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Minutes

Committee Hearing, November 10, 1998

Philadelphia City Council Committee HearingsNov 10, 1998

People mentioned

Names our system found in this transcript. Automatically extracted, so it can include anyone named in the record, not only officials or parties.

Organizations mentioned

Councilman Nutter

We have a time-out room over in the other place there if you want just to take a time-out, it's fine. Then you can 99 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 come back.

Mr. Primavera

That's good. (Laughter.)

Mr. Primavera

The licensing scheme. There was a lawsuit where the City was enjoined from imposing licensing fees on billboards but not on signs that say "Joe's Restaurant" or "Bob's Retail" because the law doesn't allow the treatment or penalty of billboards. Remember, billboards are a legal use. So, again, you should check with the Solicitor and L&I. There are many reasons why a lot of what hasn't been done hasn't been done. And it's not mere not neglect, but it's very difficult legal issues which, perhaps, have been overlooked here today.

Councilman Nutter

All right.

Mr. Primavera

Again, looking at where the signs have been approved, and in my opinion, I think it's only a handful. But they've been in industrial areas. The one involving Keystone is in an area where there are no residential populations. And, in fact, the umbrella group of 100 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 civic associations represented by Mr. Greco came in and testified and said, We want this because we realize that the funds that Keystone will pay the City will help eliminate the need for more taxes. So, quite frankly, there are many people represented by organizations who have appeared on behalf of outdoor companies. And even though they're --

Councilman Nutter

Is there any direct arrangement between Keystone and the --

Mr. Primavera

They do it for the same good reasons that the people who oppose it. They have different views, different strokes for different folks.

Councilman Nutter

I understand.

Mr. Primavera

And they say, Why should property that's owned in private hands get the income when the City, through its various operating units, owns property that could make money for the taxpayers? And they look at it as a taxpayer-saving initiative, and I think there's a lot of regard for that. With regard to the alcohol and tobacco restrictions, I believe there currently is an 101 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 ordinance approved by City Council that does prohibit alcohol and tobacco advertising on City property.

Councilman Nutter

I think the ordinance was introduced; I don't think it's been passed.

Mr. Primavera

All right. Well, we know that it's there, and we quite frankly think that that has gone a long way to addressing some of the concerns. And maybe that ordinance needs to be looked at.

Councilman Nutter

I think, Mr. Primavera, that it actually may be a resolution 15 calling on the City to not allow tobacco and alcohol advertising in any of our contracts, as opposed to a bill.

Mr. Primavera

Okay. I know there's some that Mr. Grimes has a pink copy of. I don't that. That -- it could be a resolution.

Councilman Nutter

It's mentioned in his testimony, but I believe it's a resolution.

Mr. Primavera

All right. And then the other thing is that the license agreement, which the City has with Mr. Cipollini and Keystone 102 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 does prohibit alcohol and tobacco advertising, so that was already covered in the license agreement.

Councilman Nutter

I would expect that of him.

Mr. Primavera

So I think you can see already that there's some real attempt to address some of the concerns. With regard to a lot of what has been said about the state of licenses and permits, if you check Keystone's record, you'll see that he's paying his license fees. As a matter of fact, he's affirmatively going to the City without them billing him and saying, I want to pay. And even though there's collateral litigation, he's saying, I'm paying whether or not I'm legally obligated to because --

Councilman Nutter

Now, how does that work? Does Keystone pay a fee for each location?

Councilman Nutter

Are you saying he's paying them annually and they're up to date?

Mr. Primavera

Right. And, quite frankly, he's in a litigation position to say, I don't want to pay in public venue so he's going 103 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 beyond the call of duty, which is an important issue. With regard to some of the other final issues that where you're looking to fill in some of the gaps, when a convention -- as a matter of fact, before it was announced publicly, Philadelphia was contacted by the committee to bring in the Republican Convention. The convention committee was anxious to know if outdoor advertising signs were available here because conventions won't come to a city unless it has some kind of vital and exciting signs available. So I think a lot of testimony is that the signs are anti-business, which really is, perhaps, not scientific or experienced. And I think those people are familiar with some of the entertainment facilities that the Zoning Board has been approving variances for those facilities, and they would not come to the city unless they felt there was appropriate signage.

