoperation than any other type of rescue.

19


approval of a variance. This Court cannot permit one project to put the entire City's participation in the FEMA program at risk, expose the City to legal action and jeopardize the health, safety and welfare of the community as a whole.



BY THE COURT:
[Signed Flora Barth Wolf]
WOLF.