UPDATE*: Understanding Philadelphia Zoning Law

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* This update of our July 18, 2013 Real Estate Alert, “Understanding Philadelphia Zoning Law,” reflects the changes to Section 14-303(12) of Title 14 of the Philadelphia Code, which went into effect on March 1, 2014.

Moving a project through the Philadelphia zoning process can seem like a daunting task – even after Philadelphia entirely revamped its zoning code. This article will familiarize applicants with the zoning process and help them avoid common mistakes.

Step 1: The Philadelphia Zoning Code

As a preliminary matter, if you are planning to do anything more than paint and carpet the interior of an existing building in Philadelphia, you should err on the side of caution and review the Philadelphia Zoning Code (the “Zoning Code” or “Code”) to see whether you need a permit. The Zoning Code (which can be found online at http://www.amlegal.com/nxt/gateway.dll/Pennsylvania/philadelphia_pa/thephiladelphiacode?f=templates$fn=default.htm$3.0$vid=amlegal:philadelphia_pa) is located in Title 14 of the Philadelphia Code and sets forth the uses to which your property may be put (such as residential, commercial, industrial, etc.) and the dimensional and developmental standards by which your property must abide. Restrictions and standards vary depending on the base zoning district in which the property is located and any overlay zoning district that may be applicable.

A zoning permit is required for, among other things, new construction, altering the gross floor area of an existing building, installing a fence, or changing the way a property is being used. Even when a permit is required, however, you might not need to go through the entire zoning process. If a project is allowed “by right” or “as of right” under the Code, a permit may be issued ‘over the counter’ by the Department of Licenses and Inspections (commonly referred to as “L&I”) without a hearing. However, when a project involves a variance or special exception (which this article will focus on) it will need to go through all phases of the zoning process, including a formal hearing before the Zoning Board of Adjustment (ZBA).

Step 2: L&I and the Zoning Application

Once you confirm that a zoning permit is necessary, the next step is to fill out an Application for Zoning/Use Registration Permit (the “Zoning Application”) and submit it to L&I. L&I is located in the Municipal Services Building at 1401 John F. Kennedy Blvd., Philadelphia, on the Concourse Level. L&I is responsible for issuing zoning permits and enforcing the Zoning Code. Before L&I can even review your application, however, you may need to obtain preapproval from other City departments. If your project has the potential to greatly impact the surrounding neighborhood or involves a subdivision, your project will also need to be approved by the City Planning Commission’s Civic Design Review Committee and comply with additional requirements. Furthermore, depending on the location of your property and the features of your project, you might also need prior Water Department approval, Streets Department approval, Art Commission approval and/or Historical Commission approval before L&I can finalize its review of your application. Each of these prerequisite approvals will take additional time to obtain, because they usually require meeting with the interested department, attending public hearings, and tailoring your plans to address their unique concerns.

Once you have cleared the preliminary department approvals, or, if no department approval is necessary for your project, you can now submit a Zoning Application to L&I. The Zoning Application is available online at https://business.phila.gov/Documents/zoningApplication.pdf. Completed applications must be delivered to L&I with the requisite fees and, in most cases, a set of plot plans. Elevation drawings and sign drawings may also be required if your project involves new construction, an addition or alteration, or a sign. Assuming no additional department review is necessary, you will need to submit six copies of your plans with your Zoning Application. The plans must be properly scaled, between 11” x 17” and 24” x 36” in size, but need not be professionally sealed.

L&I takes approximately 30 days to review and render a written decision on a Zoning Application. An expedited review is available for an additional fee. If the Zoning Application involves a use or construction that is permitted “by right,” and does not require Civic Design Review, L&I may grant the permit or issue a certification that no permit is required. Otherwise, L&I will deny the application by issuing a “Notice of Refusal” or “Notice of Special Exception” (sometimes called a “referral”), depending on whether the project involves a variance or a special exception, respectively.

