Appellants      :             SEPTEMBER TERM, 2000 
                               :             No. 2000-001202
          vs.                  :
                               :             OCTOBER TERM, 2000 
ZONING BOARD OF ADJUSTMENT,    :             No. 2000-002398
               Appellee        :  
          vs.                  :
               Intervenor      :


The Appellants, Manayunk Neighborhood Council et al. ("Manayunk"), by and through their attorneys, hereby submit the following memorandum in support of their appeal. Because much of the evidence and testimony in this case was incorporated from the hearings on the Dranoff Properties cases, now at Sept. Term 2000 No. 2000-001056 and 2000-001057, much of the argument herein is also similar. Also as in Dranoff, 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


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.


These cases involve two decisions of the Zoning Board of Adjustment (the "Board"), first to allow the construction of a 153 unit apartment complex at 4320-4368 Main Street in Philadelphia and second to then expand that approval to 270 units. On November 22, 1999 the intervenor/appellee, Cotton Street Landing, Inc. ("Cotton"), applied to the Department of Licenses and Inspections ("L&I") for zoning and use registration permits to construct an apartment complex of 270 units from the partial demolition and then rehabilitation and expansion of the former Connelly Containers Facility located at 4320-4368 Main Street on Venice Island. (N.T. 12/22/99 at 4). The property had been used for paper recycling until just three months before the first hearing on the appeal was held in late December, 1999.(N.T. 12/22/99 at 70-1).

The permits were refused by L&I because the proposals violated various use, area, floodway and parking regulations. (N.T. 12/22/99 at 4-5). Cotton subsequently appealed those refusals to the Board and hearings were held on December 22, 1999, March 13, 2000, June 12, 2000, and September 20, 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. 12/22/99 at 4, 33). 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;

(a) Within the Floodway:

(.1) No encroachment (including fill, new construction, or any development) is permitted except that public utilities are permitted as long as they cause no increase in the One-Hundred (100) Year Flood level.

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;

(a) Within the Floodway:

(.3) Construction or substantial improvement of any structure used for the production or storage of any of the following list of materials; or used for any activity requiring the maintenance of a supply in excess of five hundred fifty (550) gallons or other comparable volume; or used for any purpose involving the production, storage, or use of any amount of radioactive substance shall be prohibited; and no variances shall be granted by the Zoning Board of Adjustment:

(.l) Petroleum products--gasoline, fuel oil, and the like; emphasis added.

The Board didn't make key fact findings. As conclusions of law it concluded that the properties could only be used as proposed if the criteria for granting a variance are met. (Conclusion of Law 6). The Board conclusively "found that" the property was subject to a hardship without support. (Conclusion of Law 10). The Board also concluded that the hardships were not self imposed (Conclusion of Law 11). The Board made no finding that the alleged hardship was the result of the physical


conditions of the subject property.

The Board baldly concluded that these were the minimum variances necessary to afford relief. (Conclusion of Law 12). Finally the Board concluded that the proposals would not adversely impact the public health, safety, and welfare. (Conclusion of Law 13).

The Board did not make findings on the key, underlying facts, e.g., its findings regarding all of the testimony merely "finds" that a witness "opined that. . ." and gives a brief summary of some of the witness's testimony. The Board never agreed with this testimony, nor weighed its credibility, and every witness is dealt with in the same manner whether his/her testimony supported the result reached by the Board or not.


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).



This project is subject to the provisions of Section 14-1606 of the Zoning Code. (Findings of Fact 1; Conclusions of Law 1; N.T. 12/22/99 at 31) Section 14-1606(a)(.3) of the Zoning Code states that;

Construction or substantial improvement of any structure used for the production or storage of any of the following list of materials; or used for any activity requiring the maintenance of a supply in excess of five hundred fifty (550) gallons or other comparable volume; . . . shall be prohibited; and no variances shall be granted by the Zoning Board of Adjustment:

(.l) Petroleum products--gasoline, fuel oil, and the like; emphasis added.

Here, Cotton's application calls for the reconstruction and substantial improvement of a structure used for a purpose "requiring the maintenance of a supply in excess of five hundred fifty gallons of petroleum products." This residential use, with 270 units, calls for the parking of 392 cars to serve the apartment complex and provides for an additional 183 parking spaces for public use. (N.T. 12/22/99 at 26-7).

This minimum 392 cars (not including staff, public patrons, or guests) would require the storage of well in excess of 550 gallons of gasoline alone within the gas tanks of those vehicles.


If the cars had only an average of 1.5 gallons of gas on average (well below what is likely) this would exceed the 550 gallon limit (588). Adding all of the fuel oil, the likely actual capacity of the fuel tanks, and all other petroleum products that would be used in the maintenance of the property and for transportation of tenets, the public, and staff, it is clear that this development requires the maintenance of a great deal more petroleum products than is allowed in the floodway.

