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appellant
v.
#00690
:
:
:
Premises:
532 W. Annsbury Street
ZBA Calendar #24548
appellees
ORDER
upon consideration of the appeal by Angel Martinez from the May 20, 2015,
decision of the Zoning Board of Adjustment in such case, it is ORDERED that the
appeal is SUSTAINED.
Board of Adjustment shall issue a special exception for operation of a junk and
salvage yard and accessory building at 532 W. Annsbury Street, Philadelphia,
Pennsylvania, in this industrial district.
BY THE COURT,
_________________________________, J.
appellant
v.
:
:
:
Premises:
532 W. Annsbury Street
ZBA Calendar #24548
appellees
appeals from the notice of Decision issued by the Zoning Board of Adjustment of
the City of Philadelphia (ZBA) dated May 20, 2015. The ZBA declined to grant
Angel Martinez a special exception to expand his existing recycling facility into
adjacent 532 W. Annsbury Street, Philadelphia, Pennsylvania, in this I-2
industrial district. The Property is a narrow former railroad right of way
1
purchased from Contrail, and varies in width from 15 to 30 feet and runs the
length of the block from W. Cayuga Street north to W. Annsbury Street.
Facts
Exhibit 1 is the relevant excerpt of the official city zoning map. While
onto the former Conrail right of way, which has been assigned the address of 532
W. Annsbury Street by the Office of Property Assessment.
The proposed use is to occupy a 3.076 acre former railroad right of way,
which is zoned I-2, industrial. The proposed use is to expand a zoned and licensed
recycling facility located adjacent and to the east at 520 W. Annsbury Street.1
The application requested, use registration for salvage yard, scrap metal, auto
crushing, sale of used auto parts2, [and] accessory office trailer.
A. THE PROPERTY 3
City Council mapped the property for zoning purposes in an I-2 industrial
district. For some 130 years, the Property was operated as the Bethlehem
Branch of the Reading Railroad, taken over by Conrail in 1976 and sold to
appellants landlord.
The right of way has been out of service since 1984 when Conrail obtained
bordered by West Annsbury Street to the north, N. Fairhill street to the east,
south to Blavis Street, N. 5th Street to the east, and W. Cayuga Street to the
1
The current zoned and licensed use will be referred to as 520 W. Annsbury
Street. L&I archives indicate zoning and licensing have been granted using
various addresses, including 4500 N. Fairhill Street, 520 W. Annsbury Street,
530 W. Annsbury Street and 532 W. Annsbury Street. This is confirmed by the
maps made a part of the applications. City OPA and DOR information identify the
property as 4500 N. Fairhill Street.
2
The findings of fact fail to note the use variance for sale of used auto parts was
withdrawn. The adjacent zoned and licensed use, at 520 W. Annsbury Street,
permits auto crushing and sale of used auto parts.
3
References herein are to the Notes of Testimony (N.T.) and exhibits admitted
in evidence at the May 20, 2015, public hearing conducted by the Zoning Board.
3
south.
to 30 feet in various widths from W. Cayuga Street to the south and West
Annsbury Street to the north in the badlands section of North Philadelphia.
Exhibits 1-5.
appellant and zoned since 1989 as a scrap metal yard and for sale of used auto
parts. Exhibits 19-23. The abutting recycling facility is improved as well by an
accessory office trailer used in the recycling business. A number of vehicle
crushing and handling equipment are used in the scrap metal business and are
housed at the abutting property. Used auto parts are stored and sold from the
abutting property.
Also to the east, at the southerly end, between Blavis Street and W. Cayuga
Street is the former church, homeless shelter and residential addiction treatment
center. The church is at the elevation of W. Cayuga Street bridge, some 20 feet
above the former right of way. Exhibit 38 depicts the elevation of W. Cayuga
Street. The church had been granted a residential variance and zoned RM1.
