And especially in zoning, and we're really talking about zoning where we're talking about the impact of a land use.
Now, do we have one or two judges here in zoning appeals?
Typically the way it's been set up is that there's been one that hears all administrative court cases.
I'm not sure that it is now. In the past, it was, but there have been some standing case management orders that have actually helped things move forward a lot better.
And Cheryl Gaston from the Law Department might be able to answer that better. I don't know. 135 5/30/01 - RULES - BILL 000629
I don't know that, Councilman. I mean, we really actually talked about this last time.
And I don't know how many go up to appeal in the Court of Common Pleas.
Okay, all right. So you're at the board and you have your situation and you're concerned about whatever the issue of the day is. And so first the board, I guess, has to decide whether they should even listen to you, right?
I think that's correct. Although the board typically in their practice listens to everyone that appears at the hearing, and they let everyone speak. 136 5/30/01 - RULES - BILL 000629
If there's a lot of representative testimony, at times, they will limit it for time.
Often, I'm some of the repetitive testimony myself, but if there's a new standard and in an effort to kind of keep the courts unclogged and keep things moving and the like, again, I would go back and ask, why would the board listen to you if you're not, in their view, an aggrieved person, based on the standards that we've now laid out?
I think the board is free to make a decision on standing, and if you appeared at the board and didn't believe you have standing, you'd actually be -- we're going into another type of appeal that you'd have, but I think the board can make a decision on whether someone has standing.
Well, is it the reality of it, though, that, again, if this were to go forward, you need to raise the standing issue at the board; isn't that correct?
In fact, you have to 137 5/30/01 - RULES - BILL 000629 raise standing issue at the board. If you don't raise it at the board, it will be waived on appeal.
All right. So could you envision a not so hypothetical scenario that virtually every hearing starts with a debate about standing and who's an aggrieved person because, again, ultimately, why should the board listen to someone who's not an aggrieved person since they will not be participating in this matter after the board hearing anyway? I mean, look, isn't there a reasonable assumption out of this -- I mean we all -- you know, we're all kind of busy people, the board is certainly very busy, they have 1600 cases, they don't want to clog the system and the like. So, I mean, you know, in kind of meting out the justice, I mean, unless we're forced to, most of us, you know, a lot of times don't necessarily, you know, spend a lot of time talking about issues that we know ultimately we don't really have to talk about.
You're right, but the issue of standing would definitely come up with the board. And, in fact, that's the practice and that's how it's always been, and my point is that it won't 138 5/30/01 - RULES - BILL 000629 change. That issue has always come up as a standing, someone has to make the case of showing why they're aggrieved.
Well, I understand that, but under the current situation, it's quite honestly somewhat less of an issue, given the fact that our standard here is aggrieved person or persons or any taxpayer. I mean I think presently, once you've pretty much established that you have some nexus to Philadelphia -- you know, I live here and I pay taxes -- I think I have a right to say whatever I'm going to say. And, actually, the argument about whether you have the right to speak is probably going to be longer than whatever it is that you have to say in the first place.
But every hearing in the changed environment now becomes, what's your name? where do you live? what group are you with? 139 5/30/01 - RULES - BILL 000629 when did you become a member of that group? how long's the group been in existence? when was the last time they had elections? who was on the nominating committee? I mean, if you take it naturally to the level of the absurd, you'd be having a discussion about, you know, did you come through Ellis Island? did you come through Jamestown, Virginia? how did the folks get here? (Laughter.)
You know, it will be unending in an effort to demonstrate whether or not you actually have a legitimate right to now be at the Zoning Board, because the applicant has to virtually destroy your existence at the Zoning Board in order to have weight if and when they end up on appeal. Isn't that correct?
If you are going to try and defeat someone on standing, it's a difficult task, and it can take a lot of questions --
Isn't it easier, though, than what would be proposed in the new standard?
If you leave in 140 5/30/01 - RULES - BILL 000629 "taxpayer"?
-- isn't it easier to raise and be successful issues of standing than it is today?
