COUNCIL OF THE CITY OF PHILADELPHIA COMMITTEE ON RULES - - - Room 400, City Hall Philadelphia, Pennsylvania Wednesday, March 11, 2009 10:15 a.m. - - - PRESENT: COUNCIL PRESIDENT ANNA C. VERNA COUNCILMAN DARRELL L. CLARKE COUNCILMAN FRANK DiCICCO COUNCILMAN W. WILSON GOODE, JR. COUNCILMAN WILLIAM GREENLEE COUNCILMAN CURTIS JONES, JR. COUNCILMAN JAMES F. KENNEY COUNCILWOMAN DONNA REED MILLER COUNCILWOMAN BLONDELL REYNOLDS BROWN BILL 080954 - An ordinance to amend the Philadelphia Zoning Maps by changing the zoning designations of certain areas of land located with an area bounded by Broad Street, 15th Street, Oxford Street and Cecil B. Moore Avenue... BILL 080952 - An ordinance amending Chapter 14-1800 of The Philadelphia Code, entitled "Zoning Board of Adjustment," to prohibit accessory uses... - - - V A R A L L O Incorporated Litigation Support Services Eleven Penn Center 1835 Market Street, Suite 600 Philadelphia, Pennsylvania 19103 215.561.2220 215.567.2670 2
Good morning, everyone. This is a public hearing of the Committee on Rules. I would ask Mr. McPherson to please read the title of Bill No. 080952. MR. McPHERSON: An ordinance 8 amending Chapter 14-1800 of The Philadelphia Code, entitled "Zoning Board of Adjustment," to prohibit accessory uses in connection with a principal use authorized by variance, under certain terms and conditions.
Thank you. Good morning, Mr. Kramer. Please identify yourself for the record.
Good morning, Council President Verna and members of the Rules Committee. I am William Kramer, Division Director of the Development Division of the Philadelphia City Planning Commission. I am here today to testify on Bill No. 080952, which was introduced into City Council on 3 3/11/09 - RULES - BILLS 080952 and 080954 December 11, 2008. Bill No. 080952 will amend the Philadelphia Zoning Code by amending Chapter 14-1800 of the Zoning Code. The proposed amendment will prohibit accessory uses in connection with a principal use of a property that has been permitted by the grant of a variance by the Zoning Board of Adjustment unless specifically authorized by the Zoning Board. The Philadelphia City Planning Commission considered Bill No. 080952 at its meeting of January 20, 2009 and recommended that the bill be tabled in order to allow the staff of the Commission to work with the sponsoring Councilman in order to address some of the concerns regarding the provisions of the bill. As initially written, the bill 23 would have the unintended impact of adding a significant number of cases requiring an action by the Zoning Board. 4 3/11/09 - RULES - BILLS 080952 and 080954 This is because not every applicant to the Board has a complete business plan that anticipates all eventualities and would result in several hearings before the Board for the same business. The staff of the Commission worked in connection with Councilman O'Neill and his staff and in coordination with representatives of the Department of Licenses and Inspections in order to address these concerns. I respectfully submit an amendment to Bill No. 080952 which was the result of those meetings. It is believed that this amendment will address the concerns of the Planning Commission and the Department of Licenses and Inspections while at the same time addressing the concerns of the Councilman. The Planning Commission will consider Bill No. 080952 at its meeting of March 17, 2009 and the staff will be recommending approval of the bill as amended. 5 3/11/09 - RULES - BILLS 080952 and 080954 That is the conclusion of my testimony. I'd be happy to answer any questions of the Committee at this time.
Thank you, Mr. Kramer. Do I understand you to say that all of the interested parties, including Councilman O'Neill, agreed to the amendment?
That is my understanding. There was a last-second change in language by the Law Department, which was submitted late yesterday afternoon to his staff, but it is my understanding that they were okay with that. It was not a substantive change to the amendment.
Thank you. Are there any questions? The Chair recognizes Councilman Greenlee.
Thank you, Madam President. 6 3/11/09 - RULES - BILLS 080952 and 080954 Mr. Kramer, could you just go over in lay language, as much lay language as possible, the difference -- like the reason for the amendment, why you did it, you changed the language, what it does, what that change is.
This bill, as I understand it, has been explained to me as a result of the -- of an individual applicant applying for an accessory use, in this case a swimming pool, outside of the structure on a building that was the subject of a grant of a variance by the Zoning Board of Adjustment. By the nature of a swimming pool, a swimming pool is not considered a structure because they're in-ground. As a result, they did not -- as the Department of Licenses and Inspections, a permit was granted as a matter of right. The Councilman was concerned that then this swimming pool has generated issues and concerns from the neighbors, with result to actions at that 7 3/11/09 - RULES - BILLS 080952 and 080954 pool, rightly or wrongly. The Councilman then believed that his way to address this would be to require that any such accessory use would have to go back to the Zoning Board of Adjustment, and that's what is the nature of why this bill was drafted the way it was. As originally drafted, it would have meant that if you had, let's say, a pizza place and wanted to store boxes on the second floor and hadn't mentioned that at the Zoning Board of Adjustment, you'd have to go back to the Zoning Board to make that legal. What we were trying to do in meeting a compromise with the Councilman is create it so that if a variance was granted on a property, if you were going to do something that required an outside or an impactful action, such as a swimming pool, that it would require Zoning Board approval before you went and had that approval done. That's the nature in as lay language as I can 8 3/11/09 - RULES - BILLS 080952 and 080954 probably do it.
I got you. And you're saying Councilman O'Neill is agreeable to this language?
Because I got the impression he wanted it wider, but maybe I'm wrong. Maybe he was okay with making it tighter.
He would have to address that. I don't want to speak for the Councilman.
I don't want you to speak for him either, but if he's okay, all right. Councilman Clarke is saying what is "impactful." How do you determine that?