Councilman Nutter

Well, it's really more a matter of art and taste. And, I mean, reasonable people can just disagree about whether 104 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 they like billboards or not. I mean, it's like art or, you know, some other things out there. I mean, it's not pure, right? I mean, they make 31 flavors of ice cream at least.

Mr. Primavera

And I would agree with that. I'm just trying to add the perspective -- and I'm glad you're already confirming it -- that if one sign is too many --

Councilman Nutter

If this is a point we're going to agree on, then I'm going to change my position.

Mr. Primavera

Okay. But I think you're right, I think that it's like many issues that don't allow for people to look at the gray area. I think you have one side or the other.

Councilman Nutter

Well, talk about this 'cause, I mean, you have in an overwhelming fashion at least made a case that this particular company -- and we're not talking about any other company, but that this particular company is paying its license fees, is a good citizen, works with people, made an agreement at least with the city -- I just -- I want to go back for one second. 105 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 On the agreement out in the southwest, you indicated that -- is it that all the revenues from this only go back into the City coffers? Are there any other agreements or arrangements or side discussions that might enable a community group, an organization, a rec center or anybody else to, I guess, benefit from the revenues derived out of that?

Mr. Primavera

No. As a matter of fact, the interesting thing is that originally the Water Department was very excited about the prospect of having its property used for this purpose because they see the signs that the adjoining properties have and they say, Why can't we generate some income? I think the Water Department wanted to dedicate the income to its particular site, and I think the way the City works is it goes into the General Fund, so the City dictates where it goes. With regard to community groups, at least with regard to this site, there was no 23 request and really no participation or compensation. The city, I'm sure if it wanted to, if it felt it could dedicate some of that income 106 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 stream to them, but it just never came up. And maybe that's something -- kind of a quid pro quo that would be beneficial to groups going forward. But we didn't address that.

Councilman Nutter

Okay. Let's talk about the bill. You've made your case for Keystone as a good corporate citizen. And maybe you felt you had to come here today to defend your reputation or get into issues from '91. What's your concern about this particular bill?

Mr. Primavera

Well, I think that part of it has to do with the record that's been made, and I agree with you that's it's gone far afield, and we needed to address it, but --

Councilman Nutter

You've more than defended yourself.

Mr. Primavera

Thank you.

Councilman Nutter

Let's talk about the bill.

Mr. Primavera

And with regard to the bill, the concern is really this? That there are always things that have to be done to make the City work. And there seems to be so much -- 107 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716

Councilman Nutter

What does that mean?

Mr. Primavera

Well, so many different approvals and licenses and permits and hearings. And, as set forth in the testimony, I won't repeat it here, the bill, we believe, would just add another bureaucratic level to an already fairly bureaucratic process that has a lot of checks and balances, you have zoning hearings, you have PIDC, you have the operating departments of this city. So we think that there already is a tremendous amount of layers of review. So this isn't something that comes --

Councilman Nutter

I appreciate you confirming my title as "a bureaucrat."

Mr. Primavera

What's that?

Councilman Nutter

I appreciate my new title as "a bureaucrat."

Mr. Primavera

No, no, I'm not just talking about any aspect.

Councilman Nutter

I understand.

Mr. Primavera

I'm talking about if you go back to the Water Department, the City Solicitor, PIDC. 108 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716

Councilman Nutter

Right.

Mr. Primavera

I mean, there's the Zoning Board, the Planning Commission.

Councilman Nutter

Mm-hmm.

Mr. Primavera

I mean, this one location involved tremendous amount of time and energy. And anything that adds to that would be, I think, counterproductive.

Councilman Nutter

You don't think that there is any particular special care or oversight that should go into the citing of whether it's billboard or other advertising or some other private interest on public property?

Mr. Primavera

Well, I think that first of all --

Councilman Nutter

I mean, it doesn't require any -- just any heightened level of oversight?

Mr. Primavera

I guess what we say is that the steps that were involved in our experience with a telephone size agreement with the Law Department, review through all the City agencies, we had full-blown engineering plans to make sure that the sign would not compromise the 109 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 Water Department's operations. And they precluded the --

Councilman Nutter

Well, you can understand why we would want something like that.

Mr. Primavera

Oh, I'm just saying --

Councilman Nutter

If your sign maybe falls on somebody, we might be liable.

Mr. Primavera

And $5 million of insurance. I mean, if you would see what your city solicitor did, they should be complimented. There's probably not a tougher agreement on the books. And the reason is -- you're right -- that they do know that City property does require for the taxpayers' benefit a lot of protections. My only response is that based on our experience, this thing was looked at as closely as any deal involving city property.

