Neighbors have lost their final bid to prevent a five-story mixed-use development from rising at 10 Bethlehem Pike, as the Pennsylvania Supreme Court has declined to hear their appeal. The decision, issued on December 23, marks the end of a protracted legal battle and allows developer Frankel Enterprises to proceed with their project as originally designed.

We are certainly disappointed in this decision and will be watching this development project closely as it commences,” said Anne McNiff, executive director for the Chestnut Hill Community Association, which was a party in the lawsuit. “Should the developers be interested in meeting with the neighbors who will be impacted by this project to review the final plans, we would be happy to facilitate such a meeting.”

Developer Zach Frankel of Frankel Enterprises declined to comment for this article.

The development plan proposed for the former Sunoco gas station site at Bethlehem Pike and Summit Street, which calls for a 33-unit apartment building with ground-floor commercial space, has been a source of controversy since it was first proposed in early 2021.

The site sits adjacent to the Chestnut Hill Baptist Church, which was built in 1830 and is the oldest church in Chestnut Hill. 

That historic structure, which stands at the highest point on the hill as an architectural cornerstone at the entrance of the neighborhood, sits between two large properties now being redeveloped into much larger mixed-use buildings. 

The Frankel project at 10 Bethlehem Pike will sit directly on one side of the church, and on the other side, at 8623 Germantown Avenue, developer Michael Young is currently building a 43,000-square-foot mixed-use building on the site of the former Santander Bank building. 

Both developments were designed to meet the conditions of the city’s current zoning code and did not need to consult with neighbors for a building variance. 

At the heart of the legal dispute over the Sunoco site project was whether the Philadelphia Zoning Board of Adjustment correctly ruled that the building could be constructed right up to the sidewalk. The question arose from the site's status as a corner lot, with one side facing a residential street and the other a commercial district, creating potential conflicts between different sections of the zoning code.

Neighbors argued that because the Summit Street side borders a residential area with larger setbacks, those requirements should apply to the entire project – which would have pushed the building 35 feet back from the street and significantly reduced its footprint. Developers countered that since the property faces Bethlehem Pike, a commercial corridor, and lies entirely within the CMX-2 commercial mixed-use district, they should be permitted to build up to the property line.

The case has wound through multiple courts since the city zoning board's initial approval in early 2021. Neighbors first took their case to the Court of Common Pleas, where Judge Anne Marie Coyle ruled in their favor. She found that the city had "violated multiple Philadelphia Zoning Code provisions" by granting developers a building permit without requiring neighborhood input.

In her ruling, Coyle emphasized that since Summit Street is predominantly residential – a zoning category requiring new buildings to have a 35-foot setback from the sidewalk – any proposal to do otherwise should have triggered an automatic refusal and subsequent neighborhood review process.

However, the Commonwealth Court overturned Coyle's decision last June. Senior Judge Mary Hannah Leavitt wrote in that ruling, "The Property fronts two streets and lies entirely in the CMX-2 District. 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."

Throughout the process, residents raised funds to cover legal expenses, viewing the fight as crucial for preserving the neighborhood's historic character. 

With the Supreme Court's decision not to hear the case, Frankel Enterprises can now move forward with construction.