Council President Darrell Clarke to introduce overhaul of Philly Zoning Board

Updated: 5:55 p.m.

Philadelphia City Council President Darrell Clarke wants to radically restructure the city’s zoning board over what he described as a series of decisions favoring developers and plans to introduce legislation to do so.

In a Sept. 9 letter obtained by PlanPhilly, Clarke laid out a plan to change the city’s Zoning Board of Adjustment, a five-appointee commission that hears appeals from developers and others seeking to build in ways that don’t comply with the city zoning rules governing building size, scale, and relationship to the urban environment. The board is theoretically designed to grant relief for hardships linked to zoning restrictions, but has courted controversy for sometimes appearing to override community or councilmanic opposition to development. The board approves the vast majority of variance requests that make it to a hearing.

“The board has flagrantly violated the law by granting zoning variances without any demonstration of hardship by the developer,” Clarke wrote in the letter. “Far too often, the board is condescending to the community and dismissive of legitimate issues raised by neighbors.”

The communication includes draft legislation that would trigger a public referendum to amend the city charter to increase the size of the board to seven, professionalize certain seats, and impose council approval on positions that are currently appointed directly by the mayor.

If approved, the ZBA would be required to include an urban planner, architect, zoning attorney, a real estate finance expert, and two members from community organizations. The legislative language also states “all members shall have a demonstrated sensitivity to community concerns regarding the protection and character of Philadelphia neighborhoods.” The current bylaws do not mandate any specific qualifications or expertise.

Currently, the board is chaired by public affairs consultant and former city councilmember Frank DiCicco, who took over after his successor was ensnared in a corruption case involving electricians union leader John Dougherty. Board member James Snell comes to the board with a career in the building trades, while Thomas Holloman works as an architect and Confesor Plaza works with Laborers’ Union Local 57. Vice-chair Carol Tinari serves on the boards of several civic organizations and is married to local defense attorney Nino Tinari. The Director of Planning and Development also serves as an alternate for absent members.

Clarke will introduce the legislation Friday at the council’s first session of the fall, according to the letter.

Clarke spokesperson Joe Grace declined to provide further comment on the letter. “We’ll let the Council President’s memo to his members speak for itself,” he said.

Mayor Jim Kenney’s office did not respond to a request for comment. A representative from the city’s Building Industry Association, a development trade group, said it was aware of the proposal but declined to comment.

Philly is an outlier when it comes to zoning

Philadelphia stands out from other cities in terms of the sheer volume of zoning appeals heard each year. City data shows about 1,000 individual appeals, large and small, were lodged with the ZBA in Philadelphia through 2021 so far. For comparison, New York City’s similar Board of Standards and Appeals typically sees less than half that number in a year.

Prior to a zoning code overhaul in the early 2010s, the board saw even more cases. At that time, reform advocates blamed the city’s outdated and convoluted zoning code for effectively requiring variances even for run-of-the-mill projects.

While code reform was meant to simplify the development process, recent years have seen the return of a complex patchwork of more restrictive zoning overlays — often as a reaction to encroaching development.

Clarke has personally led some of these charges and generally pushed for more council control over development. He notably enacted a neighborhood preservation overlay in the Strawberry Mansion section of his district. The regulations were meant to limit height and density in a fast-changing area where property values are rising as developers buy up older rowhouses and renovate with high-end flourishes such as roof decks, which were banned under the overlay.

The ZBA is empowered to grant variances allowing development in excess of existing height or density controls, in certain circumstances. The board recently made headlines for approving a variance for a controversial apartment project in West Philly that district Councilmember Jamie Gauthier opposed and a seven-story apartment building in Old City that drew community opposition.

Clarke’s letter echoes many of these critiques, stating that ZBA decisions have resulted in the “loss of affordability, loss of neighborhood character, and projects that are significantly out of scale with the neighborhood.”

Zoning attorney Matt McClure said the profusion of ZBA cases also partially stemmed from City Council’s own reluctance to remap large swaths of the city, particularly growing areas.

“Sometimes developers seek to do more than is allowed… But, in Philadelphia, we have to ask for variances because so much of the city hasn’t been remapped or because the current designations don’t match conditions on the ground,” he said. “There are [neighborhoods] where you can’t build new multi-family housing in areas where nearly every house is multi-family. It often has no relationship to existing or future uses.”

He also took issue with language in the proposal requiring a “demonstrated sensitivity” to community concerns. He said the board is intended to make decisions through an objective process, not unlike a court of law.

“In my mind, that language requires a certain viewpoint from a board member,” he said. “But the [ZBA] is a quasi-judicial body. You wouldn’t want a judge to have a particular viewpoint, you want them to apply the law and facts.”

Clarke’s proposal would require amending the city’s Home Rule Charter, which requires a two-thirds majority vote by City Council and subsequent approval from voters through a ballot question in the spring.