Why Philly's zoning board is still so dysfunctional

Please note: This article is published as an archive copy from Philadelphia City Paper. My City Paper is not affiliated with Philadelphia City Paper. Philadelphia City Paper was an alternative weekly newspaper in Philadelphia, Pennsylvania. The last edition was published on October 8, 2015.

The city's zoning board is drowning in thousands of requests for variances. What happened to the reform effort?

Back in 2008, Philadelphia’s Zoning Board of Adjustment (ZBA) was just another example of municipal dysfunction. 

The little-understood, five-person board reviewed construction plans and decided whether to grant “variances,” which allow developers to break the city’s zoning code because of extenuating circumstances. But the zoning code was so outdated that many projects needed variances just to be in line with modern construction practices. Board Chairman David Auspitz, a former deli owner, was considered to be a political appointee with a reputation for capricious rulings.

Mayor Michael Nutter vowed to fix the problems when he took office that year, making zoning reform a centerpiece of his administration. But six years, a “reformed” code and numerous board appointments later, the ZBA is still drowning in thousands of costly, time-consuming variance requests each year. The next ZBA meeting has 21 zoning cases scheduled, compared to just 13 at a session of New York City’s Board of Standards and Appeals on the same day.

Meanwhile, the “professionalized” board now features two labor leaders along with chairperson Julia Chapman, whose career experience largely centers on her 11 years of service as Nutter’s chief of staff. Outcry from neighborhood groups shows that inconsistency still plagues board decisions — some charge that the ZBA is too strict when it comes to doling out variances, others say it is far too lenient. 

So, what happened? 

The issue is complex, but nearly everyone agrees that, intentionally or not, some board decisions are undermining the spirit of the new zoning code, adopted in 2012. That code was supposed to encourage less auto-oriented forms of development.

In the Graduate Hospital neighborhood, community leaders point to the collapse of a proposal to redevelop a parking lot at 2300 South St. as an example of the ZBA hampering those efforts.

Developer Jason Nusbaum wanted to build a four-story, mixed-use building with 18 residences, 4,700 square feet of commercial space and no parking. Although these specifications were more than 8 feet taller and four housing units in excess of the property’s zoning restrictions, Nusbaum argued the development would anchor the prominent intersection. The South of South Neighborhood Association (SOSNA) eventually agreed. 

In an unusually verbose, nine-page “non-opposition” letter, the association’s board argued the added density would “transform a barren but vital corner much for the better.”

The developer just needed the ZBA to agree that the project deserved a zoning variance. But even with the support of SOSNA and Councilman Kenyatta Johnson, the board denied the exemption.

“This was a thoughtful and appropriate project that we believe would have transformed an uninspiring corner. … We [were] disappointed by the ZBA’s decision,” said SOSNA chairman Greg Lugones.

But beyond disappointment, the decision also sparked accusations of political interference. A small group of neighbors that included Democratic committeeperson Barbara Failer and former Nutter aide (and likely mayoral candidate) Terry Gillen lobbied against the proposal, citing parking and height concerns. Zoning lawyer Joseph Beller said Gillen and others retained him to oppose the project before the ZBA. Two sources familiar with the zoning decision indicated that Gillen, who left the Nutter administration in January, also called the Mayor’s Office regarding the project. Failer did not respond to requests for comment and Gillen referred questions to another neighbor, who opposed the project. 

But many more neighbors said the board had simply taken its job of upholding the zoning code too far. It was a practice one zoning lawyer from the neighborhood said was so common he has taken to calling the ZBA the “Zoning Board of Enforcement.” 

Beller countered that the board’s decision had respected the strictures of the new zoning code.

“This was not a situation where the owner could not have used his property within the confines of the code. … You have to recognize that the will of the neighborhood is not always directly related to zoning issues,” said Beller. “Sure, he wouldn’t have had as many units, but that’s a question of economics, not zoning.”

However, statistics don’t really support either perspective. According to reports from the city, the board, if anything, is exceedingly lenient — and not always in ways that support the spirit of the new zoning code.

The ZBA, which usually meets twice weekly, heard 130 zoning appeals last month, rendering a decision in 85 cases. Of those 85, just 10 cases resulted in denials. These figures are consistent with other city data showing that from 2008 to 2013, the board approved 90 percent of 6,946 variance appeals.