By my definitions -- and it is my definitions -- impactful would be something that happens outside the main walls of the structure. For example, if you're storing pizza boxes on the second 9 3/11/09 - RULES - BILLS 080952 and 080954 floor, no one is going to know or care, or if you have an accessory office inside the building, what difference does it make. However, if you're going to have trash storage or if you're going to put an addition on a building that extends another 20, 30 feet outside your building, those are things that I would consider something that would have more of an impact than something that's done inside as a use variance.
And it would be L&I that would -- it would be the examiner to make that determination?
And you think that this language is clear enough to them that they're not --
We have believed that to be. They were at the table with us when we discussed this.
Okay. Thank you, Madam President. 10 3/11/09 - RULES - BILLS 080952 and 080954
You're welcome. The Chair recognizes Councilwoman Brown.
Good morning. Good morning, Mr. Kramer. My particular interest rests with the childcare community, who already has to pursue what is viewed by many of them as an onerous process, and a couple of bills have already been passed in Council around zoning to remove some of the impediments that come with those who want to provide childcare services. So to what extent has there been consideration to making sure that this bill does not impact the childcare community, number one, and will the anticipated amendment remove any potential impediments for that particular community?
To answer the first part of that, at the time of 11 3/11/09 - RULES - BILLS 080952 and 080954 discussions with the Department of Licenses and Inspections, myself and the Councilman, I don't think that the issue of daycare entered into it specifically and was not intended to present any additional hurdles or, conversely, to remove any hurdles. It was sort of a non-entity in that regard. My experience, having sat at the Zoning Board for ten years as the Planning Commission representative, I can tell you that many of the items for daycare are very well vetted when presented to the Zoning Board of Adjustment, such that I would not believe that a typical case going before the Zoning Board is something that's going to not have addressed all the accessory use concerns that a daycare would have. Usually the questions all revolve around where are the children going to play. It's a matter of ingress, egress, how many ways out of the building do you have. 12 3/11/09 - RULES - BILLS 080952 and 080954 The questions that I've heard from the Zoning Board generally are geared towards maintaining public safety for the children in these centers and they're trying to put on the record those kinds of concerns and making sure that they're adequately being dealt with. This bill, to an extent, has the potential if someone doesn't throw out there that they're going to have a play yard in the outside, it is possible that that could be used to send it back to the Zoning Board. Most of the time that the conflicts that daycare has with the Zoning Board tends to be along the line of increasing the number of children within the center, and that has a two-fold prong, because on one hand, from the City's perspective, it's numbers, but then there's also state regulations that kick in above a certain number. A lot of people when they're coming in with daycare are not necessarily fully aware of all those ramifications. 13 3/11/09 - RULES - BILLS 080952 and 080954
Which is part of the concern of this bill, because the process is already daunting and now we are offering, imposing potentially a new regulation. So your answer to the question, that has been -- you've had that kind of dialogue with members of the childcare community to know that it will not impact them negatively or is this based on your experience there in the department?
It is based on my experience. I would say that the Zoning Board generally tends to ask them questions with regard to play areas, so it is on the record, for example. The one I can think of that would normally jump out as something that would kick in this particular regulation would be a play area outside of the building. My experience says that the Zoning Board generally is asking you where are the children playing, and if you're saying they're playing in the yard and this is 14 3/11/09 - RULES - BILLS 080952 and 080954 where we're going to do it, I've been there in some instances, the answer to that is, We take them around the corner to a playground. It depends on the operator and the applicant, but generally speaking, the question itself is put on the record at the Zoning Board, and I would tend to believe that that would negate the requirement to send it back for a further variance request.
As a matter of record, what type of lessons, instructional sessions do you offer to a particular community when it comes to the Zoning Board process? Because as a rule, childcare providers are not as sophisticated, if you will, on the zoning laws and the process. So what do you do to arm them of what they need to know so that they are indeed following the rules as it relates to zoning?
There is no 25 specific class that we offer or no 15 3/11/09 - RULES - BILLS 080952 and 080954 specific --
No, ma'am, there's not. However, me and my staff -- or myself and my staff do answer questions repeatedly from all the different applicants, and if we see an application coming in -- and, unfortunately, we don't always get enough time to do this, because the procedures being what they are and the caseload being what it is, we don't get the time we'd like to have to like reach and call some of these people and say, What's going on here. Many times those outreach issues are handled by representatives of the District Council offices.
In particular, Mrs. Johnson from Marian Tasco's office is famous at the Zoning Board for doing just that. And my staff and I will certainly answer questions all the time, 16 3/11/09 - RULES - BILLS 080952 and 080954 not just for daycare but any application going to the Zoning Board of Adjustment. We're there to answer questions at any time.
Well, thank you for your testimony. I look forward to hearing from the other witnesses. Thank you, Madam Chair.
You're welcome. Councilman Clarke, did you have any questions?
No, Madam President. I was actually going to ask similar questions along the line as Councilman Greenlee about an example, and you referenced the particular case, the swimming pool versus the pizza boxes and interior offices. So primarily my understanding, this, first of all, will deal with exterior issues, and then at the point when there has to be some determination as to whether or not it 17 3/11/09 - RULES - BILLS 080952 and 080954 requires a zoning hearing or variance, that will be determined by the L&I inspector or examiner?
But it sounds like there's some level of flexibility, and the only question I would have is, will there be some guidelines within the department? Because every examiner can have a different sense of what is, quote/unquote, impactful. So I would be a little concerned about that.
I would hope that they would develop those guidelines, but that's a different department and I cannot speak for them.
All right. Mr. Haigler, is that your department, sir? (Witness approached witness table.)
Good morning. Please identify yourself for 18 3/11/09 - RULES - BILLS 080952 and 080954 the record.
Good morning, Madam President. I'm Otis Haigler, Jr., Director of Legislative Affairs for the Department of Licenses and Inspections. I heard your question, and, yes. Matter of fact, our Deputy Commissioner of Development, Mr. Fink, as well as the Chief of the Zoning Unit have already developed a policy that if in the future any issue that was decided by the Board, if there was to be any kind of change to the main use or situation that was decided by the Board, it would have to go back to the Board for administrative review and approval. I don't know if you quite -- I don't know if I was quite clear on that.
