zoning appeal - martinez briefs - court of common pleas

7/24/2019 Zoning Appeal - Martinez Briefs - Court of Common Pleas

1/32

FIRST JUDICIAL DISTRICT OF PENNSYLVANIACOURT OF COMMON PLEAS OF PHILADELPHIA

CIVIL TRIAL DIVISION

Angel Martinez, appellant : June Term 2015

v. : #00690

City of Philadelphia, and : Premises:Zoning Board of Adjustment : 532 W. Annsbury Streetof the City of Philadelphia, appellees : ZBA Calendar #24548

O R D E R

AND NOW, to wit this ________ day of _____________________________, 2016,

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.

This matter is remanded to the Zoning Board of Adjustment. The Zoning

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.

Case ID: 150600690

Filed and Attested by theOffice of Judicial Records

09 FEB 2016 02:19 pm C. FORTE


2/32

Pa.R.C.P. #211 ORAL ARGUMENT DEMANDEDQuinn Law OfceBy: Anthony Bernard Quinn, Esquire

Attorney Reg. #26931Suite 520 The Bellevue

200 S. Broad StreetPhiladelphia, PA 19102Telephone #215-731-0340

Attorney for appellant



Angel Martinez, appellant : May Term 2015

v. : #

City of Philadelphia, and : Premises:Zoning Board of Adjustment : 532 W. Annsbury Streetof the City of Philadelphia appellees : ZBA Calendar #24548

APPELLANTS BRIEF SUR ZONING APPEAL FROM THE

DECISION OF THE ZONING BOARD OF ADJUSTMENT

TO THE HONORABLE, THE JUDGES OF THE SAID COURT,

Matter Before The Court

Appellant, Angel Martinez, by and through his undersigned counsel,

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

Case ID: 150600690


3/32

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.

Statement of Questions Involved

I: Is appellant entitled to a special exception to operate a junk

and salvage yard in an I-2 industrial district?

Suggested answer: Yes.

Facts

Exhibit 1 is the relevant excerpt of the ofcial city zoning map. While

opponents argue the area is residential, the neighborhood is traditionally, and

remains mixed industrial, commercial and residential. However, adjacent

properties are in fact, industrial. The exception is a variance granted to the

church situate the adjacent northwest corner of W. Cayuga and N. 5th Streets. To

the southeast of the Property is a former catholic church which has been

rezoned, spot zoned residential. The Property, and all of the other adjacent

properties on this block, are zoned industrial.

Appellant is proposing to enter into a lease to expand his recycling facility

onto the former Conrail right of way, which has been assigned the address of 532

W. Annsbury Street by the Ofce 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

2

Case ID: 150600690


4/32

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 parts , [and] accessory ofce trailer.2

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

federal ICC approval to discontinue freight service.

The block in which the Property is located has 5 sides.The block is

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

The current zoned and licensed use will be referred to as 520 W. Annsbury1

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 conrmed by the

maps made a part of the applications. City OPA and DOR information identify the

property as 4500 N. Fairhill Street.

The ndings of fact fail to note the use variance for sale of used auto parts was2

withdrawn. The adjacent zoned and licensed use, at 520 W. Annsbury Street,

permits auto crushing and sale of used auto parts.

References herein are to the Notes of Testimony (N.T.) and exhibits admitted3

in evidence at the May 20, 2015, public hearing conducted by the Zoning Board. 3

Case ID: 150600690


5/32

south.

The Property is long and narrow, running south to north approximately 15

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.

The Property is abutted to the east as stated, by property leased by

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 ofce 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.]

4

Case ID: 150600690


6/32

B. THE RECYCLING FACILITY.

Appellant leases adjoining 520 W. Annsbury Street to conduct his recycling

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.

The Zoning Code, 9-613(1)(a), Junk Dealers, Denitions, denes a

recycling facility as a junk dealer.

