Waterfront advocacy group members say Central Delaware Overlay still lacks adequate protection for the riverfront

With time to introduce and pass legislation creating a zoning overlay for the Central Delaware Riverfront dwindling, some Central Delaware Master Plan advocates are questioning the potential efficacy of the current draft.

“Right now, when I look at this overlay, and I try to imagine what difference this overlay really makes, compared to just using the base zoning and zoning code, I’m less certain than ever about what positive differences it would make,” said Matt Ruben, chairman of the Central Delaware Advocacy Group.

“My feeling is that the current draft looks way too much like something that’s been crafted to avoid lawsuits, and not enough like something to be sure the master plan actually has teeth. I think the draft is heading in a dangerous direction.”

Ruben said the biggest issues with this iteration concern waterfront access, the future ability to extend the street grid, and the process through which the planning commission can grant exceptions to the 100-foot height limit contained in the overlay.

“The good news is, I think a lot of these (issues) can be addressed relatively simply, if there’s the will to change the language.”

Ruben said he and other CDAG members had just begun to review and compile comments on the latest draft, copies of which they received yesterday. CDAG doesn’t have an official opinion yet, he said, and these comments are his alone. Members have sent some preliminary comments to First District Councilman Mark Squilla, Planning Commission Deputy Executive Director Eva Gladstein, and others, Ruben said.

These folks will likely be receiving comment from another advocacy group, the Development Workshop, which represents the issues of property owners and developers. But not yet. “The Workshop received it Tuesday evening, and it is under review,” said attorney Michael Sklaroff.

Sarah Thorp, the Delaware River Waterfront Corporation’s planning director, had not yet thoroughly reviewed the latest draft. But when told of the on-going concerns of CDAG members, Thorp was not alarmed. In short, she said their concerns are addressed either in the underlying zoning or in the Central Delaware Master Plan itself, or cannot be dealt with via zoning at all.

“DRWC is confident the planning commission is aware of the intent of the master plan, and is very much trying to implement the intent of the master plan,” Thorp said.

Gladstein said that indeed, the intent was to support the master plan, without redundantly repeating zoning law already established in underlying zoning, or provisions in the master plan itself. Because it is part of the comprehensive plan, the master plan must always be consulted by any city agency making a decision on the waterfront, she said.

Gladstein and other planners have worked with both CDAG and the Development Workshop, as well as Squilla, the Delaware River Waterfront Corporation – the quasi-city agency that oversaw the creation of the Central Delaware Master Plan – on the overlay.

Planners had hoped the Central Delaware Overlay would be introduced at this week’s Council meeting Thursday, but Squilla said Tuesday night he was holding back specifically to get comment from stakeholders on the proposed language.

No zoning bill can be adopted until 15 days after it is introduced, Gladstein said. Unless city council adds more meetings in June, the overlay must be introduced next week to make it to a final vote before council goes on summer break, Gladstein said. Even that would require a suspension of the rules of council, skipping one of the readings of the bill, but such a step is common.

Here are the issues identified by Ruben and Joe Schiavo, who has helped lead CDAG’s analysis of the evolving overlay, after the initial review:

Height limit relief
The draft overlay caps building height to 100 feet, unless the underlying zoning sets a lower limit. The overlay gives the power to grant exceptions to the planning commission. An earlier draft listed specific conditions under which an exception could be granted.

CDAG was pleased, but planners and other stakeholders thought this language was too restrictive. CDAG was hoping some guidelines would be added back in, but the new version’s requirements shrunk the list further, removing the part that said the additional height had to be consistent with the goals of the city’s comprehensive plan – of which the Central Delaware Master Plan is part.

The draft still says the waiver must be in the public interest and needed due to hardship with the site.

“If you have a height requirement, and you don’t have to show anything about impact, and you don’t have to say anything about how it relates to the Master Plan, than the height requirement itself becomes totally meaningless,” Ruben said. “To me, this is a blank check” for anyone to build as high as underlying zoning allows.

Gladstein oversaw the re-do of the city’s old zoning code, and part of her mission was to make Philadelphia’s code less confusing and byzantine. There were many redundancies in the old system, and she and other planners want the new code and associated zoning laws to be more streamlined. Because the Central Delaware Master Plan was adopted by the planning commission and is now part of the zoning code, any city agency making a decision about the area it covers, between Oregon and Allegheny avenues and the river and I-95, is required to consult the plan before making a decision, she said. It doesn’t need to be specifically named.

Schiavo raised another question about height limit relief. In most circumstances, when zoning relief is needed, an applicant goes to the Zoning Board of Adjustment, he noted, and ZBA decisions can be appealed to the Court of Common Pleas.  Are decisions made by the planning commission appealable, he asked?

“We are clarifying how various decisions by the planning commission are appealable in the clean-up amendments to the code,” Gladstein said. She did not wish to offer any detail on how a height limit appeal would be handled.