Councilman Nutter

Mm-hmm.

Mr. Primavera

Also, I know your concern would be, it's one thing if you're down in a sludge facility; it's another if you're near residential property. Well, we only want to be in industrial properties; we don't to be anywhere 110 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 near residential properties. So we think the same locations that apply to private property are relevant to City property. City property should not be easier to get a billboard on.

Councilman Nutter

Right.

Mr. Primavera

And we're not proposing that. We're saying apply the law in an even capacity. If someone has a private piece of property by the airport, in a swamp, and there's nothing that can be developed, then it should be considered for a billboard. If the City owns that same property with the same limitations and it otherwise conforms with the zoning law, then it should be available. So --

Councilman Nutter

Well, I understand that by I have to go back to the initial question, and it really is a yes or no or question. Do you believe that there should be any higher level of scrutiny or oversight on the placement of a billboard on public property versus private property. Now, it's a yes or a no 25 question. 111 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716

Mr. Primavera

Yeah. I would say no, we already have criteria that addresses content of the advertising, location of the advertising, and all of the other administrative controls. So to me, it would be redundant. I mean, not that redundancy --

Councilman Nutter

So you think it should be the same test as -- I mean, the test should be equal whether it's on a piece of privately-owned property as to the roof of Memorial Hall, same test.

Mr. Primavera

Well, you just put the rabbit in the hat. We wouldn't put it on the roof of Memorial Hall.

Councilman Nutter

I can't talk about just you.

Mr. Primavera

All right.

Councilman Nutter

You're not the only billboard -- as much as you may want to be, you're not the only billboard company in the City of Philadelphia. I don't know what you want to do, I don't know sites you want to be on.

Mr. Primavera

Well, let me explain.

Councilman Nutter

I don't know that 112 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 you only want to be in commercial or industrial areas, and I don't know how many of them there are. What I do know is that there are a large number of publicly-owned buildings around the City of Philadelphia. And if the idea is to put billboards on public property, there are a whole lot of them.

Mr. Primavera

Well, no, I would agree with you there. As a matter of fact, maybe we are agreeing at a point. If somebody wanted to add a billboard to a historic structure like City Hall or Memorial Hall --

Councilman Nutter

They may be covered by other provisions.

Mr. Primavera

I'm just saying that what we're, on behalf of Keystone, looking at are areas that are basically far-removed from either residential or commercial properties, they're in industrial districts, and they're, quite frankly, where you would expect to see billboards.

Councilman Nutter

Right.

Mr. Primavera

We would not look -- we 113 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 think that it would be disrespectful to the City and to the taxpayers to try to put them in an area where they would stick out and be a negative influence.

Councilman Nutter

So you think the process is either further delayed or that much more painful if you, as you say, you are already working with either community groups and organizations, you're already working with, at a minimum, the District Councilperson, and you're talking to the people who own the site or are responsible for the site on the public side, that it would be that more of a burden to have a member of this Council introduce a bill, which doesn't cost you anything, have a public hearing, which doesn't cost you anything, get a bill out committee, voted on by the body -- still at no 19 cost to you -- which literally can be done in two weeks, three Thursdays, and that that somehow creates a larger burden for you than filing an application with the Zoning Board, waiting till you get a hearing, paying $500 to get an expedited hearing on top of the 280 that you have to pay anyway to have a hearing, and then waiting for a 114 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 decision. The first process is more burdensome than the second process; is that your testimony?

Mr. Primavera

Yeah. What would be the standards? If I go to the Zoning Board, I know what the legal standards are for success. If I become involved in a Councilmatic process, what would be the standards that Council would use to evaluate? We would all agree that if it's on Memorial Hall, you wouldn't approve it. I would be first to agree with that.

Councilman Nutter

Based on what standard?

Mr. Primavera

Well, my suggested standard. But I'm just saying, what would be the standards in your ordinance? Would it be simply based upon -- are you looking for a hundred percent consensus? If the SCRUB people came in said, We don't want it, would that be enough to veto it? We don't really know the parameters. And it may be that the exception will eat the rule so that -- 115 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716

Councilman Nutter

Mr. Primavera, let me ask you this question: How many times have you ever testified on a bill in City Council?

Mr. Primavera

Many.