(a) Junk Dealer. An individual, partnership, association,

corporation, or other business entity doing business in the City of

Philadelphia which handles, stores, buys, sells, sorts, picks or otherwise

processes junk, as commonly dened, including but not limited to, rags,

paper, wastes, scrap metal, plumbing xtures, and other similar

materials.

The Zoning Code,14-601(10)(e), Use Categories, Industrial Use Category,

Junk and Salvage Yards and Buildings, denes 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 forreclamation, 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

Case ID: 150600690


7/32

C. NEIGHBORING USES.

This particular area is a mix of residential, commercial, industrial and

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.

Above W. Annsbury Street is a mix of commercial and industrial uses.

Below W. Cayuga Street is as well a mix of commercial and industrial uses.

However, west of No. 6th Street and east of N. Reese Street, is residential.

D. THE ZONING PROCESS.

Initially, an application for a zoning use and registration permit was6

Case ID: 150600690


8/32

submitted to the Department of Licenses and Inspections on January 17, 2014.

[Exhibits 7-10.] Although not ofcially refused, the department did not consider

the application because an application was pending before the zoning board to

erect a monopole north of W. Annsbury Street. Despite frequent contact with the

city zoning ofcer, no action was was taken for almost for a year. [N.T., at p.43.]

The zoning ofcer then required a new application without making a decision on

the rst.

Appellant led a second application for a use and registration permit on

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.]

A notice of refusal/referral dated January 20, 2015, stated the proposed

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.

After referral to the Zoning Hearing Board, an application for a special

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

Case ID: 150600690


9/32

Avenue, under Roosevelt Boulevard and ending at Rockland Street. [Exhibits

4-5.] The application for a recycling facility is limited to the single block from W.

Cayuga Street to W. Annsbury Street. The situs of the monopole application,

which was granted by the zoning board, is on the tract north of W. Annsbury

Street, near W. Courtland Street.

On June 4, 2015, the ZBA issued a notice of decision, backdated to May 20,

2015, denying Martinez application for a special exception. Martinez led the

appeal at bar the same day.

A local civic association, the Hunting Park Neighborhood Advisory Council

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.

On May 20, 2015, the zoning board conducted an evidentiary hearing on8

Case ID: 150600690


10/32

the merits of the application. The record demonstrates that, without any

contradiction, appellant established the following.

As stated, the proposed special exception is to expand the zoned and

licensed recycling facility at adjacent 520 W. Annsbury Street, situated on the

southwest corner of W. Annsbury Street and N. Fairhill Street. Since at least

1989, adjacent 520 W. Annsbury Street has been zoned and licensed for sale of

used auto parts, auto dismantling, storage of steel drums and towing. [Exhibits

19-20.] A zoning variance was granted by the ZBA on October 13, 1989. [Exhibit

21.] Since 1949, it was an auto repair shop. [Exhibit 19.]

The SWC corner Annsbury and Fairhill is currently licensed for an auto

wrecking yard and for hazardous materials. [Exhibits 22-23.]

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

equipment on the SWC Annsbury and Fairhill property. [Exhibit 33.]

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 ofce 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

Case ID: 150600690


11/32

behind the masonry wall. Exhibit 37 is a view of the adjacent and neglected 4525

N. 6th Street trash removal business property.

One opponent testied, referencing a Hunting Park neighborhood plan. No

evidence was provided concerning the any such plan. The opponent testied to

being a neighbor to the trash removal and dumpster service located adjacent

to the Property, and heavy truck trafc 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 nding 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.

A letter was read on behalf of the Philadelphia City Planning Commission,

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

Case ID: 150600690


12/32

safety to the surrounding neighborhood. There is no evidence in the record of

any impact on noise, health, or safety.

Esperanze Housing and Economic Development Corporation falsely posits

itself to be the registered community organization. The true registered

community organization is the Hunting Park Neighborhood Advisory Council.

HPNAC held a community meeting on April 21, 2015. Only 15 persons attended

and voted on the proposed special exception. Intrinsically, the letter is dishonest.

The report letter of the community meeting to the ZBA did not break down the

vote between those who opposed and those who did not reach agreement. The

letter merely stated, 15 oppose/did not reach agreement. [Exhibit 31.]

Opponents submitted only 71 signatures in opposition. Appellant

submitted 95 signatures in support, including customers coming from miles to do

business in this economically disadvantaged area of Philadelphia.

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 led this timely appeal. On October 29, 2015, the zoning

board led its ndings 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 are11

Case ID: 150600690


13/32

permitted uses in an I-2 Industrial District.

A. STANDARD OF REVIEW.

The scope of review where the reviewing court does not take additional

evidence is limited to determining whether the zoning board violated any

constitutional right, committed an abuse of discretion, or an error in the

application of the law in rendering its decision. Township of Exeter v. Zoning

Hearing Board, 599 Pa. 568, 962 A.2d 653, 659 (Pa. 2009); Larson v. Zoning

Board of Adjustment, 672 A.2d 286, 288-289 (Pa. 1996); 2 Pa.C.S. 754(b).

An abuse of discretion may be found only where the zoning boards ndings

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 proceedings12

Case ID: 150600690


14/32

before the local agency was made, the court shall hear the appeal without a jury

on the record certied by the agency. 2 Pa.C.S. 754(b).

The reasons for a variance must be substantial, serious and compelling,

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 nancially rewarding than

the proposed use is insufcient 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

that it cannot be used for a particular purpose; or 2) the property can be

conformed for a permitted use only at a prohibitive expense; or 3) the property is

valueless for any purpose permitted by the zoning ordinance. South of South

Street Neighborhood Association v. Philadelphia Zoning Board of Adjustment, 54

A.2d 115, 121 (Pa. Commw. Ct. 2012) (citing Taliaferro v. Darby Township Zoning

Hearing Board, 873 A.2d 807, 812 (Pa. Commw. Ct. 2005). Unnecessary hardship

may be established only when it is shown that compliance with the zoning

ordinance would render the property practically useless. Evans v. Zoning

Hearing Board, 723 A.2d 686, 691 (Pa. Commw. Ct. 1999).

13

Case ID: 150600690


15/32

Appellant seeks a special exception because he has met all requirements of

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.

B. THE SPECIAL EXCEPTION

The property is located in an I-2 industrial district. [Finding of Fact #2.]

14-403. Industrial and Industrial Mixed-Use Districts.

(b) Purposes.

(.1) Philadelphias Industrial zoning districts are primarily intended to

accommodate manufacturing, warehousing, wholesale, and industrial

uses. The district regulations are intended to:

(.a) promote the economic viability of utilities, construction,

manufacturing, goods movement and warehousing, resource

production, research and development, equipment and facility services,

and other industrial uses;

***.

(.b) encourage employment growth; and

(.c) limit the encroachment of unplanned residential and other non-

industrial development within active industrial areas.

***.

(c) Descriptions.

(.4) I-2, Medium Industrial District.

The I-2, Medium Industrial district is primarily intended toaccommodate light industrial uses, moderate-impact uses, and

employment activities such as manufacturing, distribution, processing,

industrial parks, and other activities that may generate noise, odor,

vibration, after hours activities, or trafc impacts well beyond the14

Case ID: 150600690


16/32

subject property lines.

***.

(2) Allowed Uses.

Principal uses are allowed in Industrial districts in accordance with

Table 14-602-3. Uses classied as accessory uses are not regulated by

the use table. Accessory uses are permitted in conjunction with allowed

principal uses, provided they comply with all applicable regulations of

14-603 (Use-Specic Standards) and 14-604 (Accessory Uses and

Structures).

(3) Dimensional Standards.

Dimensional standards that apply in Industrial districts are set forth in

14-701 (Dimensional Standards).

(4) Multiple Principal Uses and Buildings.