Raise it and sustain your standing or to defeat someone's standing?
Because it's saying that -- first of all, this bill is for the Court of Common Pleas.
I understand that. 141 5/30/01 - RULES - BILL 000629 (Unintelligible, parties talking over each other.)
I'm pretty clear on that. You know, I've read it a couple times.
As we have talked the practical application, the long-standing practice and a whole host of the history of the reality of how things function and operate, whether we like them or not here in Philadelphia, you know as well as I do that if the new standard is the aggrieved person or the aggrieved taxpayer, you will have to demonstrate and prove that, you know that, now at the Zoning Board, which is a higher standard than the present standard. Now, isn't that correct?
It is a higher standard since the 1999 case, but my point is --
-- That the aggrievement standard -- 142 5/30/01 - RULES - BILL 000629
The court just caught up with what the people figured out back in 1950 and what their original intent was in the first place. It just took the court 50-some years to figure it out. (Applause.)
You know that the Council at that time put that in for a specific reason, distinct and separate from the first part of that sentence. You know that. (Unintelligible, parties talking over each other.)
I know that it's in there and I would assume Council would always give weight to every word that's in the ordinances. So, yes, I understand that.
Well, I appreciate the complement. Thank you. 143 5/30/01 - RULES - BILL 000629
But what I'm saying is that in practice, up until the taxpayer case, people had to make their case on standing because they knew they would need it when they got onto appeal.
I understand. How many people were denied standing in the cases at the Zoning Board last year?
In fact, that would be a good question, actually, because most of the people here are afraid they're going to lose their rights, and I don't believe that they lost their opportunity to bring cases. I don't think SCRUB has been thrown out on standing -- maybe they have. But in fact, they were always able to --
I think that part of the problem is that most people are not sure that there's any need for any change in the code at all.
So whether they think they're going to lose their rights, maybe lose their rights, I mean, I think the reality is that if 144 5/30/01 - RULES - BILL 000629 people are fearful about the possibility of losing their rights, they will come out and speak out about the issue. And at some point, it becomes difficult to cut through from either side as to what the facts are and what reality is because they have been so jolted and frightened by the prospect that, you know, it's difficult for any other sound to get through. Let me go back to something I asked before because I have been intrigued by this. Now, how many cases have been appealed by the concerned-about outside group?
I don't know the number, Councilman, which we talked about before, but what I can tell you is that when I lecture at continuing legal education seminars, this topic is always a topic that people are watching to see what impact it's going to have on the City.
The taxpayer case and what it will do to cases in the City. But I can't --
It was decided in '99, right? 145 5/30/01 - RULES - BILL 000629
Miss Phillips, you're an expert in this particular area, I think we've qualified you on the record as an expert in this particular area, you lecture in this particular area, you know everyone in the land use area, you're a co-chair of the Bar Association -- what did you say earlier?
If there was an issue or a problem in this particular area, don't you think someone would have mentioned it to you by now?
I know from my own experience that the issue of people coming from outside a geographic area, that can happen, that is 146 5/30/01 - RULES - BILL 000629 a real scenario that can happen.
I don't know the number and I don't think the cases have made --
We don't need to talk about what can happen. I mean, we had a gentleman talking about an airplane flying through the window and possibly killing us all. I mean, anything can happen. I asked you, in the time since the decision, how many times has it happened?
Right. And I mean, quite honestly, I can only respond back to you that if it had happened I think even once, one of the 8 million zoning lawyers around this town, half of whom I know and have either worked with or been on the other side of the table, I'm sure, would have told you by now. I would tend to think that except in a couple of narrow situations, which we all know fairly well from earlier testimony or from other circumstances, that it's a fairly narrow situation 147 5/30/01 - RULES - BILL 000629 where you have this, you know, much feared outside group intervening in these kinds of matters, and it probably is primarily in the billboard sector, for the most part.
But I don't think it's limited to billboards at all. I mean, I stand by that. It's not.
