IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
COUNTY - CIVIL TRIAL DIVISION
MANAYUNK NEIGHBORHOOD : COUNCIL, FRIENDS OF MANAYUNK : SEPTEMBER TERM, 2000 CANAL, JANE GLENN, KEVIN SMITH, : DELORES LOMBARDI and DARLENE : NO. 1202 MESSINA : : v. : : OCTOBER TERM, 2000 : ZONING BOARD OF ADJUSTMENT : and THE CITY OF PHILADELPHIA : NO. 2398 : v. : : COTTON STREET LANDING : ASSOCIATES, L.P. :
OPINION
WOLF, J. Dated: July 10, 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 end Darlene Messina (hereinafter referred to collectively) as "Appellants") and reversing a decision of the Zoning Board of Adjustment ("Board") which had voted to grant both use and zoning variances to develop a property 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 November 22, 1999, counsel for Cotton Street Landing Associates, L.P. ("Cotton Street") applied to the Philadelphia Department of Licenses and Inspections ("L&I") for zoning
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and use registration permits to allow the relocation of the lot lines of the property located at 4320-4368 Main Street, Philadelphia, PA (hereinafter the "Property") to create one lot from three lots. The application also sought permission for the demolition of structures already existing on the Property, the erection of one four and five-story structure, one four and five-story structure with a subbasement, and one basement garage located below the floor line as part of a 270 unit apartment complex with 392 accessory parking spaces, an accessory recreation area and pool for residents only and 183 public parking spaces. The proposed construction would be located in the floodway of the Schuylkill River (the River").
L&I determined that Cotton Street's proposals for the Property would not comply with the use, area, parking and floodway regulations for a G-2 Industrial District as set forth in the City of Philadelphia Zoning Code (the "Code") at Sections 14-508(3)(b), 14-1606(5)(a) and 14-1404(4). Accordingly, on December 2, 1999, L&I issued two zoning refusals and three use refusals. In addition, L&I made a note to the Board that prior to the issuance of any requested permits, approval from the City of Philadelphia Planning Commission, Streets Department and Water Department would be required. Additionally, a complete plot plan showing the dimensions for the one story portion of Cotton Street's proposals would have to be submitted prior to any hearing before the Board.
On December 10, 1999, Cotton Street appealed the refusals to the Board. A series of public hearings were held before a quorum of the Board's members on December 22, 1999, March 13, 2000, and June 12, 2000. During this time, the Philadelphia City Council enacted Ordinance Number 990762 which changed the zoning designation of the Property from G-2 Industrial to RC-1 Residential. Cotton Street, however, chose not to resubmit its application for
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zoning and use registration permits. Instead, Cotton Street proceeded with its appeal to the Board pursuant to the refusals originally issued by L&I prior to the zoning change.
At the hearings before the Board, the following information/evidence was presented. The Property is an industrial complex comprised of several multi-story structures. Until approximately six months prior to the first hearing before the Board, the Property was occupied by Connelly Container, Inc. for the storage of baled wastepaper. At the time of the hearings, Cotton Street was (and still is) the legal owner.
The Property is located on the west end of Venice Island, a 1.7 mile long man-made island situated between the Manayunk Canal to the north, and River to the south. Venice Island and the Property are located within the 100 year floodway and the flood plain of the River. The neighborhood known as Manayunk, which is comprised predominantly of residential row houses, is located to the north of Venice Island. Manayunk's Main Street, which runs parallel to the River and is immediately north of the canal, is predominantly commercial properties. Cotton Street, which spans over the Manayunk Canal, provides vehicular and pedestrian access between Venice Island and the "mainland". A footbridge to the west of Cotton Street provides additional pedestrian access.
Currently, the Property is comprised of three lots. Cotton Street proposed to relocate the lot lines to create one lot. The total ground floor area of the existing structures is approximately 48,000 square feet. Cotton Street proposed to demolish these structures completely and erect in their place a multifamily residential complex ("Complex") with accessory uses, to be comprised of two four to five story structures, one with a subbasement. The total ground floor area to be encompassed by the proposed structures would be approximately 4,000 square feet.
