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  • Philadelphia has chosen to go the other way, and that's just plain unfortunate
    Dennis Maloomian went over his plans for a apartment complex on land now occupied by the vacant Connelly Containers plant stressing that actual residential apartments would be above the 100 year flood level but not necessarily above the 500 year flood level A 100 year flood level means there is a one in 100 chance of a flood that high occurring in any given year It is possible to have

    Original URL path: http://www.manayunkcouncil.org/VeniceIsland/rev-ed000817.html (2016-04-26)
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  • Adjustment Board rendered on August 11 2000 granting variances to Cotton Street Landing for the construction of a multi story 270 unit apartment building on the property located at 4320 4368 Main Street Philadelphia PA a k a Venice Island the briefs in support thereof and in opposition thereto oral argument held thereon and this Court finding that as the Board failed adequately to consider the risks to public safety

    Original URL path: http://www.manayunkcouncil.org/VeniceIsland/maloomian-over.txt (2016-04-26)
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  • Board rendered on August 11 2000 granting variances to Dranoff Properties for the construction of a multi story 160 unit apartment building on the property located at 4601 45 Flat Rock Road Philadelphia PA a k a Venice Island the briefs in support thereof and in opposition thereto oral argument held thereon and this Court finding that as the Board failed adequately to consider the risks to public safety posed

    Original URL path: http://www.manayunkcouncil.org/VeniceIsland/dranoff-over.txt (2016-04-26)
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  • Venice Island ZBA Testimony
    pages 107K December 22 1999 Maloomian 92 pages 136K March 13 2000 Dranoff 135 pages 195K March 13 2000 Maloomian 96 pages 142K June 12 2000 Dranoff and Maloomian combined this includes the hydrologists rescue and traffic 228 pages 374K

    Original URL path: http://www.manayunkcouncil.org/VeniceIsland/zba-testimony/index.html (2016-04-26)
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  • are listed in the National Register of Historic Places Over the years as several additions and buildings were added to the original complex the historical appearance of the property was lost In addition as the buildings 6 deteriorated from lack of repair the property s industrial complex has become a visual blight to the surrounding community 11 22 99 N T at 21 22 3 13 00 N T at 85 Applicant s Photographs 22 In an effort to revitalize subject property A Applicant proposes to demolish and remove approximately sixty percent 60 of the property s existing structures including the soap factory s old storage tanks Applicant further proposes to restore the remaining existing structures and to add to them one 1 six story addition one 1 two story addition and one 1 four story addition The restored structures and their proposed additions would be as a multifamily residential complex with accessory uses 11 22 99 N T at 10 and 24 25 and 27 28 Applicant s Site Plan 23 Applicant proposes that the residential complex would contain a total of 160 apartment units four 4 studios 103 one bedroom and 53 two bedroom Each apartment unit would be equipped with a garbage disposal 11 22 99 N T at 31 and 35 Applicant s Site Plan Application for Zoning and or Use Registration Permit No 991018058 24 Because the proposed residential development would be located within the Schuylkill River s floodway Applicant proposes a to locate all the apartment units fourteen 14 feet above ground b to erect the proposed additions on columns constructed to resist lateral forces from flood waters and spaced at intervals of thirty 30 to thirty five 35 feet and c not to use any of the existing buildings first floors for apartments 11 22 99 N T at 27 50 and 52 3 13 00 N T at 40 Applicant s Site Plan 25 The height of the proposed residential complex would vary Applicant proposes that the complex s facade facing Flat Rock Road would measure fifty eight 58 feet in height and the 7 facade facing Leverington Avenue would measure sixty five 65 feet in height Applicant s Site Plan 26 Applicant proposes that the residential complex would have a total gross floor area of 210 977 square feet which would equal 185 of subject property A s total area Applicant s Site Plan 27 Applicant proposes to locate the residential complex zero 0 feet from the centerline of Flat Rock Road which measures forty 40 feet in width and 11 4 from the centerline of Leverington Avenue which also measures forty 40 feet in width Applicant further proposes that the residential complex would extend one 1 foot beyond the rear lot line of subject property A Applicant s Site Plan 28 Applicant proposes to erect a pedestrian foot bridge at the second story level of the residential complex The proposed foot bridge would be used for the sole purpose of evacuating residents in case of an emergency It would extend from inside the walls of the proposed residential complex onto the public sidewalk located on the Leverington Avenue Bridge 11 22 99 N T at 38 39 and 54 Applicant s Site Plan 29 Applicant proposes to equip each building in the residential complex with an emergency alarm and speaker system Applicant further proposes to maintain on site an emergency evacuation plan to be located inside the manager s office A copy of the plan would be included with each resident s lease 3 13 00 N T at 89 Applicant s Site Plan 30 Applicant proposes to provide 160 parking