Councilman Nutter

What were the criteria under which that bill was approved or denied?

Mr. Primavera

I would say that usually there was a criteria.

Councilman Nutter

Are they written somewhere?

Mr. Primavera

In some cases, they are, like in street ordinances, you know, in right-of-way ordinances.

Councilman Nutter

But most are not.

Mr. Primavera

Well, usually there's an accepted --

Councilman Nutter

And you probably have about a 98, 99 percent approval rate out of this body, don't you?

Mr. Primavera

Usually. I would say this, that where there's the track record and where everyone knows kind of what the parameters are -- 116 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716

Councilman Nutter

So your testimony is that -- and I don't -- and I've certainly come to respect the work and the view and the judgment of the Zoning Board of Adjustment, but, I mean, are you making testimony now that by way of the Zoning Code, which you can read and figure out, that the members of City Council would not be able to figure out for themselves, based on whatever criteria we use to approve the million ordinances that come through here on a regular basis, that members of City Council would not be able to figure out, based on the recommendation of the District Council who member introduced the bill in the first place, that we wouldn't be able to figure out whether the bill should go forward or not? Is that your testimony?

Mr. Primavera

No, no. You asked me what my client's position would be, and my client's position would be, You may know what you have in your mind, but we don't know unless you tell us. And if there were some standards that would allow us to know the, quote, rules of the road, then maybe we could agree. So that's when I said no Memorial Hall, no playgrounds. 117 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 But if your mind that I can't read says, Whenever SCRUB says no, that means no, then I'm out of business.

Councilman Nutter

But SCRUB is not a member of City Council. We are.

Mr. Primavera

But they may have an impact.

Councilman Nutter

You go to the District Council now, right?

Mr. Primavera

Right.

Councilman Nutter

I mean, as a normal course of your policy and procedure, you go and talk to the District Council person, right?

Mr. Primavera

Right.

Councilman Nutter

And what do you do if the District Council says, I can't support a billboard at XYZ location? What do you do?

Councilman Nutter

I don't know if we've ever had that.

Councilman Nutter

What would you do?

Mr. Primavera

I would probably find another location which they could support.

Councilman Nutter

And would you ask them what their criteria was, or would you just 118 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 accept their judgment?

Mr. Primavera

No, I would say, What would be something that you could get behind? And in past, they would say --

Councilman Nutter

Suppose they said nothing? Or I don't like it at that location. What would you say?

Mr. Primavera

I'd say that that was a very narrow view of the world and maybe being the advocate that I am, I could convince them that it's in the best interests of their community and the city and the business to have a more open mind.

Councilman Nutter

And after all of that eloquence, suppose they said no at that location, what would you do?

Mr. Primavera

Probably look at another location.

Councilman Nutter

Okay. So what's the difference? What was the criteria that was used?

Mr. Primavera

Well, I think what I'm saying is that I would --

Councilman Nutter

It was the judgment 119 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 of the Councilperson at that time based on all the factors involved, wasn't that the criteria?

Mr. Primavera

But they would tell me typically. They would say --

Councilman Nutter

You think we wouldn't tell you under the circumstances of this bill.

Mr. Primavera

I don't know. I'm asking. You said, What would be helpful in making your ordinance acceptable? And I said some objective standards that would give us the rules of the road so that we know what Council is thinking about other than sheer prerogative. Because at this point, the zoning process tells us what we need to establish, and the ordinance that you're prescribing basically says, Come into City Council and avail yourself of a process that's going to be perhaps creating a new regulatory hurdle for us. I don't know. If you're saying that the Councilpeople will defer to the Councilperson in whose district the property is located, and there won't be Councilman Cohen and others putting pressure on Councilpeople because they feel that 120 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 they don't want the sign even if it's not in their district, I don't know. I mean, that's --

Councilman Nutter

You want me to write that into the bill?

Mr. Primavera

No, I'm just saying that --

Councilman Nutter

That Councilman Cohen can't pressure anybody? I mean, come on.

Mr. Primavera

Well, I'm saying that's part of the danger. The danger is that --

Councilman Nutter

Members take the prerogative to talk to other members about whatever it is that they want to talk about, but you've been around long enough to know that in most instances, if there is something that is pertinent to a particular location, involves a District Councilperson who, under this legislative arrangement, would be the introducing member, then certainly that member is going to be an advocate because they're worked out all that needs to be worked out with their community and in their district to have this go forward.

