The agency responsible for granting and denying relief from the terms of the zoning code is considering a new set of regulations to guide its own decision-making, as well as the process for developers looking to appeal its decisions. A draft of the new Zoning Board of Adjustment (ZBA) regulations was posted on zoningmatters.org last month.
According to deputy Planning Commission director Eva Gladstein and others involved in reviewing the new regulations, the ZBA held a hearing on the matter on June 13, but put off deciding whether to adopt them in order to allow more time for interested parties to provide feedback. The regulations were drafted by ZBA chair Lynette Brown-Sow, along with Gladstein and Natalie Shieh at the Planning Commission and representatives of the Law Department and Licenses and Inspections, according to Gladstein.
The new regulations are intended to put ZBA practices into line with the new zoning code, which will take effect next month. A clerk in the ZBA office said another hearing on the new regulations has not yet been scheduled, but that it will likely by scheduled for mid-August. Once the agency votes to adopt the regulations, as per the Home Rule Charter, the document must be filed with the Records Department, and advertised in local newspapers. During the thirty days that follow, anyone affected may request an official public hearing on the new regulations.
Most of the provisions of the draft regulations refer back to sections of the Home Rule Charter, the Administrative Code, and the new zoning code. But some new provisions have been added.
For example, one new provision requires the ZBA to keep an official record of its decisions: “The Board shall keep records of its deliberations showing the vote of each member upon each question, or absent or failing to vote, indicating such fact, and shall keep records of its hearings and other official actions, all of which shall be immediately filed in the office of the Board and shall be a public record.”
Another provision requires that the Board submit its decisions, and their rationale, in writing. “The written decision shall state the reasons for the Board’s determination in accordance with the relevant sections of the Zoning Code,” the draft states.
Another new provision carries over and updates portions of the agency’s current regulations, which were adopted in 1999. A section called “Reconsiderations”—renamed from “rehearings” in the current regulations—allows for any “party of record” to ask the ZBA to reconsider any of its decisions within 90 days of its being recorded.
In choosing whether to reconsider a decision, according to the regulations, the ZBA must find that either “Substantial new evidence has been submitted which could not reasonably have been presented at the previous hearing,” or “An error in reaching the original decision was caused by fraud or non-negligent mistake.”
Cheryl Gaston of the Philadelphia Bar Association said she hopes the ZBA will work her group’s input into the new regulations before adopting them. She said that many of the provisions don’t line up with the terms of the new zoning code, and questioned the need for separate regulations altogether.
“I don’t see why you would need it,” Gaston said. “All along we were told that the new code was supposed to be the end-all and the be-all.”
In an email to PlanPhilly, Eva Gladstein pointed to several portions of the new code that reference the ZBA’s authority to adopt regulations, as well as a reference to such regulations in a bill amending the Administrative Code, which was signed by the Mayor last December.
Gaston also said she was frustrated at the agency’s lack of notice about its new regulations. She said the draft wasn’t released until the morning of the June hearing, and that after the agency decided to put off its decision, it asked the Bar Association to submit written comments within two weeks. Gaston, who consistently raised legal issues with the Zoning Code Commission throughout the zoning reform process, said the ZBA regulations are in need of lawyer’s eye.
Andrew Ross in the city’s Law Department said that the new regulations are intended in part “to address some things that would not simply be an unstated policy” in the ZBA’s current practices.
“Ideally, [the regulations] will be in place near to the time that the new code takes place, but it doesn’t have to be completely synched up,” Ross said.
The ZBA is a five-member board, appointed by the Mayor, plus the Commissioner of L&I. The Home Rule Charter names no qualifications required for ZBA members.
ZBA chair Lynette Brown-Sow could not be reached for comment.