New worries bubble up at ZCC Stakeholder X-Changes

At two Zoning Code Commission outreach events in April, discussion of the core subjects—use regulations and dimensional standards—went relatively smoothly. But perhaps as a sign of things to come, unexpected issues flashed up. During the April 5 Stakeholder X-Change, worries about the spacing of churches and their accessory uses, such as daycare, poured out of community representatives from East Falls to Old City to Overbrook Farms. And on April 19, community members advocated to expand sky plane bulk controls outside of Center City and discussed the ramifications that the new zoning map—which translates old districts into new ones—will have on permitted uses and building sizes.

“It’s an attempt to make sure folks know what’s in the draft the ZCC is working on right now,” Eva Gladstein, executive director of the ZCC, said of the X-Change meetings. “Some of the changes are coming out of meetings like this, some out of an internal review process, and some out of meetings with stakeholders.”

Overview

On April 5, Gladstein walked stakeholders through how land use regulations have been organized, revised, and presented in Philadelphia’s new zoning code. She reviewed the principles by which property uses are being reorganized in the new code—namely, how to make permitted uses more flexible to accommodate changing neighborhood and business needs.

“It was to determine what’s the best fit. Our zoning code was last comprehensively overhauled over 50 years ago,” Gladstein said, explaining that the uses detailed in the new code were not planned to be the same as those that currently exist. According to Gladstein, the goal with use changes, as with the entire code revision, was to simplify the code, to increase predictability for residents and property owners, and to make the code more consistent.

“We want the code to be able to adjust over time. We wanted to create enough flexibility for it to be adjusted without a major overhaul,” Gladstein said. To these ends, she said that the use regulations have been changed in three ways:

  • A new organizational model
  • Entirely new uses added to the code
  • A new way in which use regulations are displayed

In the current code, every zoning district has a list of specifically permitted uses. Any property owner who wants a use that’s not called out in the code has to appeal to the Zoning Board of Adjustment, Gladstein said.

The new code reorganizes uses into ten broad categories:

  • Residential
  • Parks and open space
  • Public, civic, and institutional
  • Office
  • Retail
  • Commercial services
  • Vehicle and vehicular equipment sales and services
  • Wholesale, distribution, and storage
  • Industrial
  • Urban agriculture

Within these categories are approximately 40 subcategories, and these subcategories govern what types of uses—rather than what specific uses—are permitted in the new zoning districts.

“It recognizes new uses that are not in the Zoning Code that have created confusion in the past decade,” Gladstein said. “We’re trying to recognize modern land use.”

The new uses in the code include:

  • Four types of urban agriculture—animal husbandry, community garden, market or community-supported farm, horticulture nurseries and greenhouses
  • Artisinal manufacturing, such as live-work spaces for artists, or industrial space repurposed to low-intensity hand-crafted manufacturing
  • A revision of day care to include adult day care
  • Accessory dwelling units, a new class of housing sometimes known colloquially as “mother-in-law” apartments or “granny flats.”

Given the reorganization and new uses, the code is also reorganized into use tables that reflect the broad categories and the narrower subcategories. Notes also direct readers to use-specific standards in the code that govern, for example, where and how gun stores or cell phone towers may be operated.

The new code has four tables, one each for all residential districts, all commercial districts, all industrial districts, and all “special purpose” districts (which include areas like universities, airports, and casinos). The use tables include only categories and subcategories that are permitted in those zoning districts.

The open question-and-answer session primarily focused on special exception uses, religious institutions and their accessory uses, and whether the concentration of such uses could be regulated by zoning.

Joe Schiavo, of the Old City Civic Association, expressed concern that no spacing or geographic restrictions existed for special exception uses.

“There’s no limit to how many special exception uses can be on a block,” he said.

Gladstein emphasized that special exceptions do not necessarily get approved.

“It’s not by-right, but it’s not the same as a variance,” she said.

“The concern is you get three, four, five, ten per block, and it creates a district that may be detrimental to their neighborhood. If you’re looking at preserving the best things in a neighborhood, and you let saturation occur with no restrictions, you’ll change the character of the neighborhood,” said Meg Greenfield of the East Falls Community Council.

Some special exception uses in residential neighborhoods include group and assisted living, educational facilities, hospitals, churches, and bed-and-breakfasts.

“In order to use spacing standards, you need to have a study to back that up. We don’t have those. The idea behind a special exceptions is it might be OK, but if you go to the [ZBA] and say it’s detrimental to the neighborhood, you can make a case against it,” said Natalie Shieh, the ZCC’s program coordinator.

