Cutting through the Zoning Code: The Final(ish) Countdown

Redlines are red, bluelines are blue, a final(ish) cut through the code and a change memo too! My poet friends are so proud of me.

The revision of Philadelphia’s zoning code is winding down, sort of, into the Zoning Code Commission’s preliminary report. The ZCC is scheduled to vote on sending that report to City Council on Wednesday, March 2, so we at PlanPhilly thought now would be the time for another read through the code.

Lest we forget, the so-called “bluelined” draft was released by the ZCC in February, and has the most recent edits to the code. This draft also includes the “redline” edits that the ZCC published in December. Yes, blueline edits are in blue, and redline edits are in red.

And the code’s not done yet, because as both stakeholders and members of the ZCC have described it, the code revision is a very big moving target. Its size, however, doesn’t necessarily make it easier to hit. So while my previous Cutting through the Zoning Code stories were accurate when they were published, now, well, maybe not. Actually, they’re still pretty decent, upon review. Nonetheless, changes have occurred.

Thusly! Let us journey through the blueline draft which the 45-page January 26 change memo outlined, and which also includes redline changes. Some of these were discussed by the ZCC’s lead consultant Don Elliott at the commission’s February 9 meeting, but as always, you don’t really know what you got until you read it. 462 pages? Pfff. No problem. Here’s what I think you need to know (but keep in mind I have only my layman’s eye), section by section.

14-100: General Provisions

• Language about “adopted” and “accepted” plans remains, although the Philadelphia Bar Association and the Development Workshop have questioned whether such plans are legit. The zoning code is subordinate to the city’s  comprehensive plan where a plan is “adopted,” but L&I may not use an “adopted” plan for discretionary decisions. The redline draft removed its ability to do so, although the Planning Commission and Zoning Board are required to use that plan for guidance. Where a plan is “accepted,” the Planning Commission, the Zoning Board, and L&I are given discretion to use such a plan to guide their decisions, if it’s consistent with the comprehensive plan. Here, I’m not entirely clear why L&I can follow a less-stringent “accepted” plan, like a neighborhood plan highly regarded by the Planning Commission, for example. This seems like an oversight, but is worth noting because if it’s not, L&I has rather a lot of latitude.
• The blueline adds in text about Community Benefit Agreements; they must be filed prior to a zoning permit being granted, if a developer enters into such an agreement. The city won’t administer CBAs, but if they are not filed with the city and a permit applicant needs “relief,” the applicant’s out of luck.

14-200: Definitions

• Definitions got moved here in the redline draft. Quick fun-with-reading-legislation quote: “Words used or defined in one tense or form shall include other tenses and derivative forms.” I probably shouldn’t tease, because not including that type of clarification can lead to nuisance lawsuits.
• 14-202(6), in “Rules of Measurement,” I see that gross floor area includes “attic space” but not “attics.” Maybe some tweaking still needs to be done?
• Also in redline changes to “Rules of Measurement,” perhaps to promote mixed-use development in the RMX-3 and CMX-4 and -5 districts, retail, bars and restaurants, banks, and day care don’t count towards gross floor area as long as they are under 25% of the total floor area. With due repsect to banks, they’re not exactly bringing vibrant street life to the corners where they’re located. Just check out some intersections on Broadway on the Upper West Side of Manhattan. Four corners, all banks, deader than dead on Sundays. And an enforcement question: can a developer simply promise that this space will be used in this way? If it’s not, what happens? And what happens if it spurs a bunch of vacant retail?
• The blueline revision defines Community Benefit Agreements as deals between developers and communities where the community agrees not to object to aspects of the development in exchange for some kind of contribution from the developer to the community. This may codify what developer Bart Blatstein, at an Urban Land Institute event in September, called “extortion.”
• This section also clarifies the definition of a nonconformity: something established before the 1933 Zoning Code, or established before a zoning amendment was passed that forbids the use, building type, or dimensions.
• The blueline strikes the definition of tobacco products, because the zoning code no longer addresses tobacco sales.

14-300: Administration and Procedures

• Time for the Planning Commission to sharpen its teeth and prepare them for use. PCPC always has had the ability to oversee zoning and planning; now, the code is making its authority pointedly clear by, in redline changes to 14-301(3)(b), tracing its powers back to the authority granted to the commission by the Home Rule Charter. Eva Gladstein did something similar, when in the February 3 presentation to City Council, she emphasized how the process—including the straightforward up or down vote that came as a surprise to some council members—was mandated by the charter amendment that voters approved in April 2007. This section also clarifies the legal authority of ZBA, L&I, and the Board of L&I (which hears appeals of Historical and Art Commission decisions, and appeals of decisions related to the neighborhood conservation overlays), and for the Art Commission, Historical Commission, Streets Department, and Water Department.
• The registered community organization definition has been revised to exclude citywide groups, and to permit only groups representing no more than 25 percent of the area of the city.
• Ongoing contestation over 14-303(1)(c)(.1)(.b) and (.c). First, community groups object to the 21-day period because they think developers will exploit it to avoid monthly community meetings. Second, if both CDR and ZBA require community meetings, only one meeting is required of developers—to cover both CDR issues, and whatever ZBA issues may exist.
• I think the “pending ordinance doctrine” in 14-304(3) makes some sense. L&I will apply new, more restrictive rules if those rules are a part of pending legislation. Perhaps it’s intended to avoid a crush of applicants who want to dodge new rules once they learn of them?
• Civic Design Review (CDR) is still advisory. The redline edit adds, “Neither the Zoning Board nor the [Planning] Commission are required to abide by the recommendations of the CDR committee, but they may consider those recommendations in their review.” Language like this is one reason CDR is still controversial. The zoning code does not make clear how CDR recommendations will be used by these ZBA or the Planning Commission, or whether they’ll be used at all. The flip side? Property owners are encouraged to adopt CDR recommendations, but can elect not to.
• Use variances. Together, the redline and blueline draft really try to restrict the ability of applicants to get use variances. An applicant must meet six requirements, from demonstrating that the unnecessary hardship was not his fault to showing that the variance will not alter the “essential character of a neighborhood.” It must also be the “minimum variance that will afford relief.” But again, vagueness creates some questions. What is “minimum?” What is “unnecessary?” What is “essential character?” The ZBA gets to decide, and to put conditions on the zoning permit including size and duration of the use. At ZBA, neighbors and property owners get to argue. But the language is vague: the ZBA could easily say that all hardships are necessary, because they were required in order to create a new zoning code. Just as easily, the ZBA could interpret most use restrictions as unnecessary. After all, did Market Street’s Forum Theatre keep the Murano from being built, or Trader Joe’s from opening? Not so much. So why shouldn’t I be able to open a competing adult theater?