Mr. Primavera

Well, maybe I can suggest this. Maybe the people who are supportive 121 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 of your proposed bill and you as the sponsor --

Councilman Nutter

I'm sorry, what did you say?

Mr. Primavera

Maybe you, as the sponsor of the proposed bill, and those who are in support of it, maybe there's some overriding standards that we all would agree to and maybe we can agree to. I mean, it may well be that we're talking about things in general that lay themselves open for some type of, you know, compromise. Now, from what I've heard today, one sign is too many, so why would I want to ever add any more regulatory hurdles? On the other hand, if you're saying you don't want them on Memorial Hall, neither do we. So I guess I have to know, where is the field that we're playing on? Is it in the extreme ideology?

Councilman Nutter

The field that you're playing on is the field of public property, and if you want to be on a particular location, if you have no interest in Memorial Hall, then you'll never ask anyone to put one on Memorial Hall. But if you want to be on a rec center, 122 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 a library, a ball field or somewhere else, you'll identify that property, you'll make your case, you'll talk to the same District Councilperson that you would have talked to at the nearby privately-located site, and you'll try to work it out. And then the person would introduce a bill and can go through the same process.

Mr. Primavera

And you say the process doesn't cost anything. Mr. Cipollini has a couple of lawyers here plus his own time. This is a very expensive and extensive -- the lobbying that goes into it.

Councilman Nutter

With all due respect to the three lawyers that Mr. Cipollini has, I've had a conversation with him, and I firmly believe, although you're an aggressive advocate on his behalf, that Mr. Cipollini could have represented himself today and done a very good job. I mean, you know, if I were going to battle, I guess if I had the opportunity to get Carl Primavera, Josh Grimes, and Steve Pollack, you know, I'd probably do it too. But, I mean, 123 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 that was -- at some level, that was also his choice.

Mr. Primavera

Yeah, but you just said it didn't cost him anything and I think --

Councilman Nutter

Right. Councilwoman Blackwell?

Councilwoman Blackwell

Excuse me. I really think that you do your position a disservice. I've been at hearings in this chamber since 10 a.m. I have evening meetings, I've missed my whole schedule. I would like not to have a legal debate in our legislative body. It's 10 of 5 now.

Mr. Primavera

That's fine. I don't have any further remarks, and I'm sorry if I prolonged this.

Councilman Nutter

That's okay.

Mr. Primavera

I was trying to be responsive.

Councilman Nutter

Sure. I know you were. A couple last questions. Now, can you tell me what -- I mean, this is the first of probably many deals to come. What are the dollars 124 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 involved in the Southwest Treatment Center proposal? What does the City get?

Mr. Primavera

It's my understanding that it's a 1.2 million over 30 years. That's net to the City.

Councilman Nutter

So it's about 30 grand a year.

Mr. Primavera

Is it 40?

Councilman Nutter

Okay.

Mr. Primavera

And, you know, the suspicion would be that that's just pure additional dollars since it doesn't cost the City any money to generate that income. And all the expenses would be paid by Keystone.

Councilman Nutter

Okay. And in this particular project, did the Water Department seek out Keystone, or was Keystone kind of going around and being aggressive and hustling to find a potential site and then came to an agreement with the Water Department and then the Law Department?

Mr. Primavera

In fact, that's exactly what happened. They thought there was an opportunity, they spoke to the Water Department. The Water Department had thought about it 125 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 independently but lacked the experience to know whether or not they had an opportunity.

Councilman Nutter

And was this handled as a concession or as a private negotiated agreement?

Mr. Primavera

It was like a licensed agreement.

Councilman Nutter

Okay. And how do you do that without going to the highest responsible bidder?

Mr. Primavera

Well, I think the policy was that since this opportunity was brought to the City's attention by the private company, that the private company -- you know, it would be, in effect, given the opportunity to negotiate. Otherwise, people wouldn't come to the City with opportunities if they felt that they weren't going to ultimately be given a first shot at it. And I think they did an appraisal process so that they knew that they would get, you know, top value.

Councilman Nutter

Right.

Mr. Primavera

But I think that was just a business decision that the City undertook. 126 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716

Councilman Nutter

I understand that. But how do you avoid -- I mean, there must have been some other process that allowed for this kind of direct negotiation versus a concession agreement going to the highest responsible bidder.

