“The Commission shall analyze the Zoning Code to determine …. whether the Code may be consolidated or simplified to make it more consistent and easy to understand and to reduce the number of appeals to the Zoning Board of Adjustment while still maintaining community input and neighborhood controls.” - from the Philadelphia Home Rule Charter amendment that created the Zoning Code Commission
Since the city’s new zoning code was enacted last August, just over five thousand zoning applications have been filed with the Department of Licenses and Inspections, and nearly 1,300 have been appealed to the Zoning Board of Adjustment. That’s a rate of almost exactly 25 percent: 1 out of every 4 decisions by an L&I plan examiner has been subject to an appeal since the city reformed its zoning rules.
That rate is a reduction from the previous year, when a full third of more than six thousand applications were eventually sent to the zoning board, according to a draft report on the new code’s effectiveness compiled by the City Planning Commission. It’s not far off from the rate of appeal in 2008, which was around 25.5%, according to the report. The Commission and other agencies are required to submit that report, detailing what parts of the code need improvement and what parts are working well, to City Council on the one-year anniversary of the code’s effective date, August 22.
While the rate of appeal has let up somewhat since last year, the rate at which the zoning board approves those appeals and grants variances to individual applicants has stayed almost exactly the same over the past five years, according to the report. The ZBA continues to grant more than 90 percent of all variances requested.
The report suggests that the “stable trends in variances granted” are the result of widespread incorrect zoning, which will continue to be problematic until every neighborhood in the city is remapped through the Philadelphia2035 process. It also suggests that variances are still being granted so readily because of the behavior of zoning applicants. Some are continuing to operate under the variance-for-every-project ways of the old zoning code, while others, the report says, have benefited from the clearer variance guidelines in the new code in making the case to the board that they have a legitimate hardship.
While the total number of zoning board cases does seem to be somewhat lower this year than last year, it already exceeds the number of cases in 2008--though, to be fair, 2008 was not exactly a period of feverish construction activity. The goal of reducing the number of cases at the ZBA was written into the very Home Rule Charter amendment that created the Zoning Code Commission. Judging from this draft report, the reduction would appear to be fairly mild.
Even more puzzling, though, is the rate at which variances continue to be approved. The report outlines some decent explanations for this--outdated zoning maps are a huge problem--but there’s a question about how committed code users are to following it when exceptions to its hard-fought rules are granted nearly every time they’re sought.
Developers are supposed to prove that the zoning rules present a legitimate hardship for using their property in order to receive a variance. Under the old code, the rules were seen as so out of date and complex that seeking exceptions to them was a matter of routine. In theory, the new code presents a fair set of rules agreed to by the 31-member Zoning Code Commission, all members of City Council, and the Mayor. But judging from the data in the draft one-year-report, developers still seek exceptions to it on a fairly routine basis.
It has yet to be seen whether and how things will change at the ZBA now that former Michael Nutter aide Julia Chapman has been appointed chairwoman of the board. She is still new on the job, and if nothing else, seems to be taking at least a more deliberative approach to the job than her predecessor, Lynette Brown-Sow. Zoning board meetings have been lasting much longer since she took over.
“I want to start with the premise that granting variances isn’t necessarily a bad thing,” Chapman told PlanPhilly on Friday, saying that the code would be unconstitutional if there weren’t opportunities to appeal zoning decisions.
She cautioned against drawing “any kind of conclusions from the numbers” from just one year of the new code, and pointed out that many cases decided over the past year were actually decided on the standards of the old code. She also said that many cases result from obsolete zoning, such as shopping centers in the Northeast that are still zoned for industrial use. Chapman said she tries to assure in every case that a full record is established, so that ZBA decisions don’t get appealed and then remanded, which would add even more to its caseload.
“If I’m sending any message at all,” Chapman said, “it’s that you need to come prepared and you need to demonstrate your hardship.”
Deputy Mayor Alan Greenberger echoed that sentiment, saying that as the zoning board membership evolves and gets more comfortable with the new code, it should continue to emphasize hardship as the test for granting variances. He said, as he has in the past, that the zoning code is a “coarse document” and that legitimate exceptions to its rules are unavoidable. Greenberger said that some of the appeals may be “holdovers” from the development practice of designing first and thinking about zoning later, but pointed out that developers generally want to avoid going to the zoning board if possible. He expects the caseload to continue to decrease as time goes by, and believes Julia Chapman is doing a good job of emphasizing the necessity of hardship.
“I think the whole process is in motion in the right way,” Greenberger said.
He added that the real estate market hasn’t yet generated enough activity to establish any reliable patterns of zoning behavior. It’s also worth emphasizing that the report is a draft, and contains less than a full year of permit data. The final report is expected to contain data through August 1st of this year.
One final note: earlier this year, PlanPhilly filed a request with L&I under the Pennsylvania Right to Know Law seeking data pertaining to zoning permits that have been granted, refused and appealed over the past several years. The Department asked for a 30-day extension on that request, and at the end of that period, denied the request, saying, “L&I has no record reflecting all of the data you have requested for all zoning permit applications.” Though the information was apparently not contained in a single record, the Planning Commission was able to access all of the pertinent information in order to write its report.
Jared Brey covered development, zoning policy, historic preservation, and city government for PlanPhilly from 2011-2016.