Professional Documents
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Jordan@FishtownLaw.com
Pa. Id. 209066
Mulvihill & Rushie LLC
2424 East York Street Suite 316
Philadelphia, PA 19125
215.385.5291
Statutory Appeal
March Term
No. 140301959
and
Statutory Appeal
City of Philadelphia
City Law Department
1515 Arch St, 16th Floor
Philadelphia PA 19102,
Appellees.
I.
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
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
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: