Cutting through the Zoning Code: Fishy Nick’s Seafood Palace, or, The Zoning Administrative Manual, Part 3

This week, Cutting through the Zoning Code is cutting through the Zoning Administrative Manual (ZAM). We’re taking a Northern Liberties property and running six new uses through ZAM (and the code) to test ZAM’s guidance.

Part 1 gave an overview of ZAM and tried a body art facility on for size. Yesterday, Part 2 looked at converting the building into a gun store or a dance club. Today, Part 3 tests a more tepid, but still challenging use: a restaurant.

Option 4: “Fishy Nick’s Seafood Palace”

A more likely use for this site than a gun store or nightclub is a sit-down restaurant; two coffee shops and a restaurant already exist within a block of this site, and I speculate my neighbors are more likely to support a restaurant than a nightclub. Again, turning to the use tables in section 14-600 of the zoning code, I find that a restaurant—another Assembly and Entertainment use—is permitted by right. If I can get my special assembly occupancy permit from L&I, then my restaurant can move forward by-right.

Except I don’t have enough parking. A restaurant in ICMX requires five parking spaces for every 1,000 square feet of gross floor area. My building is 5,040 square feet. For calculation purposes, I’d get rounded down to 5,000, so I need 25 parking spaces. Because I’m changing the use of the property, I must meet the new code’s parking regulations for the new use, according to section 14-800.

No way is that going to happen on this site—I don’t have enough surface spaces. What are my options? I think I could make a good case that Fishy Nick’s, nestled in a neighborhood, on a bus route and four blocks from the Spring Garden station on the Market-Frankford line, is a good candidate for a variance. According to the “step-by-step” process detailed in ZAM, I first apply to L&I, which issues a pro forma rejection of my application. I can’t squeeze 25 parking spaces out of my property, so I can’t bring my application into compliance. I must appeal to ZBA.

The process is not altogether different from what I had to do for Nick’s House of Guns. I have to notify the relevant RCOs about my appeal, and schedule a meeting for no later than 21 days after I notify them. After we meet, I have seven days to send documentation of the RCO meetings to ZBA. I have to submit a “Petition to Appeal” within 30 days of L&I’s rejection. I must post a sign on my property for 21 days, to serve as public notice of the appeal. I have to attend any public hearings related to my application. According to ZAM, if I meet the criteria for variances in section 14-304(8), I can move forward.

But here’s a problem: I can’t for the life of me figure out where the code (or ZAM) clearly addresses appeals about parking.

I could see making an argument based on section 14-305, which addresses nonconformities.14-305(9) allows nonconforming parking to remain and be used if the lot contains a conforming building and uses. Even if my building is nonconforming under the new code (although I think it’s fine), I’d argue that because the new code permits me to use the existing building without seeking a dimensional variance, and because my use is also permitted by-right, I should be allowed to rely upon my existing parking, even though it doesn’t meet the minimums.

However, my creative argument seems to conflict with 14-800(2)(b), which explicitly states, “The parking and loading requirements of this section shall be provided for any change of use that would result in a requirement for more parking and loading spaces than the existing use.”

Perhaps a future tweak to the code will address this, but it definitely seems like a case for the ZBA.

Conclusion: Fishmonger Nick’s is a maybe. Parking might kill it.

Previously: ZAM and Nick’s Tattoo, Piercing, Branding and Scarification Warehouse

Previously: Nick’s House of Guns, Nick’s House of House

Tomorrow: Cashing In—New Condos and Rowhouses

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