spaces on subject property A In order to minimize the parking area on the property Applicant proposes to use stacked parking and to provide forty three 43 spaces which would measure eight 8 feet by sixteen 16 feet i e compact sized Seventeen 17 of the proposed compact sized spaces would be located at the 8 northwest comer of the property and would extend beyond the property line Applicant further proposes to provide five 5 handicapped accessible parking spaces on subject property A Each handicapped accessible space would measure 13 by 18 but would not be equipped with an access aisle All 160 parking spaces would be located at ground level within the 100 year floodplain of the Schuylkill River 11 22 99 N T at 30 3 1 Applicant s Site Plan 31 Applicant proposes to use a commercial service to remove trash from the residential complex twice a week 11 22 99 N T at 33 32 Currently subject property B is comprised of three 3 lots Applicant proposes to relocate the lot lines on the property and create one 1 lot from three 3 Application for Zoning and or Use Registration Permit No 991029016 33 Applicant proposes to use subject property B as a private parking lot which would be used as an additional parking area for the proposed residential complex to be located on subject property A The proposed lot would have a total of fifty four 54 parking spaces none of which would be handicapped accessible Applicant further proposes to erect an eight 8 feet high fence around the perimeter of the proposed lot Application for Zoning and or Use Registration Permit No 991029016 34 Jack Thrower a registered architect in the Commonwealth of Pennsylvania opined that Applicant s proposals for both subject property A and B would not only represent the highest and best use of the properties but would also be compatible with the surrounding uses In addition Mr Thrower opined that without extensive renovation and reconstruction as proposed by Applicant neither subject property had any economic value Curriculum Vitae 11 22 99 N T at 35 37 9 35 Elmore Boles a registered civil engineer in the Commonwealth of Pennsylvania opined that Applicant s proposals for subject property A and B would not cause a net rise in the floodwaters of the Schuylkill River and therefore Applicant s proposals would comply with all federal state and local regulations governing new construction in flood ways Mr Boles explained that Applicant s proposals would reduce the existing obstructions on the two 2 properties by thirty 30 percent As a result the resistance in the flow of water would be substantially reduced and the water level during a flood would actually be decreased by Applicant s proposals Mr Boles further opined that all of the proposed apartment units would be located fourteen 14 feet above the Schuylkill River s 100 year flood level which has been calculated to be thirty eight 38 feet Mr Boles used the data contained in the hydraulic study conducted by Dr John Weggle and the 1996 study of the Schulykill River conducted by the US Army Corps of Engineers to formulate his opinion 3 13 00 N T at 18 51 36 Dr John Weggle a hydraulic engineer conducted an hydraulic analysis of the Schuylkill River to determine what impact Applicant s proposed residential development would have on water levels during a 100 year flood on Venice Island Utilizing the data contained in the US Army Corps of Engineers report and adjusting it for subsequent developments along the river Dr Weggle opined that the proposed residential development would not only comply with FEMA s requirements by not causing an increase in the water levels during a 100 year flood but would also improve flood conditions as a result of removing obstructions from the island Letter and Hydraulic Analysis dated April 29 2000 Letter dated February 21 2000 to Elmore Boles Letter and Hydraulic Analysis dated January 31 2000 Hydraulic Analysis Report dated January 17 2000 Curriculum Vitae 3 13 00 N T at 58 79 10 37 Dr Sarah Willig a geologist opined that the natural configuration of the Schuylkill River and the human modifications made to the floodplain e g storm sewers and paved surfaces contribute to a dramatic rise in water levels along Venice Island as evidenced by the flooding that occurred on the island during Hurricane Floyd Dr Willig further opined that the proposed residential development would be subjected periodically to severe flooding and therefore opposed Applicant s proposals for subject property A and B 3 13 00 N T at 105 113 Curriculum Vitae Report prepared by Dr Sarah Willig 38 Joseph Skupien and Geoffrey Goll both hydraulic engineers opined that although the hydraulic analysis conducted by Dr John Weggle satisfied FEMA s requirement in calculating the impact the proposed residential development would have on a 100 year flood the report should have went a step further and considered the impact the proposed development would have on smaller type floods In addition Mr Skupien and Mr Goll opined that Dr Weggle should have factored the proposed columns as solid obstructions in calculating the impact on the water flow of the Schuykill River during a flood The Zoning Board notes that neither Mr Skupien or Mr Goll opined that Applicant s proposed development would definitely cause an increase in the water levels on Venice Island during any type of flood situation Report and Curriculum Vitae Exhibit P 1 6 12 00 N T at 17 53 39 Andreas Heinrich a traffic engineer opined that because Flat Rock Bridge has only two 2 lanes and is currently used by both the Arroyo Grill restaurant and the Smurfit Stone Container Company Applicant s proposals would have a negative impact on traffic