Philadelphia Zoning, Land Use, and Construction Update - September 2021

Ballard Spahr LLP

Ballard Spahr LLP

The Ballard Spahr Zoning and Land Use Team continues to monitor all aspects of the Philadelphia land use approval process, including the issuance of zoning and building permits, regulation of construction work, and zoning and land-use related legislation in City Council. Below, we provide information on two affordable housing bills City Council will consider in its fall session, which begins on September 17, 2021. We also summarize City Council President Darrell Clarke’s proposed legislation to change the Philadelphia Home Rule Charter to revise the structure of the Zoning Board of Adjustment.

Modifications to Mixed Income Housing Bonus (Bill No. 210474-A)

As currently drafted, Bill No. 210474-A would change the formula for calculating fees for payments made to the City to obtain the Mixed Income Housing bonus, i.e., in lieu of providing affordable housing on-site. While the new payment factors are lower than current multipliers, the overall fees would be assessed on a larger portion of a development, meaning the fees would increase significantly from current Zoning Code requirements. Pursuant to the bill, to earn the bonus, residential developments with fewer than 10 dwelling units, and developments seeking a height bonus in CMX-2.5 districts, would be required to provide affordable housing on-site, and would not be permitted to earn the bonus via a payment-in-lieu agreement. In addition, developments that seek variances for the elimination of required non-residential space would not be eligible for the bonus.

This bill was reported favorably out of the Rules Committee on June 15, 2021, and the City has applied the bill as a pending ordinance pursuant to the Zoning Code since that time. The bill currently is scheduled for final passage at City Council’s September 17, 2021 session, however, we understand that City officials have proposed minor amendments to the bill in connection with its implementation over the summer, meaning that the bill will likely not pass until a subsequent Council session.

Establishment of Mixed Income Neighborhoods Overlay District (Bill No. 210633)

As currently drafted, Bill No. 210633 would create a Mixed Income Neighborhoods Overlay District that includes the central portion of the Third Council District, including University City, and several areas located in the Seventh Council District. The bill would apply to “Residential Housing Projects,” defined as developments including 10 or more dwelling units and/or 20 or more sleeping units, but exempting: (i) developments by educational institutions for the exclusive use of students or institution-affiliated persons, and (ii) any developments where less than 25% of the gross floor area will be in residential use. Such projects would be required to provide at least 10% of on-site dwelling units as affordable housing, and to either: (i) include a total of 20% of dwelling or sleeping units as affordable housing on-site or within a half-mile of the development site, or (ii) make a payment to the City in lieu of providing additional units, using the applicable calculation method in the bill.

The bill provides maximum unit count calculations by zoning district, based on lot area. Various detailed dimensional requirements also apply, including maximum occupied area and height limits that vary by zoning district, and generally increased floor area ratios, such as a maximum FAR of 750% in CMX-3 and CMX-4 districts. The bill also includes certain adjustments to parking requirements.

This bill has not yet been scheduled to be heard by City Council’s Rules Committee, and we understand that many stakeholders in the City are interested in suggesting amendments to the bill. Consequently, although not certain, it seems likely that the bill will not be heard by the Rules Committee until later in City Council’s session, such as later in October 2021.

Proposed Charter Change for Zoning Board of Adjustment

City Council President Darrell Clarke intends to introduce a resolution proposing to amend the Philadelphia Home Rule Charter to increase the number of ZBA members from five to seven; to require each member to be approved by a majority of City Council; and for members to have a “demonstrated sensitivity to community concerns regarding development and the protection of the character of Philadelphia’s neighborhoods.” Per the resolution, the ZBA would include an urban planner, architect, attorney with zoning experience, expert in real estate finance, and at least two leaders from community organizations.

We will continue to monitor this resolution; is it not yet clear whether the proposal will actually be scheduled for public hearings and proceed through the Charter change process.

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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