Commentary: Speed up the Permit Process
March 5, 2009
After decades of practice as an architect in Philadelphia, I thought I had seen every possible way that L&I can delay the permit process. I was wrong. I just recently learned that some creative genius has devised yet another way to torment applicants.
In November I applied for a permit for the construction of a new entry/vestibule addition to my client’s two historic buildings in center city. The entry is a small, but important, part of a multi-million dollar renovation and restoration of their historic buildings.
In December I was informed by the zoning supervisor that they were not allowed to review my application because the addresses given on the form do not agree with those in the records of the Bureau of Revision of Taxes (BRT). I was told that my client should contact the BRT and get them to give him one tax address (instead of two) and one BRT account number (instead of two).
The addresses I used in the application were the same as those I have used in three previous permit applications for the properties within the last two years. These were readily granted. It was not a problem then, but it is now, for reasons that I do not understand.
After weeks of frustration, I asked a friend who is a member of the Zoning Code Commission (ZCC) to look into the matter and hopefully persuade the supervisor to waive the new ruling by the BRT in this case so my client can complete his project, which has been under construction for more than a year. As of this writing, I have not received a permit nor any explanation of the reasons for the new rule.
A Recent Meeting of the Zoning Code Commission
Speeding the zoning process was the main topic of discussion by commission members at a meeting on Feb. 11. It started with a short report by Don Elliot of the Clarion-Duncan consulting team that was retained by the commission to draft a new code. Elliot gave examples of decisions other cities have made in their efforts to update their codes and facilitate the permitting process.
His report raised two fundamental process questions: (1) Should we develop a code that creates a dramatic reduction in the need for variances? (2) If so, what measures can we take to ensure that community concerns are addressed?
Elliott listed examples of the type of decisions that some other cities do not send to the zoning board.
• Minor dimensional variances: Small dimensional variances involving small encroachments of architectural features or handicap access structures (a ramp) into setback areas are decisions made by staff zoning examiners.
• Minor changes to non-conformities: Including substitutions of non-conforming uses and minor changes to non-conforming structures.
• Approval of decks that meet standards or have only minor variations from standards.
• Approvals of short term temporary uses
• Use Variances: Some large cities, like Chicago and New York, require rezoning as the only way to obtain uses that are not allowed as a permitted or special use.
He also listed the following examples of tools other cities use to obtain public input.
• Input on standards rather than projects. Some cites invite public input on standards as an alternative to public input on projects.
• Posted notice with an opportunity to comment in writing to staff. Staff then makes the decision, but their decision is subject to appeal. (Sacramento County, Calif.)
• Requirements for a neighborhood meeting. The applicant is required to present his or her project to a neighborhood meeting, make a written summary of the meeting, include a description of applicant’s response to concerns raised and include these items in the application. (Louisville, Ky.; Englewood, Colo.)
• “Call-up” provisions that allow staff to a make a decision, which is not final until the planning commission or city council decides whether to “call it up” for a hearing. (New York, N.Y.; Boulder, Colo.)
• “Bump-up” provisions. Staff decisions are not final for a period of time, and if opposition letters or calls are received during the period, the decision is “bumped up” to the zoning board for a hearing.
A Debate about Use Variances vs. Zoning Changes
Following Elliott’s presentation, Chairman Alan Greenberger opened the floor for discussion by commission members. Lawyer Richard DeMarco was first to speak. He cautioned against eliminating use variances. He thought it a bad idea in Philadelphia because of the city’s large inventory of abandoned industrial and warehouse buildings, many of which have been successfully converted into rental apartments and condominiums in and around center city, as a result of use variances granted by the ZBA.
Councilman Brian O’Neill argued against DeMarco’s point, saying that City Council was the best forum for debating use changes. He also supported a requirement for neighborhood zoning meetings even before the zoning applications come to CityCouncil.
John Westrum spoke to support reduction or elimination of the ZBA’s practice of granting use variances. Westrum is a commission member and a prominent Philadelphia-based real estate developer. He objected to the “unpredictability” of the current process, which he dubbed “management by exception.”
He made it clear that the uncertainty in the unpredictable process is a strong deterrent to developers that want to invest in the city. In Philadelphia today developers are always at risk of failing to obtain a permit for reasons that they cannot foresee, because the rules are always changing.
