Philadelphia Zoning, Land Use, and Construction Update

Ballard Spahr LLP

The Ballard Spahr Zoning and Land Use Team is continuing 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 bills recently introduced in City Council.

Philadelphia City Council Legislative Update

Over the past few weeks, City Council introduced legislation concerning zoning overlay districts, historically designated properties, the Mixed Income Housing Bonus, and other land use matters. A summary of the more significant bills follows.

Bill No. 210474 would modify eligibility for certain versions of the Mixed Income Housing Bonus. Pursuant to the proposed legislation, to earn the bonus, 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. The bill also would change the formula for calculating payment-in-lieu fees; 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 total fees would increase significantly from current Zoning Code requirements. In addition, developments that seek variances for the elimination of required non-residential space would not be eligible for the mixed-income housing bonuses.

Bill No. 210446 would amend use-standard exceptions for historically designated properties, which, under the current Zoning Code, may contain uses permitted in CMX-3 zoning districts notwithstanding their location in other districts. Under the bill, any structure located within a Residential Single-Family Detached (RSD) zoning district would be required to have a minimum lot area per dwelling unit equal to 50% of the minimum lot area for the district, which would significantly reduce the number of permitted dwelling units in historic properties in such districts.

Bill No. 210445 would clarify the location of Commercial Review Areas—Allegheny West (including portions of East Falls), Overbrook Park, Carroll Park-Haddington-Overbrook, and Wynnefield—in which certain commercial uses require a special exception and limited hours of operation.

Bill No. 210482 would create a new overlay zoning district entitled “HHC, Heliport Hazard Control Overlay District.” The overlay intends to prevent hazards to aircraft navigation that result from the height of structures surrounding helipads. As drafted, the overlay would place height restrictions on land bounded by 13th Street, Sansom Street, 9th Street, and Spruce Street. For all nonconforming structures, L&I would have the right to require the owners of nonconforming structures to install obstruction markers or lights as deemed necessary. The bill also adds extra requirements for individuals seeking a height variance within the overlay district.

Bill No. 210425 concerns the Far Northeast Overlay District and would require that any use qualifying for a special exception under the Zoning Code would instead “require” a variance within the Far Northeast Overlay. This bill would essentially make every special exception use a prohibited use in Far Northeast Philadelphia. On its face, this legislation (if passed) is of questionable validity and may be successfully challenged.

Bill Nos. 210474, 210446, 210445 and 210482 are scheduled for a Rules Committee hearing on June 15. Also, it is possible that Bill No. 210425 may pass City Council on June 10, 2021.

Philadelphia Zoning, Land Use, and Construction Update

This is a current status report on a number of key items, including several changes since our last update. We will continue to update this list, which may change as new information becomes available. Please call or email the Ballard Spahr Zoning and Land Use Team with any questions regarding this information; in particular, please consult with an attorney regarding all filing deadlines.

Construction

Construction work of all types is authorized in the City of Philadelphia. Construction sites must comply with all applicable State and City guidance. More information about the City’s construction protocols can be found here. Also, all permit applications for new construction or additions filed on or after April 1, 2021, must include a separate energy compliance plan depicting the full building thermal envelope and projects utilizing the prescriptive method complying with the Philadelphia Energy Conservation Code require a COMcheck or REScheck Compliance Certificate signed by the design professional. More information here.

L&I’s Audits and Investigations Unit is conducting patrols in order to ensure compliance with COVID-19 requirements. L&I is also tracking all stop-work orders issued for non-compliant work sites and will pursue action against non-compliant license holders. Failure to comply with the City’s order will result in the issuance of violations and corresponding fines of up to $2,000 per day of violation, the suspension or revocation of the contractor’s license, a referral to Commonwealth authorities, and any other remedies available under law.

Licenses and Inspections

L&I employees actively are working on zoning and building permits through eCLIPSE, L&I’s online permitting and licensing system. All physical copies of issued permits will be held at the Municipal Services Building at 1401 JFK Boulevard, but electronic copies will be made available, along with electronic billing statements. Individuals can pick up their permits and plans from the Municipal Services Building by appointment. Individuals can set up a virtual meeting with L&I representatives as well. L&I also increased all fees, excluding inspection and administrative fees, on July 1. The new fee schedule can be found here.