River access streets
The first draft of the overlay said no permanent structure could be built in the path of any of the key river access streets identified in the master plan. A newer version did not ban structures, but stated that anywhere one of these streets crosses Delaware Avenue or Columbus Boulevard, a 12-foot-wide access to the waterfront must be preserved.

The current version bumps the access to 20-feet-wide, but also says it applies only to parcels that touch both Delaware Ave. or Columbus Blvd. and the river.

CDAG thinks 20 feet is still too narrow, Ruben said. “And more importantly, a fixed width is beside the point when it comes to the goals of the master plan. The point is to continue the street right of way and view corridor to the water,” he said, even if that is not with a street vehicles can drive on.

Ruben said he assumed the application of this provision to only parcels that touch both the road and the river was an oversight. “I think it’s an honest oversight, but I will say, if I were a Ballard Spahr zoning attorney, I would love that provision.” (That’s a little reference to Sklaroff.) “It’s a loophole the size of a Mack truck,” Ruben said.

Ruben said a property owner could apply for a subdivision, he said. Then, perhaps years later, they could build on their land, and even use it as though it were a single parcel, so long as no building sat on the subdivision line, with no requirement of riverfront access.

Thorp said the 20-feet is a minimum that is “more than adequate for trail and bicycle access.” Extending the street grid is desirable, she said, but that is a job for the city streets department, not zoning.  Preliminary discussions between planning, streets and DRWC about which streets should be platted have already begun, Thorp said. Gladstein added that not every non-obstructed area needs to be wider than that, and in some cases, she said, the streets are themselves about that narrow.

Gladstein said the change that says the access path requirement applies only to properties that front on both Delaware Avenue and the river was intentional.  “We had a practical question about how we could make two property owners coordinate on a path or trail,” she said. “Our intent is  to support the Master Plan and provide access to the river,” she said, and the river access streets language does that. However, in this type of circumstance, the planning commission has no authority to force two separate, private property owners to work together, she said.

Thorp said that a single owner who wanted to subdivide his property would have to go through city procedures to do so, and that the city would not grant a subdivision as a way to get around the access requirement. She said she would need to study a map to determine how many, if any, properties currently would be exempted from the access provision if this version of the draft becomes law.

How to make CDAG  happy

Ruben said that he has confidence the current administration and planners would only make decisions supportive of the Master Plan, but no one can predict the mindset of future city officials. That’s where legislation is supposed to step in.

He said he’d be pretty happy if a few changes were made to the draft. He believes more guidelines for height exceptions are required, such as stating a building can’t be so tall that it casts “undue” shadows on parks. A minimum distance between buildings exceeding the height limit should also be set so there are no canyons of open space or shorter buildings, he said. And no tall building should go “where it would block important view corridors.”

He’d like the river access provision to require access as wide as the section of street and sidewalk on the west side of Delaware Avenue or Columbus Boulevard.

He’d like some reference to the Master Plan in the zoning legislation.

Schiavo brought up another change CDAG has been trying to get made: The interim overlay in place now contains a list of prohibited uses, such as non-accessory signs, including billboards. Gladstein and the planners have addressed this with CDAG, saying that the combination of underlying zoning and other billboard requirements – such as that they must be placed a certain distance from schools or churches – greatly limits the places where billboards could go. A prohibition in the overlay would be redundant, they have said.

Schiavo sees it more as security, especially since the zoning remapping for the area has not been done yet.  “We don’t know how things will be different,” he said.

Squilla – who has the final say on what the ordinance says, and when it gets introduced – was not reached for comment Wednesday, but Gladstein said she remains confident the overlay will be introduced and passed before council breaks for the summer.

The new zoning code goes into effect on Aug. 22. It has a blank place holder where the overlay is supposed to go. If there is no overlay in place come Aug. 22, Gladstein said she doesn’t think the waterfront would be without one for more than a month or so. City Council comes back into session in September.

At city council

After Thursday’s council meeting, Squilla said he hopes to introduce the legislation next week, so it can make it through committee and be adopted by Council before summer break.

Squilla said he has received feedback on the legislation from CDAG and the development community, and has begun a discussion about it with planning. He hopes to set up a meeting with city planning prior to council’s next session.

Squilla said he was open to making changes before introducing the bill, but he is still studying the language itself, the stakeholder concerns and planning’s responses, and so he has not determined yet whether he believes change is needed.

Squilla also said he is investigating the ramifications if the legislation does not make it through Council before break. Squilla said there are “two schools of thought” on whether the waterfront would in fact be without an overlay after Aug. 22 if the new one doesn’t pass. The interim overlay states it remains in effect until a replacement is in place, and so there is a question about whether the new code’s blank placeholder would override the interim overlay with nothing, or if a blank placeholder wouldn’t count, and the interim document would remain in effect, he said.

Contact the reporter at kgates@planphilly.com

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