Well, the possibility of it happening is certainly not limited to anything. But, again, in using your language, in the practical application, it appears that that has primarily been, for the most part, about 99 percent of that activity, in practice.
Right, but it stands out there as a possibility. And anyone coming in to do business in this city would have to understand that that would be a possibility for any project that goes forward.
Let me ask this 148 5/30/01 - RULES - BILL 000629 question: What's the difference between these two phrases: or any taxpayer, or any aggrieved taxpayer. What's the difference?
"Any taxpayer" is anyone that pays taxes to the City of Philadelphia. And "any aggrieved taxpayer" would be someone that is impacted by a zoning decision and pays taxes.
I think it would broaden it a bit. I mean, you may not have to show that you own property, maybe it could be that you work next door to a building, so I think it would be a little bit broader, but it is more narrow than just "taxpayer," but it would be an "aggrieved taxpayer."
You'd have to show, you'd have to how you're impacted by the decision in some way.
Okay, all right. There has -- I know the chairman is out of the corner is giving me -- 149 5/30/01 - RULES - BILL 000629
I was waving to somebody. I would never take away your right to speak.
Otherwise I'd have to Miss Phillips to represent me. Thank you. There have been letters flying around from a variety of community groups, many of whom are in the district that I represent. As best I can tell, virtually every community group in the district that I represent has sent a letter or called and expressed their opposition to the bill. What has your community group said about this?
I don't belong to a community group in the City, Councilman. I don't live in the City. That's why I'm a consultant to the City. (Applause.)
For the record, Mr. Stretton doesn't live in the City either. 150 5/30/01 - RULES - BILL 000629
No, I've worked here for years and I am a taxpayer of the City. 7
I apologize for the 8 question. Again, they've been coming from all over 9 the place. And, again, given, you know, the 10 background and the practice that you have, I just 11 thought in the normal course of, you know, the 12 grocery store run or whatever that, I mean, the 13 local civic was, somebody would have said something and you may have engaged in a discussion about that. No, I was not aware of that.
No, but I can understand why you might get letters because I don't think people fully understand what this ordinance means, and I believe people, unfortunately, have scared people into making them think that they're going to lose important rights that I don't think they will lose under this ordinance.
Thank you very 151 5/30/01 - RULES - BILL 000629 much. Thank you very much for your testimony. I would just like to limit -- and the only reason I want to limit is, we such a long witnesses of list, and it's unfair to have these people sit here all day while we go back and forth with two witnesses. So if we could just confine -- we can always recall her. You can ask whatever questions and make whatever comment, but I'd really like to get some of these other people up here soon.
Thank you, Mr. Chairman. Very quickly. You just stated that you're not a resident of the City of Philadelphia.
I'm going to lay out a little scenario for you. In your present position, you're a consultant to the City, which means you pay a wage tax.
That's my favorite 152 5/30/01 - RULES - BILL 000629 tax, thank you, the net profits tax.
The Center City Residents Association, the Society Hill Civic Association, Society Hill -- I'll take my side of Broad Street -- has a particular zoning matter in front of them and by going through a process, negotiations, no deal, no money transferring, but they come to an agreement to support a zoning application that initially they were opposed to because the developer may make some adjustments to the facade of the building and the parking arrangements, whatever. But you work, hypothetically, you work directly across the street or around the corner from this proposed development, you would have the right presently, you would have standing to file an appeal on that decision, even after the community group eventually decided to support it. Is that correct?
Under the proposed amendment, you would have less of a right.
I think that's right. I 153 5/30/01 - RULES - BILL 000629 would have to show the direct impact and aggrievement typically deals with other people's property rights.
But Society Hill Civic -- this is a scenario hypothetical thing -- they would still have standing. They're not going to be silenced.
I don't understand what you mean when you say you don't think rights are going to be changed by this amendment. Let's take a situation where in Bridesburg, they use all kinds of chemicals, and for some reason, the Bridesburg community, harassed, having fought for many years, decides this time not to oppose an extension of a plant that they believe is harmful to them, and somebody from another part of the city, worried also about the fact that this may be oppressive for them, decides to file an appeal. Now, when you take that away right of 154 5/30/01 - RULES - BILL 000629 somebody else to file the appeal, why aren't you hurting their rights?