L&I also has developed a new master approval process for residential developments. If a project consists of multiple buildings of the same design and construction, an applicant may elect for the master approval process which is intended to reduce overall permit processing times. More information about this process can be found here.

Further, as of November 12, 2020, any application, permit, or notice required under the Zoning Code must contain the full name and address of the owner of the affected property. If the owner is not a natural person, the full names and addresses of the owner’s responsible officers must be provided. If the owner is not a natural person or a publicly traded company, the full name and address of each natural person who has an equity interest in the owner must be provided, subject to certain equity requirements.

L&I maintains a crew of inspectors. All inspections must be scheduled through L&I’s Interactive Voice Recognition system (IVR). Instructions for IVR are available here. If a contractor needs to meet a critical deadline, they should submit an inquiry to L&I via 311 using an online form available here. Notably, contractors will not be able to schedule inspections if their licenses are not up to date in eCLIPSE. Also, starting on January 1, 2021, Philadelphia contractors and trade licensees are required to submit the names of each subcontractor that works under their permits to L&I using eCLIPSE, within three days of that subcontractor starting work.

To obtain a “make safe” permit for a dangerous building, an appointment must be scheduled with L&I. Instructions for requesting a “make safe” permit are available here.

L&I has also suspended the expiration of previously issued permits. The expiration dates on all construction permits and zoning permits, including conditional zoning permits, active on or after March 16, 2020, have been extended by six months. An additional six-month extension may be requested upon the expiration of the extended period. These extensions do not apply to fire code, make safe, or rough-in permits. Also, this extension is not in addition to any extension issued by the Zoning Board of Adjustment; all permits granted by variance or special exception are still subject to ZBA regulation. Lastly, all permit applications active on or after March 16, 2020, have been extended for six months from the date that the permit would be deemed abandoned. This extension, however, does not apply if there have been subsequent submissions.

Furthermore, all individuals who received variances and special exceptions between September 16, 2019, and March 16, 2020, may file for an administrative review any time within 360 days of issuance of the special exception or variance.

Currently, the Board of License and Inspection Review, the Board of Building Standards, and the Plumbing Advisory Board are conducting regular hearings.

Permit denials and the ability to appeal are currently available through eCLIPSE if the denial was issued on eCLIPSE after March 15, 2020. Individuals can make amendments via eCLIPSE if the application was filed on eCLIPSE; information regarding amendment requests for pre-eCLIPSE documents can be found here. Information regarding extension requests can be found here.

Zoning Board of Adjustment

The Zoning Board of Adjustment began holding bi-weekly virtual hearings on July 14, 2020. All hearings are conducted via Zoom. Agendas for the upcoming hearings can be found here. Further, the ZBA will issue its decision letters via the United States Postal service or via electronic mail. If the ZBA issues a decision via email, the date the email is sent will be deemed the Date of Decision.

Posting and Notice Requirements

The following posting and notice requirements promulgated by the ZBA shall remain in effect until June 1, 2021, unless further extended by the ZBA. Notification signs for hearings must be posted at least 21 days prior to the hearing date, and notification signs for continued hearings must be posted at least 14 days prior to the hearing date. The content for these signs will be provided by the ZBA. If the content provided is missing pertinent information or if the content is inaccurate, it is the responsibility of the applicant to correct the information. All Zoning Code requirements relating to reposting, sign removal, and the posting of refusals and referrals remain in effect. The ZBA may require an applicant to provide proof that the posting requirements have been met.

If a ZBA hearing has been scheduled, but a coordinating Registered Community Organization (RCO) is unable to organize a community meeting, the ZBA shall defer to the recommendation of the Planning Commission regarding the treatment of the ZBA hearing unless the District Councilperson objects or the ZBA finds that the recommendation imposes an undue burden upon the applicant or other persons or entities, including the RCO(s). If an RCO is unable to hold a meeting within the 45-day meeting period, the Planning Commission may ask the District Councilperson to select another coordinating RCO or may make an alternate recommendation to the ZBA that best serves the “interests of the City of Philadelphia.”

