The ban on nightclubs and other assembly uses near the Delaware River would continue in all but a few blocks of Fishtown and Northern Liberties under the latest plan to amend the Neighborhood Commercial Area Overlay.
First District Councilman Mark Squilla introduced legislation in September that would have greatly reduced the size of the overlay district, meaning nightclubs and restaurants could have been opened by right in most of Northern Liberties, Fishtown, Kensington and Port Richmond.
Civic organizations in some of those neighborhoods were concerned the nightclub-related problems of the 1980s and ’90s which the overlay was established to curb would return.
In response, Squilla said he’ll amend his own bill at a Dec. 3 City Council Rules Committee hearing, reducing the area from which the overlay would be lifted to a few parcels at Frankford and Delaware avenues where Michael Samschick and Core Realty want to build a multi-venue entertainment complex (learn more here) and a few blocks south of that project’s Laurel Street boundary, down to Poplar Street. The hearing is set for 10 a.m. in City Hall Room 400.
The amendment would also reduce the area in which an extra parking requirement for waterfront projects would be repealed to the area between Frankford and Poplar.
The overlay’s current boundaries are the Delaware River, Front Street, Spring Garden Street, 5th Street, Girard Avenue, Frankford Avenue and Lehigh Avenue. The parking requirement extends over an even wider area. Squilla’s original legislation would reduce the overlay area by more than half, leaving it to apply in two, much-smaller areas: One bounded by Spring Garden Street, Front Street, 5th Street, and Girard Avenue, the other by the west side of Delaware Avenue, Lehigh Avenue, Trenton Avenue, York Street, Aramingo Avenue, and Cumberland Street. It would eliminate the parking requirement completely.
Before the new zoning code was passed, nightclubs and other places of assembly, bars and restaurants could not be opened or existing ones expanded within the overlay without a zoning variance. The new code changed the rules so that bars and restaurants could expand or open by special exception. (The difference: The party seeking a variance must prove a hardship without one. Under special exception, the burden of proof rests with the community, which must show the granting of the exception would cause harm beyond which is normally expected with that type of use.)
The Core proposal had won the support of Fishtown Neighbors Association, and received from the ZBA relief on on the assembly, restaurant and parking-related zoning needed for the project to move forward before Squilla introduced the bill to shrink the overlay.
But then neighborhood resident Jethro Heiko filed an appeal of the ZBA decision in the Court of Common Pleas, which Squilla said prompted him to introduce the legislation so Core could begin development.
The appeal is set for 10 a.m. Feb. 26 at City Hall Court Room 426.
If city council passes the original bill or a version amended the way Squilla says he intends to, next month, Core wouldn’t need the variances it has received.
While there is some relief from community groups that nightclubs wouldn’t be able to open in much of the Central Delaware with the proposed changes, not everyone is happy, or completely happy, with Squilla’s decisions.
The area between Laurel and Poplar is within Northern Liberties, and Northern Liberties Neighbors Association wants the overlay protection to remain there.
“We keep saying over and over again that we will oppose any attempt to repeal (the overlay) within the boundaries of Northern Liberties,” said NLNA President Matt Ruben.
Ruben is also the chairman of the Central Delaware Advocacy Group, an organization comprised of representatives from waterfront communities and other entities that advocates for the city’s long-range goals for the waterfront.
CDAG is concerned that Squilla’s decision to introduce legislation that they believe would make moot a pending appeal sets a bad precedent that could undermine residents’ and civic organization’s ability to appeal future ZBA decisions. Earlier this month they decided to continue to oppose the legislation even if it is amended, largely for this reason.
Heiko’s attorney, Paul Boni, said his client’s appeal applies to the zoning approvals Core holds, and so long as he holds them, the appeal goes forward. If city council passes legislation that means the project could be built by right and Core abandons its current approvals and gets new ones, “that might have a mooting effect,” he said. Boni said he couldn’t comment on what possible actions he and Heiko could take at that point.
In October, CDAG voted to speak against Squilla’s bill based both on nightclub concerns and worries that the legislation would encourage the future introduction of legislation to circumvent issues where civic organizations have filed appeals. Earlier this month, CDAG decided to continue to oppose the bill based on its policy concern, even though most neighborhoods would not face new nightclub concerns.
Fishtown leaders have told city planning that they want the restrictions on new restaurants removed from their neighborhood. At one point, Squilla was leaning toward amending his legislation so that the nightclub-related restrictions would remain across the district, but the restaurant restrictions would be lifted in some areas. See previous coverage.
The Philadelphia City Planning Commission and the quasi-city Delaware River Waterfront Corporation want the parking requirement lifted from the entire waterfront, because the Master Plan for the Central Delaware calls for less dependence on automobiles, and more use of mass transit.
The precedent issue troubles neither Squilla nor the PCPC. Natalie Shieh, Deputy Chief of Staff in the Office of the Deputy Mayor for Economic Development has been working on the bill. She said a report recommending changes in the zoning code, which came out before the lawsuit was filed, called for these changes.
Squilla said Monday that the CORE project has the approval of planning and the community, as well as the ZBA. “It went through the proper procedures and process. This bill just helps enable it to happen. It’s not like we’re doing something to create an area to build something that nobody wanted.”
He said that in cases where there is community support for a project, he would continue to use ordinances to further that project in some cases. “An ordinance can be cleaner, and easier to do, than trying to go through nine million hurdles to get what’s needed,” he said.
Boni disagrees. “This city councilman ran his campaign on a pledge of not spot zoning, of respect for the zoning code, of support for the zoning code and the procedures and the rights of community members, and this seems to fly in the face of all of that,” he said.
Squilla said he’s still talking with NLNA, and there was a possibility that some compromise regarding the southern boundary might be reached before the December bill hearing. It makes sense to him to extend the boundary to Poplar, he said, because Core owns that land as well.
“It should have the same zoning, it made more sense to me,” he said. The area from which he proposes lifting the overlay has “already shrunk tremendously from where we started.”
Ruben, in his role as NLNA president, said ownership is not a good reason to lift the overlay, especially since no development has been proposed yet for that land.
“If an Overlay is going to be removed right BEFORE any actual development is proposed, then it moots the entire purpose of an overlay,” he wrote in an email.
“The land is not an island,” Boni said, and removing the overlay from it would impact the surrounding neighborhood, not just that parcel and its owner.
Squilla said he wants to meet more with the neighborhoods, CDAG, DRWC and planning. He’s open to tweaking the overlay across a broader area if civic groups want that. He’s also open to lifting the parking requirements.
“Planning thinks if we do that (lift the additional parking requirements), it would spur more interest in development, because it’s almost impossible to do anything now because of the parking requirement,” Squilla said.
But more discussion is needed before he’d be comfortable with any changes beyond the Core property, he said. Squilla plans to introduce further amendments to this overlay sometime next spring.