And anyone else could have challenged those billboards if they wanted to do so. We didn't have the exclusive right.
What you're saying to me, it sounds like, is that your better good is better than my better good. 86 5/30/01 - RULES - BILL 000629
No. What I'm saying is, statute says you can't have billboards there, and we're enforcing the statute because City of Philadelphia refuses to do it.
Except in the case of the three or four billboards where you withdrew the appeal because they were violating the statute for the hefty sum of $500,000.
Look, Councilman, if you want to use those kinds of remarks that have no 12 merit and no bearing on the real issue here --
And have nothing to do with the or 30 cases where we have stopped 16 billboards in Philadelphia -- 17
I appreciate it, 18 thank you, but I disagree with that last statement. 19 I think it does have bearing. I think we're both 20 talking about the same thing, and I want to bring money back to my community the same way you wanted to bring back money to SCRUB, and you have every right to do that. I want a piece of that $500,000 for my 1st Councilmatic District, that's what I want. 87 5/30/01 - RULES - BILL 000629
It is for your district. That 500,000 is being used to ensure that your Councilmatic District doesn't have billboards that are improper. (Applause.)
It's okay for you to take a half a million dollars and give it to SCRUB --
But I get applause if I'm going to take a half a million and give it to rec centers. (Unintelligible, parties talking over each other.)
Councilman, it's unfair of you to impugn the integrity of people like SCRUB, who have worked long and hard to help the City because you won't --
-- Because you want to turn the issue around on a very important -- 88 5/30/01 - RULES - BILL 000629 (Unintelligible, parties talking over each other.)
Thank you. The Chair recognizes -- I can't believe I'm the calm one today. The Chair recognizes Councilman Cohen.
No, the media has by virtue of a letter sent that was to them and other things that have been said about me and Councilwoman Krajewski. She'll defend herself when she has to. I don't like it, I think it's a double standard.
In your opinion, Mr. Stretton, is there a difference between the obligation of someone elected to office with respect to the laws that exist on the books? 89 5/30/01 - RULES - BILL 000629
Well, it's my position that every citizen has an obligation to comply with the laws but, obviously, like the Councilman, particularly with a City ordinance, has the responsibility to enforce it and not to try to undermine that particular ordinance, Councilman Cohen.
I want you to know that I believe the SCRUB organization has done great work over many, many years in seeking to save Philadelphia from the blight that billboards cause. I believe that the needs of that community, the Whitman Park, community ought to have been met by the City. I don't believe it's right to keep the community poor so that it then becomes easy for a developer to have his way with a community by offering them services that the City government should have long ago provided. (Applause.)
And it almost acts as an incentive to keep community the poor so that it will have to go on its hands and knees and beg a developer to make it a beneficiary provided the developer has his way with the community against the 90 5/30/01 - RULES - BILL 000629 will of the community and against the good of the community. That's why this technique of going into a community and saying get what you can from the developer, when it comes to things that the government ought to have provided through its tax base. And there's no reason why communities ought to be kept poor so that they are in a position to be bargained with by developers. The issue here is not the question of whether SCRUB made a good decision or didn't make a good decision with respect to whether it decided to continue the fight on a billboard or gave up the fight. We know that many times billboards that are offensive are not opposed because people don't have the resources to oppose them, and I salute Mary Tracy and all of the volunteers. (Applause.)
And all of the volunteers in the community. And I salute you, Mr. Stretton, for your work over so many years pro bono on behalf of the people of Philadelphia. (Applause.)
Thank you, Councilman. I very much appreciate it. 91 5/30/01 - RULES - BILL 000629
You know, the old line of other areas don't do this, why should we do it in Philadelphia, that's an old line that is just a very backward line. They used it against us when we tried to effectuate gun control laws in Philadelphia; they said, Well, the rest of the State doesn't have those gun control laws, therefore Philadelphia shouldn't have it, and that's why there's so many deaths from guns in the City of Philadelphia. We have special needs, and one of the needs is to maintain the quality of life in Philadelphia. (Applause.)
