A. Jordan Rushie.

Jordan@FishtownLaw.com
Pa. Id. 209066
Mulvihill & Rushie LLC
2424 East York Street Suite 316
Philadelphia, PA 19125
215.385.5291

Attorneys for Appellants

In the Court of Common Pleas

First Judicial District of Pennsylvania
East Kensington Neighbors Association and Brian Thompson-Nowak,
Appellants,
v.

Statutory Appeal

Philadelphia Zoning Board of

Adjustment

March Term
No. 140301959

and

Statutory Appeal

City of Philadelphia
City Law Department
1515 Arch St, 16th Floor
Philadelphia PA 19102,
Appellees.

I.

Re: Zoning Board Calendar

No. 21324 (2100 North Front
Street).
Permit No. 492205

Brief in Support of Appeal

Summary of Argument

Kensington Hospital, which currently operates a methadone clinic

out of a controlled hospital environment, wants to move its operations and create a stand-alone facility in East Kensington, thereby
doubling its patients from 160 to about 300, two blocks away from a
high school school. The project will have a significant negative impact on the East Kensington neighborhood. For reasons set forth in
detail below, the Zoning Board of Adjustments decision to grant a
special exception should be reversed.

East Kensington Neighbors Association, et. al. v. ZBA & City of Philadelphia
Brief in Support of Appeal, 1942, 1944, 1946-48, 1950-52 and 1954-58 N. Front Street

II. Facts
Kensington Hospital currently operates out of 136 Diamond Street
in a controlled hospital facility. The neighbors acknowledge that the
current clinic has a relatively low impact on the neighborhood,
which is probably due to its relatively low number of patients and
the fact it operates out of a controlled hospital facility.
Kensington Hospital seeks relocation to 2100 Front Street to construct a stand alone Medical Assisted Treatment (MAT) Facility,
whose services will include the dispensing of methadone. The relocation will involve construction of a 3,000 square foot addition to
expand its methadone clinic operations from 160 patients to 300.
However, 2100 Front Street is zoned CMX-2, which requires a special exception to operate a medical oce under Section 14-602(2)
of the Zoning Code1.
On February 19, 2014, a hearing was held before the ZBA. Members
of the East Kensington Neighbors Association (EKNA) testified
about the impact Kensington Hospitals expanded operations would
have on the neighborhood. Specifically, EKNA Zoning Chair Joe
Theobald testified that the expansion would increase loitering in an
area close to Kensington CAPA High School. Amy Miller testified
about the impact the expanded clinic would have on Front Street.
By its own admission, Kensington Hospital testified that its waiting
area could not accommodate the number of patients it was licensed
for, and they acknowledged that there would probably be people
waiting outside. (See N.T. 2/19/14 at 43-44).
Contrary to the evidence and testimony, the ZBA approved the special exception on the condition that EKNAs name be added to a
community partnership agreement developed between Kensington
Hospital and the Norris Square Civic Association.

The building is also 40 feet tall, which is nonconforming with respect to its
height.
#2

East Kensington Neighbors Association, et. al. v. ZBA & City of Philadelphia
Brief in Support of Appeal, 1942, 1944, 1946-48, 1950-52 and 1954-58 N. Front Street

However, EKNA had no input into community partnership agreement. It was not drafted by EKNA, nor did anyone from EKNA
have any input. Instead, it was drafted by the Norris Square Civic
Association (NSCA) and Kensington Hospital. Moreover, NSCA is
a development corporation, not a civic association.
For the reasons below, the ZBAs decision should be overturned, as
it did not meet the legal requirement to obtain a special exception.
III. Legal Argument
A. Kensington Hospital Did Not Meet Its Burden Under
Section 14-303 of the Zoning Code
Properties zoned CMX-2 require a special exception for use as a
medical oce. See 14-602(4)(a). Under Section 14-303, an applicant has the burden to demonstrate that granting a special exception will not cause:
Congestion in the public streets or transportation systems, or
Overcrowding of the land, or
Impairing an adequate supply of light and air to adjacent property, or
Burdening water, sewer, school, park, or other public facilities,
or
Impairing or permanently injuring the use of adjacent conforming properties, or
Endangering the public health or safety through fire or other
means, or
Inconsistency with the Comprehensive Plan of the city.
Kensington Hospital did not meet their legal burden. To the contrary, testimony before the ZBA established that increasing the
number of patients from 160 to 300 will cause congestion in the
public streets, overcrowding of the land, and endanger the public
health.
#3

