Chestnut Hill residents disappointed by a June appeals court ruling in favor of a proposed five-story mixed-use development at Bethlehem Pike and Summit Street have taken their case to the state Supreme Court – hoping it will step in and prevent the building from going up. 

If the court agrees to hear the case, the Chestnut Hill Community Association, which is leading the fight, has a chance to stop construction at 10 Bethlehem Pike. If the court doesn’t, neighbors will have lost and the developer Frankel Enterprises will be free to start building their project as originally designed. 

Neighbors have been fighting the proposal since early 2021, and the case has wound its way through multiple courts.

"People felt it was worth it, that the proposed building was a monstrosity," said Jeff Duncan, who lives on Summit Street and is part of the group that has filed the appeal. 

The site is adjacent to the historic Chestnut Hill Baptist Church, which was built in 1830 and is the oldest church in the neighborhood and an architectural cornerstone at the highest point in the City. The proposed building would certainly overshadow that building, neighbors say. 

Daniel Piotrowski, board chairman of the church, testified in earlier hearings that the proposed building would block light to the church's windows. The historic structure was "built before there was electricity," he noted.

Duncan said residents need only to look at the building now under construction on the other side of the church to be worried. 

"When you consider that building – way out of scale, and much too close to the street – that's a preview of coming attractions," he said. 

What neighbors are now asking the state Supreme Court to decide is whether the Philadelphia Zoning Board of Adjustment was correct when it ruled that the proposed 33-unit, five-story apartment building with ground-floor commercial space could be constructed right up to the sidewalk, and not be set back further from the street. The question arises because the site is a corner lot, with one side facing a residential street and the other a commercial district, so two conflicting sections of the zoning code could apply. 

Neighbors contend that because the Summit Street side of the property borders a residential area with larger setbacks, those requirements should apply to the entire project. This would push the building 35 feet back from the street, significantly reducing its footprint.

Developers argue that because the property faces Bethlehem Pike, a commercial corridor, and is entirely within the CMX-2 commercial mixed-use district, they can build up to the property line.

The zoning board initially approved the project in early 2021. Neighbors appealed to the Court of Common Pleas, where Judge Anne Marie Coyle ruled in their favor, finding that the city had “violated multiple Philadelphia Zoning Code provisions” when it granted developers a building permit without requiring neighborhood input.

Coyle wrote that since the zoning on the rest of Summit Street is predominately residential, a zoning category that requires any new building to have a 35-foot setback from the sidewalk, any proposal to do otherwise on this parcel should have triggered an automatic refusal. That refusal would have triggered the process through which nearby residents have an opportunity to review the plans.

The development team’s attorney, Carl Primavera, said that since three city agencies – the Zoning Board of Adjustment, Department of Licenses and Inspections and the Planning Commission - all approved the permit, the court should defer to their judgment. 

“The judge is swimming against the tide of the agencies that are tasked with doing this every day and is their area of expertise,” Primavera said at the time. “To some extent, there’s supposed to be due deference to the agencies, and courts are not supposed to substitute their own view for agencies that are tasked with doing this every day.”

The developers appealed the case to Commonwealth Court, where a panel of judges overturned Coyle's decision in June. 

"The Property fronts two streets and lies entirely in the CMX-2 District," Senior Judge Mary Hannah Leavitt wrote in that ruling. "The Zoning Code is clear that a lot fronting on more than one street is subject to the requirements of the zoning district in which the lot is located."

Duncan said residents have been fundraising to cover legal expenses, with many feeling the fight is crucial for preserving neighborhood character.

"The bad precedent that is being set here is a complete lack of regard that a building is being erected in a nationally recognized historic district, and the ZBA doesn't seem to care about it," Duncan said.

Councilwoman Cindy Bass has voiced support for the neighbors' position.

"As a district councilperson, it's very important in terms of the quality of life that all of our residents deserve in the City of Philadelphia," Bass told the court during the appeal hearing. "I'm asking that your decision today, really stand with the neighbors, stand with the community, stand with the folks who live there, and that we make the best decision which is really going to minimize impact on the quality of life in this community that has just been, you know, just a strength for our city."

Opponents of the project also question its practicality, given existing vacant commercial spaces in Chestnut Hill.

"Think about all the vacant commercial spaces that exist in Chestnut Hill. You have to wonder if there's really demand for such a space," Duncan said. "Also, what would that business be, and where would their customers park?"

If forced to follow the 35-foot setback, developers could still build an apartment building but would need to obtain a variance — a process that typically involves community input.

"They refuse to do that," Duncan noted.