W. Annsbury Street is located to the north and is the sole street access to
the Property. [Exhibit 34.] W. Cayuga Street sits to the south, atop an overpass
constructed above the railroad right of way. [Exhibits 1, 5, 38.] The W. Annsbury
Street access is merely 15 feet wide. [Exhibit 34.]
operation. Space limitation has caused the need to expand into the adjoining
narrow right of way. Appellant proposes to enter into a lease for the Property.
Therefore, he requires zoning to expand his business. The recycling facility will
include an accessory trailer and a weight scale, and movable heavy equipment.
A masonry and chain link fence measuring 8-12 feet in height now encloses
the facility.
Junk and Salvage Yards and Buildings, defines a recycling facility to include
metal scrap and automobile dismantling.
An area or building where waste or scrap materials are bought, sold,
exchanged, stored, baled, packed, disassembled, or handled for
reclamation, disposal or other like purposes, including but not limited to
scrap iron and other metals, paper, rags, rubber tires, and bottles. A
junk or salvage yard or building includes an auto wrecking yard or
building.
5
C. NEIGHBORING USES.
addiction treatment uses. However, this block consists of the institutional use,
the church, as well as industrial and a commercial use, and has been industrial
for more than 130 years.
To the west of the Property are three industrial properties along N. 6th
Street as well as a medical facility. At 6th and Annsbury Streets is 4525 N. 6th
Street, a trash removal and dumpster service. South of the trash business is
4455 N. 6th Street, an industrial cleaning service in a former chemical products
building. Further south is the medical building at 4431 N. 6th Street. At N. 6th
Street and W. Cayuga Street is 434 W. Cayuga Street, a glass blowing factory. The
glass blowing factory is at the elevation of the W. Cayuga Street bridge, some 20
feet above the right of way. [Exhibits 1, 3, 38.]
The block has been historically zoned for industrial uses. [Exhibit 1.] Over
time, and as described above, the Zoning Board granted a variance for the church
to operate a homeless shelter and residential addiction treatment center.
December 8, 2014, for Property 532 W. Annsbury Street. The identical 5 page
page application detailed the proposed use, and included two maps showing the
area where the proposed use would be located. [Exhibits 11-15.]
use, retail sale of used parts is prohibited in this zoning district. The proposed
use, junk and salvage yards and building requires a special exception from the
Zoning Board of Adjustment. [Exhibits 16.] The refusal was not delivered, but
weekly telephone calls turned up the refusal.
exception was made on February 2, 2015, with the Zoning Board of Adjustment
for the Property 532 W. Annsbury Street, W. Cayuga Street to W. Annsbury
Street. [Exhibits 17-18.] The Property is described in the application as a section
of a former railroad right of way which operated for more than 130 years. The
tract owned by the landlord is four city blocks in length, running north from W.
Cayuga Street, crossing W. Annsbury Street, W. Courtland Street, Wyoming
7
On June 4, 2015, the ZBA issued a notice of decision, backdated to May 20,
2015, denying Martinez application for a special exception. Martinez filed the
appeal at bar the same day.
agreed to meet with appellant. The meeting took place at a former factory
building owned by Esperanza Development Corporation. Two zoning
presentations were scheduled for that evening. [Exhibits 30.] Appellant made a
presentation about his plans and the need for additional space. At this meeting,
the leadership of Esperanza made known to appellant it would oppose at the
zoning board. In fact, Esperanza had commenced litigation against the landlord,
seeking to obtain the tract of land for Esperanza. The lawsuit was quickly
dropped when it became clear Esperanza had no cause of action. Remarkably,
Esperanza leadership sought the owner to convey the parcel to Esperanza for
community use. Prior to acquisition of the Property, the community used the
former right of way to dump trash.
C. THE RECORD.
the merits of the application. The record demonstrates that, without any
contradiction, appellant established the following.
The SWC corner Annsbury and Fairhill is currently licensed for an auto
Exhibit 32 is a photo depicting the view of the adjacent zoned and licensed
use at 520 W. Annsbury Street. Exhibit 32 depicts a 12 foot high masonry wall
protecting the Property along N. Fairhill Street. The photo is taken from a nearby
roof, allowing views over the 12 foot masonry wall.