conditions in the subject area In addition Mr Heinrich opined that Applicant should be required to provide a traffic impact study Curriculum Vitae Exhibit P 5 6 12 00 N T at 95 104 11 40 Wendy Lathrop a consultant in the area of floodplain regulations opined that the best use for a floodplain was to keep it as open space and to use it as a passive recreational purpose In addition Ms Lathrop explained that if a municipality failed to comply with the National Flood Insurance Program s technical requirements then the municipality would not be eligible for either flood insurance or flood disaster relief funds 6 12 00 N T at 134 144 Curriculum Vitae Exhibit P 7 Summary of 6 12 00 Testimony Exhibit P 8 Report on Flood Plains and Flood Plains Management Exhibit P 9 41 Stephen Miller a firefighter opined that people are less likely to evacuate from their place of residence than their place of employment Mr Miller further opined that in the future someone would drown on Venice Island if the proposed residential development were allowed 6 12 00 N T at 185 192 42 The Zoning Board has received and considered a report from Hal Schirmer a real estate agent in the Commonwealth of Pennsylvania in which he opined that Applicant s proposals would be the worst possible use of subject property A and B Curriculum Vitae and Report Exhibit P 14 43 The Zoning Board has received and considered two 2 letters from the Federal Emergency Management Agency FEMA In the letter dated February 8 2000 FEMA indicated that Dr Weggle s hydraulic report was incomplete because it failed to make reference to the floodway of the Schulykill River In the subsequent letter dated May 15 2000 FEMA indicated hat the proposed residential development would comply with the requisite floodway regulations set forth at Section 60 3 d of Title 44 of the Code of Federal Regulations FEMA further indicated however that the letter was not meant to be an approval of the proposed 12 project and that all other federal state and local floodplain regulations would still be adhered to Letter from Erik Rourke Letter from Thomas Majusiak Exhibit P 3 44 The Zoning Board has received and considered a letter to the Honorable John S Street Mayor of the City of Philadelphia from James Witt Director of FEMA In his letter Mr Witt expressed his concern over the proposal to construct a residential development within the floodway of the Schuylkill River and cautioned that the City s continued eligibility for the National Flood Insurance Program could be jeopardized if the proposed development is deemed unsound by federal standards Letter dated June 9 2000 Exhibit P 4 45 The Zoning Board has received and considered letters from community representatives and organizations in opposition to Applicant s proposals In general the protestants opposed Applicant s proposal to build a residential development in the floodway of the Schuylkill River Letter dated March 13 2000 from Councilman At Large Frank Rizzo Letter dated November 22 1999 from Councilman Michael Nutter 11 22 99 N T at 13 17 Letters dated November 17 1999 and November 21 1999 from Manayunk Neighborhood Council Letter dated March 13 2 000 from 21st Ward Community Council Inc Letter dated November 19 1999 from Philadelphia Canoe Club Letter dated November 20 1999 from Umbria Street Neighbors Association Letter dated March 8 2000 from Wissahickon Neighbors Civic Association Letter dated January 13 2000 from Smurfit Stone 46 The Zoning Board has received and considered a petition signed by residents of the subject area who oppose Applicant s proposals Petition of Opposition 47 The Zoning Board has received and considered letters from community residents and organizations in support of Applicant s proposals Letter dated November 12 1999 from 13 Manayunk Development Corporation Letter dated November 19 1999 from Central Manayunk Council Letters from Ed Weiner 48 The City of Philadelphia Planning Commission opined that due to the change in the zoning designation for subject property A and B the only issue for the Zoning Board to determine was whether or not Applicant s proposals would result in any increase in the flood levels of the Schuylkill River The Commission further opined that if Applicant s hydrological study were approved by FEMA then Applicant would be entitled as a matter of right to the requested permits because Applicant s proposals were a lawful expansion of a nonconforming use and or building 6 12 00 N T at 220 Letter dated March 13 2000 from Barbara Kaplan CONCLUSIONS OF LAW 1 The City of Philadelphia Zoning Code Zoning Code at Section 14 1606 sets forth the special restrictions and regulations that apply to floodplains and floodways Both subject property A and subject property B are located not only within the 100 year floodplain of the Schuylkill River but also its floodway Therefore the Zoning Board shall apply Section 14 1606 to Applicant s proposals for both subject A and B 2 The Zoning Board rejects the Planning Commission s assertion that Section 14 1606 of the Zoning Code does not apply to Applicant s proposals The Board agrees that subject property A and B were both in use prior to the enactment of the Code s special controls regulating floodplains and or floodways and therefore Applicant s use of both properties would be 14 permitted as a nonconforming use However the prior uses of both properties were industrial and it is only such uses which would be permitted to continue as nonconforming In other words if Applicant were requesting to use subject property A or B for an industrial purpose such a request would be permitted as a nonconforming use and the Code s special controls regulating floodplains and or floodways would not apply But when Ordinance 990762 was enacted changing the zoning designation of both properties to RC 1 Residential both properties nonconforming status was discontinued As a result Applicant s proposals for both properties must comply with Section 14 1606 of the Zoning Code 3 The Zoning Code sets forth that no encroachment including any development or new construction is permitted within the floodway of the Schuylkill River Section 14 1606 5 a Subject property A and B are located within the floodway of the Schuylkill River Applicant proposes to erect encroachments on both subject properties Applicant proposes to erect on subject property A a multifamily residential complex and to erect on subject property B a private parking lot Therefore Applicant s proposals for both subject properties do not conform to this floodway regulation 4 The Zoning Code does not permit a property zoned as RC 1 Residential to be used as a private parking lot Section 14 221 2 Pursuant to Ordinance 990762 subject property B is zoned RC 1 Residential Applicant proposes to use the property as a private parking lot Therefore Applicant s proposal does not conform to this use regulation 5 The Zoning Code mandates that for a property zoned as RC 1 Residential the maximum height of a fence shall be 3 6 for the front of the property and six 6 feet for the sides and rear Sections 14 231 4 a 1 and 2 Pursuant to Ordinance 990762 subject property B is zoned RC 1 Residential Applicant proposes to erect around the perimeter of the property a 15 fence that would measure eight 8 feet in height Therefore Applicant s proposal does not conform to this area regulation 6 The Zoning Code mandates that for any parking lot providing between 51 to 75 spaces three 3 handicapped accessible parking spaces shall be provided Section 14 1401 3 Applicant proposes to erect on subject property B a private parking lot which would provide fifty four 54 spaces none of which would be handicapped accessible Therefore Applicant s proposal does not conform to this parking regulation 7 The Zoning Code mandates that the gross floor area for a property zoned as RC 1 Residential shall not exceed 150 of lot s entire area Section 14 221 3 d Pursuant to Ordinance 990762 subject property A is zoned RC 1 Residential Applicant is proposing a total gross floor area that would equal 185 of subject property A s entire area 210 977 sq ft total proposed area 113 642 sq ft subject property A s area 185 Therefore Applicant s proposal does not conform to this area regulation 8 The Zoning Code

    Original URL path: http://www.manayunkcouncil.org/VeniceIsland/dranoff-fof.txt (2016-04-26)
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  • designated mapped and approved flood way of the Schuylkill River it was necessary to show that the proposed construction would not result in any increase in flood levels during the Regulatory Flood º 14 1802 3 a Despite the rigorous mandates of the Code with regard to variances and the grave significance of this decision the Board inexplicably curtailed the presentations of the protestants throughout the proceedings These limitations placed upon the protestants caused the record to be incomplete and require this court to take additional evidence to complete the record or in the alternative to remand the decision back to the Board to allow for a complete record to be established 1 THE BOARD LIMITED TESTIMONY TO THE INCREASE IN FLOOD LEVELS The record was incomplete from the very beginning because the Board arbitrarily limited testimony to the issue of whether the 100 year flood level would increase N T March 13 2000 at 4 8 10 This decision limited testimony on all other indispensable issues including included the nature and the extent of environmental impact of the proposed construction on the river the ability for emergency evacuation in the event of a flood the burden of additional traffic created by the new residences the effect of increased population density on the provision emergency services to the island and the adverse effect on the public welfare by the proposed construction This decision also caused some of petitioner s expert to be limited to testimony as fact witnesses because they were not experts in hydrology although each was an expert in the field that the protestants sought their testimony in N T March 13 2000 at 107 8 2 THE PROTESTANTS WERE DENIED ACCESS TO INPUT DATA The appellants were denied access to the data which the intervenor based its studies on to show there would be no net rise in the 100 year flood as a result of this project Despite requests that it be provided the appellants were never given access to that data N T June 12 2000 at 16 47 55 The Applicants then exploited the lack of access to that data in an attempt to discredit the protestants experts N T June 12 2000 at 47 55 In order to properly analyze the data 5 submitted by the applicants it was necessary for the protestants to be given access to the input data To deny the protestants access to this data denies the protestants their due process right to a fair hearing It is therefore necessary to take additional evidence by allowing protestants experts access to the input data used in applicant s hydrological model and analysis and then grant protestants experts the opportunity to present their findings Further the data is needed because the effects of this project on the public welfare include not only the effect of a 100 year regulatory flood but also smaller more frequent floods which can act differently from the 100 year regulatory flood N T June 12 2000