Mr. Primavera

I think when you go through PIDC, they're allowed to handle that.

Councilman Nutter

So the property was turned over to an authority?

Mr. Primavera

It was a licensed agreement, right. So I think PIDC actually took over the negotiation on behalf of the City.

Councilman Nutter

Okay. So in that particular case, any other company would be precluded from trying to engage in a negotiation at that site on the theory that Keystone found the site, Keystone did an appraisal or had one done and was aggressive about pursuing that location, so they got the exclusive on that one.

Mr. Primavera

Right.

Councilman Nutter

Going forward, do you anticipate pursing that process or just engaging in concession agreements and going with the highest responsible and trying to outbid other 127 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 people? What's the program?

Mr. Primavera

It's up to the City. I mean, if the City has identified some locations on its own, then we expect that they would market them as they deem best. If we're able to locate, through a lot of research and time and energy, possible locations, we would have hoped that they would follow through on the same process to reward those who bring business opportunities to the City. So it's really up to the City is the answer, we don't control that. Obviously, we would like as many opportunities as we can get because that's our business.

Councilman Nutter

Okay. And you expect other companies to pursue the same strategy?

Mr. Primavera

Their not being here suggests that they haven't made it a priority.

Councilman Nutter

Okay. Okay.

Mr. Primavera

And, I'm sorry, just to the extent that I may have been, perhaps, overly excited in my remarks, one, I had surgery on Friday and I'm not feeling well. And, second of 128 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 all, it's been a long day. But I didn't want to be rude to you or to the committee, and I think, quite frankly, that I wasn't. But if it was perceived that way, accept my apologies and take it in the face of the advocacy which, hopefully, we can bring to bear on any project that we're asked to involve ourselves with.

Councilman Nutter

I appreciate that. I look forward to the next time we're able to clash swords.

Mr. Primavera

Thank you.

Councilman Nutter

Thank you. Anything else? Mr. Cipollini, would you like to? You've had zealous representation here.

Mr. Cipollini

I think the record speaks for it is.

Councilman Nutter

It does. Thank you. The City Solicitor herself and Mr. Feder. (Ms. Franklin-Suber and Mr. Feder come forward.) 129 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716

Councilman Nutter

Let me make mention just for the record that the City Solicitor's appearance, it's my understanding at least, comes at the request of the City administration. And I had inquired on no latter than Friday of last week of the Mayor's Chief of Staff to try to get an indication of who would be making any presentation by the City, and the response was that the City Solicitor would be the representative by the City. It was not my intention, certainly, to leave either L&I or any other department out of today's hearings, but the City administration reserves the right to send who they wish to send. Madame Solicitor, please identify yourself for the record. As I mentioned earlier, we have copies of the statement that was sent over as well as the memorandum from Mr. Feder to yourself. You can certainly feel free to either read your testimony into the record or make remarks.

Ms. Franklin-Suber

Thank you, Councilman Nutter. For the record, my name is Stephanie Franklin-Suber. I'm the City Solicitor. 130 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 And I'm joined at the table here with Divisional Deputy City Solicitor Richie Feder. If Councilman Nutter would permit, I'd like to simply summarize the testimony that's been circulated to members of the committee.

Councilman Nutter

That would be fine.

Ms. Franklin-Suber

Generally speaking, with certain specified exceptions, Bill 10 No. 980716 requires City Council's specific approval by ordinance prior to the placement of any billboard or other advertising sign on City property. In my opinion -- and this is the opinion that I would render to the administration, which is why I am here on behalf of not only the Law Department but the administration -- this bill 18 exceeds City Council's powers of legislation under the Philadelphia Home Rule Charter. And, therefore, in my opinion, it is unlawful. It violates the Charter by improperly interfering with the power of the executive and administrative branch of government. Section 1-102 of the Charter states very specifically that the City's executive and 131 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 administrative power is exclusively vested in and exercised by the Mayor and such other officers, departments, boards, and commissions as are designated and authorized in the Charter. Generally speaking, the grant of permission to a third party to place a billboard or other advertising sign on City property may be structured or characterized as either a concession under Section 8-201 of the Charter, or a lease of surplus real property under Section 5-900(a)(4) of the Charter. Under either characterization, the Charter expressly authorizes the administration to enter into such arrangements without City Council approval. So, in other words, the determination as to the placement of billboards and advertising signs on City property is an administrative function committed by the scheme of the Charter to the executive branch of City government. So to the extent that this particular bill purports to reassign that power to City Council, this is an improper interference with the power of the executive and administrative branch of government. 132 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716

Councilman Nutter

Is that it?