And only through organizations like SCRUB is that quality of life and all of the other community organizations where so many volunteers give so many thousands of hours every week throughout the City to seek to enforce City laws, not to find ways to evade them. So I just want you to know that the voice of the previous Councilman does not represent all of the Councilmembers. I believe that we need volunteer organizations like SCRUB and like the community organizations, the historical societies, 92 5/30/01 - RULES - BILL 000629 and all of the rest of them. And I personally oppose strongly the effort to say if you don't like what justice meats out, then prevent the halls of justice from being open, because that's what this bill does. A court doesn't automatically decide in favor of a community organization; a court considers all of the facts. And because decisions have now been running against the billboard industry, the billboard industry wants to eliminate the court system from having anything to say. It's the decision of the court finally that makes -- that gives us the final answer. What the protests do is open up the matter for open discussion and disclosure of all of the facts. And if a fact is ever known that it's a competitor that's filed a suit directly or indirectly, that is a fact the court takes into consideration. And I think it is a very serious challenge to everybody in Philadelphia to have this City Council have before it an ordinance which takes away the rights of citizens to have something to say about Philadelphia. (Applause.) 93 5/30/01 - RULES - BILL 000629
I know there may be some in Council that try to say the issue is do we provide things for Whitman Park or any other community in the City. That's not the issue at all. The issue is, is Philadelphia a city or are we just a lot of separate little enclaves. I think when anything happens in any part of the City, it may very well be of concern to all of the people of Philadelphia. (Applause.)
And I don't think we ought to go backward in giving rights to Philadelphians, I think we ought to go forward. So thank you, Mr. Stretton, very much for your testimony today and for many years of your service to the people of Philadelphia.
Thank you very much. We have a very long witness list and we'd like to start getting through it. The Chair recognizes Jean Wrobleski and Lenora Berson. The Chair would also request, although 94 5/30/01 - RULES - BILL 000629 not require, that those individuals who testified at the last hearing confine if they can their comments to the issue of the amendment in addition to their general view of the bill. I'm not trying to stifle anyone's view, but the record is very long from the last hearing and very clear about individuals' testimony. If there's something new you'd like to add or some comment on the amendment and in general talk about your opposition to the bill if you're opposed, we'd appreciate it because the record is quite lengthy. And the Chair would just make that request. Please identify yourself for the record.
Thank you very much, Councilman Kenney. My name is Jean Wrobleski, and I am a former chairman of the Philadelphia Bar Association's Committee on Appellate Courts, and I am also a director of Center City Residents Association. And I am here today to speak on behalf of CCRA. And I would say good morning to Madam Chairman and good morning to all of the members.
And, Councilman Kenney, I agree with you 100 percent. I am not going to 95 5/30/01 - RULES - BILL 000629 repeat statements or positions that were made on March 12th. I have read all 452 pages of that transcript and I am not going to repeat or belabor those positions. Instead, I am here to bring information and hopefully knowledge to the Rules Committee and to clarify certain misunderstandings that I have gleaned from having read that transcript. Before I begin, however, I would like to commend the proponents of this bill for creating yet another amendment. That is recognition to me that you are a aware to a certain extent of the problems inherent in Bill 629. I would like to bring forward facts that have not been heard and considered. For example: One, there's a misunderstanding regarding the nature of the Zoning Board and the Court of Common Pleas and the unique appellate relationship that exists between those two when it comes to zoning matters. There is also a misunderstanding about exactly what it was that the Commonwealth Court held. We've heard a lot of talk about that decision, but there hasn't been a full explanation of what the court did in the CCRA 96 5/30/01 - RULES - BILL 000629 Commonwealth Court decision. Also, Council may be overlooking the law of Pennsylvania in enacting any amendment to the zoning code. The law of Pennsylvania has declared the City of Philadelphia to be a city of the first class. Its zoning code as a result is not subject to any of the provisions, restrictions, or limitations of the Pennsylvania Municipalities Act. And to make the zoning code consistent with the Pennsylvania Municipalities Act is to erode this City's status as a first-class city. I also will speak to the issue of the nature of this legislative hearing. It is a specific hearing that is restricted by the State's Zoning Enabling Act. Council has the power to create and amend the zoning code, but its power does not derive from the Philadelphia Home Rule Charter its power derives from the State legislature's enactment of the Zoning Enabling Act, which means that this hearing is subject to certain restrictions. Let me begin with the nature of the Zoning Board and what it does. The Zoning Board is not a court of law, it is not a judicial tribunal. 97 5/30/01 - RULES - BILL 000629 Under the Pennsylvania Judiciary Act, it is not considered a court of law. The people who preside over the Zoning Board are not judges, they are not even elected officials. They are political appointees. So that when you say anybody can go before the Zoning Board and have their rights heard, that is not correct. The person from the Managing Director's Office during the March 12th hearing conceded the Zoning Board is an administrative agency. The only way you can have your rights heard in a court of law is when you take an appeal to the Court of Common Pleas. That is a very unique appellate process to go from the Zoning Board to the Court of Common Pleas, and it's the only way to get into a court of law on a zoning issue. There has been no evidence and no 19 fact-finding which would warrant closing the court house door to people who want their positions on zoning matters heard. And make no mistake about it, that's what this amendment does. It deprives people of having their day in court, it shuts them out of the judicial process. On March 12th, the person from the 98 5/30/01 - RULES - BILL 000629 Managing Director's Office made an egregious misstatement of law. Standing is not always an issue when a person takes an appeal. If a plaintiff or a defendant in a civil proceeding has a final judgment entered against him, he can always take an appeal as a matter of right. He does not have the burden of proving that he has standing when an appeal is taken to the Superior Court. The point that I'm making is that if you take away an adversary's or a litigant's right to take an appeal to the Court of Common Pleas, you're closing the court house door to them.