But sources familiar with ZBA decisions say that leniency is selective. The board tends to take a principled stand when it comes to denying arbitrary requests for taller buildings or extra housing units, but such zeal is strangely lacking when it comes to parking-related issues.

Consider another recent project, this time on the other side of Broad Street in South Philly. Lily Properties Development approached the ZBA with a plan to replace several unremarkable carpet-supply buildings on the 700 block of Bainbridge Street with seven row homes. The proposed buildings were equally unremarkable, with one exception — they all featured garages on the first floor.

Garage-fronting row homes, which entail pedestrian-disrupting curb cuts and blank facades, were the scourge of many planners and neighbors involved in the code-reform process. The feature was largely banned under the new code, meaning the Bainbridge Street project needed a variance.

The Bella Vista Neighborhood Association (BVNA) notified the ZBA in two letters that an “overwhelming majority” of its members “opposed the request for off-street, front-loading parking,” noting that it would deprive the neighborhood of public parking spaces.

But the board saw things differently. The variance was approved in a 4-1 decision, despite opposition from Councilman Mark Squilla.

“They didn’t even ask the applicant what their hardship was,” said Larry Weintraub, BVNA’s zoning chair for 10 years. “They’re still living under the old culture, where, for 40 years, garages were required with new construction. … My theory is that it’s hard to start saying ‘no.’”

Weintraub said this wasn’t the first time the ZBA had defied both the neighborhood and the zoning code.

“This case was not an outlier at all,” he said. In our neighborhood, every application that has asked for a front-loading garage since the zoning code changed has gotten their garage approved, despite our opposition.”

Some zoning lawyers viewed the ZBA’s leniency as a kind of necessary “safety valve” for outdated zoning maps and a code that may still be too dysfunctional or restrictive for most builders.

Lawyers who generally praised the new code and the ZBA still pointed to compromises made during the zoning-reform process and tampering by Council members after the fact that unnecessarily increased the complexity of the code.

“I looked at zoning legislation introduced today [by Council] that was rezoning this and outlawing that,” said Beller. “You can’t blame the ZBA for stuff like that. They’re there as a safety valve, because people can get caught up in the intricacies of some of this stuff.”

But by “letting off steam” the ZBA could also be reducing the impetus to continue improving the zoning code or the completion a long delayed, three-year process of updating the city’s ancient zoning maps.

“If the board were to start turning down variances because the city hasn’t remapped yet, it could motivate the city and Council to just do the remapping already,” said zoning attorney Paul Boni.

ZBA chair Chapman, who has been praised for running orderly meetings, was mum on the board’s purpose or motivation. Reached on her mobile phone, she described a request for comment about ZBA members’ philosophies and decision-making process as “bizarre.” She added that she did not take press calls on her personal phone number, but refused to provide a work number or email.

A visit to a recent meeting revealed a board that was largely disinterested in the vast majority of appeals. After the meeting started 30 minutes late, newly appointed Sheet Metal Workers’ union president Gary Masino was virtually silent throughout the session, opting to snack on pretzels one point during a presentation. Laborers’ Union local head Sam Staten and legal consultant Carol Tinari were only slightly more inquisitive. Most of the questions came from Chapman and Greg Pastore, a landlord who worked on the zoning-reform process and had been the sole dissenting vote on the 700 Bainbridge project, along with other projects that blatantly violated the zoning code.

In the eaves of the sterile boardroom, a cluster of zoning lawyers chuckled about attempts to get support for a new project in University City from Councilwoman Jannie Blackwell. Lawyer after lawyer presented case after case, 19 that day, with some hearings lasting just a few minutes. Each can bring in anywhere from $1,000 to upwards of $10,000 or more in legal fees, depending on the lawyer, fee structure and complexity of an appeal.

Lawyer Beller, who opposed the 2300 South St. project, was also at the board meeting that day. In a phone conversation later, the ebullient 79-year-old opined about the changes to the zoning code he had seen during his career.

“When I started doing this over 50 years ago, the zoning code was like a pocket novel, you could carry it with you. It was fairly compact and fairly simple. … It’s much more complex now,” he said. “Some people said, ‘When the new code comes out, you guys are going to be out of work.’… But I wish I was 29, I could make a whole career all over again.”

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