See, I don't think you're taking away anyone's right to appeal if they are affected by the decision or if they are affected by the matter.
So how are they going show they're affected? They're ten miles away.
They may show that there's dust that falls on their house or that there are fumes that make their way to their house.
Can they show that this may be a precedent which may affect them some years down the road? Would that be enough?
Not in a zoning forum. The other this is, there are forums where people can bring cases. That kind of case might be more appropriate before the Department of Environmental Protection, so it would be in a DEP permit forum.
No, but the zoning, 155 5/30/01 - RULES - BILL 000629 that's a different ground entirely when we're talking about zoning.
We're not talking about resort to an historical law or a resort to environmental protection. We're trying to see to it that zoning rights are preserved, because zoning rights have a lot to with quality of life, don't they?
I'm just at a loss when you say that you think the rights are going to be the same. If the rights were going to be the same, we wouldn't be here today on either side of the table or in the audience. Aren't you concerned about the fact that the people in the audience represent overwhelmingly the largest number of community organizations and they feel shut out?
Well, I was here last time, and there were community organizations that seemed to understand the ordinance in a different way and were not in opposition to it. I understand why people -- 156 5/30/01 - RULES - BILL 000629
I don't find many of them. One of them that I know has changed its opinion is Society Hill. And Tacony changed their opinion as soon as they learned the law, the effort to hide what the law is not by those who oppose the law; it's by those who are presenting the law as meaning nothing, because a case is decided on the merits of the case. And what this amendment tries to do is to prevent a decision on the merits of the case by saying nobody is entitled to file an appeal except a very limited area of people who may, for one reason or another, not be prepared to file. That's the whole purpose here, to limit rights to get something which may be in opposition to law but to prevent anybody from being in a position to contest whether or not it's legal. Standing is only a procedural matter as to who may be involved in the case. It doesn't deal with the merits of the case, it deals with the rights to pursue an action. And since they know on the merits they would probably lose, therefore, they're shooting at the only people who may bring an action. They're trying to prevent anybody from raising the issue. That's what this is all about. 157 5/30/01 - RULES - BILL 000629 It's really entirely a free speech issue. What they're trying to do is to prevent anybody from having the right to complain by silencing the opposition. That's what the purpose of this amendment is. Isn't that the effect? (Applause.)
I mean, let's talk plain. We can try to fence it, but there is a developer in the City, a billboard developer by the name of Mr. Cipollini who wants to put billboards everywhere. He's the guy that developed the unique theory about putting billboards on City property. He is upset by the fact that the courts have ruled against him, and so he is waging a campaign -- maybe there are other billboard operators who may also be waging a campaign -- to try to prevent the people in the community from presenting their case before a court, because if a court hears it, the court may decide, as they've been doing recently, against the billboard operators. So that the purpose here is to prevent anybody from complaining to the courts. That doesn't deal at all with the merits of the case, 'cause they concede they would lose the case if it goes to court. Therefore, they're trying 158 5/30/01 - RULES - BILL 000629 to prevent it from going to court by eliminating people from being able to bring an action. That's what this whole purpose is, and I don't see how you can say it's not going to effect very much. If it's not going to effect very much, there would be no 7 point in having this amendment presented in the first place.
Thank you. Two quick questions. One is probably quicker than the other. What would happen -- I forgot to ask this earlier. There's a proposed amendment, and I mean, we'll come back to some of the language issues and kind of what qualifies what and the like. But for the moment, with the proposed amendment, what happens in cases where there's some issue in the City and a group like the Foundation for Architecture or the American Institute of Architects or the Preservation Alliance of Philadelphia or 159 5/30/01 - RULES - BILL 000629 Americans for Democratic Action or any of those kinds of, I think, long-standing, fairly well-known groups and organizations that have a citywide membership, look at a wide variety of issues, what happens if they're the opposition in a particular case under this proposed new standard? What happens to those groups?
