The City of Lancaster has gone to court to overturn a decision that would allow apartments to replace commercial space on the first floor of a prominent city center building.
Last week, the city appealed a May 17 decision by its zoning hearing board which granted Berger Rental Communities a variance it needs to turn some ground floor commercial space into 16 residences at the former Stevens House, 10 S. Prince St.
The city’s June 3 appeal to the Court of Common Pleas of Lancaster County could derail Berger’s plans, although both the developer and city officials say they want to reach a compromise.
“We understand that while this project has wide support, some concerns remain outstanding. It is our goal to understand those concerns and reach a mutual resolution,” read a statement from Nicole Loser, a spokeswoman for Berger Communities.
Jess King, chief of staff for Mayor Danene Sorace, echoed that desire for a negotiated agreement.
“While it is our practice of not commenting on matters in litigation, we are optimistic that the matter will be amicably resolved by the parties,” said King, who declined additional comment on why the city is appealing the decision.
Berger, based in Wayne, Delaware County, bought the West King and South Prince streets building in 2019 for $8.65 million and has extensively upgraded its 76 units. It now wants to turn roughly 10,000 square feet of commercial space into residential, a plan that required a zoning variance since such conversions aren’t permitted by right in downtown Lancaster.
The project would create one- and two-bedroom apartments plus a fitness center and a courtyard.
“The need for additional residential homes in downtown Lancaster area is undeniable. Through our long-term presence in this community, Berger is keenly aware of the need for housing. This is an exciting project that will address the housing shortage and will ultimately benefit business owners, residents, and the greater community,” Loser said in a statement issued to LNP after the city’s appeal.
Six business that operated in the commercial spaces had their leases terminated, and were displaced because of Berger’s plans, which would convert seven commercial spaces, including a vacant restaurant, into apartments. However, a commercial space in the corner of the building, now a tattoo parlor, will remain an unspecified commercial use.
Berger owns and operates three other apartment communities in Lancaster: Creekside North and South (with 261 units combined) on Stone Mill Road and Millers Crossing (180 units) off Millersville Road. It also is proposing an 11-story apartment building at North Queen and West Chestnut streets with 117 units.
At the May 17 hearing where it requested the variance, Berger said the plan would provide badly needed market-rate rental housing in the middle of the city, while adding that some commercial spaces along King Street had been difficult to lease in part because of the slope of King Street past the building. The hill leaves some of the first floor commercial spaces well above street level.
At the hearing, city planner Douglas Smith argued against granting the variance, saying it could prompt similar requests that could lead to fewer commercial storefronts downtown.
Variances don’t rezone properties but allow them to be used in specifically detailed ways not usually allowed. They are typically granted when existing regulations are shown to present special difficulty using a property.
Berger’s request for a variance was unanimously approved by the zoning hearing board.
The city’s appeal gives five reasons to support the argument that the board “abused its discretion in granting a variance.” They include that the variance was not related to unique physical conditions, the hardship was self-inflicted, the request was for purely economic reasons and a variance was not the minimum relief necessary. The filing also says the property had been used for many years in conformity with the zoning ordinance.
The appeal was filed by Neil Albert, who handles some litigation for the city at a rate of $125 per hour.
Zoning hearing board chairman Rudy DeLaurentis didn’t attend the May 17 zoning hearing and said he doesn’t know how he would have voted on Berger’s request. Yet he said zoning decisions are often filled with ambiguity, and he welcomed the extra scrutiny of this one.
“It seems this is good this issue is going to be decided either through litigation or the parties agreeing to something,” he said. “I guess (the city’s) position is they’re encouraging commercial use of buildings, when possible, especially in the central business district.”
‘Now we sit on the sidelines’
Zoning hearing board members are appointed by city council, but operate independently. The three-member board reviews requests for land uses that don’t conform the zoning ordinance, including parking requirements and building setbacks, among other things.
Anyone affected by a zoning hearing board decision can appeal, including the city, which has the right to appeal any zoning hearing board decision. City appeals are initiated by the mayor acting as executive.
Dan Blakinger, zoning hearing board solicitor, said city appeals of zoning board decisions don’t happen frequently but are not unusual.
When one of its decisions is appealed, Blakinger said the zoning hearing board doesn’t get involved even though it remains apprised of the cases. “We’re just like the neutral party who rendered the decision, and now we sit on the sidelines,” he said. “The applicant and the city can have at it here,” he said, referring specifically to the case involving the former Stevens House.