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

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jethro Heiko and Chelsea :
Thompson-Heiko and Edward Verrall, :
Appellants :
:
v. : No. 1610 C.D. 2014
: Argued: October 6, 2015
Philadelphia Zoning Board of :
Adjustment and Core Equity II, 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 II, L.P.’s (Core) petition
for certain use and dimensional variances and special exceptions pertaining to a
property located at 1000 Frankford Avenue, 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. The Ajax Building is a 150,000 square-foot, two-story
building that covers approximately eighty-five percent of the Frankford Property.
The Ajax Building is a former warehouse which has been vacant for more than a
decade and is deteriorated. 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).
Core submitted applications to the Department of Licenses &
Inspections (L&I) for zoning/use permits for the renovation of the Ajax Building.

1
The related appeals are docketed as follows: Heiko v. Philadelphia Zoning Board of
Adjustment, No. 1722 C.D. 2014 (Laurel 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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L&I issued refusals for each application, noting that the proposed uses were not
permitted under the Philadelphia Zoning Code (Zoning Code). L&I cited the
following reasons for refusal:
(1) The concert venue is a prohibited use under Section 14-507(4)(c)
of the Zoning Code;
(2) The distillery and bowling alley are not permitted uses under
Table 14-602-2 in Section 14-602(4) of the Zoning Code;
(3) The restaurants require special exceptions under
Section 14-503(8)(b)(.2) of the Zoning Code; and
(4) The restaurants require 51 parking spaces pursuant to
Section 14-802(7)(c)(.1) of the Zoning Code, and none were
provided.
After corresponding with Appellants, L&I issued a memorandum
titled “Correction of Refusal,” which clarified and modified the original refusal in
the following pertinent ways:
(1) The concert venue is deemed an “assembly and entertainment” use
under Section 14-601(7)(c) of the Zoning Code—a prohibited use
under Section 14-503(8)(b)(.1) of the Zoning Code;
(2) The bowling alley, originally treated as part of the sports
restaurant, is deemed to be a separate “assembly and
entertainment” use and prohibited under Section 14-503(8)(b)(.1)
of the Zoning Code;
(3) The distillery tasting room is deemed to be a sit-down restaurant
requiring a special exception; and

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 (4) A total of 892 parking spaces are required for all the proposed
uses.
In sum, the multiple refusals for the Frankford Property fell into three
categories: (1) failure to provide the required parking, which required a
dimensional variance; (2) use variances were needed for the concert venue,
distillery, and bowling alley; and (3) special exceptions were required for the
tasting room, sports restaurant, and first-floor restaurant.
Core appealed L&I’s refusals to the ZBA. The ZBA granted Core’s
appeal, with the proviso that Core must acquire at least 500 parking spaces for the
Canal Project. The ZBA’s approval of the Canal Project included: (1) the granting
of use variances for the concert venue, bowling alley, and distillery on the
Frankford Property; (2) the granting of a dimensional variance regarding the
overall number of parking spaces; and (3) the granting of special exceptions for the
sports restaurant, the tasting room, and the first-floor restaurant.
Appellants appealed the ZBA’s decision to the trial court, arguing
that: (1) the ZBA lacked sufficient evidence to grant the variances and special
exceptions; (2) the Canal Project would harm the public, increase traffic
congestion, and create excessive crime in the neighborhood; (3) categorizing the
concert venue as an “assembly and entertainment” use rather than a “nightclub”
constituted an error of law; and (4) because the concert venue is a nightclub
requiring 1,500 parking spaces, the 500-space parking requirement constitutes an
excessive dimensional variance that is beyond the authority of the ZBA to grant.
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 variances and special exceptions. The trial court

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concluded that: (1) the use variances for the Frankford Property were supported by
substantial evidence; (2) the ZBA did not err in categorizing the concert venue as
an assembly and entertainment use and, therefore, did not exceed its authority in
granting the dimensional variance for parking; (3) the ZBA’s granting of the
special exceptions was supported by substantial evidence; and (4) 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
granting the variances for the Frankford Property because the finding of a hardship
is not supported by substantial evidence, the variances granted were not the
least-possible variances, and the variances will have an adverse effect on the
general welfare of the neighborhood. Appellants also argue that the ZBA lacked
the authority to grant the dimensional variance for parking, that the ZBA’s grant of
the special exceptions were not supported by substantial evidence, and 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

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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Rule 1925(a) opinion issued in Heiko v. Philadelphia Zoning Board of Adjustment,
Philadelphia County, No. 130603503, filed February 9, 2015.

P. KEVIN BROBSON, Judge

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 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jethro Heiko and Chelsea :
Thompson-Heiko and Edward Verrall, :
Appellants :
:
v. : No. 1610 C.D. 2014
:
Philadelphia Zoning Board of :
Adjustment and Core Equity II, 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. 130603503, filed February
9, 2015.

P. KEVIN BROBSON, Judge