ZBA Hearing - October 12, 2021

These last mile facilities, whether it's Amazon, FedEx, UPS, Postal Service.

whether it's Amazon, FedEx, UPS, Postal Service. They happen in these industrial zones,

including on PIDC property. Permits have been issued for a variety of them.

Shelly has issued them. We've received many of them. So this neighborhood is unhappy,

and they're trying to find a way to stop something that really is their future.

People need these services because the same people who are objecting are calling up saying,

I want this delivered. I want that delivered. So it's an inconsistent position, but I don't blame

people for being unhappy. What you want is the service without any of the, you know, associated

activity that goes with it. In terms of the unity of use, it's been around. The city solicitor has

approved it. Case law in Pennsylvania has approved it. Basically, it comes in under the code,

under the definition of zoning lot. So the law is that you can have deeded lots assembled

into one zoning lot. And that's what we have. We have one zoning lot. We're going to use

two streets to service this facility, Red Lion Road and Sandmeyer Lane. I recently had a case

where a school opened up next to a residential neighborhood. Previously, it was a dead end,

but it was a city street. And the court said, look, it's a city street. You can't prevent school

buses from going down it just because in the past, you didn't have school buses. I mean,

city streets are city streets. If this was meant to be a private cul-de-sac, it could have been

structured that way. In terms of the intensity and the size of the use, I've already mentioned,

Woolworth is now Walmart. A&P and Acme is now Wegmans. The use is the same,

whether it was smaller, larger, more trucks, more employees. The bottom line is that the use is the

same and it's consistent going back to the bud plant. More recently, a permit was issued for

Teva Pharmaceutical for a distribution facility with the same aspects relating to the incidental

uses. So I think at the end of the day, in conclusion, we have, and as of right use,

we have something that's designed by a Fortune 50, top of the line company, a thousand jobs.

Ultimately, this is where the future of Philadelphia is going to be because that's

what consumers are demanding. And despite all the creative nibbling at the sides and

inconsistent arguments about trying to, you know, challenge the permit to send this back to the

drawing board. I think that it's clear that this is a permitted use. And again, if the zoning board

takes on faith that the objectors are concerned about a use that would be outside of incidental,

then in your findings and conclusions, and along with the stipulation, we can basically make sure

that the interpretation is clarified.

And I think that's legitimately what people should want,

not looking to kill the whole project

over something that they're inventing as a concern,

which really, quite frankly, is not a concern.

So thank you, and thank you for your patience.

Thank you.

Mr. Reuter, do you weigh in on this?

Sure, just a couple closing remarks. First of all, again, this talk of whether or not the board can or could or should in their decision clarify anything, I don't think that's really necessary.

And certainly it's at the board's discretion, whatever they feel is appropriate, because I think, again, we've there's been a lot of confusion and fudging about incidental versus accessory versus, you know, main use.

And I think we need to just focus on that because, again, accessory uses, the code sections, which I'm not going to share my screen because I don't want to crash this and prolong it.

Under 14604, sub one, sub a, the very first thing it says about accessory uses and structures, it says, unless otherwise expressly stated in this zoning code, accessory uses and structures are permitted in conjunction with allowed principal uses and structures.

So the code provisions that we're talking about here, which again, we had previously discussed, whether the trucking center or warehouse and distribution, both of those categories, both of the subcategories that were discussed here, explicitly referenced retail sales in terms of in the warehouse and distribution.

uh retail sales in terms of in the warehouse and distribution um use uh it expressly stated that

uh incidental retail sales are permitted and with respect to trucking and transportation terminals

it expressly states that minor vehicle uh uh repair and maintenance was permitted it's part

of the use so again whether or not they're incidental or accessory or whatever they meet

the exception that's set out in the zoning code itself for what are allowed accessory uses. So

again, I think there's a lot of confusion about this. Now again, 20,000 square foot building used

for truck maintenance and repair seems like a lot until you again remind yourselves that this is a

million square foot facility and a 20,000 square foot section is only 2% of the property. So again,

And we would submit that on its face on the plans, you can absolutely determine that this was minor.

And again, I sort of made a joke before the last break, but it was it was only halfway a joke, which is that I don't think there's anybody here that's been to a UPS distribution facility to pick up a package or to find a lost package that thinks that they could ask them if they could change their tires or change the oil in the car while they happen to be there.

