Metal Green Inc. v. City of Phila.

237 A.3d 604

METAL GREEN INC. and NOA Properties Inc.

v.CITY OF PHILADELPHIA and City of Philadelphia Zoning Board of Adjustment and Wickham Kraemer III and Mary Kraemer, husband and wife

Appeal of: Wickham Kraemer III and Mary Kraemer

No. 373 C.D. 2019

Commonwealth Court of Pennsylvania.

Argued June 9, 2020

Decided July 28, 2020

Sean P. Whalen, Ardmore, for Appellants.

Stephen G. Pollock, Philadelphia, for Appellee Metal Green, Inc.

BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE J. ANDREW CROMPTON, Judge

OPINION BY JUDGE BROBSON

Wickham Kraemer III and Mary Kraemer (Appellants) appeal from an order of the Court of Common Pleas of Philadelphia County (common pleas), dated February 25, 2019. Common pleas reversed the decision of the Zoning Board of Adjustment of the City of Philadelphia (Board), which denied the application of Metal Green Inc. (Owner)¹ for a use variance. For the reasons discussed below, we reverse common pleas' order.

I. BACKGROUND

This matter concerns Owner's property at 6800 Quincy Street in the City of Philadelphia (Property). The Property consists of roughly one-third of an acre (14,222 square feet) and contains a two-story industrial building of approximately 23,000 square feet (Building), which has been unused for many years. Owner purchased the Property at a sheriff's sale in 2013 and did not immediately begin work on the Building. In August of 2016, Mt. Airy USA, a local nonprofit, initiated legal action against Owner concerning the Property pursuant to the Abandoned and Blighted Property Conservatorship Act,² commonly known as Act 135. In the Act 135 proceedings, common pleas declared the Property to be blighted and abandoned and ordered Owner to remediate the hazards the Property posed to the community. Although it has the authority to order demolition pursuant to Section 6(c) of Act 135, 68 P.S. § 1106(c), common pleas allowed Owner to make repairs to the Building and to pursue redevelopment of the Property.

The Property is located in the City's residential two-family attached zoning district (RTA-1 district), which, under the Philadelphia Zoning Code (Code), permits duplex residences as of right. Owner, together with NOA Properties,³ the equitable owner of the Property at that time, decided to pursue redevelopment of the Building as an 18-unit apartment complex with 19 indoor parking spaces.⁴ NOA Properties applied for the required building permit with the City's Department of Licenses and Inspections (L&I), but L&I denied the permit application because the proposed multifamily use is not permitted in the RTA-1 district. NOA Properties then appealed L&I's decision to the Board, seeking a use variance to allow conversion of the Building into an 18-unit apartment building with 19 indoor parking spaces. The Board scheduled a hearing on the variance request.

At the hearing on September 19, 2017, Owner first presented the testimony of David Polatnick, a licensed architect employed by Owner. Mr. Polatnick described Owner's proposed conversion of the Building into apartment units and indoor parking spaces, which, he emphasized, would occur without modification to the existing dimensions of the Building. He testified that, unless the Building is demolished, the Property cannot comply with the RTA-1 district's open space and setback requirements. He also explained that, because of the Property's limited street frontage, Owner could not construct any more than one single-family home on the Property in a manner that complies with the Code. Mr. Polatnick added that, in his professional opinion, Owner's proposal would increase the safety of the Property and its surroundings by incorporating updated fire suppression and structural components into the Building. On cross-examination, Mr. Polatnick admitted that nothing would prevent Owner from demolishing the Building.

Owner then presented the testimony of Andrew Miller, Esq., the attorney then representing Owner in the Act 135 proceeding concerning the Property. Mr. Miller testified that, following common pleas' determination that the Property was blighted, Owner undertook repairs to the roof and one wall of the Building. Mr. Miller also explained that a hearing was scheduled for that same day before common pleas regarding the status of Owner's blight remediation efforts.

Owner next presented the testimony of George Ritter, a licensed landscape architect and professional planner. Owner employed Mr. Ritter to evaluate the characteristics of the neighborhood surrounding the Property and opine as to how Owner's proposal would fit into those characteristics. Mr. Ritter described the immediate neighborhood as consisting of single-family detached homes, semi-detached homes, multistory apartment buildings, and commercial uses, which are spread across a variety of residential zoning districts ranging from RSD-3 (detached single family) to RM-3 (multifamily). Mr. Ritter explained that, of the nine nearby duplex homes within the RTA-1 district, seven have been converted (through variance relief) into multifamily structures with up to six units in one building.

