Mmmm, sausage-making: Extra ZCC hearings air out ongoing zoning concerns

On the heels of the contentious February 9 meeting of the Zoning Code Commission, the ZCC announced two public meetings to review stakeholder comments – on February 18 and 28. The conceit of these meetings was to explain the ZCC’s reasoning behind accepting or declining specific input from stakeholders, and the meetings veered between rehashing settled issues and productive—if protracted—dialogue.

The first of these meetings lasted nearly two and a half hours and strongly evoked the legislation-as-sausage metaphor. About three dozen attendees argued over which bits of meat were good, and land-use attorneys and community representatives tried to save some of their favorite rejected pieces from the abattoir floor.

Peter Kelsen, the chair of the ZCC’s work plan committee, led the meeting, accompanied by ZCC Executive Director Eva Gladstein. Kelsen described the gathering as “a joint meeting of the work plan and civic engagement committees,” which, together, have been the pathway through which public input has found its way into—or been rejected from—the revised zoning code.

The first topic Kelsen teed up was civic design review (CDR), the process by which outsized or out-of-context development will be subject to public discussion.

“It is public discourse that’s not regulatory. We’re not asking for a mandatory decision. It is a recommenation, and that recommendation can be accepted by the developer, or the community. In the event that there’s a disagreement, it’s documented, and then the developer pulls their permit and moves on,” Kelsen said.

CDR has been a flashpoint issue. Joe Schiavo, of the Old City Civic Association and the Crosstown Coalition, and Meg Greenfield of the East Falls Community Council, both said that the CDR triggers do not respect the scale of their neighborhoods.

“This is one of the issues where we have input saying [CDR triggers] are too high and input saying they’re too low, ” Gladstein said. “The commission has not excepted either of those sets of comments.

The intent, Kelsen said, is to “create a framework that—and I’ll use this term meaningfully—forces a discussion” between developers and civic groups.

Representatives of developers seemed reasonably satisfied with the ZCC’s final position on CDR, and former commissioner and City Council candidate Andy Toy argued that CDR was basically a done deal.

“We went through this thing last year,” Toy said. “I brought it to a lot of folks and said, ‘does this seem to high?’ They were OK with it. . . . Nobody complained at that time. This is all about compromise—to revisit this now is a little late in the game.”

The timeline for required neighborhood meetings was the subject of much debate at the last full ZCC meeting, and so it was on February 18. Currently, when such meetings are required due to CDR triggers, zoning variances, regulated uses, or special exceptions, property owners and neighborhood groups have 21 days to meet. Neighborhood groups with monthly meetings have objected to this timeline, arguing that disingenuous property owners could take advantage of their schedule and dodge required meetings. A scheme distributed by Sam Little of the Logan Square Neighborhood Association outlined this problem, and raised the question of the role that community feedback would play in a two-stage permitting process that the new zoning code would introduce.

“We’ve heard from quite a few sources that 21 days may just be too little, because of the nature of how the community organizations staff their meetings, schedule their meetings,” Kelsen said. “We heard you, we understand that these are volunteer organizations, and we think we might be able to reconsider that time.”

At the beginning of the Feburary 28 meeting, Kelsen announced that indeed the time frame for mandatory neighborhood meetings would be expanded to 45 days. This time frame includes the required notification of community groups within seven days, about a month in which to hold neighborhood meetings, and the seven days within which developers and community groups must document those meetings. Functionally, this timeline adds only 10 days to the process, but those 10 days will be able to accomodate the often-monthly meeting schedule of community groups.

At Monday’s meeting, Kelsen also said that the expanded timeline would help reduce appeals to ZBA based on inability to hold a community meeting.