Section 14-1606(a)(.3) gives the Board no discretion. It 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.


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 Cotton 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.


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. Cotton made no showing of infeasibility of use


under the Ordinance. In fact, the evidence showed that the property was in use as a paper recycling facility just three months before the first hearing on this matter. (N.T. 12/22/99 at 70-71). This property had successfully supported that same industrial use for most of the century. Id. Cotton even made the argument that the property could be used for many things like a paper recycling plant, a slaughter house, or a parcel depot, and that those uses were undesirable to the neighborhood. (N.T. 12/22/99 at 17-8)

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. Its argument really was that the infrastructure on and to the island was outdated and residential would be a better fit. (N.T. 12/22/99 at 18-9). 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 legal use to which the property may be put 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, Cotton's own evidence showed that the property had been in use as a permitted use for most of the past century leading up until just three months before the first hearing was held. (N.T. 12/22/99 at 17-8). The only difficulty Cotton has shown is that they are not able to exploit what they believe to be 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. Without evidence to show the property cannot be used as zoned, hardship cannot be established and the variance must be denied. Earl Scheib, 301 A.2d at 426.

The evidence of hardship that Cotton offered, and the Board relied upon, was limited to Cotton's architect stating that residential would represent a use consistent with the recent character of the neighborhood. (12/22/99 at 17-8). Cotton 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 Connelly Container, Inc. could not have continued its use of the property had that use not been shut down in order to proceed with this application. In fact there was evidence presented that the Smurfit Stone property which is on the island near the Cotton property is currently very viable and represents the largest industrial manufacturer employer in the City. (N.T. 03/13/00 at 88). There was no evidence of anything different


about this property. Cotton's property too could be used for an industrial use without a variance.

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 until 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 plant so they could build apartments.

The Board made no finding on this issue. The Board thus committed an error of law by granting the variance because Cotton failed to show any relevant 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 Cotton seems to allege that the property is burdened by an unnecessary hardship because the island is now more suited to residential 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. Cotton's own evidence even precludes such a finding.

Jack Thrower, the architect who has been hired to design the project, testified that;

Industrial has no business on the island now. There's no way to move goods and material in and out. There's one rickety rail line there. The canal is inoperative. The streets are totally inadequate for handling big truck rigs. (N.T. 12/22/99 at 18).

By the witness' own admission, these traits are not unique to Cotton's property. They are in fact traits common to the entire island and cannot support a finding of hardship.

The Board never made any finding or conclusion on this critical issue. Without satisfying this element Cotton cannot be entitled to a variance. Young 715 A.2d at 1233. Because Cotton 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.


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 Cotton's 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 Cotton closing the existing use in order to build this project. Cotton may allege that the rickety condition of the railway, the narrow streets, and the inoperative canal create a hardship on the property. However, such conditions are the direct result of the neglect of the owner. If the infrastructure have become run down or inoperative it is the result of a failure to maintain those infrastructures. 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. Cotton knew or should have know that this site was zoned for industrial use and that


improvements to the transportation infrastructure might be necessary to operate a business within the zoning regulations. 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).

Finally, Cotton knew of the zoning and the floodway problems when it bought the property. Even if it 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).

This property was working as an industrial property until Cotton decided to close the industry. The existing industrial use was closed by its plans to redevelop the site into a residential use. Any hardship that results from closing the plant was entirely created by Cotton.

Without any support, the Board concluded that the "hardships presented are not self imposed by the Applicant." (Conclusions of Law 11) Because all hardship that Cotton alleges is entirely self created it was an error of law and abuse of discretion for the Board to grant the variances.



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 severely limited the evidence presented by the protestants. While Cotton offered as proof that this project would not hurt the public interest, testimony that the project would decrease the obstructions in the floodway, that it could increase tax revenue, and that it would provide extra parking to ease congestion in Manayunk. The evidence presented, however, demonstrated that each of these "benefits" is false and does not support the Board's finding.

The alleged decrease in flood levels was the sole basis the Board gave in support of its conclusion that the variance would not be detrimental to the public interest. (Conclusion of Law 13) The Board relied on this argument in error, as Dr. Waggle, Cotton's own expert, 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).

The second proposition, that this project would bring in


additional tax revenue, is equally illusive. Cotton's witness, Dennis Glackin, admitted that the model used was very subjective. The model assumes, without reason or support, that 80% of the tenets will come from outside the city, thereby repopulating the city. (N.T. 03/13/00 at 29). When questioned about this the witness admitted that there was no way to tell whether this would actually be true and that if it was not true the benefit would have to be reduced. (N.T. 03/13/00 at 29-30). Further, the model failed to take into account any costs of the project that the city would bear such as emergency services and infrastructure improvements that would be necessary to support the project in the event of a flood which, as shown, will happen. (N.T. 03/13/00 at 26). The model did not even consider that costs of losing the industrial use. (N.T. 03/13/00 at 23).

