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Zarwin Baum Attorney Makes the World Safe for another Dunkin’ Donuts Cup of Coffee

May 3, 2018

Zarwin Baum Zoning and Land Use Chair, Stephen G. Pollock, successfully persuaded a 3 Judge Panel of the Pennsylvania Commonwealth Court to unanimously affirm the lower court decision granting a special exception for a new Dunkin’ Donuts at Carlisle and Oregon Avenue in the heart of South Philadelphia. This decision, dated March 26, 2018, has finally brought to a frothy head an almost 3 year land use battle.

In the face of a strong brew of neighborhood and political opposition, the Philadelphia Zoning Board of Adjustment had denied a request to convert a vacant, former convenience market and retail auto parts store into an upscale Dunkin’ Donuts. Who knew a Dunkin’ Donuts that was not open 24 hours, did not serve alcohol and did not have a drive thru would stir up so much resistance? 

On appeal to the Common Pleas Court, Pollock convinced the Court to overrule the Zoning Board and grant the needed Special Exception to allow the use. However, several of the neighbors near the proposed coffee shop remained unwilling to let a cup of coffee be served at this location and filed an appeal to the Commonwealth Court.

In the case of Monroe Land Investments v. Zoning Board of Adjustment, the Commonwealth Court recognized a use which needs a special exception is a conditionally permitted use, allowed by the legislature if specifically listed standards are met. This case is very instructive as to the shifting burdens of proof placed on the applicant as well as neighborhood Protestants. One of the lessons to be learned is it is not enough for objectors to speculate as to possible harms that can riddle the neighborhood from such a use like a Dunkin’ Donuts. It’s never enough to claim the whole world will crash down on my neighborhood and all the social ills of the world will befall us if the Dunkin’ Donuts is allowed to open. A much higher level of proof must be asserted and proved in order to defeat a use allowed by special exception! It’s similarly not enough to say you like someone else’s coffee better.

The Commonwealth Court understood the neighbors’ concerns about increased traffic and congestion and the impact of the operation of another Dunkin’ Donuts about three blocks away. However, the level of proof needed to establish the necessary detrimental impact required more than simply saying we just don’t want it here or, when another convenience store opened, it was “horrible.” 

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