All right. Well, I'll ask the question. Would it be possible prior to the final passage of the bill to provide whatever guidelines, be it draft form, whatever, so -- 19 3/11/09 - RULES - BILLS 080952 and 080954
-- questions like Councilwoman Brown has about the daycare center and other issues can be better defined as we cast our final vote? I'm a little concerned about an examiner or somebody having the flexibility to say, No, that's impactful; No, that's not impactful.
Well, the amendment is somewhat explicit really, because it says outside uses for storage, utilities, sheds and fences. So anything outside of that would be subject to go back to the Board for an approval.
I understand that. I just want to make sure, because the testimony was a little different. It gave the impression that 20 3/11/09 - RULES - BILLS 080952 and 080954 there was going to be some flexibility.
It's not really that flexible. It's already in the amendment.
Thank you. Are there any other questions from members of the Committee? (No response.)
I would like the record to reflect that we do have a quorum. To my extreme left is Councilwoman Brown, Councilman Clarke, Councilman Greenlee. To my extreme right is Councilwoman Miller, Councilman Goode, Councilman Kenney and Councilman DiCicco. Do we have anyone else to testify on this bill? 21 3/11/09 - RULES - BILLS 080952 and 080954 MR. McPHERSON: Yes. The next witness is Bart Blatstein.
Do we have anyone else to testify on Bill No. 10 080952? Please approach the witness table. (Witness approached witness table.)
Kindly identify yourself for the record and proceed with your testimony. Good morning, members of the Council. My name is Rasheedah Phillips. I'm an attorney from Community Legal Services. My testimony is prepared for the original ordinance as it was proposed, not with the amendments that were presented today. 22 3/11/09 - RULES - BILLS 080952 and 080954 As I said, I'm an attorney at Community Legal Services in the Community Economic Development Unit working on something called the Child Care Law Project. The Child Care Law Project was established at CLS to address the legal needs of Philadelphia's childcare community. I provide legal advice and representation to low-income non-profit and for-profit childcare providers. I also represent a few non-profit organizations that serve as a resource to the childcare community, such as SEPECC, which is a regional group of early childcare and education providers, experts and advocates working together to exchange information and coordinate advocacy and support for early childcare and education. The purpose of the proposed ordinance is to ensure that businesses granted a zoning variance for one specific purpose do not use their businesses for other illegitimate 23 3/11/09 - RULES - BILLS 080952 and 080954 purposes. The bill seeks to accomplish this by prohibiting all accessory uses connected with a variance where these uses are typically permitted by right where a variance is granted by the ZBA. While the bill before the Committee today does not directly address childcare in its language, the bill in its breadth could nevertheless have an unintended, detrimental impact upon childcare providers. It is also my understanding that the impetus for this bill arose out of an isolated incident that occurred in the 10th Council District. Although this bill may be intended to address the particular issue that took place in that particular district, its actual effect will be much more widespread and, as written, is dangerously overbroad. Zoning is the entry point for all childcare providers, many of whom are first-time business owners and most of whom are low-income residents of Philadelphia. These clients have often 24 3/11/09 - RULES - BILLS 080952 and 080954 recently come off of welfare or out of dire financial circumstances and are attempting to create a business that can be both economically viable and fulfill a communal need. Philadelphia childcare providers are also small community organizations and religious-based organizations seeking to provide a safe space in the community for children to learn and play while their parents go to work. For providers wishing to develop their businesses, zoning is often a hurdle in the process that serves to frustrate their purposes rather than further them. Before opening a properly licensed daycare in Philadelphia, providers must apply for and be granted a zoning permit that will allow them to proceed to the next step in the process. Some providers are able to obtain over-the-counter permits by way of right. However, because the Zoning Code does not encompass all of the different childcare 25 3/11/09 - RULES - BILLS 080952 and 080954 options upon which the families and the economy of Philadelphia depend, many more providers are refused permits and must appeal their cases before the ZBA in order to obtain a variance to open their daycare. In addition to relying on variances, these same providers rely on permissible accessory uses that are necessary to carry out their daycare businesses. Such accessory uses include, but are not limited to, accessory preparing and serving of food, adding meeting rooms, setting up a small office to carry out administrative work, adding hardwired smoke detectors for group daycares and setting up outdoor play stations for children. Another category of childcare providers whom this bill is likely to affect are churches, schools and recreation centers that run daycare and after-school programs.
As it stands, schools, churches and recreation centers are presently permitted to run daycare 3/11/09 - RULES - BILLS 080952 and 080954 programs as an accessory use in residential districts with approval from the ZBA. Under this proposed ordinance, however, these programs will be required to revisit the ZBA in order to make small renovations to their buildings, such as additional bathrooms or other improvements needed to accommodate building accessibility codes or state regulations. Currently, these programs are able to make these additions as part of their accessory use right without requiring additional approval from the ZBA. Unfortunately, most of our childcare providers are not well-versed in zoning law and are often unable to navigate through the technical language found in the Code on their own. They also tend to be low income and often are unable to afford to hire an attorney to assist in navigating the Code. Although they have access to free resources such as Community Legal Services and One Stop 27 3/11/09 - RULES - BILLS 080952 and 080954 Shop for Child Care Licensing, there are those who fall under the radar and who must stand before the ZBA pro se, ill-prepared and without adequate representation. These are the providers who this bill will affect most. These providers will not understand that they must specify an accessory use in their zoning application, such as preparing and serving of food on the premises or the addition of a playground in their backyard. These same providers will then be at risk of having unauthorized accessory uses on the premises of their business or will be made to go back in front of the ZBA for minor improvements, taking additional time and resources out of their pockets and away from their childcare programs. The bill in its current form also undermines the mandate of the Zoning Code Commission, whose goal is to make the Philadelphia Zoning Code more user 28 3/11/09 - RULES - BILLS 080952 and 080954 friendly and accessible to its residents and to cut down on the number of appeals heard before the ZBA. This bill, if passed, would only work to significantly increase the redundant and burdensome appeal pressure on the ZBA, who already faces a staggering workload of nearly 1,500 variance requests per year. As an advocate for the childcare community, I would like to offer my time and assistance in helping to redraft the bill so that it includes language that will provide adequate protection to the childcare community. I believe that the language in the bill 17 should be narrowed to specific accessory uses, or language should be included to protect the childcare providers who rely on accessory uses to carry out necessary business functions.