Further, this "benefit" is not even related to the variance at issue. Cotton's expert testified that the tax value would be the same wherever the project was built and that the developer could build it anywhere in the city without receiving a variance from the floodway ordinance. (N.T. 03/13/00 at 32). This "benefit" is therefor irrelevant.

Finally, Cotton argued that the extra public spaces that they are planning to build would ease parking problems in Manayunk. This is disingenuous, however, because Mr. Boles, Cotton's traffic and parking expert, testified that the existing parking lots in Manayunk only ever filled up to capacity on one single occasion in the past year. (N.T. 09/20/00 at 22). Because


the existing lots only filled on one day in the past year, adding more lots will not ease the parking problem in Manayunk.

In contrast to these false "benefits", 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, Cotton 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, as reflected in FEMA's own caveat, showed that reliance on the minimum standards of the FEMA regulations was arbitrary.

The facts starkly show the harm in fact. 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 Cotton's hydrologist, Dr. Waggle, admitted that his calculations were specifically designed to satisfy the regulations. (N.T. 3/13/00 at 72). He stated that if he were actually 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.

Manayunk's hydrologists, Joseph Skupien and Geoffrey Goll, testified without controdiction, that the calculations advanced by Cotton 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 Cotton's application. (N.T. 6/12/00 at 7). Manayunk's hydrologists also opined 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). They even would have done the calculations himself but he was denied access to Cotton'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 causes 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 Cotton 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 is violating all state and federal policies, and may have to buy out the owners in the future in order to move people out of harms way. If the City is forced to buy out this development after the next flood, if flooding is made worse, or if public health is endangered, these are all clear detriments to the public



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) Cotton relied on the creation of an evacuation plan 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 a 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, there was no basis 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).

The Board Chairman agreed that people would not leave their cars behind, chastising Mr. Jaffe, attorney for Councilman Cohen, when he suggested cars left behind would cause pollution in the river, he declared "Mr. Jaffe, do you think 575 people are just going to leave their cars there and just leave? I'm sure that the drivers are going to take their cars out." (N.T. 12/22/99 at 83). In this development many people will not take the footbridge, they will try to save their cars. (N.T. 6/12/00 at 175). They will die.

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). Strainer is a condition 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, and did not reject it. (Finding of Fact 30). 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 fatal peril due to ignoring nature, an obvious detriment to the public interest. It is as if a building were approved ignoring the laws of gravity.

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)). Cotton's testimony, to argue that this project would not cause an increase in traffic congestion, was completely incredible.

Elmer Boles testified that adding 270 residential units would not negatively impact traffic conditions or congestion. (N.T. 09/20/00 at 9). At that hearing the Manayunk was denied the opportunity to rebut his statements. (N.T. 09/20/00 at 40). However, even without rebuttal testimony it was error for the Board to rely on that testimony because basic math combined with Mr. Boles' previous statements completely undermined his conclusions.

Mr. Boles' own traffic count showed that current traffic at the Cotton Street and Main Street intersection tends to divide with 21 cars turning left, 3 proceeding through, and 11 turning right. (N.T. 09/20/00 at 12). (60%, 9%, 31% respectively.) From this Mr. Boles concluded that after the development was built the intersection would see 71 cars turning left, 30 proceeding through and 11 turning right. (N.T. 09/20/00 at 16). (41%, 18%,


41% respectively). His assignment of numbers was arbitrary as, if the traffic follows the current pattern it would result in 103 cars turning left, 16 going through and only 53 turning right. Mr. Boles even testified that the only reason that he split the numbers how he did was that there are interstate destinations in each direction. (N.T. 09/20/00 at 16). This testimony amounts to little more than a guess.

In addition, Mr. Boles' conclusions were based upon the ridiculous assumption that congestion will not occur because people in cars will avoid congestion and take alternative routes. (N.T. 12/22/99 at 74). If this were true however, traffic congestion would never exist, and the current conditions at the Green Street Bridge demonstrate that this is far from true. Mr. Boles admitted that "If 126 vehicles turned left there would be a very substantial increase in traffic congestion." (N.T. 12/22/99 at 74). The current trend shows that from this development 103 cars would turn left during peak hours, causing a substantial increase in traffic congestion.

