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In the Court of Common Pleas

First Judicial District of Pennsylvania


Karen Lewis and Carmen
Bolden,
Appellants,
Statutory Appeal
v. September Term 2012
Philadelphia Zoning Board of
Adjustment
and
City of Philadelphia
City Law Department
1515 Arch St, 16th Floor
Philadelphia PA 19102,
Appellees.
No. 120900976
Statutory Appeal
Re: Zoning Board Calendar
No. 17519 (1942, 1944, 1946-
48, 1950-52 and 1954-58 N.
Front Street).
Order
Today, this day of 201 3, upon
consideration of the parties brieng, and aier a hearing was held,
it is hereby ordered that the decision of the Zoning Board of Ad-
justment is reversed, and the Womens Community Revitalization's
request for a variance is denied.
vv rnv couvr:
HON. IDEE C. FOX
Case ID: 120900976
Filed and Attested by
PROTHONOTARY
04 APR 2013 04:01 pm
L. OWENS
A. Jordan Rushie.
Jordan@FishtownLaw.com
Pa. Id. 209066
Mulvihill & Rushie LLC
2424 East York Street Suite 316
Philadelphia, PA 19125
215.385.5291 Attorneys for Appellants
In the Court of Common Pleas
First Judicial District of Pennsylvania
Karen Lewis and Carmen
Bolden,
Appellants,
Statutory Appeal
v. September Term 2012
Philadelphia Zoning Board of
Adjustment
and
City of Philadelphia
City Law Department
1515 Arch St, 16th Floor
Philadelphia PA 19102,
Appellees.
No. 120900976
Statutory Appeal
Re: Zoning Board Calendar
No. 17519 (1942, 1944, 1946-
48, 1950-52 and 1954-58 N.
Front Street).
Appellants Brief In Support of Overturning the ZBAs Decision
1. Introduction
As we come marching, marching, we bring the greater days.
The rising of the women means the rising of the race.
No more the drudge and idler -- ten that toil where one reposes,
But a sharing of life's glories: Bread and roses! Bread and roses!
- James Oppenheim
Case ID: 120900976
2. Facts
The area under the Berks Street El subway is zoned commercially
for a reason it is not the most suitable place for people to live.
However, the Womens Community Revitalization Project (WCRP)
wants to demolish historical Kensington bank buildings situated in
the area and build 25 low income residential units. These families
will live under the noisy Berks El subway station, and their chil-
drens back yard will be busy North Front Street next to a bar.
Not only should the less fortunate have a better place to live, but
WCRPs proposal will hamper commercial development in an area
experiencing revitalization. WCRP commissioned a study in 2011
acknowledging that there are 93 businesses operating close to where
this project was proposed
1
. But perhaps more telling is what
WRCPs 2011 study does not acknowledge any commercial devel-
opment that occurred aier the study was conducted. This new de-
velopment includes the Kensington High School for the Performing
Arts, Liberty Choice Deli (which is directly across the street iom
the property), Feast Your Eyes Catering, Kung Fu Neck Tie, and
the Blue Line Market. Existing businesses like the El Bar and The
Alley Bar have recently been renovated. The area around the Berks
El is experiencing a commercial revitalization consistent with the
revitalization of the Fishtown and East Kensington neighborhoods.
The WRCP cannot seriously argue it is impossible to use the prop-
erty for commercial purposes considering this recent development,
which includes a brand new market directly across the street. WCRP
has oered no evidence that commercial use of the property is an
unnecessary burden, and WCRP has never even placed this property
on the open market.
Karen Lewis, et. al. v. Zoning Board of Adjustment, et. al.
Brief in Support of Overturning Decision of ZBA
2
1
See study iom Urban Partners, who was retained by WCRP. Exhibit A.
Case ID: 120900976
Furthermore, local neighborhood organizations held meetings with
the developers, and those neighbors overwhelmingly voiced their
opposition. On May 9, 2012, Fishtown Neighbors Association, East
Kensington Neighbors Association, and Norris Square Civic Asso-
ciation held a joint community meeting
2
. The community voted 61
against the project, and only 21 in support. The only community
organization supporting the project, Norris Square, has a nancial
interest in the project it holds a mortgage on the property. (Ex-
hibit B). The banks also have signicant historical value, and were
placed on the National Register of Historic Places. (Exhibit C).