The second point that I want to make is that this amendment circumvents the Commonwealth court's decision. The Commonwealth Court is one of the highest courts in this state, it's one of the highest appellate courts. The judges are uniquely qualified to hear zoning appeals. It is a special court which hears a number of appeals from administrative agencies. They have knowledge and they have expertise to do that. So when they speak, we should listen. Now, in the CCRA SCRUB case, the court did several things, and this is what I wish to 99 5/30/01 - RULES - BILL 000629 clarify. First, it affirmed the law of Pennsylvania that Philadelphia is a city of the first class. That's not new law. The court rightfully held that this means that Philadelphia zoning code is not subject to the Pennsylvania Municipalities Act or its principles. That is not new law. The court also held that the code was clear that an individual or a collective group of taxpayers could file an appeal; that's what the zoning code says. The Commonwealth Court did not have to go through some kind of convoluted interpretation to get there. Now, if this amendment -- and I'm talking about the amendment today -- is enacted, Council will have eroded the City's status as a first-class city. There is absolutely no basis for conforming the City's code to the Pennsylvania Municipalities Act. The state legislature has declared the City to be in an unique position. And 50 years ago, Council recognized that Philadelphia zoning codes should reflect that uniqueness. The Commonwealth Court made no new law in this regard. The City's architecture, its urban spaces and its institutions have very significant historic meanings because the City was laid out on a 100 5/30/01 - RULES - BILL 000629 grid. It is also more compact. What happens in one part of the City can affect all of its citizens. Thus, the zoning code allows all of its citizens to have a voice, and the Commonwealth Court's decision affirms that. My final point is that the hearings have uncovered no factual evidence to support the amendment. It is a basic principle of the legislative-making process that when a right has been granted, like a due process right to take an appeal, before it can be restricted, before it can be eliminated, there must be a fact-finding hearing. And I'm not talking about hearings where people give opinions or where people make political speeches; I'm talking about facts. There has been no evidence taken in this matter to justify amending the code. There is no 19 rational relationship between the reasons propounded for the amendment and the drastic impact of the amendment. The only arguments that have been made in support of the amendment are unsubstantiated speculations that interlopers will interfere with community needs. These arguments are based on hypotheticals. When one weighs the speculation that 101 5/30/01 - RULES - BILL 000629 many interlopers will interfere with what a community wants against the elimination or the restriction of due process rights, the balance is greatly outweighed against the amendment. The argument has also been made that the code should conform to the requirements of the Pennsylvania Municipalities Act. Again, there is no 9 reason advanced for this change. In fact, it is up to the State legislature to change the status of the City as a first-class entity. It is an understatement to say that this amendment creates more harm than good. It balkanizes the City. It propels the City back into the Middle Ages before there were cities as we know them today, when there were little fiefdoms and independent city states. Our neighborhoods and communities are not separate fiefdoms or independent entities; we are all interconnected and interdependent upon each other. By way of example, what happens along the rivers, at Logan Circle or in Rittenhouse Square acts the entire city, and we should preserve our zoning code, which is a clear acknowledgment of that fact.