Ms. Franklin-Suber

That's my summary.

Councilman Nutter

Oh, okay. Just a couple quick questions. Now, Solicitor, there was a -- there was one section of your opinion or another document that I have which indicates that one of the departments can rent City facilities when they are not being used -- I'm sorry. Section 5-900(a)(4): Whenever City real estate is not being used by a City agency, public property, quote, may rent or when authorized by the Council sell the same upon the best terms obtainable after appropriate public advertising and a receipt of competitive bids.

Ms. Franklin-Suber

That's correct.

Councilman Nutter

Can you shed any light on the phraseology "whenever City real estate is not being used by a City agency"? Does that mean that the site has been abandoned? Does it mean that we no longer use it for anything? Does it mean that the ground adjacent to a building where activities go on, that the ground itself is not being used anymore, even though 133 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 we're on the site in the building? Or does it complete abandonment of the location?

Ms. Franklin-Suber

Generally speaking, without the benefit of any City Solicitor opinions to construe the language, the Charter makes it clear --

Councilman Nutter

Would you mind making an opinion right here at the table?

Ms. Franklin-Suber

No. The Charter does draw a distinction between City facilities that are currently being used for City work by City agencies. That, generally speaking, is the concept. So the idea is simply that where real estate is not being used by a City agency for City business, in other words, it may be considered surplus. Then the Department of Public Property is expressly authorized to lease any such surplus property without City Council approval. The --

Councilman Nutter

I'm sorry, does that still go to the ground around -- you have a building, it's surrounded by a couple acres of land, the land is adjacent to the building that is 134 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 actively under use. Does that particular provision apply to the land, even though we don't necessarily do anything on that land, but the land is a part of the site?

Ms. Franklin-Suber

The Charter specifically says "City real estate," so I would interpret that to include building, land. It says "City real estate."

Councilman Nutter

So your interpretation is that the building and the land would to have to be deemed surplus or not being used by a City agency?

Ms. Franklin-Suber

Any a portion of it. It says whenever any City real estate is not being used in connection with the work of any department, board or commission of the City or any other governmental agency, the Department may rent.

Councilman Nutter

So in the affirmative, does that mean that the only time they can rent such a location is when the site has been deemed surplus or abandoned?

Ms. Franklin-Suber

When it is not being used in connection with City work by a City 135 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 agency; or, actually, any other governmental agency.

Councilman Nutter

Okay. And --

Ms. Franklin-Suber

The Charter does make a distinction, though. The line is drawn between the power of City Council and the power of the executive and administrative branch of government with regard to real estate very simply. City Council has the authority to approve the acquisition of City facilities, City real estate and the ultimate disposition of City facilities and city real estate. And as that has been interpreted by various City Solicitor opinions, the acquisition process and the disposition process are considered as an integral part of City Council's role in the budget process. You have to establish a capital program, you have to establish a capital budget. But the management and the operation of City facilities between the time of initial acquisition and ultimate disposition is left, under the Charter, to the executive branch of government.

Councilman Nutter

Gotcha. The other 136 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 part of your opinion or statement does go to the separation-of-powers issue. We've had numerous discussions in the past about that provision, and your position here today is that the Council does not have the authority to enact such an ordinance, that's your position.

Ms. Franklin-Suber

The requirement in the bill that the ultimate decision with regard to the placement of billboards and other advertising signs on City property, by reassigning the ultimate decision-making authority to City Council, my opinion is that that violates the Charter because the Charter clearly vests, under the provisions I've identified, that decision-making authority and power in the executive branch. So I consider that language in the bill 19 to be contrary to the provisions of the Charter.

Councilman Nutter

And the Law Department has taken the same position with regard to -- on separation of powers with regard to the establishment of various boards and commissions, is that correct?

Ms. Franklin-Suber

That is correct. 137 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716

Councilman Nutter

Madame Solicitor, and I'm sure, Mr. Feder, you're aware of the creation by ordinance of the Air Pollution Control Board under Section 3-302, the Animal Advisory Committee in 10-1023, the Board of Safety and Fire Prevention in 5-4105, the Fair Housing Commission in 9-802, the Historical Commission in 14-2007, the Joint Airport Zoning Board in 18-202, the Minority Business Enterprise Council in 17-505, the Philadelphia Corporation on Services to Aging in 21-901, and the Vacant Property Review Committee in 16-404, all of which were created by ordinance of City Council. Are you aware of those?