Also on Feburary 18, extensive discussion of the required public notice for hearings of the Zoning Board of Adjustment, the role of L&I, and ZBA hearings and appeals arose from feedback offered by an ad hoc group of land-use attorneys from the Philadelphia Bar Association. On previous occasions, and in a previous conversation with PlanPhilly, Cheryl Gaston—the chair of the bar association’s real property section—and Stephen Pollack, an attorney with Montgomery McCracken and the co-chair of the association’s zoning and land use committee, took pains to explain that they spoke only for their ad hoc group.

But on the 18th, they spoke officially on behalf of the Philadelphia Bar Association, joined by Neil Sklaroff, a land-use attorney and partner at the law firm Ballard Spahr. Sklaroff was the point man for this gauntlet of concerns, arguing that “our approach is to avoid litigation in the future.”

On one point—the ability of L&I to impose conditions on zoning permits—Kelsen agreed that the ZCC had not intended to expand that department’s authority. “We made a mistake,” Kelsen said. “It’s removed from the code.”

“Our original intent was not for L&I to impose conditions,” Gladstein said,  referring to L&I’s current ability to note what conditions are necessary to bring a permit application into compliance with the zoning code.

Gaston, repeating a point often made by the lawyers in attendnace, argued that including the language about recording additional requirements was unnecessary, because that ability is already within L&I’s purview. “Why say it at all? L&I already does it. It’s just gilding the lily, in effect,” Gaston said.

Reducing the number of ZBA appeals and hearings is one of the primary goals of the zoning code revision, along with facilitating the appeals process. Under the new code, variances still go to ZBA, and how variances are handled was hotly discussed. For example, the ZBA does not have a required time frame within which they must decide on a variance.

“We feel it’s not an overwhelming problem,” said Kelsen, who said data had not borne out compmlaints about how long ZBA takes to grant or deny variances. “Nobody has reported a holdback of decisions.”

“I’ve had six months” of delays, said Sklaroff.

Penelope Giles, of the Francisville Neighborhood Development Corporation, agreed with Sklaroff.

“It does happen, but you might not hear about it because you don’t hear from the people it happens to,” Giles said. “It’s happened to us,” interjected Greenfield, of the East Falls Community Council. “Inaction is a decision,” she said, although when pressed by Kelsen, could not identify a specific project that had disappeared after going to ZBA.

Sklaroff also strongly objected to an evidentiary point. The language in the new code requires the ZBA to “set forth” findings when variances are granted or denied. Sklaroff’s problem was with this language in particular, from chapter 14-303(8): “Reports of other city agencies made as a result of inquiry by the Zoning Board shall not be considered hearsay, but may be considered by the Zoning Board as if that information was secured by personal inspection.”

Sklaroff contended the ZBA cannot legally make a finding based on such reports. “I should be able to cross-examine whomever prepared the report,” Sklaroff said, contending that this language functionally gives ZBA investigative powers, rather than simply the ability to decide appeals of L&I decisions. He sugested that this was a case where the code can be fine-tuned, to avoid future litigation.

Sklaroff, Kelsen, Zoning Code Commissioner Greg Pastore, and Pollack also debated whether and to what extent the ZBA was required, or should be required, to issue formal findings of fact. Sklaroff argued that the ZBA should declare its reasoning at the time of its decision and be bound to that reasoning if cases are appealed.

Pastore said that the ZBA would not be offering formal findings.

“We added that formal findings of fact are not required,” Pastore said. But he added, “The ZBA ought to be darn well be bound by their reasoning.

“This is loose enough that they can say, ‘we’re going to have a form, we’re going to check a box that says, is the property irregular? No.’ And if it’s appealed, yeah, then the law department or whomever comes in, and they’ll do findings of fact and their conclusions. They’re supposed to match up in [the ZBA’s] letter that you get in the mail, which is better than what you get now.”

Sklaroff said he did not object to full findings of fact for every ZBA case, and suggested his clients would be willing to pay fees to ensure that they were provided. But Kelsen pointed out a practical problem.

“If we do full findings, or an extensive fact-finding document, for even a contested case that’s not rising to a full hearing, the ability of the zoning board to get decisions out quickly, which to me seems very meaningful to the applicant, the protestant, and the community at large, will be diluted,” Kelsen said.