Thank you very much. Have you seen a copy of the amendment? 29 3/11/09 - RULES - BILLS 080952 and 080954
And how do you feel about the bill with the amendment?
Well, I haven't had time to really look over it in detail. I mean, I feel like it does address some of the concerns that I have, but probably not all of them.
Thank you. Mr. Haigler, do you mind taking the witness table again, please. (Witness approached witness table.)
I do believe that you heard very clearly the testimony of this witness. Can you please clarify for us what this bill 22 would do as far as the childcare facilities?
In its present form, before the amendment, the bill had 30 3/11/09 - RULES - BILLS 080952 and 080954 a far-reaching effect on not just the childcare facilities, but all facilities, as the witness testified. It affected all accessory uses. Right now the way the bill is written now, it would not have a great impact on childcare, I don't believe. I believe, for the most part, it -- as written now, I don't believe it will have a great impact.
"Great" is relative, and for those who get it and are able to hire lawyers to aid them in navigating the process, which is intimidating for us so-called well-informed folk, it's compounded for those in the childcare community, many of whom are the working poor who cannot afford attorneys of any type, to come downtown when they have children to take 31 3/11/09 - RULES - BILLS 080952 and 080954 care of. And so "great" is relative and, for me, unacceptable as far as supporting this bill in its current form. Thank you, Madam President.
You're welcome. Any other questions from members of the Committee?
Let me ask a question in another way, Mr. Haigler, if I could.
You heard the witnesses and the Councilwoman's concerns, and you said it wouldn't have a great impact. What impact would you see it would have? Like could you give an example of what you would still think would be a problem?
Well, as Mr. Kramer had indicated, there are still certain exterior accessory uses that would fall under this category where they would have to go back to the Board. As 32 3/11/09 - RULES - BILLS 080952 and 080954 he indicated, play areas that are required as part of a daycare operation, if that was not indicated on the original application for the main use that was approved by the Board and if somebody wanted to come in later on in order to add that use, that use would have to go back to the Board for approval.
I guess in fairness, that is something that sometimes is --
It's a great impact. I'm sorry. That may have been a poor choice of words on my part.
Okay. It has an impact. I guess it has an impact certainly on the operator. It has an impact possibly on the community too, I guess --
Any other questions? The Chair recognizes Councilwoman Miller.
Hi. Thank you, Madam President. How would this impact a doghouse or if someone wants to put a doghouse up?
It's an accessory use and it would have to go back to the Board for Board approval.
Yes, it would. If it's not indicated on the original application for approval, it would have to go back to the Zoning Board for approval.
But if it was on the original application? 34 3/11/09 - RULES - BILLS 080952 and 080954
And it was approved as part of zoning variance process for the original application, then it would be approved.
Okay. Similar to the daycare, if I decided to buy some play equipment and put it up in my backyard, how does this bill impact that?
I think I would ask Mr. Kramer to come back to the table. He's more of an expert on that issue.
Councilwoman, in answer to your question, if you originally built the home and there was no variance required to do that, this bill would have no effect on that whatsoever. If, on the other hand, your home required a variance, let's say, for -- you need a 16-foot setback and you 35 3/11/09 - RULES - BILLS 080952 and 080954 went for an eight-foot setback, the variance requirement then if you did not have a doghouse, the accessory use would then become something that you would have to take back to the Board. But this is only affecting cases for which a Zoning Board of Adjustment approval is required in the first place. So it's not every property across the board. It is for items that go to the Zoning Board and have a variance. If you then subsequently put an application for an accessory use after that that was not included in the original variance request, this would take the matter back to the Board.
So if I have a daycare center -- I'll just use that -- and I'm just opening it up, so I fill my paperwork out to go get my variance, if I put play equipment as a part of that, then I would not have to come back?
That is correct. 36 3/11/09 - RULES - BILLS 080952 and 080954
That would be correct. That would be part of the original application and was considered before the Board and was subsequently granted as an entity. It would be someone that went before the Board and said, I'm having a daycare center in this home, and subsequently -- initially they were going to take the children around the corner to a playground. Subsequently that changed, they found that to be unworkable for them, and then wanted to put a play facility in the rear yard. To then subsequently do that play facility in the rear yard, that change would necessitate going back to the Zoning Board of Adjustment based on this bill.
You're welcome. The Chair recognizes Councilman Jones.
Thank you, Madam Chairman. I just have one question. Is this also simultaneously being considered by the Zoning Reform Commission? I mean, I know there are two parallel tracks in the world, one that's trying to reform zoning in its entirety and then this bill. Has this also been considered by that group?
I was at that meeting earlier this morning and I will tell you this specific, as any specific 38 3/11/09 - RULES - BILLS 080952 and 080954 zoning legislation at this time, is not currently being considered by the Zoning Code Commission. They are -- in fact, this morning they received an initial report back from the consultant that gave the first evaluation of our Zoning Code, was presented to the Zoning Code Commission at 8 o'clock this morning. So that it is part and parcel of the evaluation of the Code, but it's not something that's handled separately as an individual item. I guess that's the best I can give you.
Thank you. And in response to Councilwoman Donna Reed Miller's question regarding play area, procedurally what happens at Zoning? If they have to come back for an 39 3/11/09 - RULES - BILLS 080952 and 080954 additional variance, is there an additional cost to that revisit with the Zoning Board?
And that cost would be what? It varies depending on what?
There's an application fee involved with filing any application, and then there's -- if you are refused the appeal, to send it to the Zoning Board is a separate fee. The last I remember -- and I could be wrong on this -- it was an $80 application fee and I believe it was a $200 fee to send it to the Zoning Board of Adjustment. I may be wrong on the numbers, but that's...
