PlanPhilly

Tampering with zoning code led to controversy over Germantown shelter

Last week, city council shelved a piece of legislation designed to patch a loophole in the zoning code that was exploited by, of all entities, the Nutter administration. The bill, introduced by Councilwoman Cindy Bass, marks the latest chapter in a complex saga (largely outlined in a recent Daily News article) that saw the mayor's office argue that certain kinds of transitional housing actually fell into the same zoning category as non-residential government buildings, such as police stations and firehouses.

The move allowed a developer to immediately (and quietly) begin work on a new and badly needed domestic violence shelter without a variance, effectively bypassing the zoning process and potentially heated neighborhood meetings.

But more importantly, it’s an episode that seems to contradict Nutter's frequent claim that he has made the city's zoning process more transparent and less arbitrary. Council's proposed bill also shows that some lawmakers are concerned about the precedent that may have been set by the mayor's unusual decision.

First, a quick recap. Earlier in the year, residents in Germantown learned that prominent developer Ken Weinstein wanted to redevelop a large, formerly industrial building in the neighborhood for residential purposes.

What the neighbors didn't learn at the time was, well, anything else.

Weinstein said he couldn't discuss the exact nature of the project for "confidentiality reasons." Even more perplexing to residents, the building was somehow being converted by-right, even though such a drastic repurposing — neighbor Emaleigh Doley described it as the "biggest development to happen along Germantown Avenue" in years — seemed like it ought to have gone through the city's new zoning process.

Confused neighbors started digging deeper, pulling building permits for the building, which by July was well under renovation. These brought even more questions; they seemed to show that the building would be used as a 100-bed shelter, seemingly a prohibited use given the building's zoning, CMX-2.5.

Discovering this after Weinstein’s insistence that details about the project were confidential made some neighbors think that he and the city had conspired to slip a homeless shelter past the community. Doley, head of a neighbor's group that protested the development, said residents felt like the struggling neighborhood was being forced into taking on yet another form of transitional housing.

"I shared with everyone a map that I've been working on which only includes residential social services in Germantown within less than 1 mile of the new shelter," she wrote in a recent email. "It currently has 32 facilities listed and it's incomplete."

But what was really happening was more complicated than she could have imagined. It turned out that, back in 2012, the non-profit Women Against Abuse had entered into talks to lease space in Weinstein's building for a new emergency shelter designed to accommodate women trying to escape abusive spouses quickly and quietly. A similar shelter operated by the group, the only one of its kind in the city, was already at capacity, and WAA had secured $3 million from City Council to build another. Confidentiality was important, because violent spouses will sometimes attempt to track down women and children fleeing abusive relationships.

New zoning code is a moving target

Everything was going smoothly until Councilman Brian O'Neill (10th District) passed legislation in April 2013 that tweaked the new zoning code, against the advice of zoning advocates. The bill banned “group living” from a string of zoning categories, including CMX-2.5.

Weinstein's project would now need a variance, risking neighborhood opposition and potentially disclosing the location of the shelter to the public. The "group living" use was out, but WAA apparently sought advice from the mayor’s office, which came up with an alternative. Nutter’s chief of staff, Everett Gillison, suggested that Weinstein could get a by-right permit for a relatively obscure use called "safety services" (which was allowed in all zoning categories) to move the shelter forward — along with 1,600 square feet of retail space and 11 private apartments the developer wanted to build.

The purpose of this particular use seems fairly straightforward — described as "establishments that provide fire, police or life protection, together with the incidental storage and maintenance of necessary vehicles" in the city code. In short, it's mostly a use that covers buildings like police stations, firehouses or buildings that house associated emergency service vehicles, like ambulances.

So how could this designation apply to a shelter? The Nutter administration argued the phrase "life protection" could be flexibly interpreted to include WAA's needs.

"The determination was made that they fit within that category because they provide life protection services to victims of domestic abuse," said city solicitor Shelley Smith, the city's top lawyer.

Top officials in City Hall underlined that this move was taken out of fear that neighbors would derail the process.

"Quite frankly, we don't have enough [shelters] in the city because of constant NIMBY issues. People don't want these things in their neighborhood until they find that they need those services themselves," said Everett Gillison, the mayor's Chief of Staff, in August. "It's not like I'm putting these things right next door, everywhere … we're exercising our discretion to make sure that this thing gets done. That's just common sense. We didn't do anything underhanded."

While Gillison has a point, so does Doley — this method wasn't used to open a shelter in an upscale neighborhood, where neighbors may have waged a long battle to keep out social services, it was used to place a shelter in a low-income, minority neighborhood with dozens of existing group homes.

Semantics get in the way of defining a use

And while domestic violence shelters are certainly important and life-saving, the other rub is that it's not clear that the words "life protection" were ever intended to encompass such a specialized use.