It's simply on its face, any reasonable person would look at this application and the applicant and the proposed use and understand that there is nobody that's going to be fixing personal or other commercial vehicles on site.

This is a trucking and transportation center that's going to be maintained in its own vehicles, and that is not only permitted in the main use, but to the extent that the accessory use prohibitions might otherwise prohibit it because of the far northeast overlay, this is expressly allowed.

It is expressly allowed and therefore meets the exception to non-permitted accessory uses.

So the other thing I want to address is the use and treatment of the adjoining lots under the unity of use principle.

Now, personally, I don't like that phrase, unity of use.

It's a phrase that Illinois has been using for this type of thing for decades.

What it really is, is what the Commonwealth law has always allowed for, and certainly dating back to at least 1946 in Ray Appeal of Fisher, which is that you can always treat adjoining lots under common ownership as a single lot for zoning purposes.

In fact, it would be kind of nonsensical not to allow that if you think about it for a while.

So, again, yes, it was the owner's option, for instance, to have simply consolidated these two lots prior to submitting the application.

And then, frankly, the vast majority of Mr. Cattuzzi's argument on the unity of use would disappear completely because there simply would be no question that they could have the driveway here.

So, again, the unity of use agreements that are required as a condition of the permits that were issued provide assurances that these two lots will be used as a single lot.

And again, going back at least to the 1940s, in the state of Pennsylvania, zoning authorities are permitted to treat adjoining lots under common ownership that is the same owner as a single zoning lot, as a single lot for zoning purposes.

It's always been allowed.

It's always been done.

I don't dispute that it is not explicitly stated that way in the code. But again, Mr. Primavera is absolutely correct that zoning lots are not exactly the same thing as separate parcels per se. And again, it doesn't matter. It's permitted under state law and has been since 1940s.

And again, I think it's been reaffirmed in the 60s and more recently in, you know, a number of other instances.

I mean, there are tons of cases in the city of Philadelphia where the city has allowed for construction or zoning uses to take place by using, you know, when there are common ownership.

Again, I understand there may be issues when there's separate ownership of the parcels, but that's not what we have here.

And again, in terms of the scale and the scope of the use, again, we're all familiar driving around nowadays. You see these massive Amazon facilities. You do have the giant post office facility on Lindbergh. You have other UPS warehouse and distribution slash trucking terminals.

So we don't dispute that with respect to the scale of things. This is clearly on the large size, but it's not something that's unheard of. It's not something that doesn't exist. They do exist.

But it's not something that's unheard of. It's not something that doesn't exist. They do exist.

And again, when you review a zoning application, you're required as a plans examiner to determine what use category or categories the proposal fits into.

And if it's not explicitly stated, then the code requires the examiner to try to find the closest categories.

Now, we actually I actually think that these two uses are actually pretty on point.

it is it is a trucking terminal and there is going to be warehouse and distribution so

mr reuter we've passed the one o'clock by three minutes so far so i think anyway so i think the

law clearly allows the permit to have been issued uh as a and treating these two lots as a single

zoning as a single lot for zoning purposes uh i think uh and again the code does allow these

particular incidental accessory, whatever additional uses, because they are expressly

permitted by the use categories and therefore meet the exception that's set forth in the

definition, in the code section 14604.

Thank you.

Have a nice day.

Thank you very much.

Sharon, any unfinished business before we close this?

Mr. Chairman, may I just have a minute?

I didn't use a full 10 minutes to-

How do you know?

Do you actually know you didn't use 10 minutes?

I know it.

Yeah, I watched my clock.

I think you've heard closing arguments from everyone.

You can close the record and delay the vote.

Okay.

Okay.

Thank you all.

The record is closed.

The board will be discussing this matter tomorrow morning's executive session.

Tomorrow morning is October the 13th at 930 a.m.

Thank you all.

I appreciate it.

Thank you.

Hi, Chair.

This is Tanya.

Are we going to give the vote tomorrow morning as well?

unless the board decides otherwise we'll discuss it and most likely yes

and that's my my intention is to have a vote tomorrow morning thank you chair just clarity

for all those involved tomorrow at the 9 30 session thank you all okay thank you all have

a good evening thank you thank you thank you