    Original URL path: http://www.manayunkcouncil.org/VeniceIsland/dranoff-remand.txt (2016-04-26)
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  • no reasonable finding of unnecessary hardship Patullo 701 A 2d at 298 Their argument really was that residential was the best possible use N T 3 13 33 at 85 Even if this was true which as explained below it clearly is not this is irrelevant to the granting of a variance Teazers Inc v Zoning Bd of Adjustment of City of Philadelphia 682 A 2d 856 859 Pa Cmwlth 1996 The law is clear that an owner is not entitled to the best use or the most profitable use as long as there is some use that may be put to the property there is no right to a variance Id Teazers is directly on point to this case because in Teazers the Commonwealth Court found that an adult cabaret owner was not entitled to a variance because in its own evidence the 14 applicant showed that the property had previously been used in conformance with the code and admitted that without the variance the property may be able to be used in compliance Teazers 682 A 2d at 859 Here Mr Dranoff admitted that this property could be used for any number of industrial uses N T 3 13 00 at 85 It was further shown that the property had been in use as a permitted use for well over a year after Dranoff submitted their first plan on this project N T 3 13 00 at 87 The only difficulty Dranoff has shown is that they are not able to exploit what they term the best use of the property However such economic hardship is insufficient to establish unnecessary hardship justifying a grant of variance Teazers 682 A 2d at 859 Further all of the evidence that was presented by Dranoff was purely speculative and did not show that the properties could not have been used for a permitted purpose Without such evidence hardship cannot be established and the variance must be denied Earl Scheib 301 A 2d at 426 The evidence of hardship that Dranoff offered and the Board relied upon was limited to Dranoff s architect stating that the property had deteriorated that it could not be used without substantial renovation and that the applicant s proposals would represent the highest and best use for the properties N T 15 11 22 99 at 35 37 Dranoff offered no proof that any of the owners had even attempted to sell or lease the property for a use that would not require a variance or that rehabilitation was not feasible Moreover the deterioration is self imposed In fact there was evidence presented that the property immediately east of the Dranoff property is currently being used as a large industrial use N T 11 22 99 at 34 Dranoff s property too could be used for an industrial use without a variance Finally the application itself proves that the property could have been used for industrial purposes because the property was in use for the manufacture of soap products until just six months before the first hearing on the appeal were held N T Nov 22 1999 at 7 29 It is truly disingenuous for the applicants to argue that this property was and is unable to be used as an industrial property because the record clearly shows that they submitted their first plan for residential use of this property in the early spring of 1998 N T 3 13 00 at 87 The soap factory did not close until May of 1999 With the amount of time and effort that goes into a real estate transaction of this size and preparing a presentation for development it is clear that this property was used for a permitted industrial use for well over a year after the applicants decided to change that use One must conclude that it is likely the property would still be 16 in use today as an industrial use if the applicants had not decided to close the factory so they could build apartments The Board made no finding on this issue The Board committed an error of law by granting the variance when Dranoff did not show any relevant hardship B THERE IS NO UNIQUE PHYSICAL CHARACTERISTIC OF THE PROPERTY CAUSING A HARDSHIP To establish the right to a variance the property owner must demonstrate that unique physical circumstances and conditions exist that are particular to the property and that those conditions create an unnecessary hardship Young v Pistorio 715 A 2d 1230 Comm 1998 Here Dranoff seems to allege that the property is burdened by an unnecessary hardship because the island is no longer suited for industrial use Even if this were true which as shown above it is not this alleged hardship is inadequate To establish the physical circumstances of a property justifying a grant of a variance however the owner must demonstrate that such circumstances are unique or peculiar to the property in question and not a condition common to the neighborhood or zoning district Patullo 701 A 2d at 300 There was nothing on the record to show that this property in particular was unable to be used for industrial use because of its unique physical characteristics Elmer Boles the project 17 engineer testified that the building could not be reused as an industrial use but gave no evidence to support that conclusion Further Mr Boles testimony was clouded by the fact that he is contracted to perform all of the site engineering for the project N T 3 13 00 at 16 He therefore lacks credibility because if this project is not approved he loses his contract Id Jack Thrower the architect who has been hired to design the project testified that the property had no utility value without extensive renovation and reconstruction N T 11 22 99 at 37 He went on to baldly conclude that it had no value as zoned Id Mr Thrower s involvement with the project also calls into question his credibility Regardless of such consideration he also gave no evidence to