On December 16, 2021, the Philadelphia City Council unanimously passed Bill No. 210669 and Resolution No. 210692.

In a nutshell, through this legislation, the number of Zoning Board Adjustment (ZBA) members for the City of Philadelphia would increase from five to seven, ZBA board appointees would be subject to confirmation by the Philadelphia City Council, and Board appointees are required to possess specific areas of expertise and demonstrated sensitivity to community concerns regarding real estate development and the protection of the character of Philadelphia’s neighborhoods.

Philadelphia voters will have the opportunity to decide in the May municipal elections whether this attempted amendment to Philadelphia’s Home Rule Charter will become law. If so, changes to Philadelphia’s Home Rule charter will go into effect in October.

The resolution comes after a decades-long battle between the executive branch and the Philadelphia City Council over control of land use and zoning oversight, which was originally a strictly executive power under the charter. of Home Rule in Philadelphia.

When the Philadelphia City Council created the Zoning Code Commission (ZCC), in 2007, it amended the Philadelphia Home Rule Charter, creating the ZCC as an independent administrative agency, but incorporated control and influence of the Philadelphia City Council in the duties and powers of the ZCC. .

The ZCC was made up of 31 members, consisting of members of several zoning-related agencies, Philadelphia City Council members, community members, mayoral appointees, and city council president appointees as well as members of the Philadelphia City Council.

The ZCC was tasked with reforming Philadelphia’s zoning code and investigating potential reforms. However, the powers and duties so defined in the amendment created a hierarchical structure that gave power to the Philadelphia City Council, in an area of ​​law originally designated to the executive.

The ZCC implemented an updated Philadelphia zoning code, which went into effect in 2012.

In December 2017, the City of Philadelphia Planning Commission released the Philadelphia Zoning Code Five-Year Report (the Report), a five-year review of Philadelphia’s new zoning code.

The report found Philadelphia’s new zoning code has been a resounding success, citing fewer gaps, more right-hand permits, and transit-oriented development. Additionally, the report found that Philadelphia’s new zoning code was easier to use and understand.

The report outlines five recommendations to advance zoning reform: reduce use-deviation claims through collaboration between the ZBA and the community, increase dimensional compliance, reform community groups known as community organizations recorded (RCO), continue and expand remapping efforts and reduce approval. deviation request rate.

The final recommendation is the primary influence on City Council Speaker Darrell L. Clarke and Councilwoman Cherrelle Parker’s resolution to reform the ZBA. The report indicates that, from 2008 to 2012, the ZBA granted 92% of waiver requests. After Philadelphia’s new zoning code went into effect, the ZBA awarded 87%. The report says the high level of deviation requests “reflects a particular and significant disconnect between planning law, policy and enforcement.”

Clarke specifically cited the high number of waiver requests as the impetus for the changes to the ZBA.

Ensure that the ZBA reaches consistent and well-reasoned decisions when reviewing waiver requests; the resolution requires ZBA members to include a city planner, an architect, a lawyer with experience in land use and zoning, someone with experience in the construction industry and at least two recognized leaders of community organizations.

In addition, administrative measures are recommended to further support the capacity of the ZBA, including, for example, mandatory training, physical upgrades to ZBA facilities, and additional administrative support from Energy Commission staff. town planning.

Mayor James F. Kenney opposed the resolution, citing many of the same concerns as real estate development advocates. Specifically, Kenney is confident the resolution will slow real estate development in Philadelphia and make real estate developers and potential investors weary of building when they can’t assess risk or predict the outcome of hearings before the ZBA.

However, Kenney recently named William Bergman president of the ZBA. While the rest of the ZBA members come from a background of labor unions, architecture, and civic organizations, Bergman has a slightly different background. Bergman was a trustee and executive at Temple University, most recently serving as vice president for public, government, and community affairs. Bergman has worked closely with the City Planning Commission, the ZBA, and the City of Philadelphia’s Department of Licensing and Inspections (L&I). Bergman has a history of involvement in community groups. Namely, Bergman established two community groups in the neighborhood adjacent to Temple University that led to the development of the Special Services District, which provides street cleaning and additional security measures from North Broad Street to North 18th Street.

Bergman’s appointment appears to align with concerns expressed by the Philadelphia City Council. However, it’s unclear whether Bergman’s appointment will lead to an overall decrease in waiver requests granted.

Some experts believe that the high volume of deviation requests stems from outdated zoning maps that do not match conditions on the ground. Philadelphia real estate developers and investors argue that the high number of overlay districts is the primary source of Philadelphia’s particularly high number of variance claims.

The report that inspired the Philadelphia City Council’s search for ways to reduce approved waiver applications illustrated an increase in zoning overlay districts correlated with the introduction of Philadelphia’s new zoning code. For example, in 2016, the Philadelphia City Council passed amendments to the Philadelphia zoning code that created 12 overlapping districts (in addition to the other 11 amendments to the Philadelphia zoning code this year alone). The previous year, the Philadelphia City Council passed a total of 15 amendments to the Philadelphia zoning code. “While some overlays are offered by PCPC to meet specific planning purposes, most overlays are the result of other interests. PCPC generally discourages the creation of overlays because they may reduce code clarity, create additional application problems, or do not represent appropriate planning goals. PCPC prefers to launch full remappings to fix discrepancies in base zoning.

The growing number of stacked neighborhoods worries real estate developers and potential investors in Philadelphia and they believe that simply targeting the ZBA is counterproductive to the Philadelphia City Council’s goal of increasing affordable housing. .

In addition, some real estate development professionals are concerned that the increased number of members serving on the ZBA and the increased standards for the two additional board members will effectively halt development in Philadelphia. Specifically, some are concerned that an increase in the number of council members will reduce the likelihood of achieving the quorum needed to hear zoning variance applications and they expect an increase in council member recusals due to a conflict of interest.

The proposed changes to the ZBA and Bergman’s appointment have left many real estate developers and investors wondering what the future of real estate development in Philadelphia will look like. City officials, property developers and investors expect the resolution revising the ZBA to become law through a referendum, but most disagree on whether the resolution will benefit the city. city ​​and its citizens.

—Kelsey Keane, a third-year law student at the Benjamin N. Cardozo School of Law, who is interning with the firm, contributed to the writing of this article.

Alan Nochumson is the sole shareholder of Nochumson PC, a legal services firm focused on real estate, land use and zoning, litigation and business consulting for the people of Pennsylvania and New Jersey. Nochumson is a frequent author and speaker on issues facing businesses, individuals and professionals. You can reach him at 215-399-1346 or [email protected]

Clemente Amazan is an associate attorney at The Firm, a law firm specializing in legal services focused on real estate, land use and zoning, litigation, and business counseling for the people of Pennsylvania and New Jersey. Her experience as a legal assistant has enhanced her ability to identify, analyze and resolve a wide range of legal issues faced by her clients. You can reach Amazan at 215-399-1346 or [email protected]

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