Another roof view over the 12 foot masonry fence depicts auto wrecking
Exhibit 34 depicts a chain link entry fence to the Property. The Property is
a narrow, 15 to 30 foot right of way. To the left of the driveway are vehicles
situate on the adjacent SWC Annsbury and Fairhill use. To the right in the photo
is the accessory office building.
Exhibit 35 and Exhibit 36 are views taken from inside the 12 foot masonry
wall on the west side of the right of way. Exhibit 35 shows the medical center
9
behind the masonry wall. Exhibit 37 is a view of the adjacent and neglected 4525
N. 6th Street trash removal business property.
evidence was provided concerning the any such plan. The opponent testified to
being a neighbor to the trash removal and dumpster service located adjacent
tothe Property, and heavy truck traffic created by the neighbor and appellant.
[N.T., at p. 84.]
The zoning board also received the written comments of objectors. The
zoning board accepted these certain letters, partial content of which was noted in
the zoning boards peculiar way of reciting evidence without explaining the
manner in which the zoning board relied or did not rely on the assertions. The
letters and papers are, of course, hearsay which, when uncorroborated by
competent testimony, cannot form the basis for any finding of fact. Walker v.
Unemployment Compensation Board, 367 A.2d 366, 370 (Pa. Commw. Ct. 1976).
As much as the opponents and the ZBA argue the adjacent recycling
facility looks like, well, a junk yard, incongruously, the adjacent trash removal
and dumpster service business is a rat-infested trash heap. Mr. Staten stated he
denied the special exception because he could look out his window and see a junk
yard. [N.T., at p. 52.] Exhibit 43, submitted by opponents, shows an extensive
permanent trash heap covering the greatest section of the trash removal yard.
that this Property is indicated for industrial use on the Comprehensive Plan. We
feel that this application will have a negative impact in both noise and health
10
Having heard appellants proofs and having heard the neighbors objection,
the zoning board concluded the hearing. The zoning board cast votes, all
members voting against the proposed use.
The zoning board created a Notice of Decision on May 20, 2015. On June 4,
2015, Angel Martinez filed this timely appeal. On October 29, 2015, the zoning
board filed its findings of fact and conclusions of law as well as the record,
prompting the submission of this brief challenging the Decision.
Argument
I: Metal scrap recycling and automobile dismantling are
11
A. STANDARD OF REVIEW.
The scope of review where the reviewing court does not take additional
An abuse of discretion may be found only where the zoning boards findings
are not supported by substantial evidence, that is, relevant evidence which a
reasonable mind would accept as adequate to support the conclusion reached.
Township of Exeter, id.; Hertzberg v. Zoning Board of Adjustment of City of
Pittsburgh, 554 Pa. 249, 257, 721 A.2d 43, 46 (Pa. 1998). Accordingly, if a
reasonable man, acting reasonably, could not have reached the decision from the
evidence and its inferences then the decision is not supported by substantial
evidence and it should be set aside. A.P. Weaver & Sons v. Sanitary Water Bd.,
284 A.2d 515, 518 (Pa. Smmw. Ct. 1971). The rule of substantial evidence is one
of fundamental importance and is the dividing line between law and arbitrary
power. State Bd. of Osteopathic Examiners v. Barbarian, 190 A.2d 330, 333 (Pa.
Super. Ct. 1963). Appellate review of questions of law are de novo, and the
review of such questions is plenary. Robinson Twp. v. Commonwealth, 83 A.2d
901, 943 (Pa. 2013).
Further, [i]n the event a full and compete record of the proceedings
12
before the local agency was made, the court shall hear the appeal without a jury
on the record certified by the agency. 2 Pa.C.S. 754(b).
and the party seeking the variance bears the burden of proof that unnecessary
hardship will result if the variance is denied. Valley View Civic Assn. v. Zoning
Bd. of Adjustment, 501 pa. 550, 554, 462 A.2d 637, 639 (1983). The hardship
must be shown to be unique or peculiar to the property as distinguished from a
hardship arising from the impact of zoning regulations on an entire district. Id.