Mr. Feder

Mr. Chairman, we're certainly aware of those general provisions in the Philadelphia Code. I believe they raise different issues than the issue that's presented here. And I don't believe there have ever been any Solicitor opinions issued on those particular provisions of the Code.

Councilman Nutter

But you are aware that the Council, in contrary fashion to, apparently, past testimony from the Law Department 138 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 about the Council's ability to create various boards and commissions, under the City Charter, has taken an opposing view on that?

Ms. Franklin-Suber

I think the answer to the question, as I understood Mr. Feder, was that we have not issued an opinion with regard to the legality of those commissions. What I am saying here is that based on prior City Solicitor opinions that go back as far as 1954, we are relying on -- and I am prepared to issue -- an opinion which does take the position that this bill is unlawful, based on separation of power and based on prior City Solicitor opinions that have construed, certainly in terms of the capital programs and capital facilities and the construction of the real estate provisions of the Charter, that those are improper interferences with the executive branch. We have declined to issue opinions, frankly, with regard to those other sections of the Code and legislation dealing with the formation of commissions, boards, and agencies by Council.

Councilman Nutter

More than likely in 139 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 most of those cases, the reason for declining to engage in the opinion-making process on those is because the executive branch either affirmatively, or with strong encouragement of the City Council, chose to cooperate in those particular cases?

Ms. Franklin-Suber

I can't answer that question. I don't have any personal knowledge with regard to whatever the administration's position may have been with regard to any particular ordinance that's on the books currently.

Councilman Nutter

Okay, last question for the day. Both Solicitor opinions and the law change, expand and contract from time to time. Is that a fair analysis of the law, as you know it? What may have been illegal at one point in time could possibly become legal? What was legal becomes illegal? Doesn't that happen from time to time in the law?

Ms. Franklin-Suber

With changes in law, that is correct.

Councilman Nutter

Okay. Any questions? 140 COMMERCE & ECONOMIC DEVELOPMENT - BILL NO. 980716 (No further questions at this time.)

Councilman Nutter

Okay. Madame Solicitor, thank you very much for coming in. We know that at least yourself, and possibly Mr. Feder, have been operating slightly under the weather. We appreciate your indulgence in this process. Thank you.

Ms. Franklin-Suber

Thank you.

Councilman Nutter

Is there any other member of the public here to testify with regard to this bill? (No response.)

Councilman Nutter

Seeing none, the public hearing on Bill No. 980716 will conclude, and we will go into a public meeting. - - - 141 COMMERCE & ECONOMIC DEVELOPMENT - Public Meeting

Councilman Nutter

I call on Councilwoman Blackwell for a motion regarding the amendments that were read into the record during the course of the public hearing.

Councilwoman Blackwell

Mr. Chairman, I move that the amendments, as previously read into the record, be approved. (Duly seconded.)

Councilman Nutter

All in favor, let it be known by saying aye. And that includes Councilman Cohen, who left his vote earlier. The ayes have it. Councilwoman Blackwell, I ask for a motion on Bill No. 980716, as amended.

Councilwoman Blackwell

Mr. Chairman, I move that Bill No. 980716 be reported out of committee as amended with a favorable recommendation, and also a recommendation for a suspension of the rules so as to be considered at the next session of Council. (Duly seconded.)

Councilman Nutter

All in favor, let it be known by saying aye. Including Councilman Cohen, who left 142 COMMERCE & ECONOMIC DEVELOPMENT - Public Meeting his vote as aye, the ayes have it. There are none opposed. The public hearing is concluded. The report will made to the Council at our next Council session. Thank you very much. (Adjourned at 5:04 p.m.) - - - 143 C E R T I F I C A T E I HEREBY CERTIFY that the foregoing proceedings of the Council of the City of Philadelphia of Tuesday, November 10, 1998, were reported and accurately by me, and that this is a correct transcript of same. RE: COUNCIL COMMITTEE ON COMMERCE AND ECONOMIC DEVELOPMENT BILL NO. 980716 __________________________________, JOSEPHINE CARDILLO, Registered Professional Reporter