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Cotton Street proposed that the Complex would contain a total of 270 apartment units. Approximately one-half of the units would be studio and one-bedroom apartments. The remaining half would be two-bedroom apartments. These apartments would be constructed one and one-half feet above the River's 100 year flood level. Each apartment would be provided with an emergency evacuation plan, a copy of which would be provided to the City of Philadelphia's Office of Emergency Management.
Cotton Street also proposed to provide the Complex with a total of 75 parking spaces. The proposed number of spaces would equal one parking space for each be room in the complex, plus 183 spaces for public use. Forty-eight (48) of the 575 parking spaces would measure less than 8'6" feet in width and 16 feet in length (compact sized) and the remaining, non-handicapped accessible parking spaces would measure 8'6" in width and 18' in length. The proposed parking would be located partially below grade and entirely within the River's 100 year flood level.
As part of this project, Cotton Street proposed to improve the portions of the Manayunk Canal's towpath and river walk which are located on the Property. These improvements would benefit the public as well as residents of the Complex. Cotton Street also agreed to modify its original proposals for the Property and to provide an open court with a minimum width of 12 feet and handicapped-accessible parking spaces which would measure 13' in width and 18' in length. In support of its proposals, Cotton Street proffered the testimony of Jack Thrower, an expert architect and land planner. Mr. Thrower opined that Cotton Street's proposals for the Property would be compatible with the surrounding neighborhood, and that the G-2 Industrial zoning classification was archaic and inappropriate for the Property. Mr. Thrower concluded that
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Cotton Street's proposals would satisfy the criteria for granting variances.
Elmore Bowles, an expert civil and transportation engineer(1) opined that Cotton Street's proposals for the Property, including the 270 apartment units, would not substantially increase traffic congestion in the area.(2) In addition, Mr. Boles opined that, because Cotton Street's proposals would reduce the obstructions existing on the Property, the resistance in the flow of water would be substantially reduced and the water level during a flood would actually be decreased by the proposals.
Next to testify in support of Cotton Street's proposals was Dennis Glackin, an expert land planner. Mr. Glackin opined that the proposals for the Property would generate $1.7 million dollars in revenues and would cost only $845,000.00 to provide services, resulting in a generous annual surplus for the City of Philadelphia ("City"). In addition, he projected that Cotton Street's proposals would annually raise an additional $756,000.00 in school district revenues.
Also in support of Cotton Street's proposals, the Board received and considered a flood hazard analysis from Dr. John R. Weggle, an expert hydraulic engineer. This analysis was prepared to determine what impact Cotton Street's proposals would have on water levels of the River during a 100-year flood. Utilizing data prepared by the U.S. Army Corps of Engineers and adjusting it for subsequent developments along the River, Dr. Weggle opined that the proposed residential development would not only comply with the Federal Emergency Management
1. Interestingly, in the consolidated case of Manayunk Neighborhood Council et al. v. Zoning Board of Adjustments and Dranoff Properties, September Term, 2000, Nos. 1056 and 1057 which was heard by the Board during the same period o time as this case, the Board qualified Mr. Boles as an expert in civil engineering only.
2. No documentation, reports, data or studies were submit in support of this conclusion.
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Agency's ("FEMA") requirements by not causing an increase in the water evels during a 100-year flood, but would also improve flood conditions as a result of removing obstructions from Venice Island.
The Board also received and considered letters in support of Cotton Street's proposal from the following community residents, representatives and organizations Ed Weiner; Jack Goldberg; James Simpson; Linda Westphal; Patricia Gorman Associates; Philly-Wide Construction, Inc.; Kathy Allen; The Greater Philadelphia Chamber of Commerce; and Philadelphia Council AFL-CIO.(3)
Numerous witnesses testified in opposition to Cotton Street's proposals. Kevin Smith, a representative for the Manayunk Neighborhood Council, testified the project would substantially increase traffic congestion in the area and would have a negative impact on the Smurfit Stone Container Corporation, a large industrial complex located at the east end of Venice Island.(4)
Robin Mann, a representative of the Sierra Club, testified that her association has a policy against locating residential developments within in a floodway.