Moreover, mere evidence that the zoned use is less financially rewarding than
the proposed use is insufficient to justify a variance. Id. In evaluating hardship
the use of adjacent and surrounding land is unquestionably relevant. Id. The
burden of proof is on the landowner to obtain variances. Yeager v. Zoning Hearing
Board, 779 A.2d 595 (Pa. Commw. Ct. 2001).
The appropriate tests are, 1) the physical features of the property are such
the zoning code for such. As to a dimensional variance, appellant meets the
unnecessary hardship test because the right of way is long and narrow, it sits
between adjacent industrial uses, and is below grade for most of the distance.
Junk and Salvage Yards and Buildings are permitted by special exception.
Table 14-602-3.
brought onto the site, and those fluids must be disposed of in compliance
with all applicable laws.
(i)Junk and salvage yards and buildings are subject to the fencing
requirements of Philadelphia Code 9-612.
9(b) is complied as except for the former church, the Property is 228.460
feet east of the nearest western residential district; and 376.690 feet west of the
nearest eastern residential district. The area is industrial more than 600 feet to
the north and more than 600 feet to the south.
9(c) is complied as there are masonry walls on east side, north side and
9(d) is complied as the accessory building is set back 100 feet from the
conducted in the central area, more than 300 feet from the residential church.
The church sits at the level of the W. Cayuga Street bridge, some 20 feet above the
grade of the right of way.
storage. All driveways and loading and unloading areas will be surfaced with
17
cameras.
Two additional sections regulate the recycling facility use, street trees and
fencing.
9-612. Fences Around Automobile Wrecking Yards and Junk Yards
and Buildings. 727
(1)Definitions. In this Section the following definitions shall apply:
(a)Automobile Wrecking Yard. Same as defined in Chapter 5-300
728 of the Fire Code.
(b)Junk Yards and Buildings. Same as defined in Chapter 5-2000
729 of the Fire Code.
(2)Prohibited Conduct. No person shall own, lease to another or rent
from another or otherwise possess or operate any premises for an
automobile wrecking yard or junk yard and building unless the
premises are either:
(a)fenced with durable material around the perimeter of those
premises to the extent necessary to obscure from the view of any
person using an abutting street the activity conducted on and any
material upon those premises; or
(b)if fencing is impractical in the opinion of the Department of
Licenses and Inspections trees and shrubs may be planted in a terracetype manner if the Department finds that the premises will be obscured
from view by any persons using an abutting street.
(3)Permits. No fence shall be erected, maintained, altered or
restored unless application for approval is made to the Department of
18
The zoning code has created a race to the Zoning Board situation. By the
earlier grant of a variance to the church, changing the zoning to RM-1, much of
appellants Property, which is properly zoned for a junk yard, is now precluded
by the zoning code by virtue of the church variance. While the Code provides that
the variance granted the church cannot infringe an adjacent conforming use, in
fact the vote of the zoning board allowed the race to the board to trump
appellants use of his Property.
premised solely on these sections. This was plain error because the zoning board
made use of an incomplete reading of the pertinent zoning code requirements.
19
Had the zoning board measured the application against the appropriate
standards, the record would have compelled the zoning board to reach different
conclusions.
A variance may be granted upon proof that a substantial burden attends all
The zoning board failed to consider these criteria. The zoning board failed
to demonstrate how it could mold its decision in the face of appellants hardship
and the lack of any potential uses of the right of way. Here, the narrow former
right of way varies from 15 to 30 feet in width and runs the length of the block,
bordered on each side by other industrial uses. The Property has no other street
accessible uses as industrial or residential development. The former right of way,
being long and narrow, is not suitable for residential development. At W. Cayuga
Street, the Property is some 20 feet below grade. [Exhibit 38.] At W. Annsbury
Street, the Property is approximately 15 feet wide and 400 feet in length.
