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Here's Why Council President Clarke's Call For ZBA Reform Is Worrying Developers

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Philadelphia City Council President Darrell Clarke shares many developers’ complaints with the Zoning Board of Adjustment, but they may not like how he wants to fix it.

Here's Why Council President Clarke's Call For ZBA Reform Is Worrying Developers
City Council President Darrell Clarke, speaking at the groundbreaking ceremony for The Hamilton.

Earlier this month, Clarke and Councilman Brian O’Neill introduced a resolution to create a Zoning Code Commission, which would be tasked with recommending changes to the zoning code for council and Mayor Jim Kenney’s office to adopt. Foremost on Clarke’s agenda for the commission is to overhaul the ZBA.

Concerns over the mayor-appointed ZBA in government and the real estate community run deep, as Bisnow reported in an investigation published a week before Clarke entered his resolution. But some worry that Clarke's proposal may be an effort to consolidate zoning power by remaking the ZBA in the council’s image.

“It’s terrifying,” OCF Realty President Ori Feibush said. “The council plays a specific role to give recommendations at every ZBA hearing, and if a council member wants a delay [for a hearing], the ZBA almost always grants it. So the ZBA would become an extension of the district council members — that’s a very precarious position.”

In 2012, the Philadelphia City Planning Commission released an overhauled zoning code for the first time since the 1960s. The new code was also the production of the most recent Zoning Code Commission, in which Clarke and O’Neill participated. Unlike that yearslong process, Clarke’s resolution calls for this iteration of the commission to deliver its final report in six months.

Though the new zoning code covered the entire city, it fell to each council member representing a district to enact those changes through legislation. Many of the changes were put in place, but others were modified at each council member’s behest, and others were outright ignored.

All the while, those same council members enacted many of their own zoning changes independent of the new code. The result was a zoning code quite different from what the Planning Commission envisioned, and one that developers remain able and willing to circumvent through the ZBA.

Here's Why Council President Clarke's Call For ZBA Reform Is Worrying Developers
KPMY senior lead tax partner Joe Scalio, Saul Ewing partner David Shapiro, Philadelphia City Councilwoman Maria Quiñones-Sánchez and Shift Capital Director of Development Nancy Gephart

“When the exception [to the zoning code] is the rule, the ZBA is invalidating the Planning Commission,” City Councilwoman Maria Quiñones-Sánchez told Bisnow in an April interview.

In his May 16 resolution, Clarke cited a 2018 report from the city’s internal Zoning Technical Committee, which analyzed the effectiveness of the 2012 overhaul to the zoning code, including the behavior of the ZBA and Civic Design Review. Using data through 2017, the report found that 92% of variance applications that go before the ZBA are approved, compared to 90% in 2012.

“The rate at which variances are approved in Philadelphia reflects a particular and significant disconnect between planning law, policies and enforcement,” the technical committee said its in report. “This leads to ... an unequal distribution of standards for development in the City. The decisions of the ZBA often dissuade community engagement in planning processes, as members of the public conclude that variances will be approved regardless of their input.”

The new Zoning Code Commission’s purview would not be restricted to the ZBA; it would look at any parts of the code that may “inadvertently compound the effects of gentrification on the ability of long-term residents to remain in their homes,” the resolution reads.

One of the parts of the code Clarke is targeting is the parking minimum of three spaces per 10 units in multifamily buildings, he told PlanPhilly. Until 2012, the zoning code required a parking spot for each residence.

Multiple reports have found that parking minimums are more likely to hurt a neighborhood’s affordability than help, but that does little to dissuade residents from complaining that they can't park on their street. Clarke told PlanPhilly that he is listening to his constituents when it comes to his parking policies.

“Parking is the enemy of affordability,” Feibush said, arguing that the Point Breeze neighborhood in which he operates has seen staggering price increases because of a lack of new development to meet growing demand. “The 3:10 ratio has already been enough to remove the possibility of commercial buildings with retail and density in certain areas and replace them with the most expensive single-family homes on the market.”

The mayor and council are the only ones who could change how the ZBA works, but that Clarke is leading the charge gives developers pause.

In the same session that he proposed the Zoning Code Commission resolution, Clarke also directed Councilman Kenyatta Johnson to introduce legislation creating Single Family Preservation Districts, where multifamily development would be banned with no possibility of a ZBA variance. Council members Quiñones-Sánchez, Jannie Blackwell and Curtis Jones co-sponsored the bill.

Here's Why Council President Clarke's Call For ZBA Reform Is Worrying Developers
Post Brothers President Matt Pestronk, Verde Capital President Jake Reiter and Colliers International Executive Vice President Joseph Fetterman

Clarke and his North Philadelphia district have long been proponents for preserving parking for longtime residents who don’t have convenient access to public transit, and he sees new multifamily development as a threat.

"The ZBA is granting a steady stream of variances allowing the conversion of single-family properties into multi-family properties, even in neighborhoods reserved by the zoning code for single-family homes," the bill reads. "This disturbing trend contributes to the rapid gentrification of the affected neighborhoods, thereby jeopardizing the ability of long-term residents to remain in their homes."

The first Single Family Preservation District the bill would create would cover every tract of land in Clarke’s district currently carrying single-family zoning. Though the bill has early support, it may be unconstitutional, Ballard Spahr land use attorney Matt McClure told PlanPhilly.

“If [Clarke] were the Supreme Court of the U.S. then it might work, but you can’t ban someone’s right to the appellate process,” Post Brothers President Matt Pestronk said. “The ZBA is the first appellate body of zoning matters, so if not them, [a variance case] would wind up in the Court of Common Pleas and then the state Supreme Court, because people have property rights.”

Clarke’s office declined multiple requests to comment for this article, while Johnson, Quiñones-Sánchez and Blackwell did not respond to requests for comment.

Though Feibush is in favor of the ZBA as currently constructed, and Pestronk is vehemently against it, both agree that the council trying to exert its will on the zoning process in which it already has so much influence comes with significant risk for abuse.

In vacant land sales, where council members take a more active role, corruption allegations have been so endemic that the city shut down the process to rethink it.

Council members like Quiñones-Sánchez believe that when power resides with elected officials rather than appointed ones, the process is more democratic and more likely to get residents engaged.

“In the remapping process, you take people away from talking about what they don’t want to a conversation about what they want to see,” Quiñones-Sánchez said in April. “All you’re getting [with the ZBA] is a yes or no, not a conversation about, ‘If we were to do this, this is how we want it to go.’”