Zoning Permit Construction of Larger Mixed-Use Structure Special Exception for Parking Garage Application of Pending Zoning Ordinance
Dowds v. Zoning Bd. of Adjustment, PICS Case No. 17-1114 (Pa. Commw. June 27, 2017) Colins, J. (13 pages).
Pending ordinance doctrine did not apply to zoning application where examiner testified application was complete prior to favorable reporting of proposed zoning ordinance out of the city council, the point at which, under the city's zoning ordinance, the proposed ordinance was deemed "pending." Order of the trial court affirmed.
Lynn Dowds appealed the order of the trial court that granted in part and denied in part her appeal of the decision of the zoning board of adjustment of the city of Philadelphia. Appeal arose from an application filed by property owners George and Catherine Twardy for a zoning/use permit to demolish an existing two-story structure used as a law office and to construct a six-story mixed-use building with an interior parking garage on the ground floor. While the structure, its mixed-use, and the number of parking spaces were permitted as of right, the city determined the garage required a special exemption, which owners applied for; the city also refused owners' proposed curb cut.
At a hearing for owners' special exception request, appellant appeared with a number of neighbors to oppose owners' request, arguing that owners' proposed development would cause increased traffic congestion and an inadequate supply of light and air to adjacent properties. Owners presented a revised site plan showing an approved curb cut. The board voted to approve the special exception, finding that, given the property's existing use as a parking lot and the low number of vehicles the proposed garage would accommodate, there would not be increased traffic congestion, nor would the garage itself impact light and air for adjacent properties. At a second hearing, the board concluded that the city's proposed change to the property's zoning classification was inapplicable to owners' application under the pending ordinance doctrine, since it was submitted complete prior to the city's proposal of the change, as any revision to the application after that date were insubstantial.
Appellant appealed to the trial court, which denied the appeal, agreeing that the pending ordinance doctrine was inapplicable. The trial court further concluded that because the special exception was for an open-air parking garage only, the six-story building itself was not at issue when considering the effects of the special exception on light, air, and traffic congestion. The trial court held that owners had presented sufficient evidence that the proposed garage would not affect the supply of air and light, or cause traffic congestion beyond that expected from the proposed use.