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Zoning Code Commission - Good Work, but a Hidden Fatal Blow to Neighborhoods
Submitted by mattruben on Tue, 10/13/2009 - 11:00pm.
The Zoning Code Commission (ZCC) has produced a set of Draft Recommendations for a New Zoning Code, available at http://www.zoningmatters.org. It's a must-read. It's well-organized and full of good ideas. But it's also got a big, fat poison pill that could destroy the ability of communities to have meaningful input into the future of their neighborhoods.
Among the report's good ideas (presented at a public hearing last week) are reducing the code from 21 sections to 6; consolidating 52 base districts (zoning categories) into 32, and 33 overlays into 11 (pp. 2-3; 55-56); clearly spelling out what L&I and Planning Commission staff may and may not approve (p. 7); providing charts outlining steps of the zoning application process; doing away with almost all use variances (p. 20); restricting the ZBA's ability to grant height and density variances (p. 20); narrowing the definition of "hardship" back to its original intended meaning (p. 21); and using the code to promote sustainability, design, and transit connections (p. 3).
And then we come to the poison pill. Ensuring public involvement in development decisions was the #2 public-input item the ZCC received (provide a clear, fair, and efficient zoning process was #1). Yet the report fails badly in this regard. Section 14-203, Subsection 1 ("Pre-Applications and Neighborhood Meetings") states:
- This section will clarify what types of applications require a pre application conference or a neighborhood meeting prior to filing an application. Generally, this includes applications for large areas of land, large or unique buildings and facilities, and multi building complexes. Where neighborhood meetings are required, the applicant is generally responsible for convening, publicizing, conduct, recording attendance, and documenting the results of the meeting. City staff may attend but are not required to attend the meeting. We recommend that the City not impose a formal structure on [how] these meetings are conducted, but should require the applicant to file an affidavit documenting the meeting as part of the application process. Although adding a neighborhood meeting requirement may appear to be a step that slows down development approvals, many cities find that it speeds them up, because neighborhood fears can be allayed or design changes to avoid neighborhood impacts can be made before the applicant has spent significant money on site planning, engineering, or design. (p. 13; bold italics added by me)
This section reflects a stunning lack of understanding about what neighborhoods and their civics are for, and how community zoning committees work. Specifically:
(1) It proposes requiring neighborhood meetings only for large or complex projects - not ideal but not terrible either. However, at the same time it contemplates only a single community meeting for such a project. Anyone with neighborhood zoning experience knows this is laughable - it just doesn't work like that.
(2) It gives the developer the "responsibility" - but therefore also the sole authority - to set up the meeting, run the meeting, determine how it's structured, and document and report the results to the City! Again, anyone who's been to a community zoning meeting for a larger project knows this is exactly what developers and their attorneys try to do - turn the meeting into a sales pitch, marginalize objections as "fear of change," and then go to the ZBA and smooth over or minimize community concerns. With this language, the ZCC would - wittingly or not - put every civic association zoning committee out of business. Anyone who thinks this would reduce the load on city agencies or improve projects has no idea of what a good civic zoning committee actually does.
(3) The ZCC is made up of some very thoughtful folks, and as I say they've produced a report that's excellent overall. But this language reflects a mindset that's the stereotype of what everyone hates about planners and bureaucrats. They view the public as unorganized rabble - simultaneously an uneducated, passive mass, and an unorganized bunch of atomized individuals. At the same time, they view any sort of community organization - e.g. a zoning committee - as a parochial, potentially corrupt collection of dilettantes who lack formal expertise and add nothing to the process.
The implicit idea here is that the developer presents to a collection of individuals called "the community," then this "community" raises concerns, and the developer addresses them (if he/she wishes). Nowhere is there any acknowledgement of the reality that community associations have institutional memory and tremendous experience - that they can help filter and, organize, and focus individual neighbors' concerns; that they can tell a snowjob from an earnest proposal; that they know exactly what measures must be taken to make developer agreements and concessions meaningful; that they understand how the City agencies work and how zoning law works. In short, without creating a formal place for organized civic organizations to be active participants in the zoning process, the ZCC will destroy the ability of communities to have any meaningful input into development whatsoever.
Now, I raised this with the ZCC's consultant, and one of its members (who shall remain unidentified for now), and I was told that language was put in there for communities that don't have highly organized civics or zoning committees. Fair enough. But when I suggested that the Planning Commission keep an official list of recognized community zoning committees (something they already do now in a slightly less formal way), I got a distinctly less than warm reception.
I think this is an issue progressives really need to participate in. Whether one comes at it from a neighborhood perspective of preserving character and quality of life, or from a broader progressive perspective of curbing corporate power and preventing the City from becoming an arm of the development community, this is a key battleground.