support his bald conclusion Further his testimony also clearly states that the property will require extensive renovation and reconstruction for residential use as well as for industrial use In fact any project including the residential one here proposed will necessitate extensive renovation and reconstruction Thus there is no unnecessary hardship The owners have simply failed to maintain their property and now must rehabilitate that property to use it This is not a hardship just a necessary business investment The Board only baldly concluded that the hardships are the 18 result of the physical conditions of the subject properties Conclusions of Law 19 This is not a fact finding Because Dranoff failed to satisfy its duty to provide substantial evidence or any relevant evidence for that matter that the property was burdened by a unique physical hardship and the Board made no fact findings the Board committed an abuse of discretion by authorizing the variance C EVEN WERE THERE SOME PHYSICAL HARDSHIP THAT HARDSHIP WAS SELF CREATED Even if the Board were correct in finding the property was burdened by a hardship which is legally erroneous as explained above such conditions are the product of the Appellees own design To establish the right to a variance the property owner must show that the hardship complained of is not self created Young 715 A 2d at 1233 Here all hardships complained of are self created Any inability to use the property as zoned would be the result of Dranoff closing the existing use while concurrently lobbying City Council to rezone the island Mr Dranoff himself stated that he had advocated for residential rezoning of this property N T 3 13 00 at 85 He further stated that had the site not been rezoned it could have been used for any number of industrial or commercial uses N T 3 13 00 at 85 Dranoff also alleges that the delapidated condition of the 19 buildings is a hardship on the property However such condition is the direct result of the neglect of the owner Moreover a variance will not be granted to the applicant where he knew of the existing zoning regulations and the problems bringing about the hardship or should have known them at the time he purchased the property Ottaviano v Zoning Bd of Adjustment of Philadelphia 31 Pa Cmwlth 366 376 A 2d 286 287 Pa Cmwlth 1977 In Ottaviano the homeowner alleged that the size of his kitchen made the kitchen dangerous to cook in and therefor created a hardship necessitating the erection of an addition on to the back of his house Id The Commonwealth Court held that the homeowner was not entitled to a variance and should have known of this condition at the time he bought the property Id Here the problem is the same Dranoff knew or should have know the property was delapidated Even if the conditions are the result of the actions of the prior owner the hardship is still self created and cannot support a variance Camaron Apartments Inc v Zoning Board of Adjustment of City of Philadelphia 14 Pa Cmwlth 571 324 A 2d 805 807 Pa Cmwlth 1974 It cannot be allowed that whenever an owner allows their building to deteriorate they then have the ability to break the zoning This would render the zoning ordinance meaningless and encourage neglect as a means of obtaining a variance 20 This property was working as an industrial property until more than a year after Dranoff first submitted his plans for residential development The existing industrial use was closed by his plans to redevelop the site into a residential use Any hardship that results was entirely created by Dranoff Further Dranoff knew of the zoning and the floodway problems when he bought the property Even if he did not the law holds that a property owner is duty bound to check a property s zoning status and that the failure to do so when accompanied by a resulting lack of knowledge will not be sufficient for the issuance of a variance Center City Residents Association v Zoning Bd of Adjustment of City of Philadelphia 144 Pa Cmwlth 545 601 A 2d 1328 1330 Pa Cmwlth 1992 Finally the hardship alleged for the parking lot stems from the decision of Dranoff to include 162 units in his development If Dranoff were to reduce the number of units he would not be subject to any alleged hardship Thus this alleged hardship is entirely self created in that the need for reduced sizes of spaces and additional spaces is only necessary because of the number of units Dranoff wants to build Without any support the Board concluded that the hardships presented are not self imposed by the Applicant Conclusions of 21 Law 19 Because all hardship that Dranoff alleges are entirely self created it was an error of law and abuse of discretion for the Board to grant the variances D GRANTING THE VARIANCE SUBSTANTIALLY HARMS THE PUBLIC HEALTH SAFETY AND WELFARE Even if a landowner can demonstrate that an unnecessary hardship exists and that the hardship was not self created the variance must be denied if granting the variance would be detrimental to the public interest Hohl 736 A 2d at 59 Here the evidence was overwhelming that this project would be detrimental to the public interest There was a great deal of evidence that this project would be injurious to the public welfare even though the Board was clearly intent on limiting the evidence presented by the protestants Dranoff offered as proof that this project would not hurt the public interest only that the project would decrease the obstructions in the floodway This was the sole basis the Board gave in support of its conclusion that the variance ould not be detrimental to the public interest Conclusion of Law 21 The Board relied on this argument in error as Dranoff