“The first burden is on the applicant to demonstrate that it will not have [negative] effects,” Gladstein said.

Schiavo expressed concern that whether special exceptions will be permitted comes down to a ZBA decision.

“It’s all a matter of ZBA’s disposition to a particular application or applicant. Do we all have the faith that when the new code is in place, ZBA’s disposition will be any different? We’re asking that you conisder that these uses permitted by special exception, be not permitted by spacing requirements,” Schiavo said.

“These standards have been tested by the courts, so we have to go back to our lawyers” to discuss whether spacing can be added, Gladstein replied.

Religious Institutions

The concentration of religious institutions, and accessory uses at religious institutions, came up for extensive debate as well. Greenfield said that daycare is allowed as-of-right as an accessory use at churches, and made a radical proposal to address the matter.

“We think religious institutions should be by special exception across the board, because if they intend to put a church in there and then have a day care, a school—these are things you’d regulate,” Greenfield said.

Under the new code, such institutions are permitted by-right in most districts. Churches are only prohibited in Philadelphia’s heaviest industrial districts. They are special exceptions only in areas of single-family detached homes and in CMX-2.5, the new district for neighborhood commercial corridors.

“That’s a valid point,” replied ZCC Commissioner Greg Pastore, “but if we live in the real world, I’m not going to say somebody’s going to put in a church just to put in accessory day care.”

Mary Tracy worried that the new code allows churches in more neighborhoods than previously.

“In Overbrook Farms, we have a lot of large homes, so we became very attractive to churches. So we became R1 because a lot of these uses were prohibited,” said Tracy.

“Religion is an issue that is pretty well protected by the First Amendment,” replied ZCC Commissioner Stella Tsai. “It’s hard to be prescriptive when deciding whose religion is legit and whose isn’t. A lot of these organizations provide social services, and have to abide by regulations.”

“I don’t care what kind of religion it is,” said Greenfield, “but my problem is that you have these uses and superimpose them when they’d normally be dealt with by special exception. I’m not saying get rid of churches or synagogues or mosques or anything else. I’m addressing the combination of these two parts,” referring to accessory uses like day care or social services.

Pastore said that spacing might not make sense given that different churches serve different people.

“One might be Ukranian Catholic and one might be Ukranian Orthodox, and these are different,” he said.

Schiavo said that currently, many places of worship offer other programs.

“In a way, they’re functioning like an alcohol-free club,” he said, referring to how both church services and accessory events, like concerts, can attract a large number of people who all arrive and depart at approximately the same time.

Pastore said that parking requirements would help restrict the placement of churches.

“Surprisingly enough, relgious assembly and assembly and entertainment are the same,” Pastore said, regarding parking requirements. “But we will re-review this to take into consideration your issues.”

Dimensional Standards

Echoing the structure of Gladstein’s discussion, Shieh, the ZCC’s program coordinator, hosted a discussion of dimensional standards for lots and buildings on April 19. Revisiting the revisions to dimensional standards discussed at previous ZCC meetings, Shieh outlined the five major changes in how the code approaches dimensional standards:

  • All dimensional standards are grouped in tables
  • Outdated measurement techniques have been removed
  • Language was revised for consistency, such as distinguishing “open area” (any space not occupied by a structure) from “open space,” which is public space, like a park
  • Rules of measurement have been cleaned up, to clarify the proper way to measure the occupied area of a lot or a setback, for example
  • The treatment of building heights is different: story provisions have been removed, and maximum building heights for single-family detached, single-family attached, and smaller multi-unit buildings has been raised from 35 to 38 feet

“We’ve done a lot of work to address the two- and three-story blocks. There’s now a contextual setback. You can build a third story on a two-story block, but you must set back the top story by eight feet,” Shieh said.

Sam Little of the Logan Square Neighborhood Association and the Crosstown Coalition, said that a package of illustrations detailing how and to what size such buildings may be constructed could help avoid confusion.

“You show a corner property, one in the middle of a block, one with neighbors on one side, on two sides, and one with no sides,” he proposed.

Shieh also discussed how the code removed the old controls tied to lot area, and how the new code shifts to the “sky plane” controls to ensure access to the light and air in the densest parts of the city.

The sky plane controls only apply to specific streets, all of which run east-west through Center City, and only east of the Schuylkill River. Brian Johnson said that for CMX-5 lots outside of the sky plane control area, “there’s no control whatsoever.”

Land currently zoned C-5, which allows the densest development in the city, will convert to CMX-5 in the new code.

