J. Heiko and C. Thompson-Heiko and E. Verrall v. Philadelphia Zoning Board of Adjustment and Core Equity IV, L.P.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jethro Heiko, Chelsea :
Thompson-Heiko, and Edward Verrall, :
Appellants :
:
v. : No. 1722 C.D. 2014
: Argued: October 6, 2015
Philadelphia Zoning Board of :
Adjustment and Core Equity IV, L.P. :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON FILED: October 30, 2015

Jethro Heiko, Chelsea Thompson-Heiko, and Edward Verrall
(collectively, Appellants) appeal from an order of the Court of Common Pleas of
Philadelphia County (trial court), which affirmed the order of the Philadelphia
Zoning Board of Adjustment (ZBA), granting Core Equity IV, L.P.’s (Core)
petition for a dimensional variance and special exception pertaining to a property
located at 33-51 Laurel Street, Philadelphia, Pennsylvania. For the reasons
discussed below, we affirm.
The trial court’s order at issue in this case was one of four interrelated
rulings issued on the same day, each of which concerned properties covered by a
single Plan of Development (POD) known as the Canal Street North Project (Canal
Project). The Canal Project consists of six properties, four of which are the
subjects of separate appeals: 1000 Frankford Avenue (Frankford Property),
33-51 Laurel Street (Laurel Property), 29-45 Poplar Street (Poplar Property), and
1106-1128 North Delaware Avenue (Delaware Property).1 Although each property
is managed by a separate entity, all of the properties are owned by the same
developer, Michael Samschick.
The Canal Project centers on the Frankford Property and the Ajax
Building located therein. It is the largest piece of the proposed development and
encompasses the following proposed uses: (1) a 3,000-person capacity Live
Nation concert venue, consisting of a two-story space with a stage at one end, open
areas in the middle, and seating around the second tier; (2) a two-story bowling
alley and restaurant (sports restaurant) with twenty bowling lanes and bocce courts;
(3) a distillery, manufacturing small-batch vodka, gin, and spirits, with
administrative offices and a small tasting room; (4) two proposed retail spaces and
administrative offices; and (5) a second restaurant, located on the ground level and
facing the Delaware River (first-floor restaurant).
Located across the street from the Ajax Building, the Laurel Property
contains the Dry Ice Building. Core plans to renovate the Dry Ice Building to be
used as a country-western restaurant, Toby Keith’s I Love This Bar and Grill
(Western Grill).
Core submitted applications to the Department of Licenses &
Inspections (L&I) for zoning/use permits for the renovation of the Dry Ice
Building. L&I issued refusals for each application, noting that the proposed uses

1
The related appeals are docketed as follows: Heiko v. Philadelphia Zoning Board of
Adjustment, No. 1610 C.D. 2014 (Frankford Property); Heiko v. Philadelphia Zoning Board of
Adjustment, No. 1611 C.D. 2014 (Poplar Property); and Heiko v. Philadelphia Zoning Board of
Adjustment, No. 1612 C.D. 2014 (Delaware Property).

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were not permitted under the Philadelphia Zoning Code (Zoning Code). L&I cited
a lack of parking and bicycle spaces, as required under Sections 14-802 and
14-802(7)(c)(.1) of the Zoning Code, and the need for a special exception for the
Western Grill under Section 14-503(8)(b)(.2) of the Zoning Code for the refusal of
the Laurel Property permits.
Following correspondence from Appellants, Jeanne Klinger, L&I’s
Code Administrator, issued a memorandum titled “Correction of Refusal,” which
clarified and modified the original refusal, in pertinent part, by requiring 892
parking spaces for the entire Canal Project. Ms. Klinger also refused to change the
designation of the Western Grill from a sit-down restaurant to a nightclub, because
the Western Grill would be used primarily as a sit-down restaurant and would only
occasionally have live music.
The ZBA held two hearings on the Canal Project. Core argued that
the Western Grill only required a special exception, because its main use was a
sit-down restaurant. The ZBA granted Core’s appeal, with the proviso that Core
acquires at least 500 parking spaces. The ZBA’s approval of the Canal Project
included: (1) the granting of a dimensional variance regarding the overall number
of parking spaces; and (2) the granting of a special exception for the Western Grill.
Appellants appealed the ZBA’s decision to the trial court, arguing
that: (1) the ZBA lacked sufficient evidence to grant the variance and special
exception; (2) the Canal Project would harm the public, increase traffic congestion
and create excessive crime in the neighborhood; (3) categorizing the Western Grill
as a sit-down restaurant rather than a “nightclub” constituted an error of law; and
(4) the 500-space parking requirement constitutes an excessive dimensional
variance that is beyond the authority of the ZBA to grant.

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 The trial court denied Appellants’ appeal, holding that the ZBA did
not commit an error of law and that the record contained substantial evidence to
support the granting of the variance and special exception. The trial court
explained that the ZBA did not err in categorizing the Western Grill as a sit-down
restaurant and that the dimensional variance for parking was supported by
substantial evidence. The trial court likewise concluded that the special exception
was supported by substantial evidence. Finally, the trial court noted that the ZBA
did not violate Appellants’ due process rights by conditioning the approvals on
Core’s ability to acquire 500 parking spaces.
On appeal2 to this Court, Appellants argue that the ZBA erred in
concluding that the Western Grill was not a nightclub, and, therefore, the ZBA
lacked the authority to grant the dimensional variance for parking. Appellants
further argue that the ZBA’s grant of the special exception was not supported by
substantial evidence and that the ZBA violated Appellants’ due process rights by
conditioning the approvals on Core’s ability to acquire 500 parking spaces.
This Court agrees with the trial court’s decision and further concludes
that the opinion of the Honorable Ellen Ceisler, issued pursuant to Pennsylvania
Rule of Appellate Procedure 1925(a), thoroughly discusses and properly disposes
of the arguments raised on appeal to this Court. As such, we adopt the analysis in
her opinion, filed February 9, 2015, for the purposes of appellate review.
Accordingly, we affirm the trial court’s order on the basis of the attached Rule

2
When, as here, the trial court accepts no additional evidence in a zoning appeal, our
review is limited to considering whether the ZBA erred as a matter of law or abused its
discretion. Singer v. Phila. Zoning Bd. of Adjustment, 29 A.3d 144, 148 n.1 (Pa. Cmwlth. 2011).

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1925(a) opinion issued in Heiko v. Philadelphia Zoning Board of Adjustment,
Philadelphia County, No. 130603511, filed February 9, 2015.

P. KEVIN BROBSON, Judge

5
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jethro Heiko, Chelsea :
Thompson-Heiko, and Edward Verrall, :
Appellants :
:
v. : No. 1722 C.D. 2014
:
Philadelphia Zoning Board of :
Adjustment and Core Equity IV, L.P. :

ORDER

AND NOW, this 30th day of October, 2015, the order of the Court of
Common Pleas for Philadelphia County, dated August 15, 2014, affirming the
order of Philadelphia Zoning Board of Adjustment, is hereby AFFIRMED. This
Court adopts the analysis of the Honorable Ellen Ceisler, issued pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a), in Heiko v. Philadelphia
Zoning Board of Adjustment, Philadelphia County, No. 130603511, filed February
9, 2015.

P. KEVIN BROBSON, Judge