Councilman Michael Nutter testified that, should the Board decide togrant the requested variances and use permits, it should do so only with the proviso that Cotton Street comply with all the requirements set forth in Ordinance Nos. 990670 and 990671 which had been enacted by City Council as part of its comprehensive plan for redevelopment of Venice Island to prevent uncontrolled growth and over-development.
3. Mr. Goldberg, Mr. Simpson, Ms. Westphal, and Kathy Allen, are 11 business owners in the area. Only one resident of the area, Mr. Weiner, testified in favor of the development.
4. The Board took note of the fact that Mr. Smith was not an expert in traffic engineering.
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Darlene Messina, a representative for the Friends of Manayunk Council, also testified in opposition to Cotton Street's proposals. Ms. Messina stated that the proposals would increase local flooding and would not represent the best management practice for storm water run-off.(5)
Joseph Skupien and Geoffrey Goll, both hydraulic engineers, opined that, although the hydraulic analysis conducted by Dr. Weggle satisfied FEMA's requirements in calculating the impact the proposed residential development would have on a 100-year flood, the report should have gone a step further and considered the impact the proposed development would have on smaller floods.(6)
Andreas Heinrich, a traffic engineer, opined that Cotton Street's proposals would have negative impact on traffic conditions in the area.
Wendy Lathrop, a consultant in the field of floodplain regulations, opined that the best use for a floodplain was to keep it as open space and to use it for a passive, recreational purpose. In addition, Ms. Lathrop explained that if a municipality failed to comply with the National Flood Insurance Program's technical requirements, then the municipality would not be eligible for either flood insurance or flood disaster relief funds.
Stephen Miller, a firefighter, testified that people are less likely to evacuate from their residence than from their place of employment. Mr. Miller also testified that in his opinion, at some future time, someone would drown on Venice Island if the proposed residential
5. As with Mr. Smith, the Board noted that Ms. Messina was not qualified as an expert witness.
6. The Board noted that neither Mr. Skupien nor Mr. Goll testified that Cotton Street's proposed development would definitely cause an increase in the water levels on Venice Island during any type of flood situation.
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development were allowed.
The Board received and considered a report from Hal Schirmer, a real estate agent in the Commonwealth of Pennsylvania, in which he opined that Cotton Street's proposals would be the worst possible use of the Property.
The Board also received and considered a letter addressed to the Honorable John S. Street, Mayor of the City of Philadelphia, from James Witt, Director of FEMA. In his letter, Mr. Witt expressed concern over Cotton Street's proposal to construct a residential development within the floodway of the River, and cautioned that the City's continued eligibility for the National Flood Insurance Program could be jeopardized if the proposed development were deemed unsound by federal standards.
In addition to the letter from FEMA, the Board received and considered letters in opposition to Cotton Street's proposals from the following community representatives and organizations: Councilman-At-Large Frank L. Rizzo; Manayunk Neighborhood Council; 21st Ward Community Council, Inc.; Umbria Street Neighbors Association; Manayunk Development Corporation; the Clean Air Council; Roxborough Greenspace Project; and East Falls Community Council Zoning and Land Use Committee. The Board also received and considered a petition signed by hundreds of residents of the area who oppose Cotton Street's proposed development.
Finally, the Planning Commission of the City of Philadelphia ("Commission") recommended against granting the requested variances and use permits on the grounds that the proposals for the Property failed to comply with the City's comprehensive plan for the redevelopment of Venice Island. The Commission went on to state that should the Board decide to grant the requested variances, provisos requiring Cotton Street to comply with all of the
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screening, landscaping, setback and public access requirements contained in Ordinance Nos. 990760 and 990761 should be imposed.