Multiple principal uses and buildings are allowed on a single lot in all

Industrial districts.

***.

14-602. Use Tables.

(5) Industrial Districts.

Principal uses are allowed in Industrial districts in accordance withTable 14-602-3. Uses classied as accessory uses, such as home

occupations, are not regulated by the use table. Accessory uses are

permitted in conjunction with allowed principal uses, provided they

comply with all applicable regulations of 14-603 (Use-Specic

Standards) and 14-604 (Accessory Uses and Structures).

Junk and Salvage Yards and Buildings are permitted by special exception.

Table 14-602-3.

City Council altered the traditional manner of weighing the circumstances

necessary for a grant of variances to allow for recycling facilities.

15

Case ID: 150600690


17/32

The Zoning Code, 14-603(9), Use-Specic Standards, Junk and Salvage

Yards and Buildings, permits metal recycling facilities as follows.

(9) Junk and Salvage Yards and Buildings.

(a) The minimum required lot size for junk and salvage yards and

buildings is two acres.

(b) Junk and salvage yards and buildings may not be located within

150 ft. of any Residential district.

(c) If the junk and salvage yard/building is located in any district other

than the I-3 or I-P, a masonry wall, not less than eight ft. in height and

not more than 12 ft. in height, shall be constructed and maintained in

good condition around all property boundaries abutting a zoningdistrict other than I-3 or I-P. All activities and stored materials must be

conned to the walled-in area. There may be no stacking of material

above the height of the masonry wall, but moveable equipment used in

the conduct of junk or salvage activities may exceed that height.

(d) All buildings, screening, and junk or salvage materials must be set

back at least 20 ft. from any public street, and that setback area shall be

landscaped in accordance with 14-705(2) (Street Tree

Requirements).

(e) Open burning is prohibited.

(f) No outdoor industrial processes involving the use of equipment for

cutting, shredding, compressing, or packaging may be conducted within

300 ft. of a Residential district.

(g) All roads, driveways, parking lots, and loading and unloading areas

within any junk or salvage yard or building must be surfaced with a

material to prevent wind-born dust from being carried outside the

walled area.

(h) All uids must be drained from junk and salvage motor vehicles or

motor vehicle parts within seven days after those vehicles or parts are

16

Case ID: 150600690


18/32

brought onto the site, and those uids 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.

Appellants facility proposes to meet all of these requirements.

9(a) is complied as the Property runs north from Cayuga Street to W.

Annsbury Street and has a lot size of 3.067 acres.

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

masonry building walls on west side. It is proposed to complete the masonry

walls on the north side.

9(d) is complied as the accessory building is set back 100 feet from the

street. The Property is fenced and proposed to be landscaped.

9(e) is complied as no burning is done in the recycling operation.

9(f) is complied as cutting, shredding, compressing, and packaging can be

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.

9(g) is complied as there are no roads or parking lots proposed, except

storage. All driveways and loading and unloading areas will be surfaced with

17

Case ID: 150600690


19/32

gravel or other permeable material.

9(h) is complied as a requirement and is consistent with ongoing

drainage and storage processes.

9(h) is complied as the Property is secured by security fences and

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) Denitions. In this Section the following denitions shall apply:

(a) Automobile Wrecking Yard. Same as dened in Chapter 5-300

728 of the Fire Code.

(b) Junk Yards and Buildings. Same as dened 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 terrace-type manner if the Department nds 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

Case ID: 150600690


20/32

Licenses and Inspections on forms supplied by the Department. Upon

approval by the Department and the payment of a permit fee of ten (10)

dollars, a permit will be issued. No approval shall be given to any fence

which is not a masonry or aluminum fence.

(4) Penalties. Any person violating this Section shall, upon

conviction, be subject to a ne of not more than three hundred (300)

dollars.