20
and one commercial uses situated on 6th Street, to the west and adjacent to
appellants existing recycling facility to the east. The Property is 1 blocks from
Roosevelt Boulevard, allowing access for truck traffic. W. Cayuga Street has an
industrial character.
Advocating for one of the opponents, Mr. Pastore took up the position of the
owner of 4455 N. 6th Street that he has an easement over the railroad property.
[N.T., at 7, 26.] The position that a railroad neighbor could erect a wall or a
building on the right of way and prevent train travel is preposterous.
Nonetheless, it is asserted. No prior mention had been made in the presentation
concerning 4455 N. 6th Street, nor the claims of its owner. Leading one to the
reasonable conclusion that ex party communication had taken place.
that this is precisely the kind of site and combination of circumstances that City
Council intended for this kind of facility.
The homeless shelter use at the former W. Cayuga Street church is as well a
aggressive reasons. The objectors desire the Property for themselves. N.T., at
82.]
juxtaposition of the scrap metal use in a mixed commercial and industrial use
21
with a single institutional use on the same block, as proposed, will not be an
unacceptable detriment to the community. In view of that determination and in
the absence of any competent testimony, there is nothing on the record to
conclude that adjacent property owners will be adversely affected.
use of the property with the alleged residential character; and one opponent
objected to truck traffic. The sole testimony, that of appellant, was that junk is
bright by pick-up trucks. [N.T., at p. 54.] Approximately 15 pick-up truck loads
per day. [N.T.., at p. 56.] Neither complaint can be the basis for an adverse
finding. Both require the testimony of an expert. Pa.R. Evid. #702. The rules of
evidence provide guidance that lay persons cannot testify to matters which are
technical and require specialized training. In Re Appeal of Borough of Churchill,
575 A.2d 550, 554 (Pa. 1990). The testimony of a land planner is necessary to
establish whether the land would be put to over-use or a combination of uses
results in a negative effect. There was no such testimony here.
Moreover, SCOPA has held that, neither aesthetic reason nor the
On October 29, 2015, the Zoning Board issued its Findings of Fact, etc.,
concluding appellant did not present evidence to establish hardship and was not
22
In East Torresdale Civic Association v. ZBA, 639 A.2d 446, 447 (Pa. 1994),
SCOPA distilled the 14- criteria into three key prongs: (1) unique hardship to
the property; (2) no adverse effect on the public health, safety or general welfare;
and (3) the variance will represent the minimum variance that will afford relief
at the least modification possible. Id. Here, the only substantial evidence of
record supports findings of hardship, as well a the absence of adverse effect on
the public interest and compliance with the minimum variance standard.
From a public policy perspective, a review of the record and the pertinent
variance criteria demonstrates that this is precisely the kind of site and
combination of circumstances that City Council intended for a recycling facility.
set forth in the Zoning Code, the zoning board concluded that appellant needed to
meet each and every criteria. [ZBA Conclusion #8.] The zoning board needed to
but did not look to the rules of statutory construction to resolve the conflict.
See In re Thompson, 896 A.2d 659, 669 (Pa. Commw. Ct. 2006) (rules of
statutory construction apply to ordinance).
In Appeal of Johna Holtz, 8 A.2d 374, 378 (Pa. Commw. Ct. 2010), the
court observed the Statutory Construction Act 1972, which provided the
following.
Whenever a general provision in an ordinance shall be in conflict with a
special provision in the same ordinance, and the conflict is not
reconcilable, the special provision shall prevail and shall be construed an
an exception to the general provision.
1 Pa.C.S. 1993. The court held to rule otherwise would result in an absurd result
which the court presumed could not be the intent of the legislative body. Id, at
378 (relying upon 1 Pa.C.S. 1922(1)).
order to short-circuit the criteria. See In re Realen, 838 A.2d 718, 731 (Pa. 2003)
(at some point, a zoning board deprives an applicant a fair proceeding where the
board capriciously and without reasonable explanation disregards overwhelming
evidence.