Destroying these buildings will have an adverse impact not only on
the appellants properties but the community as a whole.
It is not a battle against low income housing like WRCP contends.
This is about sensible urban development, historic preservation,
and treating Philadelphias low income residents with basic human
dignity. Taking into account the amount of vacant land in the sur-
rounding neighborhood that could be utilized for low income hous-
ing, the revitalization of Front Streets commercial corridor, and
the historical value of the bank buildings, this project is does not
warrant a variance.
The neighborhoods deserve better and their residents deserve bet-
ter.
3. Legal Argument
1942 N. Front Street is located in a district zoned C-2 under the
Karen Lewis, et. al. v. Zoning Board of Adjustment, et. al.
Brief in Support of Overturning Decision of ZBA
3
2
Fishtown Neighbors, East Kensington Neighbors, and Norris Square Civic have
concurrent jurisdiction over the property. It is on the border of all three neigh-
borhoods. Exhibit D.
Case ID: 120900976
former Philadelphia Zoning Code
3
. L&I refused their application
because (1) residential dwellings are not permitted under 14-
303(2)(a) of the Code, and (2) the Code required 25 accessory
parking spaces while only 10 were provided. On March 9, 2012,
WCRP led an appeal and requested a use variance, claiming the
property cannot be used for commercial purposes. The variance was
granted by the ZBA on August 14, 2012. The appellants contend
granting the variance was an error.
A party seeking a variance must show that (1) an unnecessary burden
will occur if the variance is not granted, and (2) the variance will
not be contrary to the public interest. Socy Created to Reduce Urban Blight
v. Zoning Bd. of Adjustment, 787 A.2d 1123 (Pa. Cmwlth. 2001)
(SCRUB, Amtrak Appeal).
The unnecessary hardship must arise iom the particular physical
surrounding, shape, or topographical conditions of the specic
structure or land involved. Section 14-1802(1)(a) of the Zoning
Code. See also Section 910.2(a)(1) of the Pennsylvania Municipali-
ties Planning Code (MPC) (requiring that a zoning board nd un-
necessary hardship due to physical circumstances of conditions
before granting a variance). Furthermore, the unnecessary hardship
must be unique to the property rather that a hardship arising iom
the impact of zoning regulations on an entire district. Soc'y Created to
Reduce Urban Blight, 787 A.2d at 1126. The party seeking the variance
bears the burden of proving that (1) unnecessary hardship will re-
sult if the variance is denied, and (2) the proposed use will not be
contrary to the public interest. Valley View Civic Assn v. Zoning Bd. of Ad-
justment, 501 Pa. 550, 555-556 (Pa. 1983).
WRCP has not demonstrated an unnecessary burden, nor has it
mets its burden of demonstrating that the variance is not contrary to
Karen Lewis, et. al. v. Zoning Board of Adjustment, et. al.
Brief in Support of Overturning Decision of ZBA
4
3
Under the new Zoning Code it is zoned CMX-2.
Case ID: 120900976
public interest.
a. WCRP has oered no evidence of an unnecessary hard-
ship
WCRP oered no evidence that it cannot develop the property in
accordance with Section 14-303(2)(a). Accordingly, the variance
should have been denied. Tioga United, Inc. v. Zoning Bd. of Adjustment,
2011 Pa. Commw. Unpub. LEXIS 16 (Pa. Commw. Ct. 2011) is al-
most identical to this case. In Tioga United, the applicant sought a
variance under section 14-303(2)(a) of the Code. The ZBA granted
a use variance permitting the applicant to construct seven attached
single-family homes on a tract of land in the Tioga section of Phila-
delphia. The trial court overturned the ZBAs decision. In uphold-
ing the trial courts reversal, the Commonwealth Court held that the
appellant:
failed to satisfy its burden to prove that it could not
develop the Property in accordance with the zoning
ordinance.
Further, New Life's reliance upon the purported
understanding of City Council and other City agen-
cies and ocials regarding New Life's intended use
of the Property is misplaced in the context of a pure
variance request. The sole consideration is whether
the Property itself has some fundamental physical
characteristic that prevents development in accor-
dance with the zoning ordinance. New Life has failed
to demonstrate such a hardship. Accordingly, we
conclude that the trial court did not err in conclud-
ing that the ZBA incorrectly determined that New
Life was entitled to a use variance. Tioga United, Inc. v.
