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




These cases involve two decisions of the Zoning Board of Adjustment, first to allow the construction of a 153 unit apartment complex and second to then expand that project to 270 units. The property in question is located in the flood-way of the Schuylkill River. Because much of the evidence and testimony in this case was incorporated from the hearings on the Dranoff Properties cases, at Sept. Term 2000 No. 2000-001056 and 2000-001057, much of the argument here is also similar.

The Board refused to take relevant evidence on the material effects of the proposed construction on the river, the crisis 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.

Additionally, new evidence has surfaced that conclusively proves the appellee, Cotton Street Landing, Inc., was not entitled to a variance.


The Court is conferred the power to take additional evidence in a land use appeal by Philadelphia Code 14-1807(4)-(5). 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 whenever the record is incomplete. Section 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 14-1807(4) gives the Court the power to take additional evidence if there is not a full and complete record and 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. 1992)


The property involved in this case is located within both the floodplain and the floodway of the Schuylkill River. (ZBA Conclusion of Law No. 1) The Zoning Code forbids encroachment, including new construction or any development, within the floodway of the Schuylkill River. 14-1606(5)(a). Therefore, in order to gain approval for its projects, Cotton Street Landing, Inc. was required to obtain a variance from the floodway and floodplain ordinance, among others.

In order to qualify for a variance the applicant must show that its properties are burdened by an unnecessary hardship that results from the property's 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; 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, it was necessary to include all proffered evidence pertaining to unnecessary hardship, whether the alleged hardship was self imposed, the effect of the proposed 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 exclude evidence as to 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, a variance requires a finding that the proposed construction would not "result in any increase in flood levels during the Regulatory Flood." 14-1802(3)(a) Thus evidence on this issue is relevant.

Further, under Section 14-1807(4), new evidence that has come to light that could not have been presented at the hearings before the Board, despite the due diligence of appellants, should be allowed where material. Here, that new evidence, an admission by the appellee that no hardship exists, must be admitted to make a proper determination of the issue of unnecessary hardship.

Despite the strong mandate of the Code with regard to variances and the grave significance of this decision, the Board unjustifiably curtailed the evidence of the appellants throughout the proceedings. Further, the Board arbitrarily refused to admit video evidence offered by the appellants and restricted their witnesses to five and ten minutes of testimony each. These limitations caused the record to be incomplete and require this Court to take additional evidence or, in the alternative, to remand the decision back to the Board.


The Ordinance allows additional evidence to be taken whenever the Court finds that a full and complete record has not been made. 14-1807(4). It is appropriate for the Court to allow additional evidence whenever that evidence is "necessary for making a determination of the issues presented." Korngold, 606 A.2d at 1281.

On March 7, 2001, the appellee, Cotton Street Landing, Inc., purchased advertising space in "The Review", a local newspaper in Manayunk. The advertisement entitle "WHAT AREA RESIDENTS REALLY WANT TO KNOW!" purported to answer several questions that have been raised by the Cotton Street Landing project.

The third question presented by the appellee in the advertisement was "What will happen to the Venice Island site if the apartment project is not built?" Their answer;

As all responsible parties have acknowledged, the highest and best use of the site is residential. A project like Cotton Street Landing and the Venice Island location are the perfect match. However, what started out as a waste recycling factory handling about 40 truckloads of waste per day, 7 days per week, can and probably will continue. We strongly feel that this is not in keeping with the nature, quality, and character of the Manayunk of today, but realistically and business wise this is the next best use of the site. emphasis added.
It is well settled law that in order to prove an unnecessary hardship an applicant 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 a property is being used as zoned there per se can be no unnecessary hardship. Id.; Patullo v. Zoning Hearing Board of Township of Middletown, 701 A.2d 295, 298 (Comm. 1997).

Here the appellee admitted that the land can be used as zoned and therefor cannot be entitled to a variance. It is clear that the site had a viable industrial use, that use was shut down so that the appellee could apply for a variance, and that use "can and probably will continue" if the variance is denied. This is the smoking gun. The ad is necessary to make a proper determination of the issues and should be admitted into the record.


The testimony of appellants' witness, Dr. Sally Willig, at the Dranoff Properties (Sept. Term 2000 No. 2000-001056 and 2000-001057 in this Court) hearing of March 13, 2000 (and all witnesses from the Dranoff hearing of June 12, 2000) was incorporated into the record later on June 12, 2000 in this case. As a result, like in the Dranoff case,(copy of motion attached as Exhibit A) the record was incomplete from the very beginning, because the Board had arbitrarily limited testimony of Dr. Willig and implicitly of all witnesses to the issue of whether the 100 year flood level would increase. (N.T. March 13, 2000 at 8-10).

This decision limited testimony on all other indispensable issues, including 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, testimony offered the appellants regarding 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 appellants' experts 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 appellants proffered their testimony. (N.T. March 13, 2000 at 107-8).


As in the Dranoff case, 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 appellants' experts. (N.T. June 12, 2000 at 47, 55) In order to properly analyze the data submitted by the applicants it was necessary for the appellants to be given access to the input data. To deny the appellants access to this data denies the appellants their due process right to a fair hearing. It is therefore necessary to take additional evidence by allowing appellants' experts access to the input data used in applicant's hydrological model and analysis and then grant appellants' 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) Appellants experts were precluded from presenting this information because of the lack of access to input data.


The appellants 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. (N.T. March 13, 2000 at 64-5). 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. Id. This evidence was necessary to demonstrate 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.


The Board limited the appellants' 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. June 12, 2000 at 7) This limitation was imposed based only on the appellants position as protestants. The Board then limited the appellants fact witnesses to five minutes of testimony each. (N.T. March 13, 2000 at 41) This arbitrary limitation denied the appellants their due process right to a full and fair proceeding and precluded the Board from creating a full and complete record.

Appellants' 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 presented.


The Board originally granted the variance with the proviso that the apartment complex contain no more than 153 units. (Finding of Fact 4) The Appellee sought and was permitted a reconsideration hearing from the Board.(Finding of Fact 5). The appellees were given no advance indication of what the content of that hearing would be, other than that it would be limited to the issue of how many units were allowed. (Letter dated September 8, 2000 from Robert D'Agostino).

At the hearing intervenor, Cotton Street, presented evidence that purported to show the additional units proposed would not have an adverse impact on the traffic situation in Manayunk. (N.T. September 20, 2000 at 7-29) Appellants sought permission from the Board to obtain and present rebuttal evidence. (N.T. September 20, 2000 at 40) The Board refused the appellants request. (N.T. September 20, 2000 at 41) After the hearing the Board voted to increase the projects allowed capacity to 270 units. (Finding of Fact 6).

The Board had allowed the appellees to present additional evidence and should have allowed the appellants the opportunity to evaluate or rebut that evidence. Because the appellants were refused the opportunity to present rebuttal evidence concerning the appellee's new technical evidence this Court should grant the motion to take additional evidence.


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,

Counsel for Appellants

11th Floor, Robert Morris Building
100 N. 17th Street
Philadelphia, PA 19103
(215) 864-2500

Dated: March 15, 2001