Judge splits decision on zoning appeal at 40th & Pine

Earlier this month, attorneys on both sides of the ongoing preservation battle surrounding the historic property at 400 S. 40th Street sat before Judge Ellen Ceisler of the Court of Common Pleas to argue one question: was the zoning board right to grant a series of variances for the proposed student-apartment complex at the site?

Last week, Judge Ceisler answered, with a resounding, “Yes … at least partially.”

Ceisler’s decision, dated January 24th, affirms the ZBA’s decision to grant the variance for multi-family residential use at the site, which is zoned for two-family use. But she sent the case back to the board for more argument about the dimensional variances granted, including the open area, side yard depth, and height.

“The record reflects substantial evidence that unnecessary hardship would result if a variance were denied and that the proposed use would not be contrary to the public interest or have an adverse effect on the public health, safety, or the general Welfare,” Judge Ceisler wrote.

Ceisler also noted that the record contained sufficient evidence to support the variance for parking.

She continued, “The case is hereby remanded to the ZBA to take testimony and evidence regarding the dimensional variances that were granted pertaining to Open Area, Side Yard and Height only as there was not sufficient evidence on the record for this Court to determine what criteria the ZBA considered in determining whether these dimensional variances represented the minimum variances that will afford relief at the least modification necessary.”

Another hearing will need to be scheduled so the ZBA can hash out the remaining issues. Read the whole decision here.

The property is owned by the University of Pennsylvania, which has partnered with developer Jonathan Weiss on the housing proposal. Penn received permission from the Historical Commission to demolish the property, which decision is the subject of a separate legal appeal.

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