On August 14, 2000, Cotton Street was notified in writing that the Board had voted to grant the requested use and zoning variances for the Property with the following provisos:
a) Approval from the Planning Commission, Streets Department and Water Department must be obtained;
b) A maximum of 153 apartment units could be constructed;
c) Cotton Street must meet all Federal, State and City requirements;
d) All trash must be stored in an enclosed area within the Property line;
e) There must be commercial trash pick up for the development;
f) Garbage Disposals and air-conditioning must be instilled in every unit;
g) The construction of the development must be in conformity with the requirements of the Fire Code.
The decision by the Board was appealed to this Court by the opponents of the development on September 12, 2000. Briefs in support of and in opposition to the appeal were submitted to the Court on March 22, 2001 and April 23, 2001, respectively A reply brief was submitted on April 30, 2001. Oral argument was held on that same day, 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 Cotton Street'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.
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In its Statement of Matters Complained of on Appeal, Cotton Street alleges that this Court made the following errors of law:
1. The decision of the Board was supported by substantial evidence;
2. In reversing the decision of the Board, the Trial Court improperly invaded the exclusive province of the Board as finder of fact and judge of credibility and evidentiary weight and thereby acted beyond its appellant jurisdiction.
For the reasons set forth more fully below, these assertions of error are without merit and the decision of this Court should he affirmed.
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 Upper Southampton Twp. v. Zoning Hearing Board of Upper Southhampton 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.1 (Pa. Cmwlth. 1984); Valley View Civic Assoc. v. Zoning Bd. of Adjustment, 462 A.2d 637 (Pa. 1983). "Substantial evidence" [consists of] relevant evidence a reasonable mind might accept as adequate to support a conclusion. Hertzburg v. Zoning Board of Adjustment of the City of Pittsburgh, 721 A.2d 43, 46 (Pa. 1998).
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
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interest. City of Pittssburgh 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 Cotton Street's claims that it could safely build within the floodway and the flood plain, and because Cotton Street failed to prove that it was entitled to a variance, the Board's finding was without substantial support and constituted an abuse of discretion.(7)
First, it should be noted that Cotton Street chose to proceed with its claim under the old zoning provisions, that is, with the G-2 Industrial designation which existed when they first sought permits. Cotton Street argued both before the Board and before this Court that the G-2 designation should be disregarded as it constituted illegal "spot-zoning". Specifically, Cotton Street alleged that although the G-2 classification was once justified, it is now archaic and should not be used to impede new development. This argument is not only without merit, but is time barred.
"[T]he proper time to contest the constitutionality or validity of a zoning ordinance is immediately after the issuance of a building permit." Appeal of Diamond, 13 Pa. 379, 196 A.2d, 363, 367 (1964). Although the record does not reflect when the first building permit was issued pursuant to the G-2 classification, it is clear that the Namico Soap Building on Venice Island received permits under the G-2 classification in or about 1980, 1984 and 1988. Thus, the
7. Because the Board did not properly consider the issue of public safety, this Court need not even reach the issue as to whether Cotton Street sufficiently proved that without the requested variance, it would suffer a hardship not of its own making. However, it should be noted that at the time of Cotton Street'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 of Borough of Spring City, 736 A.2d 57 (Pa. Cmwlth. 1999)(finding that parents who built an apartment 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).
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time to challenge the G-2 zoning classification expired at least 15 years ago. Even were this not the case, that is, even were the issue of spot zoning properly before the court, the G-2 classification of Venice Island was not spot zoning.
The Supreme Court of Pennsylvania has defined spot zoning as "a signaling out of one lot or a small area for different treatment from that accorded to similar surrounding land indistinguishable from it in character, for the economic benefit of the owner of that lot or to his economic detriment." Mulac Appeal, 418 Pa. 207, 210, 210 A.2d 275, 277 1965). Assuming arguendo that Venice Island is a sufficiently small area to fit within this definition, the Property fails to meet the other criteria set forth in the Mulac definition. Initially, Venice Island as a whole is clearly distinguishable from the surrounding land as it is entirely located in the floodway and is an island with very limited means of ingress and egress. Its connection to the rail line and the canal also create substantially different conditions from those of Main Street Manayunk and the larger surrounding area. Clearly, the characteristics of Venice Island are not indistinguishable from that of the surrounding land and the second element of the Mulac test has not been met. Moreover, there was no evidence presented to the Board that Venice Island was zoned G-2 for the economic benefit or to the economic detriment of any owner of property on Venice Island. Accordingly, Cotton Street failed to make out the elements of a claim of unconstitutional spot zoning and the G-2 designation properly stands.