He reminded the commission members that new commercial and residential projects are the economic life blood of the city as they are a major source of tax revenues and jobs. That seems to be a good thing to remember at this time of economic “catastrophe” and huge city budget deficits.
He cited his current experience of developing a project in Chicago to explain how different it is from Philadelphia.
“Chicago makes it very attractive for developers of large projects,” he said. “They assign a city staff member to work with the developer throughout the entire process. We (in Philadelphia) need to be more competitive because capital can go anywhere.”
An Explosion in the Number of Zoning Hearings.
It was an explosion in the number of appeals to the Zoning Board of Adjustment (ZBA) that triggered putting the zoning reform question on the ballot in May, 2007. In that election 80 percent of the voters approved the appointment of the Zoning Code Commission to reform and rewrite the zoning code. Now, almost two years later, the members of the commission are formulating the most comprehensive zoning reform that the city has ever known.
At the time of the election, the Zoning Board was chaired by David Auspitz, who firmly believed that the Zoning Board was the best available forum for communities to express their concerns about, or support for, new buildings and additions large and small.
When zoning procedures were simpler than they are today, the ZBA had regular meetings once a month. Under Aupitz’s tenure the number of hearings increased dramatically to several times a week. Often hearings were either re-scheduled or extended to require multiple hearings before a decision was handed down.
Today I checked the current schedule for the month of February, and found that the ZBA is still meeting several times a week, despite the fact that David Auspitz retired from the chair over a year ago. Old habits die hard.
Applicants always testify to the onerous length and cost of these proceedings. However, not all those present are displeased with the present procedures. It is well known that zoning hearings are often used by community leaders and other individuals as political forums to advance personal agendas — be it recognition, reelection, or revenge — whether or not their testimony has particular relevance to the issue at hand.
Imagine how the applicant feels as the speakers go on and on about this and that, and the applicant is ruefully counting the mounting fees of the attorney and architect whom he has retained to present the appeal.
Joining Zoning with Economic Development
In a previous ZCC meeting, Mayor Nutter said he believed that there were opportunities in rewriting the zoning code to encourage investment in Philadelphia real estate of all types. Individual homeowners whose homes are their largest financial asset look to the zoning code to protect the value of their homes.
Their right to review and comment on new projects in their neighborhoods is essential to the economic health of the city. If the application of the code fails to support the value of their homes by allowing uses or structures that are detrimental to home values, they may decide to cut their losses, and move to other municipalities that do a better job of protecting their neighborhoods.
What are the Best Ways to Obtain Public Input?
The Chestnut Hill Community Association’s long history of sponsoring community forums for project reviews is an example for other neighborhoods. I understand the Center City Resident’s Association and Society Hill are also effective in obtaining public input on a regular basis for any project that appears on a posted zoning notice.
These neighborhood project reviews are an effective means and enjoy wide support among the commission members. Having no statutory powers, however, the neighborhood review can only be advisory only — both to the owner/applicant and to the responsible public agency downtown that will make the final decisions about zoning permits and use permits, whether it will be the Department of Licenses and Inspections, the Planning Commission, City Council or some combination of these.
The ZCC has established a Civic Engagement Committee under the chairmanship of Natalia Olson de Sayckyj, and has retained a consultant to assist them with their public outreach. Beverly Harper, a principal of the firm Portfolio Associates, reported on the community meetings her firm has managed for the commission.
Their goal is to obtain as much public input as possible at this critical moment when new standards are being written. As other cities have learned, good public input into the drafting of standards reduces the number of variances and the frequency of public opposition to specific project applications in the future.
If you cannot participate in one of the public meetings, there is another more convenient way to express your thoughts and feelings to the commission. Go to the web site www.zoningmatters.org. There you can either respond to a simple five minute survey, leave a short narrative of your views, or do both.
Because the website offers less space for grandstanding than the public meetings, I suspect it will yield more pertinent information for the commission’s drafting of new standards. The more input the commission has to work with, the better the final product will be.
Mark Ueland, a Chestnut Hill resident, is a senior associate in the Philadelphia firm of UJMN Architects + Designers.