A project requires a variance when the project, as completed, will not meet the requirements of the Code. There are two types of variances: use variances and dimensional variances. A use variance is required when an applicant wants to use his or her property in a manner not permitted by the Code, i.e., operating a restaurant in a zoning district that allows only retail stores. A dimensional variance is required when the proposed structure or lot does not physically conform to the dimensional or area requirements of the Code, i.e., when a building’s footprint does not meet the side-yard setback requirements. An applicant is seeking a special exception when the Zoning Code specifically states that a particular use or building type is permitted by special exception. For example, the Code might generally permit a solo practitioner’s office by right, but only permit group medical practitioner offices by special exception. Variances and special exceptions each have specific criteria that must be met in order to be approved. It is strongly recommended, prior to spending time and money developing elaborate plans, that applicants carefully consider whether they will be able to provide enough evidence that their proposed project will meet the specific criteria for the type of relief requested.

Step 3: Appealing the Zoning Application Denial

As stated above, when a Zoning Application involves a variance or special exception, L&I will deny the Zoning Application and issue a Notice of Refusal or Notice of Special Exception. This is because L&I does not have the authority to grant a variance or special exception. Thus, such applications have to be denied so that the denial can be appealed to the ZBA – the only agency that can grant a variance or special exception. All Zoning Applications are processed in this fashion so that L&I can gather information on the history of the property, related projects, and any existing Code violations, and generally ensure that the Zoning Application is complete before the ZBA schedules a hearing.

After receiving a Notice of Refusal or Special Exception, the applicant has 30 days to “appeal” L&I’s decision by filing a Petition for Appeal (a.k.a. Application for Appeal) in the case of a Notice of Refusal, or an Application for Special Exception in the case of a Notice of Special Exception. The filing of the appeal triggers public involvement in the Zoning Application (discussed in Step 4), and a hearing in front of the ZBA is scheduled, at which the applicant will be able to present its Zoning Application and hopefully receive its desired permit.

The Petition for Appeal can be found on L&I’s Web site at https://business.phila.gov/Documents/Licenses/ZBA_AppealApplication.pdf, and the Application for Special Exception can be found on the site at https://business.phila.gov/Documents/Licenses/ZBA_SpecialExceptionApplication.pdf. The Petition for Appeal and Application for Special Exception require the applicant to detail to some degree how its proposed project will meet the criteria for a variance or special exception, as applicable.

Step 4: Placing the Community on Notice

The applicant does not simply file the ZBA appeal, show up to the ZBA hearing and argue its case. Instead, the applicant must now engage the surrounding community members and leaders in a dialogue in an effort to garner their support for the Zoning Application appeal.

As of March 14, 2014, new rules went into effect governing the notice requirements surrounding Zoning Application appeals. Most notably, the Code now requires the Planning Commission to identify and provide contact information for some of the parties who must receive notice of the appeal. Previously the burden was on the applicant to identify the parties and track down their contact information.

Now, within seven days of filing the Appeal, the Planning Commission must send the applicant a written notice containing contact information for the councilperson in whose district the property lies, the Registered Community Organization(s) (each an “RCO”) and the Coordinating RCO in whose boundaries the property lies (RCOs will be described in greater detail below), as well as a list of the surrounding properties that must receive notice of the appeal. Within 10 days of receiving the Planning Commission’s notice, the applicant must provide notice of its appeal to the entities/persons identified by the Planning Commission, the owners of the identified properties, the Planning Commission and the ZBA.

As mentioned above, notice of the pending appeal must be delivered by the applicant to the RCOs, including the Coordinating RCO. RCOs are local community interest groups, composed of residents, business and property owners within a community, that are given certain rights and governed by the Zoning Code. RCOs usually have different priorities and may disagree with each other. When the revised Zoning Code went into effect in August of 2012, a new “Zoning Notification Registry” (the “Registry”) was established to improve and standardize the way communities were notified about proposed development in their area. Therefore, if members of a community want to weigh in on new projects in the area, they must form or join a local community group who has registered with the Registry as an RCO. Under the March 14 rules, the criteria a community group must meet in order to become an RCO has changed and existing RCOs had to re-register to show compliance.

Within 45 days of filing the appeal, the applicant must present its Zoning Application appeal to the RCOs at a properly advertised public meeting coordinated by the Coordinating RCO. The goal of the meeting is to notify the community about the proposed project and give the community an opportunity to express its concerns, if any. Public meetings can be quite spirited, depending on the nature of the project or the reputation of the applicant. At the end of the meeting, a vote on the project should be taken to capture the community’s sentiment. The result of this vote is expected to be part of the record at the ZBA hearing, but is not binding on the ZBA’s decision.