Zoning Bd. of Adjustment, 2011 Pa. Commw. Unpub.
Karen Lewis, et. al. v. Zoning Board of Adjustment, et. al.
Brief in Support of Overturning Decision of ZBA
5
Case ID: 120900976
LEXIS 16, 13-14 (Pa. Commw. Ct. 2011)
WCRPs own study acknowledged that there were 93 businesses in
the area as of 2011
4
. On the same block is a brand new deli, a thrii
store, the Berks El, a bar, and a tire shop. WRCP has pointed to no
fundamental characteristic preventing it iom developing the prop-
erty in accordance with the Code. This is hardly an area where
commercial development has been rendered impossible:
Blue Line Market, 1832 N. Front Street
Karen Lewis, et. al. v. Zoning Board of Adjustment, et. al.
Brief in Support of Overturning Decision of ZBA
6
4
Exhibit A
Case ID: 120900976
Liberty Choice Market, 1947 N. Front Street
Further, WCRP is requesting a use inconsistent with the rest of the
surrounding area. Assuming the property could only be used for
residential purposes, which is not the case, the variance does not
represent the minimum departure iom the terms of the zoning or-
dinance necessary to permit reasonable use of the property. WCRP
is proposing high density residential units. The units behind Front
Street are mostly single family town homes. There is no reason
WRCP could not build a project with less units. In addition, WCRP
could simply put commercial use on the rst oor of the units and
residential on the top. Accordingly, the variance should be denied,
and this Court should overturn the ZBAs decision.
Karen Lewis, et. al. v. Zoning Board of Adjustment, et. al.
Brief in Support of Overturning Decision of ZBA
7
Case ID: 120900976
b. The variance is contrary to public interest
The requested variance is contrary to public interest. The ZBA
erred by nding that the registered community organization sup-
ports this project. Specically, in Paragraph 14, the ZBA found that
Mr. Beauvis pointed out two letters of support, one iom Youth
United for Change and the Norris Square Civic Association, which
is the registered community organization. Norris Square Civic
Association is not the only community organization with jurisdic-
tion. There is concurrent jurisdiction over this project with East
Kensington Neighbors Association, Fishtown Neighbors Associa-
tion, and Norris Square Civic Association. (Exhibit D). The only
community organization to support this project, Norris Square,
sold the property to WCRP, and holds a mortgage on it. In addi-
tion, Youth United for Change is headquartered in a building
owned by Norris Square. (Exhibit E). The surrounding commu-
nity does not support this project.
Additionally, this project is contrary to public interest for several
other reasons. First, it will hamper commercial development al-
ready occurring in the area. Neighbors testied that this project will
reduce the amount of parking, and add too many new residents that
the neighborhood cannot accommodate. (See N.T. 8/8/12 at 26,
34) Second, WRCP can use existing vacant land for this project,
which Philadelphia and East Kensington have no shortage of.
Third, these buildings have signicant historical value and are
worth preserving. They are listed on on the National Register of
Historic Places (Exhibit B).
But most importantly, relegating the Citys low income residents
into second rate living conditions under the El subway undermines
Karen Lewis, et. al. v. Zoning Board of Adjustment, et. al.
Brief in Support of Overturning Decision of ZBA
8
Case ID: 120900976
the most basic notions of human dignity. The less fortunate deserve
better than that. They deserve bread and roses, too.
4. Relief.
Appellants respectfully request this Honorable Court to reverse the
decision of the ZBA and deny WRCP a variance.
vvsvvcrvu::v suvxi rrvu,
A. Jordan Rushie
Attorney for Appellants, Karen Lewis and Carmen Bolden
Karen Lewis, et. al. v. Zoning Board of Adjustment, et. al.
Brief in Support of Overturning Decision of ZBA
9
Case ID: 120900976
Certicate of Service.
I, A. Jordan Rushie, certify that I served a copy of Appellants Brief
in Support of Overturning the ZBAs Decision to Grant a Variance
on the following parties:
Darwin Beauvis, Esquire
1818 Market Street, 13th Floor
Philadelphia, PA 19103-3638
Darin J. Steinberg, Esquire
8080 Old York Road, Suite 215
Elkins Park, PA 19027


A. Jordan Rushie
Dated: Thursday, April 4, 2013
Karen Lewis, et. al. v. Zoning Board of Adjustment, et. al.