Expiration Dates

The ZBA has also extended the expiration dates on all approvals issued by the Board if the approval would have expired on March 15, 2020, through December 31, 2020. All such approvals have been extended by 180 days from the date that the approval would have expired.

Pennsylvania Department of Environmental Protection/U.S. Environmental Protection Agency/U.S. Army Corps of Engineers

PADEP offices throughout the Commonwealth remain closed. However, much of the regional staff is telecommuting and reachable in connection with inquiries on the status of pending environmental approvals/applications. The U.S. EPA remains open via telecommuting options, and the U.S. Army Corps of Engineers also is reachable.

Developers may have some flexibility in their efforts to comply with environmental laws, at least as far as the U.S. Environmental Protection Agency is concerned. Here is a link to our Environmental Group’s alert on that topic. Here is a link to the previous Ballard Spahr alert discussing the EPA policy. 

Furthermore, PADEP has expanded its menu of online permitting functions, enabling the business community to take advantage of what PADEP believes is a more streamlined permit application and review experience. PADEP is also promoting use of the tool because it increases the efficiency of its permit reviewers now working from home as a result of the COVID-19 crisis. PADEP notes that previous online permitting options will remain in place, and for those taking advantage of the earlier programs, the existing portals should continue to be used. For the new slug of permits online, here is a helpful link to application materials with instructions and guidance. Those with questions can email Harry Weiss, leader of Ballard Spahr’s Environment and Natural Resources Group, at weiss@ballardspahr.com.

 The EPA’s Temporary Enforcement Policy  

The EPA announced that as of August 31, 2020, its temporary enforcement policy, which loosened as a result of COVID-19, ended. A link to the notice terminating the EPA’s COVID-19 temporary enforcement policy can be found here.

For the development and property management industry, in particular, typical permits that should be re-reviewed for compliance duties include stormwater discharge permits issued under the federal Clean Water Act (generally known as NPDES permits) that regulate pre- and post-construction stormwater control discharges.

It’s also important to review state requirements, as some states continue to have in place an enforcement waiver process for environmental compliance impacted by COVID-19.

Linear Infrastructure Permitting

A Federal District Court in Montana has invalidated U.S. Army Corps of Engineers Nationwide Permit 12 because the court found that the Corps did not, while reauthorizing the general permit in 2017, take into proper account the impact of use of the permit on certain endangered species. The decision in Northern Plains Resource Council v. United States Army Corps of Engineers can be reviewed here, and has left developers of such projects scrambling to identify other Nationwide Permits that may be utilized to keep projects moving forward and avoid the need to seek individual wetland fill permits for work along the entire route.

Permit Postings

Zoning and building permits should still be posted on properties in the normal course, to the extent possible. Please contact our Zoning and Land Use Team for any assistance.

Streets Department

As of January 19, there is a new filing procedure for all permits that require approval from the Philadelphia Streets Department. The new procedure can be found here. While the Streets Department has staff members working remotely, delays should be expected. Developer Services Meetings deemed necessary by staff may be held remotely.

If a permit has expired or is approaching expiration as a result of work stoppage due to COVID-19, the Department advises individuals to email the permit number and their contact information to streetclosure@phila.gov to request a permit extension.

Water Department

The Water Department’s offices are generally closed to the public; however, Private Development Services’ staff members are working remotely. Staff members are conducting storm water plan reviews, utility plan reviews, water and sewer sign-offs, along with other reviews. Delays should be expected for all reviews. All general questions and meeting requests should be sent to pwd.planreview@phila.gov. Additional information about submitting materials and payments can be found here.

Any zoning, demolition, site or building permit that requires PWD sign-off must be applied for via eCLIPSE. Additionally, PWD has created a new Electronic Pre-Application Form. This form is recommended for projects that have yet to make an ERSA Application, but wish to meet with PWD virtually in advance of submission to discuss the project.