I don't think anything different happens. They derive their standing from all the members that you just mentioned that live throughout the City. That's how they have standing, because their members live in the neighborhoods.
How does the organization meet the aggrieved standard? You talked earlier that one of the components of it was a proximity issue.
And they have members that have proximity. Therefore, they have standing. That's been the law. That is how --
This is like the associative property, that you get your standing through the organization through its various members and where they live?
Don't you have to prove that somebody lives near the particular locale?
What do you mean, "the practice"? "The Practice" is a TV show. What do you mean, "the practice?"
The practice before the Zoning Board in order to establish standing is to identify a member of an organization that lives within a proximity to a property.
But the standard at the Zoning Board is a different standard than the aggrieved person or organization standard that the court has to interpret. How does the organization, these well-known, well-established, you know, whether you like their politics or their views or whatever, I mean, they're not fly-by-night organizations, have stepped up to the plate and said, We have a concern about X. How do they meet 161 5/30/01 - RULES - BILL 000629 that standard, based on what you have given us earlier in the record? How do they show that they are directly affected? You keep talking about the individual. I'm talking about an organization.
An organization can show it two ways. One, they can show that they own property interests near the property. So if the Foundation for Architecture is a tenant --
What they need to do is to have a member that lives within a proximity of that project. That's typically how they can show standing.
Well, I think that's what the SCRUB case was about, actually.
In that case, we are talking -- I think that involved a property where there was no one in the area.
And so SCRUB argued, I think, standing on three different bases. One was taxpayer, one was that they had derivative standing because they were representing people that were affected. And there's another theory called "public attorney general," where you are enforcing the law -- it's not really an enforcement so I can't really -- it's not an enforcement issue. You're bringing an action on the benefit for the entire good of the City.
Then why are we here? 163 5/30/01 - RULES - BILL 000629
The issue is the bare taxpayer status. That was what was new, that was what was new that came out of the SCRUB decision. And why we're here it's. You know --
There's differences of opinion, Councilman, but that's the essence of the case.
We argued this at the last hearing. This is not new. This has been in the code for 47 years.
That's correct. But it was never interpreted that way until 1999. That's why we had a Commonwealth Court case that came out of the blue. That made a change in the landscape of the law. You have it within your power to change it, you have it within your power to leave it alone. That's your decision and that's the decision you'll come to. 164 5/30/01 - RULES - BILL 000629 I can only come here and give you facts and answer technical questions as to what I believe the law means as a practicing attorney. So I'm here to give you facts. You need to make your own decision, and you will.
Well, you know, I won't take you back through it, but you know that the courts, from time to time, it does take them a little while to figure out what the framers meant when they wrote certain things. I mean, I remember in, I don't know, American history class, reading about some document that talked about, you know, that all men were endowed with certain unalienable rights. Now, it took the courts a while to figure out who all was included under that. (Applause.)
But you wouldn't -- I mean, you wouldn't -- I mean, you're not saying that that was like new. (Laughter.)
I mean it had been there for a while, and then it took 'em, you know, through a series of, you know, hundreds of cases to finally figure out that what that meant. And then, 165 5/30/01 - RULES - BILL 000629 you know, life has gone on and we've all lived in peace and happiness ever since. So, I mean, it wasn't new. They just came to the understanding of what somebody many, many years ago figured out, right?
All right, all right. Earlier you also mentioned the concern about the possibility of clogging the courts. You know I'm not an attorney and don't practice over at the board on a regular basis, but I do come by from time to time just to, you know, kind of check out what's going on. But if the case starts -- the example that we had earlier, you're at the board, this is my name, this is my address, this is the group I'm in, whatever. And we start down the standing path. I'm just Joe Schmoe there. And the board says we don't have to listen to you, we don't think you're an aggrieved person, you don't have standing. What are my rights as an individual at that point? 166 5/30/01 - RULES - BILL 000629