Brief in Support of Overturning Decision of ZBA
10
Case ID: 120900976
Exhibit A
Case ID: 120900976
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Exhibit B
Case ID: 120900976
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Date Grantor Grantee Legal
41023374
DEED 03/10/1983 INDUSTRIAL
VALLEY BK - TR
VILLANUEVA
JACK
House # 1942 Direction N Street Name
FRONT Designation ST BRT:
183222110 BRTSTCD: 35200
1942 N FRONT ST ETAL
47665536
MORTGAGE 12/19/1996 NORRIS SQUARE
CIVIC
ASSOCIATIO
PHILADELPHIA
URBAN FINANCE
COR
House # 1942 Ext 58 Direction N
Street Name FRONT Designation ST
BRT: 183222125 BRTPAR: X
BRTSTCD: 35200 015N21-0393
48012591
MORTGAGE 01/30/1997 NORRIS SQUARE
CIVIC
ASSOCIATIO
PHILADELPHIA
URBAN FINANCE
COR
House # 1942 Direction N Street Name
FRONT Designation ST BRT:
183222125 BRTPAR: X BRTSTCD:
35200 015N21-0358
House # 1944 Direction N Street Name
FRONT Designation ST BRT:
INVALIDNO BRTPAR: X BRTADDR: A
BRTSTCD: 35200 015N21-0337
House # 1946 Ext 48 Direction N
Street Name FRONT Designation ST
BRT: INVALIDNO BRTPAR: X
BRTADDR: A BRTSTCD: 35200
015N21-0045
House # 1950 Ext 52 Direction N
Street Name FRONT Designation ST
BRT: INVALIDNO BRTPAR: X
BRTADDR: A BRTSTCD: 35200
015N21-0022
52179957
DEED 02/24/2010 NORRIS SQUARE
CIVIC
ASSOCIATION
COMMUNITY
JUSTICE LAND
House # 1942 Ext 58 Direction N
Street Name FRONT Designation ST
PREMISES "A" 015N21-0358
House # 1942 Ext 58 Direction N
Street Name FRONT Designation ST
PREMISES "B" 015N21-0337
House # 1942 Ext 58 Direction N
Street Name FRONT Designation ST
PREMISES "C" 015N21-0045
House # 1942 Ext 58 Direction N
Street Name FRONT Designation ST
PREMISES "D" 015N21-0022
House # 1942 Ext 58 Direction N
Street Name FRONT Designation ST
PREMISES "E" 015N21-0389
52179958
MORTGAGE 02/24/2010 COMMUNITY
JUSTICE LAND
NORRIS SQUARE
CIVIC
ASSOCIATION
House # 1942 Ext 58 Direction N
Street Name FRONT Designation ST
52179959
SATISFACTION
OF MORTGAGE
02/24/2010 PHILADELPHIA
URBAN FINANCE
CORPORATION
NORRIS SQUARE
CIVIC
ASSOCIATION
House # 1942 Ext 58 Direction N
Street Name FRONT Designation ST
52179960
SATISFACTION
OF MORTGAGE
02/24/2010 PHILADELPHIA
URBAN FINANCE
CORPORATION
NORRIS SQUARE
CIVIC
ASSOCIATION
House # 1942 Ext 58 Direction N
Street Name FRONT Designation ST
52558619
DEED 11/09/2012 COMMUNITY
JUSTICE LAND
COMMUNITY
JUSTICE LAND
Consol/Sub C House # 1942 Direction
N Street Name FRONT Designation ST
COVERS PARCELS 22, 45, 337, 358,
389 015N21-0400
Case ID: 120900976
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Exhibit C
Case ID: 120900976
Case ID: 120900976 Case ID: 120900976
Case ID: 120900976 Case ID: 120900976
Case ID: 120900976 Case ID: 120900976
Case ID: 120900976 Case ID: 120900976
Case ID: 120900976 Case ID: 120900976
Case ID: 120900976 Case ID: 120900976
Exhibit D
Case ID: 120900976
Case ID: 120900976
Exhibit E
Case ID: 120900976
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DEED 01/03/1992 CORESTATES
BANK N A
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ECONOMIC DE
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0118
35200 01904 N FRONT ST
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50732546
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House # 1904 Direction N Street Name
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FRONT Designation ST
House # 1908 Ext 22 Direction N Street
Name FRONT Designation ST
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