East Kensington Neighbors Association, et. al. v. ZBA & City of Philadelphia
Brief in Support of Appeal, 1942, 1944, 1946-48, 1950-52 and 1954-58 N. Front Street

Further, appellants presented objective evidence that the proposed

use is substantially likely to cause a detrimental impact on the
health, safety and welfare of the neighborhood. and that the adverse
impact of the use requested is greater than normally would be expected of such a use.
Specifically, the appellants established that relocation of the Clinic
from the Kensington Hospital complex to an independent facility
on Front Street will threaten the security and behavioral control
provided by containment within a larger hospital institution. There
is no interior waiting area proposed to accommodate the number of
patients, who will be forced to loiter outside the facility. Kensington
Hospital acknowledged that its waiting area is not large enough to
accommodate 300 people, which would result in addicts loitering
outside the building. (See N.T. 2/19/14 at 43-44)
The appellants also established that the 300% increase would have a
significant negative impact. This increase in capacity compounds the
impact of removing the clinic from the hospital complex. A primary
reason the current facility has had limited impact on the surrounding neighborhood is the limited patient load. This increase will
magnify the negative impact of such a facility on the surrounding
homes, business and community amenities. Testimony established
that clients from the clinic often flood Norris Square Park and the
Kensington Library. Tripling the number of addicts served by the
clinic will increase the burden on the community. These issues will
be magnified as patient capacity increases exponentially.
Finally, the appellants established that the proposed location is not
appropriate for this use. Front Street is a developing commercial
and community corridor. The proposed location of the clinic is in
close proximity to the newly constructed Kensington High School
for Creative and Performing Arts (Kensington CAPA), the Free Library Kensington Branch, established family businesses, and several
community centers. Locating a facility with the primary purpose of
providing doses to opiate-addicted individuals on this corridor will
not only negatively impact existing businesses and community facili#4

East Kensington Neighbors Association, et. al. v. ZBA & City of Philadelphia
Brief in Support of Appeal, 1942, 1944, 1946-48, 1950-52 and 1954-58 N. Front Street

ties, but will limit the potential for future development. The proposed facility threatens to impact the progress that has been made
along the Front Street and Kensington Avenue corridor.
Presumably, Kensington Hospital will cite to THW Group, LLC v. Zoning
Board of Adjustment No. 1251 C.D. 2013. However, that matter involved
whether a methadone clinic can be built as of right on a parcel
zoned C-2. This parcel is zoned CMX-2, which requires a special
exception variance in order to operate a medical oce.
B. Kensington Hospital Has Not Complied With The Zoning Board of Adjustments Proviso
EKNA and NSCA have concurrent jurisdiction over 2100 Front
Street. As part of the ZBAs approval, EKNA was required to be a
part of the community agreement. Instead, Kensington Hospital has
chosen to deal only with NSCA and cut EKNA out of the process.
This is critical because NSCA is a community development corporation. It has a financial interest in many properties in the neighborhood. In contrast, EKNA is a civic association with a volunteer sta.
EKNAs statutory obligation under the Zoning Code is to represent
the voice of the community. (See N.T. 2/19/14 79-80).
IV. Relief Requested
Appellants respectfully request this Honorable Court to reverse the
decision of the ZBA.
Mulvihill & Rushie LLC

By: A. Jordan Rushie

Attorney for Appellants East Kensington Neighbors Association and Brian Thompson Nowak
#5

Certificate of Service
I, A. Jordan Rushie, certify that this brief was served on the following parties on December 12, 2014:
Sean P. Whalen
1835 Market Street
Philadelphia PA 19103
Sharon L. Suleta
214 Martroy Lane
Wallingford, PA 19086

By:

By: A. Jordan Rushie