I would, therefore, add then that further supports my interest in seeking to have a process that does not become another part of the maze that not just childcare providers but small business owners, period, have to endure. Thank you for your testimony.
Any other questions or comments from members of the Committee? The Chair recognizes Councilman Clarke.
Yes, Madam President. I'm going to ask a question of a somewhat personal nature. A house, somebody has a house. This property has to get a zoning variance because during the course of the renovation or the development of the house as existing, it's gutted out and there's going to be some additions added to the building during the course of the rehabilitation, 41 3/11/09 - RULES - BILLS 080952 and 080954 so it gets a variance. This person moves in the house, lives in the house. This person now wants to go get a storage shed to put in their backyard. They go to Home Depot, put the storage shed in the backyard. They have to get a variance for that?
No, sir. Under this particular piece of legislation, they would have to get a zoning permit if they wanted to do it legally, but under the specific provisions of this bill, that accessory storage shed would be exempted and would be allowed as a matter of right.
Yes. Well, if you're going to follow the law -- a lot of people don't, but, yes, you're supposed to. I'm assuming that you're a law-abiding citizen.
I'm glad you reminded me. 42 3/11/09 - RULES - BILLS 080952 and 080954
But there's a possibility that this person may be thinking about getting a storage shed from Home Depot.
Well, if it's under 120 square feet, the Department of Licenses and Inspections would not require a permit for it.
Okay. All right. Thank you. Thank you, Madam President.
The Chair recognizes Councilman DiCicco. COUNCILMAN DiCICCO: Thank you, Madam Chair. On that same question -- and you may have answered this earlier. I got here late -- does that apply to a freestanding structure or is there a 43 3/11/09 - RULES - BILLS 080952 and 080954 distinction between freestanding and one that is attached to the building as a permanent structure? I know out in, I think, in Jersey and at the seashore, you could put a shed and you won't have to pay any additional taxes, but if it's attached to your property, it also reflects on the real estate tax, because it becomes a permanent fixture.
Well, the one that would be attached to your home would increase your square footage of your building and subsequently would affect your taxes. One that's an accessory storage shed that's under a criteria level would not be considered -- it's an accessory storage shed and they're rather disposable. That would not. This does not -- it's -- that would be considered a temporary structure and would not necessarily require -- we wouldn't acknowledge its existence, basically. 44 3/11/09 - RULES - BILLS 080952 and 080954 COUNCILMAN DiCICCO: I just want to be clear on it. Thank you.
Thank you. Any other questions or comments? (No response.)
Thank you very much. Do we have anyone else that would like to testify? (Witness approached witness table.)
Good morning. Welcome. Please identify yourself for the record.
Yes. My name is Joseph Beller. I'm an attorney with Offit Kurman in Philadelphia. I've had the pleasure of appearing here on more than one occasion, but for this particular one, I'm going to do something that -- I'll blush while I'm doing it, but I'll have to admit that I've been 45 3/11/09 - RULES - BILLS 080952 and 080954 doing land use and zoning work for more years than many of the people in this Chambers are alive. That's over 40 years. I was about to say 47, but I don't want to get you that close to my real age. Up until now, there's been a lot of talk about daycare, except for some of the really excellent questions from the panel. I believe obviously that this bill was engendered by a perceived problem with a daycare center in the particular district of the Councilman who introduced this bill. I suggest to you that this bill, if you want to correct a problem, that this bill is like using a meat axe instead of a scalpel, and I am terribly upset by this as a zoning lawyer, because what's happened is, many a good-meaning bill has passed this Council that later caused problems. As an outset, I will tell you that I can't give you an exact number and nobody in the room could, but I would 46 3/11/09 - RULES - BILLS 080952 and 080954 almost bet that you will double the visits to the Zoning Board. And let me give the numbers. I think Mr. Haigler gave them correctly. He always does. But it's $100 for the application and it's normally $200 to go to the Zoning Board, except that the most recent poster that I got -- and, as I say, I do this work all the time. The most recent poster I got, which I applied for some weeks ago, the hearing will be on May 30-something, May 31st. Now, you recognize that my client went out of his mind and realized he could have paid an extra $500 and he would have saved about four, maybe six weeks. I can't know that exactly either. So you have -- in my case it's not a daycare center, thank God. It is a businessman who is now going to occupy a vacant store, but he won't even know until May 31st whether he can do that. This Council struggles every day with the budget and with raising 47 3/11/09 - RULES - BILLS 080952 and 080954 revenue. And the reason I'm pointing that out is that if you delay or if you disturb or if you take away what has been traditional in zoning, you will cause extra hearings, it will cost money and, in addition, it will discourage people. I'm going to give you one quick example. Some years ago, a Councilperson or two Councilpersons who were concerned about a particular use in their combined district asked you to change "G-2," and you did. And what you did was, you took out of "G-2," which is industrial, you took out parking and auto repair and some other things. Now, let me tell you what havoc that has caused. You can build a chemical biological warfare instrument in a "G-2" legally, but you can't park your car in a parking lot, which means that everybody in the rest of the City went and had to go to Zoning. And I actually took one case through successfully, but because it was appealed, this group of people 48 3/11/09 - RULES - BILLS 080952 and 080954 withdrew and walked away from the City and walked away from a substantial investment in a piece of property in Southwest Philadelphia, completely the opposite end of where the Councilman who introduced it comes from. So you have to know that what you're tinkering with here -- and, by the way, I compliment City Planning on trying to make it more livable, but I'm not sure it is more livable. And someone asked a question about a house. Well, there's a rule. If whatever you get is by variance, you must go back. So if that house that you talked about being gutted and ripped out and redone, let's say in a single-family dwelling you need 144 square feet in the rear. Now, when they redesigned the house, they came up with 138 or 140 square feet. That case would go to the Zoning Board.