“The listing of the sky plane streets is something that’s controversial,” said Pastore.

“There’s another way about this,” said Little. “I think sky plane is pretty well worked out. But where C-5 is across the whole city, if you’re writing for the next 25 years, maybe there should be some kind of control.”

Little cited the areas around Temple University and Wayne Junction as areas that could eventually be remapped CMX-5 to accomodate a need for increased density.

“If only we had a problem with density at Wayne Junction,” said Development Workshop’s Craig Schelter.

While Wayne Junction is not currently zoned C-5, according to the online conversion map, at least a handful of lots lying outside the sky plane control area will indeed be converted to CMX-5. The Wilma Theater and a parking garage sit on one such site, at the northeast corner of Spruce and Broad Streets, and the State Office Building site at the southwest corner of Spring Garden and Broad Streets is another.

“I can imagine somebody building a mostly semi-governmental building, that’s twelve stories, on a whole block,” Little said.

Gary Spahn, of southwest Center City, questioned whether problems like bay windows being turned into liveable space, and thus clandestinely adding occupied area to a house or apartment, could be adequately controlled and enforced.

“I don’t see a change of religion on the part of the zoning board,” he said.

Pastore said that the city’s commitment to enforcement seems to be strenghtening.

“It’s not a zoning issue, but a streets department issue, and the streets department is getting religion on enforcement. The rules are very strict, but they haven’t been applied,” Pastore said.

“Bay windows are so complicated that streets [department] engineers can’t figure it out,” said Shieh. The new zoning code mentions them only twice, in the Queen Village neighborhod conservation overlay, and only regarding their design aspects.

Balconies on the fronts of buildings, which can also infringe on public space above the sidewalk or street, are governed by streets department regulations as well. But Joe Schiavo argued that the zoning code is a proper place to control balconies.

“They are essentially a real estate land grab,” Schiavo said.

Little asked whether problems could arise from places where the new zoning code bumps up against other city codes.

“Do you get pushback?” Little asked.

“Sometimes, but that’s why we’ll have a transition period,” said Shieh.

The moment of transition sparked concern from Little. When City Council adopts the new code, it will also adopt a conversion map that turns all the old zoning districts into new ones—including, in some cases, changes to uses and dimensional standards—immediately.

“The collective impact of the changes is something that the communities have no sense of,” Little said. He suggested if future mayors do not strongly focus on city planning, the process might peter out, and communities would be stuck with the conversion map.

“You’re right to be slightly concerned,” Pastore said, “that when you have a beautiful conversion map that there might be the loss of political will to affirmatively remap with planning. But that’s not our fault. That’s the fault of everybody that made bad maps twenty and thirty years ago.”

“I’m not trying to put on a hairshirt. We really care about it,” Little said.

“There are a lot of neighborhoods who don’t know a damn thing about this,” he said. “A zoning code is one thing. A zoning map is something else. And I believe that, correctly or incorrectly, that you’ve been saying that remapping is coming later. But it’s not. It’s now.

“If the conversion map is a legal map over an indefinite period of time, the shaping of the city, essentially, is over, unless someone pays for a hell of a lot of planning commission stuff that isn’t there,” Little said.

Richard Redding, the director of community planning for the Planning Commission, tried to quell Little’s concerns.

“I think of it as an automatic conversion. There’s no analysis in that map. if your neighborhood zoning is thirty years old, or industrial in transition—none of these changes are addressed in that map,” Redding said.

Redding also pointed out that a team of about eight planners would be working on the remapping process, and through that process, the Planning Commission would address trends and changes in neighborhoods.

“Don’t think of everything as a win or a loss. If something’s liberalized and we all think it should be, then it’s a group win. If something is tightened and we all think it should be, that’s a win, not a loss,” Pastore said.

“My great concern is that all of this effort could come to a halt,” Little said. “My point is that right now, I can see a lot of heartbreak about, suddenly, the remapping—you can call it a conversion—but the remapping that’s being done in the code, I don’t think that’s what people commonly believe.”

Two more X-Changes are scheduled. All meetings will be held at 1515 Arch Street, 18th Floor:

  • Stakeholder X-Change on Other Development Standards, Wednesday, April 27, 5:00 p.m.
  • Stakeholder X-Change on Parking and Signs, Tuesday, May 3, 8:00 a.m.

The next full meeting of the ZCC will be held Wednesday, May 11, 8:00 a.m., when the commission is scheduled to vote on whether to send its preliminary report to City Council.

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