The people who live on the east side of Broad 102 5/30/01 - RULES - BILL 000629 Street have just as much a right to say about what happens on the west side of Broad Street as the people on the west side of Broad have a right to say about what happens along the river. Finally, I want to point out that this zoning code was enacted in 1933, before there was a Home Rule Charter. " I appreciate and understand your concern, Councilman Kenney, for example, about people coming into the neighborhood and possibly doing more harm than good. However, we have to keep the court house doors open. We can't take away due process appellate rights, because when we start to do that, then we start down the path of losing our democracy. Thank you very much for allowing me to talk. )
Thank you for your testimony. 103 5/30/01 - RULES - BILL 000629 Miss Berson, please.
I'm the President of Center City Residents Association. I just came along for moral support.
I second it all, and think the issue is not really what, unfortunately, we got into. The issue is the right of citizens to go to court; it's not what they go to court about. That's another story.
The Chair requests that Miss Phillips, the representative from the Managing Director's Office, come back.
Could I also make one more statement so that this record is perfectly clear.
I think the identities of all the parties who speak here should be clarified. Miss Phillips is a lawyer for Ballard Spahr Anderson Ingersoll. She is on a year's leave 104 5/30/01 - RULES - BILL 000629 of absence in the Managing Director's Office. I have a lot of friends at the Ballard office, it's a wonderful office, but everybody knows that office represents developers, and I just wanted to make clear what her affiliation is.
I do believe that at the last hearing, that was disclosed. I'm sure it was. Thank you anyway. Miss Phillips, please. (Witness comes forward.)
My name is Joanne Phillips and I'm Special Assistant to the Managing Director. Since we're making all affiliations known, I'm also the Co-Chair of the Zoning Land Use Enforcement Committee of the Philadelphia Bar Association, and I have been a real estate zoning practitioner, so I'm very familiar with the rules before the board and the Court of Common Pleas, and I lecture frequently on this topic. Nowhere did we ever say that the City of Philadelphia should become subject to the municipalities planning code, we are not, but what we're saying is, the issue of standing is a legal concept that, if we would make this change in the 105 5/30/01 - RULES - BILL 000629 code, we will be consistent with the rest of the Commonwealth. And when this city is trying to compete for business and for housing, those issues are important. And we keep calling everybody a developer, but part of it is just -- they're property owners and people have rights to develop property as well. What I wanted to say is that the Zoning Board acts in a quasi-judicial capacity, they make findings of fact, they make conclusions of law. The Court of Common Pleas acts as appellate court. So it is a complicated area of the law, with a lot of different nuances, and we've heard lots of twists on what the law means. However, I still stand by the fact that this bill will not remove people's rights to bring an appeal to the Common Pleas, and we're going to put it back the way it was before this Commonwealth Court decision, which just reinterpreted the word "taxpayer" in a way that had never been done before. And all of the people that have been here, I don't believe any of these organizations have ever made the case that they were only a taxpayer. I think the SCRUB case that was decided 106 5/30/01 - RULES - BILL 000629 by the Commonwealth Court is the only one, and in that case, SCRUB also has on the table arguments about how they were an aggrieved -- they had aggrieved standing. So I think aggrievement standard is just something that exists in the Commonwealth and throughout the nation. The other statement about how standing -- you know, I made a statement that standing is always an issue. It is an issue when there are people that are entering into a lawsuit. If I am the person making the application for a permit and I can take an appeal, I have a right to make that appeal, but if there are other third parties that don't -- you know, they're not making the application for a permit or don't like to see -- you know, they're entering into the case, then they don't necessarily have the right. Standing can be raised, and that's when it comes into play. Any good attorney that has to deal with a case where someone's coming in should make the argument, check the standing to see if the people really belong in court, and it's really a mechanism to make sure that we don't clog our courts. That's what the standing issue goes to across the board. 107 5/30/01 - RULES - BILL 000629 So just wanted to clarify that point.
I'm having a great deal of difficulty in understanding why in the why the City Solicitor's Office is not here talking about law and why the Managing Director's Office is here talking about law. The City Solicitor, as a result of the Home Rule Charter, is the legal arm of the City government. This is a second hearing.
And are you authorized to speak on behalf of the City Solicitor's Office?