Mr. Boles' own conclusions from the report that he coauthored in 1996 and Cotton submitted to the Board as their traffic study demonstrated that he was an unreliable witness. In that report Mr. Boles concluded that "The parking and access infrastructure is currently inadequate to effectively accommodate the increasing demands, which in turn, impacts overall quality of life in Manayunk." (N.T. 09/20/00 at 16). This report directly refuted all of his own testimony. When confronted with this and


asked several times if the parking and access infrastructure was still inadequate Mr. Boles refused to answer the question stating only that "It's more adequate." (N.T. 09/20/00 at 28-9). The implication clearly is that the parking and access infrastructure is still inadequate and those problems will be compounded by this project.

Further, his testimony was narrowly tailored to attempt to show no impact. The analysis offered only reviewed the intersection of Cotton and Main streets. (N.T. 09/20/00 at 18). The study completely ignored the impact that this development would have on congestion at the Green Street Bridge, where traffic congestion is a major problem.(N.T. 09/20/00 at 19, 31-3).

Mr. Boles also improperly minimized the effect of the development on traffic by comparing the increase in traffic caused by this development over a single hour to the amount of preexisting traffic over an entire day. (N.T. 09/20/00 at 21). In December Mr. Boles testified that the project would result in 1850 trip ends per day. (N.T. 12/22/99 at 63). When confronted with the impact on other intersections besides Cotton and Main he manipulated the numbers to compare the 50 trips in an hour created by this development to thousands in a day that are preexisting. (N.T. 09/20/00 at 21).

Because no reasonable person could have relied on this testimony in light of the contradictions and lack of factual basis and because Manayunk was specifically precluded from


presenting a rebuttal witness it was an abuse of discretion for the Board to rely on Mr. Boles' testimony. The Board made no findings on this issue. Because the facts are that 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, a train crossing, or a derailment would prevent all emergency access to the site. (N.T. 12/22/99 at 41). That single two-way, two-lane bridge would have to provide evacuation for between 392 and 575 cars with no place to put all of those cars after evacuation. (N.T. 03/13/00 at 49). 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 270 units, more than ten times that limit.

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 11). It was an abuse of discretion for the Board to approve this variance 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 approv[es] the location of residences in an area where future flooding is a certainty." (Letter dated June 9, 2000, Exhibit P-



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 the 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 Cotton would devise an evacuation plan, but did not require any such contribution and Cotton has not included a provision to provide any funding for a water rescue unit. (Findings of Fact 16).

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 project 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 Manayunk 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, Cotton 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. In fact, the Board implicitly found that the project was not the minimum variance necessary to afford relief when it initially approved the project only for 153 units. (Findings of Fact 4). At the subsequent reconsideration hearing there was no evidence given that the project was not viable at 153 units, only the testimony of Mr. Boles regarding traffic impact.

Further, City Counsel expressly found that 270 units was too intense of a development for Venice Island when Cotton requested that the area be rezoned for 270 residential units. (N.T. 09/20/00 at 43). Councilman Nutter even wrote a letter saying that the issue of number on this site was specifically dealt with by the City Council less than a year before and they determined that the property should be limited to 153. (N.T. 03/13/00 at 67).

The Board founds that "the variances with the imposed provisos are the minimum necessary to afford relief." (Conclusions of Law 12). There was not, however, substantial evidence on the record to support finding that this variance was


the minimum, or any evidence for that matter. Because there was no showing that the variances proposed were 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 Cotton the variance requested.


The Board abused its discretion by failing to actually consider all of the evidence before the Board. Its decisions were repeatedly hostile towards Manayunk based not on Manayunk's 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 Manayunk's expert witnesses to ten minutes of testimony each, much of which was taken up by applicants' counsels' objections, while allowing Cotton's witnesses unfettered opportunity to testify. (N.T. 6/12/00 at 7). Fact witnesses were only allowed five minute and told to "move it along" even with that limitation (N.T. 04/13/00 at 41).

It was also apparent that the Board did not even consider the concerns Manayunk was allowed to present. The Board repeatedly 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 Manayunk 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).

Bizarrely, before the fact witnesses even testified the Board was discounting their testimony and chastising Manayunk's counsel that; "Its emotions, its all emotional from the community. your preying on their emotions." (N.T. 03/13/00 at 45).

While the Board has the discretion to evaluate the credibility of the witnesses, the record shows that the Board did not even consider the Manayunk's witnesses, it prejudged them before they were even seated as irrelevant and a waste of the Board's time. Manayunk 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 denied Manayunk's 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 Manayunk. 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 erroneously excluded by the Board, the Board committed


an abuse of discretion and an error of law because its 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 request that this Court allow additional evidence, and reverse the decision of the Zoning Board of Adjustment of Philadelphia and reject Cotton Street Landing, Inc.'s application for a variance.

Respectfully submitted,

Counsel for Appellants

Robert Morris Building, 11th Floor
100 N. 17th Street
Philadelphia, PA 19103

Dated: March 22, 2001