Later, when you wanted to add something and maybe even a shed, despite what this says, by law, because once having been to the Zoning 49 3/11/09 - RULES - BILLS 080952 and 080954 Board, you go back. So your constituent will go back. Let's take a really almost ridiculous example. If you allow a school and you don't specifically say playground, that would run afoul. Why? Because the playground is outside the classroom. The library would be inside, but I would suggest to be safe, you'd have to mention library. Now, I know that sounds silly, but the zoning laws are interpreted very strictly, and it depends on who the examiner is and who the inspector is and who the complaining party is. This bill will undoubtedly cause that kind of havoc. I know -- and this panel probably well knows -- that the problem came from one particular case, which is still pending, so I won't get into the detail of it. I will only say that we have had for all the years I know -- and the Zoning Code was passed, I believe, in 1933, became effective in 50 3/11/09 - RULES - BILLS 080952 and 080954 1934. Accessory uses were always those which were ordinarily and customarily. And everybody understands what that is. This is not a whole new use. Now, I would assume obviously everybody up until now was grandfathered in, so it won't correct the ill that somebody is worried about here, but what it will do, it will impact severely. And I will tell you this: I'm very proud that recently I represented a restaurant chain that came into Philadelphia for the first time. They have places in New York and in two or three foreign countries, in addition to elsewhere in the United States, and what they said was this was the toughest Zoning Code problem to get around of any city they're in. Well, obviously personally for me, that was a fee. But that's not what this Council should be worried about, although I would be happy. If I didn't care about what I'm speaking, I would say pass this in the original thing and watch me make all 51 3/11/09 - RULES - BILLS 080952 and 080954 the money in the world and some of my colleagues, because you are going to have constituents coming to you, and I think it's going to very severely impact on daycare. I think it's going to severely impact on every other business. An example: Suppose you have a building and there's one -- and since he already has his permit, I can talk about it. He has within his property line a patio. He's a restaurant. He doesn't need a sidewalk sales license. He should, in beautiful weather, be able to take some tables and sit them outside. That's outside the building. I don't know how somebody is going to look at that. Now, I, as a matter of caution, told the Zoning Board when I was there that he would probably be doing that, and I think I got it for him. But suppose a person comes in with a very simple little problem, just that little problem of ten square feet too short in the rear, and they come in without an attorney -- and 52 3/11/09 - RULES - BILLS 080952 and 080954 they shouldn't need an attorney. Now, they've paid $300, they've done something. And now what's going to happen to them when they get their first citation? One of you are going to get a call that they were summoned to go to a hearing before the Municipal Court at 34 South 11th Street. There's a pending fine, and they have to go back to the Zoning Board. It's more than another 300, because they've got to draw a set of plans and show everything else. My biggest problem with this is, is that it flies in the face of good planning. And I wasn't shocked to hear that the Commission doesn't know about this, but how are they going to consider this? You're being asked to make additions and changes to codes that for 70-some years have worked. The accessory use problem has never been a major problem. If you want to take a specific problem and you want to make that a certified case, you can do that.
You've 53 3/11/09 - RULES - BILLS 080952 and 080954 done it already, and it works. Take-out needs a certificate. Packaged goods needs a certificate. There's nothing wrong with saying certain uses, for the benefit of the neighborhood, should be cases that go, but other than that, as I said, are you going to close down playgrounds and schools? I went to public school at 81st and Lyons. We had a playground. We had recess. We played outside. Technically, if you read that -- and everybody will say I'm being crazy, but if you read this and the School District attorney didn't mention the playground, you'd have a problem. And I think that that is a tragedy, not only for that one industry, but we ought to be encouraging people to come here. And if people know what is customary and ordinary in their business, they know it a lot better than we do. And I think you're going to ask for trouble. You're going to ask for your office to be flooded with people 54 3/11/09 - RULES - BILLS 080952 and 080954 complaining, and you're going to cause people to spend money and go back. So I offer that as an attorney who has been doing this work. So thank you.
Thank you very much, sir. The Chair recognizes Councilman Greenlee.
Thank you, Madam President. Mr. Beller, you gave a lot of examples, but I guess I would agree with your concern before the amendment. I guess I'm not real clear after this amendment. Like you said, well, despite what it says, it might not include sheds. Well, it said sheds right in there. How does it not include sheds?
What I said was that -- you got to remember, one of the reasons we have this Commission and we're trying to rewrite this is, there is -- and I'm sure Mr. Haigler would tell you 55 3/11/09 - RULES - BILLS 080952 and 080954 this for the L&I. Once something has been granted by variance, even if it's for something like ten square feet, any change has to go back. Now, there is a doctrine called the Natural Expansion, which is ten feet. So you might have to go back because you didn't mention it. Take a look at what it says. It says that it gives you an exception for those things, except that it doesn't give you an exception if in fact the original variance granted. That's unfortunate. You have to go back. Every time you have something by variance, you must go back for any change. So irrespective of what this says, you would have to go back.
I don't get that, irrespective of what it says. It says it.
I know what it says, but I'm telling you that under the law, the chances are if your first use, which didn't mention any of these things, 56 3/11/09 - RULES - BILLS 080952 and 080954 was granted by variance, any change to that use, any change to that use, including anything on this list, might have to go back to the Zoning Board.
Okay. And I might want to ask Mr. Haigler to come back up, if he could comment on it. But before you do, you're saying that happens now, before this?
Well, then you're saying this doesn't make any difference, then?
Well, if it exists already, Mr. Beller, how does it make a difference?
Where it makes a difference is that if somebody goes in and doesn't specifically delineate exactly what they are going to do other than this; for instance, a playground, or if they decide to reconfigure the 57 3/11/09 - RULES - BILLS 080952 and 080954 playground, they would have to come back to the Zoning Board.
That's what I'm saying. And I said, in all fairness, I complimented City Planning on lessening the problem that you might run into.
But before Mr. Haigler and Mr. Kramer speak, let me just say, you obviously -- and I know you do -- also represent communities.
Now, you gave an example of the tables added to a restaurant. I would think, if I'm in that community, I would want to know. If I didn't know before they were doing outside seating, I would want to know. So I don't think that's a bad idea. And it would seem like this amendment or this ordinance with the amendment would do that. So, you know, I'm not -- I 58 3/11/09 - RULES - BILLS 080952 and 080954 don't think that's a bad thing. Now, I think we have to be careful of protecting things like Councilwoman Brown talked about, and I guess we could debate, and I'm not going to get into a debate with you, Mr. Beller, because I can't stay here until midnight, but I guess we could debate what the language is. And you've been at this a lot longer than me, but I still understand English and it still seems to address a lot of that.