I'm here on behalf of the Managing Director. The Managing Director has responsibility for L&I and those departments and the boards that relate to those departments. I came on board with the City in particular to look at the ways that we develop property in the City, the issues that businesses and residents have in trying to deal with the system, and the bureaucracy that we have trying to make L&I -- L&I gets beat up all the 108 5/30/01 - RULES - BILL 000629 time. In these cases, the people are making applications to L&I, they have to go through a process, it's long -- it can be long, but that's why I'm here. I'm here to look at those issues so that when this bill came in, this is my expertise and this is what I've brought to work with the City.
Well, I'm just wondering, do you speak for the City on legal issues? Has the City Solicitor decided that in this area the City Solicitor has ceded to the Managing Director?
I can't speak for the City Solicitor. I don't know whether they were asked to come.
I am an attorney, but I can't speak for City Solicitor. I don't know whether they were asked to appear here. I have discussed this matter with several members of the Law Department on this issue, but I cannot speak for the Law Department.
Well, I have great difficulty, I just don't understand, just like I 109 5/30/01 - RULES - BILL 000629 don't understand why the City has refused to enforce this law ever since it was passed.
Well, would you wait until I finish my question before you try to answer it. I'd appreciate that. I just don't understand why the City Solicitor is not here to speak to the law, because I have vast differences of the law with you. I can understand that having had a past practice representing developers that you represent their point of view.
And I respect that, but I don't think that that is the position of the City government, and I'm wondering why it is that you were speaking of the law when we have a City Solicitor who is our governmental representative on the law. I would like to know the position of the City Solicitor on these issues.
Because I cannot do 110 5/30/01 - RULES - BILL 000629 two things. I cannot recognize the City Solicitor's Office as the office that speaks for and interprets the law for the City government and then have somebody from another department come in and tell us that that's the law, 'cause I happen to agree with the prior witness and not with your version about the change in the law. I think the legal decision of the Commonwealth Court is an historic one, I think it is totally in compliance with the statutory language, and I think it represents the forward advance in which we in this country respect the rights of people to voice their views. I know some of us think that by voicing the views, it's a dangerous thing and, therefore, it ought to be suppressed. But I don't think so. I think we have courts -- one reason we have courts is so that people can express their views rather than use more violent methods of expressions, and the door being open to the court house means that citizens feel they're not shut out of the process. They don't make the decision, people that involved in court cases never make the decision; it's the judges that do. And it seems to 111 5/30/01 - RULES - BILL 000629 me that this amendment is aimed at saying we know what the justices will rule as a matter of justice and we don't like what they're going to find as just; therefore, we're going to prevent them from ruling on the case. It's like the kid picks up the marbles, if he, you know, doesn't win the game when he's shooting marbles. He picks up his marbles and goes home so nobody can defeat him. Now, that's what's here. What we're trying to do here by this amendment is to open the City wide open for billboard developers, and at the same time, let's help all of the other developers, let them all find ways to ravage the communities because, you know, a developer has one interest in mind, it's a legal interest, I respect them for it: They have an interest to make a profit. It's the only reason a developer develops anything. The developer has no responsibility to act for the good of the community, 'cause the developer is not an elected official; they have a responsibility to make a profit. They come to a community. We need people who respect the government and who are looking out for the welfare of the community, and we want those people to have a right to be heard. 112 5/30/01 - RULES - BILL 000629 What this amendment seeks to do is to change the law in Philadelphia and move us back to the Middle Ages where people had no rights and it seeks to open Philadelphia for any developer, but principally billboard operators in the first instance, but while we're helping them, we might as well help everybody else ravage the city. That's why I'm opposed to do this amendment. But I would like to hear an interpretation of law from the City Solicitor, not somebody who's not authorized to speak on the law by the City of Philadelphia, and that's the reason I asked you to come back. I just don't understand why the City Solicitor's Office has refused to participate in this hearing, or is not party to it. It's been publicized, the newspapers have been full of this effort to deprive Philadelphians of their right to be heard. The papers have been full of it for weeks, and I'm sure the City Solicitor's wide awake and understands when these hearings are held. And so I just want the record to disclose that I don't believe we've had a representative of the City of Philadelphia authorized to do speak on the law. 113 5/30/01 - RULES - BILL 000629 (Applause.)