s own witness admitted that the water level changes by the proposed development are very very negligible The changes are so small as to be almost imperceptible in the models N T 3 13 00 at 65 22 In contrast as shown below the harms inflicted upon the public welfare by this project will be multiple and extreme Accordingly it was an abuse of discretion for the Board to grant this variance by ignoring the overwhelming evidence which demonstrated that it would be detrimental to the public interest 1 Technical Compliance with FEMA Standards Does Not Mean this Project Is Sound 14 1802 3 a places the additional requirement on variances from the floodway Ordinance that the applicant must show no rise in the regulatory flood Dr Waggle presented a model that demonstrated that the project would result in an almost unmeasurable decrease in the 100 year flood N T 3 13 00 at 65 The models submitted by Dr Waggle were technically approved by FEMA as complying with the minimum standards established in their regulations Letter of May 15 The Board relied heavily on the model and the May 15 letter from FEMA in approving the project Such reliance was inappropriate however as this letter went on to expressly warn that the letter was not meant as an approval of the project and that this development was contradictory to the mission of FEMA to reduce the loss of life and property associated with natural and man made disasters Id That language should have alerted the Board to the dangers inherent in this project However Dranoff argued that as long as the minimum regulatory standards were met 23 the project should be allowed and the Board agreed Instead the Board should have refused to grant the variance because the variance was shown to harm the public health safety and welfare The evidence showed that reliance on the minimum standards of the FEMA regulations as reflected in FEMA s own caviat was ill advised Dr Willig noted that historically every time that there are floods Manayunk is severely hit N T 3 13 00 at 110 In fact during the most recent 50 year flood Main Street and River Road were so deeply flooded they had to be evacuated and guarded against looting N T 3 13 00 at 111 Both of these regions are in Manayunk at a higher elevation that Venice Island In fact even Dranoff s hydrologist Dr Waggle admitted that his calculations were designed to satisfy the regulations N T 3 13 00 at 72 He stated that if he were trying to design the project he would have included the cars in the parking lot in his design to calculate flood resistance but because he was trying to do a determination to satisfy the regulations he did not include the cars N T 3 13 00 at 72 He further admitted that he had never been involved with a project that called for development in the floodway before N T 3 13 00 at 56 The Board did not make any finding regarding these issues Dr Waggle also said that determination of whether changing 24 use from industrial to residential is proper is not covered by regulations and is the job of Board N T 3 13 00 at 73 On this he was correct and the Board abused their discretion by relying on FEMA s reluctant compliance letter rather than finding according to the overwhelming weight of the evidence The Appellants hydrologists Joseph Skupien and Geoffrey Goll warned the Board that the calculations advanced by Dranoff were misleading because they calculated the piers that supported the structures as small separate entities when in reality during a flood the piers below the buildings will be clogged with debris and cars and will act as a solid wall not as modeled in Dranoff s application N T 6 12 00 at 7 The appellants hydrologists also warned that the Board should have required the development to be modeled for additional lesser floods to see the effect on those floods N T 6 12 00 at 18 He even would have done the calculations himself but he was denied access to Dranoff s input data N T 6 12 00 at 52 While the 100 year flood may not be affected by the development smaller floods may be made worse Also the piers will be subject not only to pressure of water and debris but struck by items floating down river and damaged N T 6 12 00 at 29 Tractor Trailers were literally floating away during Floyd only a 25 year flood N T 6 12 00 25 at 29 This could cause the considerable damage to the buildings making them dangerous to live in and delaying return after any evacuation Moreover the standard used by the Board ignores other more long term effects of flooding After the immediate danger recedes the dampness caused by a flooded building can cause health risks from molds that build up inside the walls after a flood N T 6 12 00 at 33 Further the risks associated with flooding are increased by placing residences in the floodway instead of industry because the management of a business can tell people to leave if floods occur during working hours and businesses will already be closed when floods occur during the night N T 6 12 00 at 36 Residents on the other hand will be reluctant to leave their homes may not even know of the flood or may be asleep N T 6 12 00 at 36 Finally the state and federal governments have been spending millions of dollars not in trying to lower flood waters but to move people out of the flood plains through buyouts N T 6 12 00 at 46 New Jersey alone spent 16 Million on buyouts after Floyd Allowing Dranoff to build in the floodway not just a flood plain is not sound planning or management N T 6 12