(5) Repeat Offenders. Any person who commits, on more than one

occasion, a violation of this Section shall be guilty of a separate offense

of Repeat Violation, and for each such Repeat Violation, shall be subject

to a ne of not more than three hundred (300) dollars, or imprisonment

for not more than ninety (90) days, or both. A person shall be guilty of a

Repeat Violation regardless whether the second or subsequent violation

occurs before or after a judicial nding of a rst or previous violation.

Each violation, after the rst, shall constitute a separate Repeat

Violation offense.

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.

The zoning board conducted a variance and special exception analysis

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

Case ID: 150600690


21/32

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

dimensionally compliant uses of applicants property. Twp. of E. Caln v. Zoning

Hearing Board of E. Caln Twp., 915 A.2d 1249, 1253-54 (Pa. Commw. Ct. 2007)

(where property could continue to be used to house existing telecommunications

tower and self-storage facility).

The Zoning Board erred in not granting appellants request for a

dimensional variance in accordance with Hertzberg v. Zoning Board of

Adjustment of City of Pittsburgh, 554 Pa. 249, 257, 721 A.2d 43, 47 (Pa. 1998)

and based upon hardship. In Hertzberg, SCOPA held that, a variance applicant

must show that unnecessary hardship will result if a variance is denied and that

the proposed use will not be contrary to public policy.

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

Case ID: 150600690


22/32

In addition, appellants proposed use will be located behind 3 industrial

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 trafc. 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.

A review of the record and the pertinent variance criteria demonstrate

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

permitted use in the I-2 industrial district. Table 14-602-3.

As demonstrated in the record, the objectors oppose the expansion for

aggressive reasons. The objectors desire the Property for themselves. N.T., at

82.]

The zoning board failed to conduct the most fundamental analysis.

Accordingly, City Council determined as recently as 2012 that the

juxtaposition of the scrap metal use in a mixed commercial and industrial use

21

Case ID: 150600690


23/32

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.

Objectors raised two issues: the proposed use represents an inconsistent

use of the property with the alleged residential character; and one opponent

objected to truck trafc. 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

nding. 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

conservation of property values *** are, singly or combined, sufcient to

promote the health or morals or the safety of the general welfare. In Re Appeal

of Archbishop OHara, 131 A.2d 587 (Pa. 1957), citing Medingers Appeal, 103 A.

2d 118 (Pa. 1954). Accordingly, objectors missed the target in attempting to

establish an adverse effect.

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

Case ID: 150600690


24/32

entitled to a variance. In similar and summary fashion, the zoning board

concluded:

16. Applicant has not identied any unique physical characteristic or

circumstances of the Property that would prevent its use for a purpose

permitted by right in the applicable I-2 zoning classication.

[ZBA Conclusions #16.] The ZBA shared little to provide insight linking the facts

of record to its decision. This conclusion is clearly wrong. The Zoning Code

requires the zoning board to explain concisely the basis of its decision, and here,

it did not do so. See Zoning Code, 14-1807(3) (The record of the Board shall

concisely set forth the Boards nding of fact an cconlcusiions of law showing the

basis of the decision appealed from). In fact, the record compels a different

result.

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 modication possible. Id. Here, the only substantial evidence of

record supports ndings 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.

Angel Martinez met the standards for hardship.

23

Case ID: 150600690


25/32

Notwithstanding the Zoning Code requires it to consider the many factors

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 conict.

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 conict with a

special provision in the same ordinance, and the conict 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)).

Here, the zoning board impermissibly ignored the substantial record in

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 prole, the recycling facility will not be so broad as to

dominate the skyline and is consistent with surrounding uses. It is located on an

24

Case ID: 150600690


26/32

industrial property and in an industrial neighborhood, in a manner that will not

interfere with the heavy truck trafc in the neighborhood.

In view of that determination and in the absence of any competent

testimony, there is nothing on the record to conclude that a different placement

would have less of an impact. Therefore, the application calls for the minimum

variance that will afford appellant relief.

There is no adverse effect to the public interest.

Notwithstanding the absence of credible evidence, the zoning board

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 nding.