That's all right, I understand, but I'm qualified to speak on these issues, I understand these issues. I think it's a good use of our resources. And I just want to make one point. Developers and businesses, the way I look at them, they are citizens of this city and they're residents and they come and live here too, they make the jobs here. And I think we shouldn't look at them as people coming in to ravage a community. They come in and bring jobs and they become a part of the community. I think that happens a lot of times. And I'll end on that note.
No, I think it's a sound note. I think developers do good work, but they are motivated not by the good they do. We make the decision. When the developer comes before us, we pick and choose which development we support, and we try to do it in City Council on the basis of our 114 5/30/01 - RULES - BILL 000629 collective judgment as to what's good for the City. I'm saying that an individual developer has to be concerned about the profit motive because if he doesn't make a profit, he's not going to be in business, so his concern is to make the profit, but it's the broader community's concern to think of the welfare of everybody in the community, and that's why it's so urgent that the court house be open to them.
Thank you. Miss Phillips, I think you indicated that in addition to your present position that you as an attorney represented community groups. I don't know whether you did that on a pro bono, as a community activist, someone as part of the community, or was it primarily in a professional capacity?
It was in a professional capacity on a pro bono basis through our firm.
On a pro bono basis. And were those issues that would in any way -- were those issues that were issues that maybe the community was in support of or opposed to do?
When the community 115 5/30/01 - RULES - BILL 000629 opposed certain uses.
So you represented community groups or a group on a pro bono basis, and basically those community groups were opposed to a particular application or whatever it was.
Mr. Krakower's shaking head no. He probably knows more about what you do than you do but, you know, that's the way things are going today.
We've worked together. I primarily represent people that are developing on properties. That's been the focus. However, cases do come to our firm, when I was at the firm, on a pro bono basis.
I guess what I'm fishing for is -- and you said that you have represented community groups, or a group, whatever, that have been opposed to certain things in their community and did that on a pro bono basis. Do you believe in your professional opinion, both as the pro bono attorney representing communities who oppose things and in your present role as an attorney for the Managing Director's 116 5/30/01 - RULES - BILL 000629 Office to deal with the issues of L&I and how business community and residential communities could somehow work together, do you believe that this amendment in any way -- and I'll paraphrase my colleague Councilman Cohen -- ravages the rights of the citizens in way? I mean, in your professional opinion.
Do you think that the people of this community -- when I say "this community," the City of Philadelphia in any way would be silenced by this amendment?
No. And I don't believe the Administration would support it and I know the Managing Director wouldn't support it if it did.
Have you ever -- I don't know if you and I have ever been involved in any zoning matters, have we? Were you involved in the Penn's Landing entertainment center?
Are you familiar 117 5/30/01 - RULES - BILL 000629 with the task force that I created down there?
Made up of somewhere between ten and twelve community groups?
And the process that took well over a year and a half that, actually, we're still working on some final details of that agreement?
If this bill were in place at that time, back in June of 1997, I think we started, would any of those things that I brought to the table that involved community participation in the development and issues surrounding the entertainment center, would any of those things have not been permitted if this bill -- this amendment were a part of the act?
No, it's not going to interrupt any developer's need to go speak with the community and find out what the issues are of the people.
Would it have minimized the community's rights? 118 5/30/01 - RULES - BILL 000629
Thank you. The Chair recognizes Councilman Nutter.
Could I ask Councilman Nutter to yield for a moment to deal specifically with those questions?
I wonder, how could you say this bill does not take away rights of people when it says to people, unless you are directly aggrieved in accordance with past interpretations of "aggrieved," meaning close by, you don't have a right to go to court?
See, I do think the taxpayer status broadens who could bring a case, that's correct. Anyone can bring a case that's a taxpayer. So the way the ordinance is written now definitely is broader. My only point is that the change being suggested really takes it back to the way it's always been interpreted by the courts, 119 5/30/01 - RULES - BILL 000629 before Judge Pelligrini's decision. So what I'm saying is that you're right, the taxpayer language certainly broadens it and would let anyone bring a case, but I don't think that's a good thing, and I think that it's better to be consistent with the way the courts always looked at standing, which was the aggrievement standard. I don't think this is a revolutionary idea that's being introduced here, I don't think anyone's going to be losing due process rights.
But it's definitely more restrictive than allowing the whole taxpayer, you're absolutely right on that point. I mean, I don't disagree with you. The taxpayer status is much broader. You're correct in that. What you would prefer is to leave the taxpayer status in, and that would leave the courts open for anybody. I agree.