I said it does address something and it did lessen it, but I assure you that you could get caught on that little thing I talked about. That's number one. And, number two, I was talking about a patio well within the property lines, and that normally would have been something different than trying to get out on the street where Council would have to get in and pass an ordinance to allow it or you would have to get something. But we're talking about something that's set back 59 3/11/09 - RULES - BILLS 080952 and 080954 from the public walkway, not something that would interfere.
But, again, I don't want to get in a long wind on that, but if it was not told before the people were going to be sitting outside, then I think the community should know that folks are sitting outside.
So I don't think that's a bad thing. If this ordinance does that, I'm okay with it.
Exactly. And what I said to you is that that probably ought to be a certificate use, not a variance use. What you may be doing is, you're elevating certain things to a variance which should be a certificate. I said before, this Council requires for packaged goods to have a certificate. And that's the same thing. You want to make that a -- and it should -- make that 60 3/11/09 - RULES - BILLS 080952 and 080954 a certificate use, fine, because there it's not a question of showing a hardship. It's showing that it won't harm the community. And you're right, we work on the same side for communities, so you know I'm sensitive to that.
Sometimes. Mr. Haigler, do you have a comment on this? I mean, I know there was a lot said, so I don't know what I'm asking you to comment on at this point.
If I may, I think the question you had was if an item is the subject of a zoning variance, does an expansion of that property require a revisit back to the Zoning Board. And that is correct. There are, as Mr. Beller pointed out, there are certain 61 3/11/09 - RULES - BILLS 080952 and 080954 parameters in which you can get an expansion, but if a property is the subject of a zoning variance to start with, generally an expansion of that use would require you to go back to the Board.
That exists already. And what this would address is, there are also things that would be a matter of right that would have been allowed to go and normally would have been processed. For example, this property with the daycare, if it was an adult daycare and they got an accessory use for a permit for a swimming pool for basically two reasons: One, it's not considered a structure and it is considered accessory to this particular use. It was not considered an expansion and, therefore, did not require a revisit to the Zoning Board of Adjustment. However, if you went and put an expansion 62 3/11/09 - RULES - BILLS 080952 and 080954 on the building that expanded the particular use that was granted in the first place, that would have triggered a zoning variance and would have just gone through that process. This bill would now take something like the swimming pool that would have been granted normally across the board and send those to the Zoning Board as well. That's the purpose of this.
I guess then the debate is whether that should come before the Zoning Board, something like a swimming pool, something like additional seating. And just off the top of my head, I would tend to agree that it should, but I guess we can debate that.
And this is -- not only is life complicated, there's a lot of subtleties in zoning, and in this instance, the subtlety is going to go whether it's a variance or a certificate, which is more a matter of the level of 63 3/11/09 - RULES - BILLS 080952 and 080954 proof that you have to provide, which is really the difference between the two.
Okay. All right. I guess I got an answer. Thank you.
No, but I'm not sure I still agree with what you said, Mr. Beller. I think a lot of it is still -- I don't think this is necessarily a bad thing that on a lot of things we have to go before the Zoning Board, and I said a lot of times it might depend on which side of the table you're on at the Zoning Board whether you agree with me or not, but I just -- I think it makes some sense. I think it was way too broad originally. I think we all agree on that. But I think this tightening up is a good thing. I think it's a good thing, and I think there's some protection for the community in here and I don't -- I think that's okay. That's 64 3/11/09 - RULES - BILLS 080952 and 080954 okay. End of my speech. Thank you.
Thank you. The Chair recognizes Councilwoman Brown.
Thank you, Madam Chair. Thank you for your testimony and explanation. That's part of zoning 101, which many of us are not familiar with. So now for my understanding, explain the difference between variance use versus certificate use, number one, and, number two, have you had a chance to read the amendment?
I'll say yes to the second one first, I have read the amendment. This morning is the first time I saw it. So I haven't really studied it, as the young lady who was the attorney from CLS said. Lawyers like to look at these things more than once. But my first reaction was that City Planning 65 3/11/09 - RULES - BILLS 080952 and 080954 had done a good job in at least limiting it. But let's go back to Question No. 1 of zoning 101. The major difference between a variance and a certificate is as follows: In a variance, you would have to show what they call hardship. Now, that doesn't mean financial hardship. What it means is hardship to the property, that the property cannot be used for that which it is zoned. Now, the prime example is -- we have it in every district in Philadelphia -- where a place was built originally as a warehouse and the overall zoning is residential. Well, nobody is going to live in a warehouse where there's no heat, where there's maybe no 20 toilet and that sort of thing. So you go and you say, Well, this is a hardship to this building to make us use it for residential. It was used to warehouse and now we want to use it for offices or -- not offices, but some other thing 66 3/11/09 - RULES - BILLS 080952 and 080954 like warehousing, some other benign use. In a certificate, the difference is, you don't have to show hardship. What you have to show is that it won't be harmful, that it's the kind of use that can fit there. These are the cases that come up often where people say, There are too many of these things in our neighborhood, beer distributors, for instance, so forth. Now, it is a commercial use, so it belongs in commercial. Even though you have a commercial zoning, you would still have to go to get the certificate. And that's what I was trying to say to Councilman Greenlee, that there may be a list of things that -- God knows there's already a list of a hundred things. Make it 101. You could put down things that would protect the community with a certificate, because the issue there is, is it harmful to the community. Now, that's not just my opinion, your opinion. The Zoning Board 67 3/11/09 - RULES - BILLS 080952 and 080954 has to listen to that. But that is to me the right way to do it. It pinpoints it. It would get everybody out to see it. Some people might object to a shed, which is now excluded and could be there, because it would cut their light or air or whatever it is. But if you go back to 101, the certificate case is one where the Zoning Board would have to act on it, but it wouldn't have to declare that this place couldn't be used without it, which is nonsense because it's an accessory use, such as -- we keep saying it, but it's the obvious one -- playground for a daycare, playground for a school, playground even -- listen, many condos are built where they put in a tennis court outside or a walking path. That would have to be given in the original variance.