Thanks for the post.
I might be using it for opening a discussion with my civic. Civic associations are the heart and soul of community-based politics and you are 100% right to mention the institutional memory and historical knowledge about zoning issues built into civic associations.
There are two parts to the anti-civic take in this draft. 1.) is just a blatant power grab by developers 2.) is a consolidation of power by district councilpeople once again. Essentially its way to take the community input out of community input and turn it into profit and reelection power.
-Sean
MrLuigi, my cat, actually only types half as badly as I do.
looks to be a way to mitigate community input
There needs to be formal recognition that local community members and citizens throughout the city have an inherent interest in zoning matters. There also needs to be formal recognition that the advice and requests of local community organizations will be thoughtfully considered in weighing decisions before the ZBA (or its successor).
We also need to have a formal, if malleable, process to review and comment upon zoning issues, no matter the size of the project.
Developers should be compelled to appear before community associations if such associations request their appearance. In the absence of such a request from a formal community organization, such fall-back, default meetings as proposed above should certainly be considered for many projects.
In no case, where an active, formal community association/organization exists or forms due to a project poposal, should the developer be solely or even generally resposible for planning, hosting, conducting, and/or reporting upon a neighborhood meeting.
Agree 100% lutton - you
Agree 100% lutton - you nailed it.
This is what I proposed to a member of the ZCC (which I refer to at the end of my original post), that solicited the brush-off response (at least, that's how I interpreted the response).
lol, Matt
I came thisclose to emailing this to you--until I noticed you wrote it.
wow
that's pretty stunning: "the applicant is generally responsible for convening, publicizing, conduct, recording attendance, and documenting the results of the meeting."
there is so much room for shenanigans there I don't think I could list them all. but suffice it to say, i can see a poorly publicized meeting, run (as ruben points out) like a sales pitch, and followed by the developer downplaying any objections by what few people showed up.
so matt, how does one influence whether these proposed changes are adopted or revised?
more zoning reforms
Yes, great catch, that section should be killed.
More generally, a developer's willingness to cooperate with a community group is directly related to the ability of the community group to participate at the City's development agencies (e.g., the Zoning Board, the Historical Commission, the Planning Commission). Community groups can participate by presenting documents and other evidence and by cross examining the developer and its witnesses. The stronger the likelihood of potential advocacy, the more willing the developer will be to meet with the community group, on it's own terms, multiple times and, of course, to make reasonable compromises.
As an initial matter, we should insist that the new Zoning Code make it crystal clear that Community Groups can participate at ZBA, PHC and PCPC hearings and have the ability to participate fully as a party (to present evidence and to cross examine). This can absolutely be accomplished regardless of the State law providing that only persons "detrimentally harmed" can appeal; we're not talking about an appeal -- we're talking about participating in the hearing at the ZBA, etc. The City has the right to give Community Groups the ability to participate fully -- and it should do so.
When appealing a ZBA decision, one must purchase a transcript of the hearing and this can often cost many hundreds of dollars. The current Zoning Code allows Community Groups who do choose appeal to get a free transcript of the proceedings. This is key and it should at least be retained in the new Code. Indeed, we should expand this provision so that non-profits such as SCRUB, the Preservation Alliance and others can also get free transcripts. Crazy idea: all transcripts should be posted online so that they are free for everyone? Justice for the financially privileged is not justice for all.
Also, the Code should provide that all community meetings should be allowed to be videotaped. This would keep everyone on their best behavior -- community groups will be forced to be civil and orderly and developers won't offer promises they don't intend to keep. As an added benefit, Civics could then post the videos on their website for anyone who couldn't make the meeting. PlanPhilly basically does this sort of stuff anyway -- we might as well institutionalize this very good practice.
There are plenty of other reforms we can demand.
Combining Brendan's,
Combining Brendan's, lutton's, and Paul's comments and questions: the solution here is to keep the proposed section in the new Zoning Code, but to modify it according to lutton's wording, and Paul's stated principles.
The code should state something like the following:
(1) An officially recognized community organization shall meet certain qualifications (having a zoning committee that operates a certain way, etc.)
(2) The Planning Commission shall keep a list of such organizations, updated every two years
(3) Organizations on this list shall be afforded official standing in front of all city agencies and deliberative/administrative bodies
(4) Developers must meet with such organizations when undertaking qualifying projects in these orgs' service areas
I think that'd be a good start.
everyone gets standing
I think it might be better for the new Code to confirm that any citizen of Philadelphia has standing to participate at the Zoning Board and other agencies. That's kind of the way it is right now. If you live in the neighborhood, you can walk up to the microphone and say your peace. The Board doesn't really screen you. That's how it works at the ZBA, the Historical Commission and the PCPC. And civics of all kinds (very organized and also some civics who are very unorganized) also get the chance to participate. We don't want to eliminate the ability of Joe Citizen to participate.