Mr. Ritter further testified that, based upon his review of property records and field observations in the neighborhood, the nearby properties in the RTA-1 district include a total of 40 dwelling units, equivalent to an average density of 62 units per acre of property area. He also stated that the adjacent multistory apartment buildings—which are located in a multifamily district permitting greater density—average a density of 143 units per acre. Mr. Ritter opined that Owner's proposed use of the Property would have a density of about 55 units per acre—a lower density than both the adjacent multistory apartments and the other properties located in the RTA-1 district. He also observed that all of the other properties in the RTA-1 district rely on street parking only, whereas Owner's proposal will provide additional parking in compliance with the Code's requirements.

Concerning compatibility with the neighborhood, Mr. Ritter emphasized that the renovations required for Owner's proposal would be principally internal to the Building and that the dwelling units themselves would be located on the second floor of the Building with no ground-level view into the rear yards of adjacent properties. When asked whether Owner's proposal would "change ... the essential character of [the] neighborhood," Mr. Ritter responded that, in his opinion, Owner's proposal "could only improve the character of the neighborhood" and "would actually help ... the value of the neighborhood, as compared to where it was headed." (Reproduced Record (R.R.) at 99a.) He further opined that, because the Building already exists as a nonconforming use, the proposed renovation would (as opposed to demolition) "have no detrimental effect" on the immediate area. (Id. at 101a.)

Mr. Ritter further testified that, because of the size of the adjacent multistory buildings, a single-family home constructed in the Building's place would be "difficult" to market. (Id. at 102a.) When asked whether he thought Owner's proposal of 18 units "rang[ing] from 800 to 1,000 [square] feet" would be an "overuse of the [P]roperty," Mr. Ritter responded, "I do not." (Id. at 106a.) Mr. Ritter concluded with his opinion that Owner's proposal is "a very good adaptive reuse of [the B]uilding" which is "appropriate for the neighborhood," will not change the character of the neighborhood, and "will bring [the B]uilding back ... [as] a usable, functional structure in the community." (Id. at 107a.)

On cross-examination, Mr. Ritter admitted that, in reviewing potential plans for redeveloping the Property, he did not consider alternatives to Owner's proposal other than demolition and construction of single-family homes. When asked whether "18 units is not necessarily the ... least minimum variance required for [the P]roperty," Mr. Ritter answered: "I believe this is the least that should be considered, given ... that the [Building] is there and ... it's being renovated." (Id. at 121a.)

After Mr. Ritter's testimony, Ralph Pinkus, chairman of the West Mount Airy Neighbors Zoning Committee (a registered community organization, or RCO, in the area), testified. Mr. Pinkus summarized the contents of the letter that the RCO sent to the Board in opposition to Owner's proposal. He described a meeting of the RCO that was held on September 6, 2017, at which all 21 people in attendance voted to oppose Owner's proposal. Mr. Pinkus shared the RCO's belief that "this proposal will ... result in overcrowding in the neighborhood" and that Owner has made no effort to discuss RCO members' objections to the proposal. (Id. at 126a-27a.)

Owner then continued to present evidence, calling Frank Montgomery, a licensed professional traffic operations engineer who conducted a transportation study of the Property and its surroundings. Mr. Montgomery testified that the surrounding intersections have "significant capacity" to absorb the additional trips that would result from Owner's proposal and that the proposal would not "present[ ] a challenge or a stress on the local road." (Id. at 136a-38a.) He also gave his opinion that the parking impact of Owner's proposal was significantly reduced by the interior parking to be available to residents. Mr. Montgomery summarized his testimony by stating that, in his opinion, Owner's proposal would not negatively affect transportation in the area and any traffic impacts would not alter the essential character of the neighborhood.

Owner next presented the testimony of its president, Jack Azran. Mr. Azran described Owner's purchase of the Property and its efforts to remediate hazards pursuant to the Act 135 proceeding. He also described prior owners' attempts to secure variance relief for the Property. Mr. Azran gave his opinion, as an experienced builder, that the Building is too large to be used as a single- or dual-family dwelling.

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