The welfare of the community is a factor the ZBA may consider, in its discretion, when granting a variance or special exception; and, therefore, the community’s concerns should not be summarily dismissed. Although not entirely dispositive, it is highly unlikely that the ZBA will grant a variance or special exception where there is substantial community opposition, especially if there is no evidence that the applicant tried to address their concerns. It is therefore highly recommended that the applicant open a dialogue with the community about the project as soon as possible after filing the appeal, so that the applicant is not blindsided at the public meeting or the hearing. For example, the applicant could hold an informal meet-and-greet session with the neighbors a week or two before the formal public meeting at a local coffee shop or café to foster good will for the project and find out the community’s concerns, if any, so that they can be addressed before the public meeting.

Within approximately 20 days following its receipt of the appeal, the ZBA will issue a formal Notice of Appeal that will contain the date, time and location of the ZBA’s hearing on the appeal, along with oversized fluorescent orange posters containing the same information. The posters must be displayed on the subject property in a specific manner for no less than 21 days prior to the date of the hearing, in accordance with Section 14-303(13) of the Code, and proof of posting (usually photographic) is required. Failure to post the posters at the property in the proper manner will likely result in a postponement of the hearing.

Step 5: The ZBA Hearing

ZBA hearings take place on the 18th floor of 1515 Arch St. in Philadelphia. Numerous applications are heard during each session of the ZBA. The order in which appeals are heard is usually available online prior to the hearing date; however, the order is subject to change. During the hearing, the applicant presents its case to the ZBA, which consists of a board of five members appointed by the Mayor of Philadelphia.

At the hearing, the applicant must submit into evidence a completed Zoning Application, a tax clearance certificate, proof of property ownership (a deed, lease, agreement of sale, etc.), various photographs of the property (interior and exterior and including adjacent properties), site and floor plans, proof that the applicant has met with the RCO and the outcome of that meeting, and proof that the requisite entities have received notice of the appeal.

If the applicant has failed to satisfy any one of the procedural criteria required by the Zoning Code, the ZBA may continue the hearing until a later date so that the deficiencies can be cured; or, the ZBA may deny the application altogether. Typically, however, the ZBA will continue the hearing at least once before denying an application on such grounds.

For many years, hearings moved very quickly and applicants did not have the opportunity to present their application, but rather had to respond to any number of questions and concerns raised by the ZBA pertaining to the property and the project. More recently, however, applicants have been given time to explain their application and plead their case in a more comprehensive manner. Most hearings conclude in under five to 10 minutes. A hearing on a particularly large or complex project, however, may proceed for an hour or longer. This is especially likely if an RCO or surrounding property owners have hired a lawyer to assist them in opposing the application, which is not uncommon in larger projects. Members of the community, councilpersons and other interested parties are also permitted to appear at the hearing and testify in support of, or in opposition to, the project. Substantial opposition is never received well by the ZBA.

At the end of the hearing, a representative from the City Planning Commission reads aloud the commission’s recommendation with respect to the Zoning Application. The ZBA then votes on the Zoning Application or withholds its vote pending additional information or simply the need for further review. In either case, the applicant will receive the ZBA’s final decision via mail in a “Notice of Decision.” The ZBA may grant or deny the requested permit, grant a temporary permit, or issue the requested permit with provisos (additional conditions that the applicant must satisfy).

If the applicant is dissatisfied with the ZBA decision, it has 30 days to appeal to the Philadelphia Court of Common Pleas. If there was significant opposition to the Zoning Application, the applicant should also be prepared for an interested party appeal if the applicant was successful. In either event, the Court of Common Pleas decides the appeal based on the evidence presented at the ZBA hearing (referred to as the “record”), so an effective and well thought out Zoning Application and ZBA hearing packet is of the utmost importance.

Careful preparation of the Zoning Application and consideration of the entire zoning process can yield great benefits for a zoning applicant, and a well-prepared attorney can offer invaluable assistance in negotiating the maze of approvals and hearings that may be required to see your proposed project to fruition.

 

Topics:  Municipalities, Urban Planning & Development

Published In: Administrative Agency Updates, Civil Procedure Updates, Commercial Real Estate Updates, Residential Real Estate Updates, Zoning, Planning & Land Use Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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