Betsy Baldwin, Executive Director of Development Services for the city’s Department of License & Inspections, interprets the aspects of the code for the city itself. She acknowledged that while the term is ambiguous, it does seem to have a particular intent.

"It's pretty broad, so I think it would have to be taken in context, but I would consider it to be like an ambulance service or something like that," said Baldwin.

Additionally, in other cities that employ similar language for zoning definitions, "life protection" clearly describes buildings that house ambulances and EMT crews. Cities like Chicago, Il., and Independence, Mo., use identical definitions for the safety services ("fire, police or life protection"), but include examples that read, "typical uses include fire stations, police stations and ambulance services."

However, the Nutter administration now maintains that "life protection" was, in fact, always meant to include the specialized category of domestic violence shelters.

"This wasn't carved 'out on the fly.' This was identified during the zoning code process," said Alan Greenberger, Deputy Mayor for Economic Development and Director of Commerce, on Friday, referring to the grueling four-year-old process that reformed a 50-year-old zoning code and narrowly saw approval by city council. "It's consistent with the practices of other major cities, and it's a very rarely used phenomenon … but a lot of other cities use the exact same category for the exact same purpose."

Greenberger declined to point to any particular city, but his office sent PlanPhilly a fact sheet referencing a provision in New York City for a "community facility" zoning use, which encompasses churches, dormitories, and other uses, and apparently allows for the confidential development of domestic abuse shelters.

After a search of numerous cities’ zoning codes, PlanPhilly couldn't find any other use of the "safety services" provision in the way the Nutter administration suggested. And unlike Philadelphia, New York appears to have actually developed clear-cut provisions for dealing with domestic violence shelters, in an open and deliberate fashion.

Conversely, there's no obvious record of administrators in Philadelphia planning new laws to better regulate local domestic abuse shelters. Greenberger said he could not recall when the issue came up in the zoning reform process, because many issues were discussed at the time.

Greenberger's comments also seem to contradict statements made by City Solicitor Shelley Smith earlier in the year.

Asked if “life protection” had been specifically included in the zoning reform process to cover domestic violence shelters, Smith said it was not. She argued instead that the applicability of the use for such shelters was “self-evident.”

WAA and Weinstein, who bought the building just before O’Neill’s bill was introduced, didn't seek out the "safety services" use until October 16, 2013, several months after the bill had stripped group living from the CMX-2.5 zoning classification. Mayoral spokesperson Mark McDonald said the administration was reacting to changes imposed by council that had imperiled the project.

Does one size fit all uses?

But aside from the obvious issue that this method drew more attention to the shelter, not less, the trouble here is that the ambiguity of the phrase "life protection" also makes it seem like it could be used to justify lots of different projects. Homeless shelters, senior housing, drug rehab clinics, and other institutions certainly exist to save lives. Because the safety service uses are allowed in every zoning category, in theory, a homeless shelter could be secretly placed in an inappropriate location, like a heavily industrialized area, without anyone’s knowledge.

Greenberger promised that in the future the designation will only be used in the rare instance that a new emergency domestic violence shelter was proposed, but didn't elaborate on what’s to stop anyone from tweaking other aspects in the code to suit their needs. Asked what would stop future administrators from cherry-picking other phrases in order to bend use categories, Smith said she wouldn't answer a hypothetical question.

But Bass is clearly worried about “hypotheticals.” Today, she said she shelved the legislation following complaints from WAA and Greenberger's office, and said talks were “ongoing.” It’s illustrative of why tampering with the code can be so problematic — the loophole Bass wants to eliminate was used to bypass restrictions on the zoning code that council imposed in the first place.

Former Zoning Code Commission director Eva Gladstein once described the zoning reform process as a game of Jenga, where regulations have to be worked out through delicate compromise. Changing any one regulation arbitrarily can compromise the integrity of the whole. Nevertheless, Council members have been rewriting the code almost since the minute it went into effect. O'Neill in particular has a habit of introducing zoning amendments that are meant to solve specific issues in his largely-suburban district, but which have consequences across the whole city.

While council is certainly also at fault, it's telling that, rather than lobby to improve the code, the Nutter administration took a shortcut. In doing so, it departed from long-stated objectives, perhaps best summarized by Gladstein last year, when she talked to Plan Philly about determining what needed to change about development in Philadelphia.

"Everybody, every constituency said it was the process, it wasn’t the code itself. It was the process," she said. "It was the uncertainty of the process, not knowing what the process was, [and] distrust of the other parties in the process.”

About the author

Ryan Briggs, Data Reporter

Ryan Briggs is WHYY's data reporter.  He works on the PlanPhilly team and across the WHYY newsroom on investigative features. Before joining WHYY, he covered politics, criminal justice and government policy since 2011. He has worked as a staff reporter for Next City, the Philadelphia City Paper, Philly.com and City & State PA, while contributing stories to a variety of other news outlets as a freelancer, including WHYY.



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