I see. Now, for small businesses, what is the price, what is the cost, admin cost, for a certificate to secure a 68 3/11/09 - RULES - BILLS 080952 and 080954 certificate from the --
And in terms of process, does anyone take longer than the other?
Well, I'm going to disagree a little bit, because the Zoning Board is now trying something called "fast track." Those things which don't appear to be a problem for the community, don't appear to be a problem for the Councilperson, they put on a fast track, and if nobody objects, they just hear it in a few moments instead of a regular drawn-out case. So I don't know how that's going to work, but Councilman Greenlee and I have one that was on the fast track that's no longer on the fast track.
So you fast track for both variance and certificates? 69 3/11/09 - RULES - BILLS 080952 and 080954
But certificates can be looked at on a special list and an easier list, because, again, the measure of proof is different than the measure of proof would be for a variance. You shouldn't get hung up for hours on a certificate case.
And for small businesses that come before the Zoning Board, is there some place in the prep process where they learn the difference between a certificate and a variance prior to coming before you to make a case? (Mr. Beller shaking head in the negative.)
Ultimately 70 3/11/09 - RULES - BILLS 080952 and 080954 it becomes a discovery for them after they show up that if they have someone to give them good advice that this particular case is better suited for a certificate than it is for variance; is that fair to say?
Well, the examiner in L&I checks it off. You get your paper that says refusal, referral or special use. The referral is a certificate case. And I know that most of the examiners are very nice people and they will explain that to somebody. I don't think they'll give them the quantum of proof that you have to have, and that's where you have to rely on lawyers or community groups.
You agree. Madam President, could we please ask the representative from Community Legal Services to come back to 71 3/11/09 - RULES - BILLS 080952 and 080954 the table. (Witness approached witness table.)
Okay. To the sentence in your paragraph where you say, "The bill, if passed, would only work to significantly increase the redundant and burdensome appeal pressure on the ZBA," in your view, given the limited time you've had to examine the amendment and based on what we've just heard from the representative from the Zoning Board, where do you believe this is a better fit, a variance or a certificate, or what's your perspective, what's your reaction to this new information that a certificate use may be more suitable?
I think -- well, the bill as it stands now with the new language, I think it does limit some of the cases that could come before, but it sounds to me that it would be better suited as a certificate as opposed to a 72 3/11/09 - RULES - BILLS 080952 and 080954 variance for the reasons that --
Thank you. Are there any other witnesses? Please approach the witness table. (Witness approached witness table.)
Good morning. Kindly identify yourself for the record.
Good morning. My name is Ayeta Loyan (ph) and I am the person who started all this, the swimming pool. So today I will speak as the owner of an adult daycare and child daycare facility, and I would like to also speak 73 3/11/09 - RULES - BILLS 080952 and 080954 as a businesswoman about how cumbersome a process could actually be. I would like to first start with L&I when you come down to apply. The people at the counter are very, very knowledgeable. They know what an accessory use is and what isn't an accessory use. So the judgment that they make at the counter is heavily weighed before they issue a certificate to you. It is not as simple, they go back, they speak to the supervisor. So right there I would not say that the accessory uses are taken lightly. They're issued with a lot of thought. Second, in regard to my swimming pool, the reason I did it is because I wanted kids not to be on the road during the summer in these yellow school buses taken God knows to which swimming pools, and God knows how many daycares are in these swimming pools, with one or two lifeguards. And I felt it would be safer since I had a bigger 74 3/11/09 - RULES - BILLS 080952 and 080954 backyard. Hindsight, it was not a great business decision, because the pool cost me three times the amount that I thought it would cost me. And as a businesswoman, I went back to get -- by the time I was done with construction, I went back to the bank three times. Now, you can imagine my loan. Now, that's hindsight. However, now that it is there, it is a much safer environment for the children that do use and will use the swimming pool, because I can control the amount of kids that are in there. They're not bussed anywhere. They're not burnt, because they can come inside after half an hour of use as opposed to these City parks or whatever where they have nowhere to hide themselves from the sun after they've swam. And I can't imagine that this whole hoopla is over a swimming pool that benefits children. Secondly, I would like to talk about the City of Philadelphia. I am 75 3/11/09 - RULES - BILLS 080952 and 080954 elated by our recent President. I am full of hope with this President that we currently have. And the reason I raise this, it is -- when I first started about nine years ago, started my business, the odds of success were one to ten. That means one success, nine failures. That was nine years ago. What are the odds right now of a business succeeding? You'd have to be out of your mind to start a business right now. When I first started a business, it cost -- you were required to put 10 percent down. Now it's 20 percent. Who has 20 percent to put down to start a business? So what is our President asking us to get us out of this hole? To reinvent ourselves. Me as a businesswoman, to reinvent myself to create more jobs. It's asking the banks to lend. It's asking the City to open up the process of business to make it easier so we can employ. Unlike other huge 76 3/11/09 - RULES - BILLS 080952 and 080954 businesses that have opened up and sent their jobs to China, India and God knows where, I employ John Doe, Harry, Jane that stay in the City. I currently have employees, 13 families who are not on 7 welfare and who are not getting 8 unemployment benefits. 9 These accessory uses to these 10 other businesses, whom the President is 11 asking to reinvent themselves, may employ 12 and will -- not may, will employ people, 13 will keep families afloat. I'm asking Philadelphia to do exactly what our leader today is asking. Do not make this process a cumbersome process. Lend a hand to this reinvention of us, the businesspeople, us creating jobs. What is an accessory use? An accessory use is something that goes along with the business. It's not a daycare that wants to put, I don't know, a trucking facility right there. We're talking about a swimming pool that was a great idea for the business and for the 77 3/11/09 - RULES - BILLS 080952 and 080954 kids.