Sklaroff argued that the ZBA would not provide useful comments on its decisions.

“I suggest to you that you will not get meaningful reasoning,” Sklaroff said. “You will get check-off-the-box, or ‘we didn’t think they met their review [requirements].’ The zoning board does how many a day, 40, 50 a day—”

“No!” Pastore interrupted. “They will not do 40 to 50 cases! That’s the point of a new code!”

“I think what we’ll do is try to come up with some kind of concrete language” to address the issue, Pollack said.

“This has become now a lawyers legal meeting,” Kelsen said, trying to move on to additional issues.

“This is a legal document,” Sklaroff replied.

“We have opened it up to say we want to hear comments, we’re receptive to them, we’re standing by, but could we not take that section and consider it at the next session after we’ve had some meaningful responses?” Kelsen said.

The issue was not revisited on February 28, although the ZCC is planning a “lawyer’s meeting” at which the specifics of these points of legal practice will be discussed.

As the 150-minute meeting on February 18 shaped up, this process—intensive discussion of whether, and if so, how, specific code language should be revised—prompted Zoning Code Commissioner and City Councilman Bill Green to reiterate his concerns about the kind of debate that will happen in City Council, if the code moves forward on schedule.

“In the last 35 minutes I’ve heard at least 10 comments from the public that reaction has been, ‘Oh yes, I see your point, draft specific language, let’s look at that, and we’re two and a quarter pages through this comment document. I can assure you the conversation that we’re having here and that is the back and forth dialogue—City Council hearings are not the place to resolve this kind of specific issue. We’re not going to set up a room for people on one side and the commission on another for people to go through this in detail, and make these kind of adjustments we’ve been making,” Green said.

“This two hours has been time extremely well-spent and we should spend as much time as possible to make sure we have gone through, with everybody, every single comment that they have so that we can have the benefit of this back-and-forth before it comes to us. Because if people come and testify in the way that they’re talking about here, it’s just going to make us nervous, and unwilling to act. We’ll say go work it out. It just demonstrates that this kind of dialogue is needed before it goes to City Council. I think this two hours has made that clear.”

Representatives of community groups praised the productivity of the dialogue, but worried that not everything on the agenda could be addressed before ZCC’s vote, scheduled for March 2.

“How many more meetings are we going to have?” Giles asked.

“We have one more scheduled,” Kelsen replied.

“Can we possibly get through this list in another two-hour meeting?” Schiavo asked. “We’re really able to make progress in this form. I very much regret that we haven’t been in this form for the past six months, where there’s been a real dialogue back and forth, rather than standing up in a meeting and making a statement, as we do with many of the Zoning Code Commission meetings. This is really working through the issues. This is having a meaningful dialogue. I really think one more meeting isn’t going to do the job.”

The February 28 meeting got through the agenda, at least, plowing through discussions of comments on development standards, parking, general and organizational issues, the “General Provisions” chapter, the Art and Historical Commissions, and nonconformities. While the ZCC satisfied some stakeholders with its rationale for decisions, and while no new fault lines opened, ongoing concerns about development regulation, scope, and processes perpetuated themselves yet again.

Kelsen and Gladstein opened the meeting by announcing a few substantive changes to the code. The time frame within which community meetings must be held was extended to 45 days. As discussed at the last full meeting of the ZCC, and in PlanPhilly’s last “Cutting through the Zoning Code,” lot sizes in the RSA-5 and RM-1 districts may be subdivided as small as 800 square feet and 960 square feet, respectively, so long as those lot sizes are contextually appropriate. And Gladstein made clear that L&I would not be referring applications to federal agencies, but that they would merely consult with agencies if they had authority over some component of a project.

Members of the development community continued their objections to the inclusion of design standards in the zoning code itself. Architect Jerry Roller aruged against self-certifying that such standards are met, and Neil Sklaroff suggested that where clients for large projects want a different design than permitted, design standards will create new appeals to the Zoning Board of Adjustment.