Even though it granted the variances, the Board reached the same conclusion with regard to the G-2 designation. That is, the Board held that Cotton Street's application must be viewed as a request for a variance of the Code requirements for construction within a G-2 area. In reaching this conclusion, it appears that the Board relied solely on the testimony that the
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proposed development would reduce the flood level of the River, ignoring the remaining requirements for the grant of a variance, that unnecessary hardship will result if the variance is denied and that the proposed use will not be contrary to the public interest. City of Pittsburgh 522 Pa. At 60, 559 A.2d at 903).
As to the first element for the grant of a variance, the imposition of hardship not of one's own making, Cotton Street simply failed to present any evidence to address this point. There are no unique physical characteristics or conditions of the property which create an unnecessary hardship. See Young v. Pistorio, 715 A.2d 1230 (Pa. Cmwlth. 1998). The Property had been utilized for years by Connelly Container, indicating that the Property had some usefulness. The fact that Venice Island has, since the inception of this case, been re-zoned for residential dwelling, does not alter the conclusion that Cotton Street failed to prove unnecessary hardship. Even were there some hardship, such hardship would be self created. When Cotton Street purchased the Property, it knew that Venice Island was zoned for industrial use and that improvements to the infrastructure might be necessary to operate a business within the zoning regulations. This Property was working as an industrial property until Cotton Street decided to close the industry. The existing industrial use was closed as a result of Cotton Street's plans to redevelop the site into a residential use. Any hardship that results from the closing of the plant was entirely self created.
Moreover, Cotton knew of the zoning and the floodway problems when it purchased the Property. Even had it 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'
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Association v. Zoning Board of Adjustment, of City of Philadelphia, 144 Pa.Cmwlth. 545, 601 A.2d 1328, 1330 (Pa. Cmwlth. 1992).
As set forth above, even were this Court to find the existence of an unnecessary hardship which was not of Cotton Street's own making, this Court is unable to avoid the conclusion that the construction proposed by Cotton Street poses a direct and substantial threat to public safety. The Board, in improperly granting the variances, relied solely on the testimony of the one engineer and the single report submitted by Cotton Street. In so doing, however, the Board neglected to make any findings with regards to the credibility of the witnesses or the weight to be given to their testimony. As a result, this Court has found it necessary to review the evidence presented and now finds that the testimony and reports relied upon by the Board are not complete or accurate and, thus, not credible.
Cotton Street argues that, based on of Dr. Weggle's finding of 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 Cotton Street may have achieved technical compliance with one provision of the Code, that does not address Cotton Street's duty to assure the health, safety and welfare of the residents of the area and of the City as whole. 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.
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Furthermore, the Board granted the variances based on its conclusion that the project would decrease the flood levels in the area. However, Cotton Street's own expert, Dr. Weggle, admitted that the water level changes caused by the proposed development would be negligible. Dr. Weggle also conceded that his calculations were specifically designed to satisfy FEMA's regulations and 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. However, because he was trying to do a calculation to satisfy FEMA's regulations, he did not include the cars.(8) Moreover, while the models used by Dr. Weggle may technically have complied with FEMA's minimum standards for construction in floodways, FEMA made it clear to both the Board and the City that it did not approve of the project and that this development was contradictory to the mission of FEMA, which is to "reduce the loss of life and property associated with natural and man-made disasters." See FEMA letter of May 15, 2000. This letter alone should have caused the Board to deny Cotton Street's proposals.
Even putting FEMA's letter and warnings aside, the facts and testimony presented at the hearings by Cotton Street's own witnesses, simply cannot support the Board's conclusion that this project does not pose a threat of harm to the public. Dr. Weggle acknowledged that, historically, every time that there are floods in the area, Manayunk is severely affected. In fact, during the most recent 50 year flood, Main Street and River Road were so deeply flooded that they had to be evacuated and guarded against looting.(9)
8. Dr. Weggle also acknowledged that he had never before been involved with a project that called for development in a floodway.