With its narrow profile, the recycling facility will not be so broad as to
concluded that the proposed recycling facility would adversely affect the public
health, safety or (sic) welfare. [ZBA Conclusion #27.] Apparently, the zoning
board, having nothing in the record, could only support its conclusion by
inferring that the dimensional limitations were intended to safeguard the public
and any failure to conform would pose a threat. [ZBA Conclusion #25.] Accepting
this leap of faith would result in the zoning board ever granting a dimensional
variance. Fundamentally, the zoning board had no substantial evidence upon
which to make this finding.
and 10 of the Pennsylvania Constitution. The right to acquire and own property,
and to deal with it and use it as the owner chooses, so long as the use harms
nobody, is a natural right. Robinson Twp. v. Commonwealth, 83 A.2d 901, 948
(Pa. 2013), quoting Appeal of White, 134 A. 409, 412 (Pa. 1926); see also, In re
Realen, 838 A.2d 718, 727-728 (Pa. 2003) (The right of landowners to use their
property unfettered by government interference except as necessary to protect
25
the interests of the public is of ancient origin). Zoning regulations are a limitation
on the fundamental property right of landowners and the common law and must
be strictly construed. Cf. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 390
(1926). Regulations on use must be underpinned by comprehensive planning and
must have a substantial relation to the public interest. Appeal of White, 134 A. at,
412 (Pa. 1926); Euclid, 272 U.S. at 390. The zoning board cannot be heard to say
that, while it doesnt know what the publics interest is, an interest must be there
because there is a restriction. There must be evidence in the record on a uses
detrimental effect on the public. Herein, in order to balance the property rights
against the public interest, the zoning board needed to understand and then to
identify what interest was served. Indeed, the zoning board identified no public
interest in the record.
Further, the ZBA contends appellant had the burden of proof to negate all
impact conditions.
23. Under Section 14-303(7)(e)(.2), an applicant shall have the initial
duty of presenting objective evidence, and the burden of proof, that the
grant of a special exception will not cause [seven] specific detrimental
impacts to the neighborhood beyond that which normally might be
expected from the proposed use.
24. The specific impacts listed in Section 14-303(7)(e)(.2) are:
property;
conforming properties;
or
approximately 15-30 foot wide strip of land, a former railroad right of way
running north from Cayuga Street to Annsbury Street. The former right of way
continues unimproved to the north and south of the Property. To the east, 520 W.
Annsbury is licensed and zoned for the same use. Appellant proposes to expand
his zoned and licensed use to the right of way.
The proposed use would not impact stormwater runoff. No schools, parks
or public facilities are adjacent to the Property. The adjacent properties to the
west at 4400, 4455 and 4525 N. 6th Street are industrial. The city purchased,
built and donated at taxpayer expense for private use a medical office at 4433 N.
6th Street. To the southeast is a church which received from the ZBA a variance
to operate a homeless shelter. The church was rezoned to RM1. To the north and
south are the former right of way.
Despite objections, there has been no specific articulation how the adjacent
28
trash removal and dumpster service, or other uses would be injured by the
proposed economic development.
The city has proposed no comprehensive plan for the former right of way.
The objectors own evidence showed appellants proposed use is for the
greater portion of the Property essentially by right under the zoning code. All of
the area from W. Annsbury Street south and adjacent as far south as the SWC of
W. Annsbury and Fairhill Streets is permitted by the zoning code. [Exhibits 41
and 42.] As the opponents own legend shows, the red hatch-marked area [is]
able to be used for Junk and Salvage Yard under Zoning Code 14-603-9(b).
Incredibly, inconsistent with this evidence, the ZBA denied the Special Exception.
Relief
For the reasons set forth above, Angel Martinez respectfully demands this
Court reverse the decision of the Zoning Board of Adjustment and order the
Zoning Board of Adjustment to grant the special exception requested.
Respectfully submitted,
29
appellant
v.
#00690
:
:
:
Premises:
532 W. Annsbury Street
ZBA Calendar #24548
appellees
CERTIFICATE OF SERVICE
_______________________
Anthony Bernard Quinn