What do you mean open for anybody, as if anybody is a nothing, and anybody is --
For all citizens, all 120 5/30/01 - RULES - BILL 000629 taxpayers.
-- a person who, under the language of what exists according to the Commonwealth Court, any taxpayer of Philadelphia.
It seems strange to be denigrating taxpayers because those that are doing the denigrating are those that keep speaking in other areas about how important it is to protect taxpayers.
No, you're not, you're not denigrating the taxpayer. I didn't mean you at all, I meant some of my colleagues, who say, what, just because he's a taxpayer? Who's he? He's just paying taxes to the City. Under other circumstances, we tend to worship taxpayers, and we ought to because they carry the burden of the City. I didn't understand before you how could say that this amendment does not narrow the rights of people. It's going to eliminate, or try to eliminate, if it's legal, I don't know that it's legal, but if were construed to be legal, this 121 5/30/01 - RULES - BILL 000629 amendment would lessen many, many rights. It would mean, for example, that in your community, if somebody wants to put in something that's not right, what a smart developer would do would be to go into some other community and say, What do you need, don't you need more playground equipment? I would like to put this in there. I know you don't like it, but you know I'm going to win anyway and why don't you get something for it. So you give them something for it. And then we go to your community and we say, Hey, we already got that in this other community, what makes you any better than any other community? We already have a precedent. That's why you in your community have to be concerned about what's happening in the other person's community because it's going to be used against you. They're going to pick a poor community that's been denied by the City government of proper attention to its needs, they're going to pick that community to set the example and then use it somewhere else. Or in the case of billboards, a billboard is a blight wherever it is. Our public 122 5/30/01 - RULES - BILL 000629 parks are free. People from Philadelphia, all parts of Philadelphia, use all of the public parks everywhere. Does it mean that the people who use the public parks, if they live in the Northeast and go down to South Philadelphia to see the FDR Park, they use that park, does it mean they have no rights about that park? Of course, they have the rights. Philadelphia is one city. We're affected by whatever takes place anywhere. Thank you. (Applause.)
Thank you. The Chair recognizes Councilman Nutter.
You're welcome, any time. First, Miss Phillips, I know that you gave an opening statement. I guess that was some time this morning. Was that -- do you have that statement available? 'Cause I didn't hear it.
No, I do not have it 123 5/30/01 - RULES - BILL 000629 written. Sorry, I was just requested to come over, so I was just reiterating that I was in support of my prior written testimony. I have a copy of that if you'd like that.
No, I can get that from the notes of testimony. I thought you had written testimony for today. Did I understand you earlier to say that in that back-and-forth that you agreed with the Commonwealth Court ruling?
I agree with the Commonwealth Court that we're a city of the first class, and I agree that we're not subject to the municipalities planning code, and I agree that the ordinance says "taxpayer." And that's what the court looked at, and they stopped right there and they said that's all they needed.
And it was a court looking at it, saying that's what the ordinance 22 says, I don't need to go any further.
No, I don't, but that's 124 5/30/01 - RULES - BILL 000629 my opinion. They made the right decision in looking at what was in the ordinance. What they didn't look at what was the long line of cases that had come before and how the City actually practiced its zoning cases and what the practitioners actually thought that that standing provision meant.
Does the court have to take into consideration what the different attorneys thought as they were doing whatever they were doing?
Wait a minute. Or were they taking into consideration what the code or statute says?
I think this judge looked at it and gave respect to City Council, saying this is what's in the ordinance and this is how I'm going to interpret it, I don't need to look any further. I think that's exactly what the judge did. It was not a --
What else would you have the person look at? I mean, the code was the issue at hand, right?
That's correct, that's 125 5/30/01 - RULES - BILL 000629 correct.
Well, I understand that. I'm just asking the question.
And I think that's where he stopped. I mean, I think he was looking at it in a very restrictive way, and it makes sense legally to do it that way. I just disagree with the decision, that's all.
Why do you think that was in the code in the first place?
My legal view is I guess someone wanted to give it meaning. However, over time, it had always been coupled with the word "aggrieved," it always was interpreted to mean an "aggrieved taxpayer. "
Well, let's make 126 5/30/01 - RULES - BILL 000629 sure our record clear here. It was not coupled in the code with the word "aggrieved," that's correct.