The Water Department is also processing plumbing permits. For all new connection requests, applicants must have a pre-permit, which can be requested by contacting wtr@phila.gov. More information about plumbing permits and payment methods can be found here.

The Water Department is also granting time extensions to expiration dates for project permits and approvals impacted by the pandemic. Time extensions only apply to PWD-issued permits and approvals.

Regular billing continues and penalties began to accrue for unpaid bills on May 1, 2021. At this time, PWD will not terminate service for residential customers through April 1, 2022.

Department of Records

The Philadelphia Department of Records has a small staff is now in-office to help process mail, email, and phone requests. In-person services are still unavailable. E-recording via third-party vendors, however, is still operating. Delays should be expected.

Department of Planning and Development

The Department of Planning and Development issued emergency regulations governing “deemed approvals” by the Philadelphia City Planning Commission, the Philadelphia Historical Commission, the Philadelphia Art Commission, and their various committees, including the Civic Design Review Committee and the Sign Committee of the Art Commission. From March 18, 2020, through 60 days after the termination of the Mayor’s Emergency Order, the non-performance of review by these agencies, their respective committees or staff, in connection with any applications, plans, materials, or other documents will not constitute a deemed approval or a deemed denial of any such applications, plans, materials or documents subject to review.

Philadelphia Historical Commission

While the offices of the Philadelphia Historical Commission are closed, staff members are working remotely. General inquiries, approvals, complaints, and nominations can be emailed to preservation@phila.gov. The staff can also review and approve most applications without referral to the Commission itself. Additional information can be found here.

The Historical Commission also is meeting remotely. Members of the public can watch or listen to the Commission’s meetings. More information about upcoming meetings can be found here.

Philadelphia Art Commission

Art Commission staff members are working remotely. Details about upcoming meetings can be found here.

Philadelphia City Planning Commission (PCPC)

Staff members at the Planning Commission are working remotely, although, delays should be expected. Staff members are reviewing plans submitted on eCLIPSE and amendments to master plans. PCPC staff will provide comments on any proposed legislation, a draft of which should be sent to staff members; requesting parties should keep in mind that all legislation is subject to the discretion of City Council. Reviews of applications related to steep slopes, frontages, and landscapes are being completed in a timely manner. Reviews of applications related to watersheds or lot lines are delayed due to the inaccessibility of maps located in PCPC’s offices. Staff members are also conducting Urban Design reviews through eCLIPSE and processing loading waivers through email.

The Civic Design Review Committee is holding virtual meetings. More information about upcoming meetings can be found here. Staff members are available to provide preliminary Civic Design Review comments by email at CDR@phila.gov.

PCPC is required to send out notices as soon as practicable for any appeal or referral to the Civic Design Review (CDR) Committee. The date on which the notice is received shall constitute the date of receipt under the Zoning Code. 

With respect to Registered Community Organizations (RCOs), all coordinating RCOs will be deemed to have met the public meeting requirements if they hold their meeting within 45 days of receiving notice. Virtual meetings hosted through telecommunications technology satisfy the public meeting requirements. If a coordinating RCO cannot host a public meeting, they must contact PCPC, the Zoning Board of Adjustment (ZBA), the CDR Committee, and the applicable District Councilperson prior to the date of the scheduled ZBA hearing and/or CDR meeting. These rules and regulations for RCOs will continue until June 1, 2021, unless further extended by PCPC.

Tax Abatement Applications

Tax abatement applications can be mailed to the Office of Property Assessment or emailed to Drew.Aldinger@phila.gov. The application will be deemed received on the postmark date.

Also as a result of recent changes to the Philadelphia Code, the various 10-year abatements available to developers in the City—which historically have been substantially similar in the benefits they provide—will be distinctive with respect to abatements applied for after December 31, 2021. With respect to abatement applications filed after that date, developers will need to more carefully consider which abatement or abatements apply to each project and apply accordingly.

State Courts

All Philadelphia Sheriff’s Tax Sales and Mortgage Foreclosure Sales are being conducted via a virtual platform.  More information can be found here and here.

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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