“The zoning code, in no jurisdiction that I’m aware of, is ever the repository of design standards,” Roller said. “Frankly,  have no problem with the standards. My issue here is that this does not belong in the zoning code.”

“I absolutely do not think they should fall in the code, where failure to meet these sends somebody to the Zoning Board,” Schelter added.

Disputes over appropriate building heights continued as well. Roller pushed the ZCC to further relaxe the 38-foot height limit that predominates in residential districts, while representatives of the Concerned Citizens of Point Breeze demanded that building heights on blocks of two-story rowhomes be further restricted.

“[Anything higher] upsets the whole aesthetics of our neigbhorhood,” said M. Shikomba of Point Breeze.

“From a legal standard, if the property is zoned R10A, or RSA-5 in the new code, they’re permitted to be three stories by law,” Kelsen replied. “We tried to respect the context of the property and only allow the third story where they’re butressed, if you will, by doing a setback. We do not believe legally we can say to someone, you own your lot, you can have a 38-foot-plus high building, but you can only have two stories. We think that would be illegal.”

Tiffany, a representative of the Concerned Citizens of Point Breeze who declined to give her last name, said that the height limit did not respect community wishes.

“The residents in our area do not want three-story houses built in two-story communities,” Tiffany said. “To push through three stories in two-story communities seems like you’re being pro-developer.”

Gladstein replied that the request was to stop development that is legal under the current code, and that such a change would probably not withstand a court challenge.

Comments on general issues and “General Provisions” focused on Community Benefit Agreements, (CBAs) and how their inclusion in the code formalizes what Gaston characterized as “abuse.” CBAs are private agreements between developers or property owners and communities, through which developers give something to a community in exchange for that community’s support—or perhaps more aptly, in exchange for a community’s agreement not to challenge a project. Developer Bart Blatstein, at an Urban Land Institute event last September, called this process “extortion.”

“By setting up this whole thing about a Community Benefits Agreement, they’re still subject to the same kind of abuse. People can be strong-armed, and you can make it appear that you’re giving sanction to this kind of thing,” Gaston said.

CBAs can be contentious from the residents’ side of the fence as well. Tiffany, of Concerned Citizens of Point Breeze, said that these agreements could allow developers to cut side deals with some community members who may not speak for the community as a whole. Kelsen insisted that requiring CBAs be submitted to the city did not make them enforceable by L&I, but instead forced them to be publicly available such that residents can see what deals have been cut.

“This is a bright-line test. We are not modifying this section,” Kelsen said. “I wanted it to be abundantly clear for the public, and for the non-lawyers: there’s going to be a definte public disclosure of these third-party agreements.”

In their comments to the ZCC on the referral draft, the Old City Civic Association asked that new construction in historic districts be governed by the Historical Commission, and the Bar Association and the Development Workshop asked that appeals of Historical Commission decisions go directly to the Court of Common Pleas—currently, the Board of L&I hears those appeals, and the court is the step after that.

Both were denied by ZCC, although one request from the Bar Association and the Development Workshop—that the Art Commission make its regulations clear to applicants was accepted. Craig Schelter asked Kelsen whether the Art Commission has acknowledged an intent to adopt any standards.

“Trust me on this one,” Kelsen replied.

The changes discussed and explained at these two meetings will make their way into a new version of the referral draft—the one on which the ZCC will vote on Wednesday. That draft will be available on zoningmatters.org.

Which meat bits will become the Zoning Code sausage? We’ll find out Wednesday:

• The ZCC vote on its preliminary report is scheduled for Wednesday, March 2 at 8:00 a.m. 1401 JFK Boulevard, 14th Floor, Room 1450. The only item on the meeting agenda is a vote on whether to send the preliminary report to City Council.

Contact the reporter at ngilewicz@planphilly.com