That is correct, because it doesn't read that way presently and I don't think there's been any amendment to that, right?
Right. And so notwithstanding how the various attorneys on either side of the zoning cases have for themselves interpreted it, the code says "or any taxpayer," right?
Okay. What else could it mean? Is there any other possible interpretation of that?
I -- anyone that pays taxes, residents, nonresidents. 127 5/30/01 - RULES - BILL 000629
All right. So what do you think the framers of that particular section 4 of the code back in the '40s or '50s, what do you think that they meant when they put that in there?
I can only guess that they meant to include the word "taxpayer."
And do you think that they meant that to be distinguished from the first part of the sentence in some particular way?
Would you take that as a lawyer that they apparently went out of their way to put a comma after "board," separated by the word "or" and then talk about any taxpayer? So they had some reason for doing that. What do you think that reason was?
If I was going to be giving you really an accurate opinion, what I would want to do is go back and take a look at the original ordinance and see if there were any transcripts from the day that that was enacted, and that would really be the only way that I could tell you what it really meant. 128 5/30/01 - RULES - BILL 000629
Well, I understand that, but from a legal standpoint, if there's one phrase, a series of words in a phrase that clearly means one thing or defines one thing, that's the "any person or persons jointly or severally aggrieved," that's one group of people. I mean, you have a comma and/or some other group of people to be distinguished from the first group. Is that reasonable?
I think that's right. I think that's probably what persuaded Judge Pelligrini in the decision, that it is a separate --
Before you get there, I mean, we have to assume that the Council at the time, or whoever put this -- whatever Councilmember or members decided that that's the way the statute or the code was going to read --
It could have been Councilman Cohen. Was he in the common council or 129 5/30/01 - RULES - BILL 000629 the lower or the upper? He's practicing both rooms, okay. At the time they did that, I mean, you would at least agree that they clearly made a decision to have two distinct groups of people: one that is jointly or severally aggrieved by someone; and two, this other group, which is just everybody else. Is that right?
I can't agree that's what they decided, but I can agree with you that that's what it says.
Okay. Now, there was discussion earlier about people from, you know, Bucks, Chester, Delaware, Montgomery, maybe some 130 5/30/01 - RULES - BILL 000629 folks people in Carbon County sitting around worrying about what we may be doing here in Philadelphia. From a legal interpretation standpoint, we could probably remedy that particular problem if we decided we wanted to do that by limiting in the "or any taxpayer" section, for instance, that it would be a resident taxpayer; is that correct?
And we would immediately remove that opportunity for essentially the non-Philadelphia resident from participating in the Philadelphia Code; is that correct?
Okay. Now, let's talk about standing a little bit. Why would the board listen to a person who was not deemed to be aggrieved at the Zoning Board?
Do you mean why they would not give any weight to what they say? Because they certainly let --
Before you even get to weight, you have to hear something. Why would you even listen to a person if you determine at the 131 5/30/01 - RULES - BILL 000629 board level that they don't meet -- under the proposal, that they don't meet the aggrieved standard? Because the aggrieved standard is not defined by the Philadelphia code.
That there's a direct and substantial interest in the proceeding, in the outcome of the proceeding.
You know, I keep calling Chancellor Primavera and they won't sent my certificate over.
Aggrievement can be shown in many ways. Typically in zoning cases, it's shown by some proximity to a project or a property that 132 5/30/01 - RULES - BILL 000629 you can show has some impact on your interest in other property.
The judge decides it. When they hear what the facts are -- if I live far away but I'm going to be impacted by traffic, then I can be aggrieved because of traffic. If there's going to be a big shadow cast on my property, then I could be aggrieved because of the impact of light and air.
They hear the facts of the case. 133 5/30/01 - RULES - BILL 000629
I mean, as you can imagine, that wouldn't give a lot of comfort level. I mean, it leaves things to a tremendous amount of chance.
Typically, it becomes an important issue where people are more distant or removed from an issue, where if someone is a neighborhood or a next-door neighbor or down the street, it really becomes a mute issue and no one really challenges it at that point.
What happens if I don't live there but I go there all the time?
You might have a harder time making a case, that's the fact of the matter. The fact is standing is an issue to keep the courts unclogged by people that don't have an interest in the property.