The use of private property is thoroughly protected by Article I, Sections 1

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

Case ID: 150600690


27/32

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 identied no public

interest in the record.

By enforcing the zoning classication of the adjacent church of RM1 where

the adjacent properties are industrial, City Counsel is presumed to have

determined that any ordinary effects of juxtaposition of the permitted uses is

satisfactory for zoning purposes. In addition, appellant demonstrated that the

facility creates no change in sound, no odors and no more noise than the adjacent

trash removal facility.

It is well settled that the generalized complaints of neighbors do not

amount to substantial evidence upon which an adjudicator may make a nding of

fact. See Ogden Fire Company No. 1 v. Upper Chichester Township, 504 F.3d 370,

389-393 (3rd Cir. 2007) (interpreting substantive evidence standard).

Hertzberg showed that, when it comes to dimensional variances, a

26

Case ID: 150600690


28/32

combination of factors, not susceptible to a particular formulas, will justify

variances.

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] specic detrimental

impacts to the neighborhood beyond that which normally might be

expected from the proposed use.

24. The specic impacts listed in Section 14-303(7)(e)(.2) are:

(.a) Congestion in the public streets or transportation systems;

(.b) Overcrowding the land;

(.c) Impairing an adequate supply of light and air to adjacent

property;

(.d) Burdening water, sewer, school, park, or other public facilities;

(.e) Impairing or permanently injuring the use of adjacent

conforming properties;

(.f) Endangering the public health or safety by re or other means;

or

(.g) Inconsistency with the Comprehensive Plan of the City.

Appellants evidence showed no detrimental impact on the neighborhood

and there is no evidence of any. There is no evidence of congestion caused by the

proposed special exception. Public transportation is available on 5th Street, 2

blocks away.

There is no evidence the land would be overcrowded. The Property is an

27

Case ID: 150600690


29/32

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.

Overcrowding is not expected as fewer than 20 workers are expected to

work onsite. Little effect is expected on public transportation. The adequate

supply of light and air would not be impacted as the former right of way is below

grade for most of the site. Adjacent unrelated properties are above this site. The

site has a gravel surface and the sole impervious surface is an accessory ofce

trailer.

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 ofce 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.

The proposed expansion proposes no height requirements so as create a

detrimental impact on the supply of light and air to adjacent property.

The surrounding neighborhood includes public services such as 3

churches, a homeless shelter and 2 drug treatment centers.

Despite objections, there has been no specic articulation how the adjacent

28

Case ID: 150600690


30/32

trash removal and dumpster service, or other uses would be injured by the

proposed economic development.

Scrap metal recycling imposes no risk of re or safety.

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,

Anthony Bernard Quinn Attorney for appellant Angel Martinez

29

Case ID: 150600690


31/32

Pa.R.C.P. #211 ORAL ARGUMENT DEMANDEDQuinn Law OfceBy: Anthony Bernard Quinn, Esquire

Attorney Reg. #26931Suite 520 The Bellevue

200 S. Broad StreetPhiladelphia Pa 19102Telephone #215-731-0340

Attorney for appellant



Angel Martinez, appellant : June Term 2015

v. : #00690

City of Philadelphia, and : Premises:Zoning Board of Adjustment : 532 W. Annsbury Streetof the City of Philadelphia appellees : ZBA Calendar #24548

CERTIFICATE OF SERVICE

I certify that service of the APPELLANTS BRIEF SUR ZONING APPEAL

FROM THE DECISION OF THE ZONING BOARD OF ADJUSTMENT and all

attachments was made this February 8, 2016 upon all persons entitled thereto or

to their attorneys of record by the civil electronic ling system. Such service

satises the requirements of Pa.R.C.P. ##205.4(g)(2)(ii) and 440.

_______________________ Anthony Bernard Quinn

1

Case ID: 150600690


32/32

2

zoning appeal - martinez briefs - court of common pleas

Documents