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  • variance Curriculum Vitae Exhibit A 1 12 22 99 N T at 14 25 and 46 21 Elmore Boles an expert civil and transportation engineer opined that Applicant s proposals for the subject property including the proposed 270 apartment units would not substantially increase traffic congestion in the subject area In addition Mr Boles opined that because Applicant s proposals would reduce the obstructions existing on the subject property the resistance in the flow of water would be substantially reduced and the water level during a flood would actually be decreased by Applicant s proposals 12 22 99 N T at 53 and 67 3 13 00 N T at 7 8 9 20 00 N T at 9 10 Curriculum Vitae Exhibit A 3 Traffic Analysis of Manayunk Exhibit A 4 Traffic Impact Study Exhibit A 5 Traffic Impact Study Exhibit A 14 22 Dennis Glackin an expert land planner opined that Applicant s proposals for the subject property would generate 1 700 000 00 in revenues and would cost in services only 845 000 00 resulting in a generous annual surplus for the City of Philadelphia In addition 6 Applicant s proposals would annually raise an additional 756 000 00 in school district revenues Curriculum Vitae Exhibit A 10 Fiscal impact Statement Exhibit A 11 3 13 00 N T at 23 23 Kevin Smith a representative for the Manayunk Neighborhood Council testified in opposition to Applicant s proposals Mr Smith opined that Applicant s proposals wood increase traffic congestion in the subject area and would have a negative impact on the Smurfit Stone Container Corporation a large industrial complex located at the east end of Venice Island The Zoning Board notes that Mr Smith was not qualified as an expert witness 3 13 00 N T at 38 53 24 Robin Mann a representative of the Sierra Club testified in opposition to Applicant s proposals and explained that her association has a policy against residential developments being located in a floodway 3 13 00 N T at 56 63 25 Councilman Michael Nutter opined that the Zoning Board should impose the requirements set forth in Ordinance Nos 990670 and 990671 which had been enacted by City Council as part of its comprehensive plan for redevelopment on Venice Island to prevent uncontrolled growth and overdevelopment 3 13 00 N T at 67 73 Letter dated March 13 2000 26 Darlene Messina a representative for the Friends of Manayunk Council testified in opposition to Applicant s proposals Ms Messina opined that Applicant s proposals would increase local flooding and would not represent the best management practice for storm water run off The Zoning Board notes that Ms Messina was not qualified as an expert witness 3 13 00 N T at 74 80 27 Joseph Skupien and Geoffrey Goll both hydraulic engineers opined that although the hydraulic analysis conducted by Dr John Weggle satisfied FEMA s requirement in calculating the 7 impact the proposed residential development would have on a 100 year flood the report should have went a step further and considered the impact the proposed development would have on smaller type floods The Zoning Board notes that neither Mr Skupien or Mr Goll opined that Applicant s proposed development would definitely cause an increase in the water levels on Venice Island during any type of flood situation Report and Curriculum Vitae Exhibit P 1 6 12 00 N T at 17 53 28 Andreas Heinrich a traffic engineer opined that Applicant s proposals would have a negative impact on traffic conditions in the subject area Curriculum Vitae Exhibit P 5 6 12 00 N T at 95 104 29 Wendy Lathrop a consultant in the area of floodplain regulations opined that the best use for a floodplain was to keep it as open space and to use it as a passive recreational purpose In addition Ms Lathrop explained that if a municipality failed to comply with the National Flood Insurance Programs technical requirements then the municipality would not be eligible for either flood insurance or flood disaster relief funds 6 12 00 N T at 134 144 Curriculum Vitae Exhibit P 7 Summary of 6 12 00 Testimony Exhibit P 8 Report on Flood Plains and Flood Plains Management Exhibit P 9 30 Stephen Miller a firefighter opined that people are less likely to evacuate from their place of residence than their place of employment Mr Miller further opined that in the future someone would drown on Venice Island if the proposed residential development were allowed 6 12 00 N T at 185192 31 The Zoning Board has received and considered a report from Hal Schimier a real estate agent in the Commonwealth of Pennsylvania in which he opined that Applicant s proposals 8 would be the worst possible use of the subject property Curriculum Vitae and Report Exhibit P 14 32 The Zoning Board has received and considered from Dr John Richard Weggle an expert hydraulic engineer a flood hazard analysis to determine what impact Applicant s proposals would have on water Levels of the Schuylkill River during a 100 year flood Utilizing the data provided by the US Army Corps of Engineers and adjusting it for subsequent developments along the Schuylkill River Dr Weggle opined that the proposed residential development would not only comply with FEMA s requirements by not causing an increase in the water levels during a 100 year flood but would also improve flood conditions as a result of removing obstructions from Venice Island Flood Hazard Analysis dated January 17 2000 Exhibit A 6 Letter dated January 31 2000 to Elmore Boles Exhibit A 7 Letter stamped February 8 2000 from Erik Rourke Exhibit A 8 Letter and Addendum to Flood Hazard Analysis dated February 24 2000 Exhibit A 9 Curriculum Vitae 33 The Zoning Board has received and considered a letter from the Federal Emergency Management Agency FEMA indicating that the proposed residential development would comply with the requisite floodway regulations

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