14-400: Base Zoning Districts

• New language makes it clear that in SP-INS districts (like those occupied by Temple University and the University of Pennsylvania), where the institution owns multiple lots, they can build across them without special permission as long as their buildings are consistent with their master plans.
• A redline clarifies that “multiple principal uses” are allowed in the stadium district, which makes sense on the face of it. Ballparks, parking lots, feed lots (OK, just tailgating), you name it, SP-STA’s probably got it.

14-500: Overlay Zoning Districts

• Blueline edits lay out specific, street-by-street boundaries for a whole bunch of the CTR sub-areas, from the “City Hall View Corridor, Southeast” to the “Southwark National Historic District.”
• The first, awkward maps from the consolidated draft in the fall have been replaces with much cleaner and more easily understood versions in the redline draft.
• The redline struck the maximum building width for Old City “Residential Area” buildings, an issue that Joe Schiavo of Old City Civic Association has been arguing at ZCC meetings.
• The blueline edit of the East Falls neighborhood commercial area (NCA) overlay restored a required landscaped setback from Kelly Drive, for buildings constructed since December 1999.
• For all of the hubbub over signs in neighborhoods—a topic raised by SCRUB, and by Joe Marino of the East Passyunk Crossing Civic Association at the last full ZCC meeting—I should note that the blueline draft has the strict sign controls for Passyunk Avenue restored, and the redline restored the sign controls for East Falls.
• Some clarifications to the neighborhood conservation overlays (NCOs). A redline edit insists that the Planning Commission review any permit for any construction, demolition, or alteration of the outside of a building in an NCO. If anything is designated to be in an historic district by the Historical Commission, Historical Commission review trumps Planning Commission review. Then boom! Philadelphia gets its second NCO district, for Overbrook Farms. Formerly an NCA, it seems to get an upgrade here. The only other NCO is Queen Village.
• The North Central Philadelphia District, designed to preserve single-family housing in the blocks south of Temple University, has specific street boundaries added in the blueline.
• The Central Delaware Overlay is in the blueline/redline, but CDO is being removed from the final preliminary report. At the last full ZCC meeting, Don Elliott said that the Delaware River Waterfront Corporation is just about ready with its master plan, so the spot will reserved for that plan.

14-600: Use Regulations

• In use categories, the redline draft deleted a number of things L&I would have been authorized to consider when classifying a proposed use. This looks like a good call, because allowing L&I to determine a use based on, for example, “the customer type for each activity,” seems like a recipe for a lot of expensive litigation.
• You want a pool hall? As of the blueline draft, you need three pool tables, not two.
• Bed-and-breakfast is now a special exception use in all single-family residential districts.
• So, gun shops are now totally banned in residential and commercial districts. Remember, in Trading Places, when Dan Aykroyd  traded his watch to Bo Diddley for a gun, so he could seek vengeance at Duke & Duke? That was awesome. Especially when he ate that salmon on the SEPTA bus. But for real, if guns are a reality for Philadelphia—and they are all too real here—perhaps they should be a real reality. Open Nick’s Second Amendment Olde Gat Shoppe in a storefront at the Bourse. Show visitors how we do, even if we pretend we don’t.
• The item banning tobacco sales within 500 feet of schools is out. No word on tomacco, though.

14-700: Development Standards

• Dimensional standards: lots as small as 1,600 square feet may be subdivided into lots as small as 800 square feet in RSA-5 districts. Similarly, in RM-1, lots as small as 1,920 square feet may be subdivided into lots as small as 960 square feet. The idea is to permit contextual infill development where appropriate. Normally, RSA-5 and RM-1 require a minimum lot area of 1,440 square feet.

14-800: Parking and Loading

• Mostly some reorganization and some minor tweaks. RSA-5 and RM-1 don’t require any new parking to be built, but again, in the densest zoning districts (RMX-3 and CMX-4 and -5), new parking at the rate of 3 spaces per 10 residential units is required. This ratio seems like it will bring more cars to those dense areas, but maybe I’m missing something.

14-900: Signs

• The old sign regulations are back in; the attempt at reorganization is out, at least until the separate work on the sign regulations happens in the coming months.

14-1000:

• No changes of major significance.

Phew! Yet, I have a feeling I’ll be doing another one of these when the preliminary report goes to City Council. Until then:

• The next review of stakeholder comments scheduled for Monday, Feburary 28 at 2:00 p.m. 1515 Arch Street, 18th Floor, Room 18-029.
• 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.

Contact the reporter at ngilewicz@planphilly.com