9. Both Main Street and River Road are located in Manayunk at elev tions higher than that of Venice Island. One can only wonder then, the damage that would be suffered by those residents who might choose to reside in the Cotton Street's proposed complex.
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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 solely on the FEMA letter to conclude that the requested variances should be granted.
The Board's reliance on the report of Dr. Weggle constituted an abuse of discretion. As pointed out by Messrs. 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 there dangerous to live in and substantially delaying return after any evacuation. Messrs. 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 by the development, smaller floods might be made worse.(10)
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 evacuate if flood waters begin to rise during the day and the businesses will be closed and largely vacant at night.
10. Messrs.. Skupien and Goll advised the Board that they would have performed the calculations themselves but, tellingly, they were denied access to Cotton Street's data.
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Residents, on the other hand, would be reluctant to leave their homes, assuming that they even knew of the impending flood. Although an evacuation plan might be in place, Cotton Street's ability to implement such a 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.
Michael Kurtz, one of the few people who trains the people who trains water rescuers, also testified as to the likely impact of the project.(11) Mr. Kurtz testified that most likely the conditions of Venice Island were such that in the event of a Hurricane or other significant storm, the only rescue option would be by helicopter, the most dangerous type of rescue. 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, making it impossible for rescue boats to operate. Mr. Kurtz pointed out that this development would force the fire department to develop an entirely new water rescue program. Not only would this program cost the City thousands of dollars in training fees, equipment, and wages, but it would also take years for personnel to become competent in this form of rescue.(12)
The Board also relied on testimony from Mr. Boles regarding the potential for increase in
11. Not only did the Board ignore the testimony of Mr. Kurtz, it failed to even mention that he had testified in this matter. See Findings o Fact and Conclusions of Law.
12. Both Mr. Kurtz and Mr. Miller, a Philadelphia Firefighter, testified that a firefighter is four times more likely to die in a water rescue than in any other rescue operations.
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traffic flow and congestion that would occur as a result of the Cotton Street's proposed development. In doing so, the Board ignored the conclusions reached by Mr. Boles in his 1996 report in which he stated "that the parking and access infrastructure is currently inadequate to effectively accommodate the increasing demands, which in turn, impacts the overall quality of life in Manayunk." Ignoring this contradiction, the Board chose to rely on Mr. Boles' current testimony to the effect that congestion would not occur because people in cars will avoid congestion and take alternate routes.(13) Mr. Boles' testimony was also insufficient in that it was narrowly tailored to show no further impact in the area. Specifically, the analysis offered by Mr. Boles only reviewed the intersection of Cotton and Main Streets, completely ignoring the impact this development would have on the Green Lane Bridge where traffic congestion is already a major problem.
Moreover, Cotton Street failed to provide the Board with an analysis of the impact that the increased traffic will have on the provision of emergency services to Venice Island. The proposed development has only a single access from land. A single accident at the bridge, or the train crossing, or a derailment could prevent all emergency access to the site. Instead, a single two-lane bridge would have to provide evacuation for between 392 and 575 cars with no place to park all of the cars after the evacuation.(14)
Putting the physical dangers aside, this Court is particularly concerned by the fact that this
13. Were that the case, there would never be congestion in Philadelphia because there would be an abundant supply of adequate alternative routes available to drivers.
14. Moreover, Andreas Heinrich, a traffic expert, testified that it is dangerous to have only a single access to a project once that project exceeds 20 or 25 units. This project would have 270 units, over ten times that amount.
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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 with FEMA regulations were unsound. Mr. Witt also warned the Board that the City may face legal liability if it is found to have allowed construction where the loss of life and property are not only possible, but likely. Thus, this project not only poses a threat to the potential residents of the development, but to the entire City as a whole.
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 Cotton Street poses too great a risk to human life and property even to approach the high standard for 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.
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