I am uncomfortable with the City telling a civic how the civic should run their zoning committee.
I guess my point is that the stronger Civics are (as assisted by Standing provisions in the code) the less there is a need to officially require developers to meet with a civic. Indeed, there is no requirement at present. They meet with us out of their own self-interest. If they see it in their interest to meet with us 5 times, they do it.
We hold the power. We just have to make sure the City doesn't strip it from us.
I'm uncomfortable with the
I'm uncomfortable with the idea of the City dictating how a community organization's committees should be structured or operated (as a condition of recognition and standing) I do, however, think there should be a process for neighborhood groups to register with the Planning Commission. As part of the registration process, the group could be required to describe the nature of the organization (a general community group or an issue specific organization such as scrub), provide contact information, and identify the boundaries of the area covered. For standing purposes, it might also be required to confirm that some or all members of the organization are residents of the area covered. If the group holds meetings at regular intervals, that information too might be included.
For the pre-application meeting required by the draft zoning amendments, the applicant could be required to show either (1) that he or she met with the registered group, or (2) that no registered organization covered the location of the proposed development and that some suitable alternative was chosen based on the advice of the Planning Commission or the District Councilperson. In the event of overlapping boundaries, the developer might be required to hold multiple meetings unless the organizations agree to a joint presentation.
I understand concern for respecting the input of ad-hoc groups
but it should be noted the city already does charter neighborhood organizations as a form of official acknowledgement. For example, my own civic is coming up on its 50th year anniversary as an active, officially chartered civic association. Thats a lot of institutional memory and experience - even in an all vollunteer non-profit- that should be given some acknowledgement in terms of zoning concerns. The ladies in my civic are far from novices on zoning or urban renewal issues.
-Sean
MrLuigi, my cat, actually only types half as badly as I do.
Neighbors?
What about aggrieved neighbors?
There are instances where an immediate neighbor may have issues with a proposed development, but for whatever reason may NOT have the support of the local neighborhood association zoning committee or civic organization.
Would they have standing?
I should clarify - the
I should clarify - the section I've cited from the proposed new zoning code only pertains to situations in which the City would require a developer to meet with a neighborhood. Right now, any variance case has to meet with the neighborhood, because the ZBA says so. This new system would not automatically require developers to meet with communities for any and all variances. But on the other hand, it would potentially require them to do so before getting "by right" permits for high-impact, large projects.
Nothing else would change - in variance cases, civics and individual neighbors would still have a right to go to the ZBA and testify on the record. In cases where a development went to the Planning Commission, any group or member of the public would still have a right to testify at the hearing.
The Deeper Problem with Zoning Code Reform
I’ve predicted at YPP and elsewhere that the zoning code revision is going to be the next flashpoint for progressives.
So I’m not surprised to see the problems Matt has pointed out. I’m not sure we have the best solution yet although some of the ideas put forward here are good starting points.
But one problem with the whole reform process is being missed in this discussion. Paul points out that community groups generally are welcome at the ZBA, Planning Commission, and Historical Commission. This is true and very helpful although, as he also points out, it would be best if that standing were reaffirmed in law, especially given that Act 193 limited out legal standing.
One reason we are invited into the process, however, is precisely that the zoning code is a total mess right now and no one can build anything of substance in the city without getting a variance. And that means that community groups can always throw a monkey wrench into a developer’s plans by threatening to sue to block a variance.
That gives us power not only over requests for variances but over the entire development process. I’m sure West Mt. Airy Neighbors is not the only community group that has traded our support for a variance a developer needs for some other change in a project that made it fit better into the neighborhood.
My concern is that once the zoning code is reformed and simplified, and substantial development projects can go forward without variances, community groups will lose a lot of leverage not only over zoning issues but over development as a whole.
That is bad for neighborhoods. And, any good developer will admit that it is bad for developers as well because the long term prospects for any project depend on the health of the neighborhood in which it is built. And there is an enormous amount of local knowledge in the leaders and residents of our neighborhoods that, if allowed to influence the process, will shape development in a way that strengthens neighborhoods.
One way to preserve neighborhood power is to get community groups deeply involved in redrawing the neighborhood zoning maps. So far, I don’t see a plan to do that city wide. I don’t seen neighborhoods without the resources of, say, West Mt. Airy or Center City, being able to have the kind of influence they should over the process.
A second way is to guarantee a role for every established community organization in the development process, regardless of whether zoning variances are needed. I’m not sure how to do that but I think we need to be thinking hard about that now and looking for models in progressive cities around the country on which we might be able to draw.
And to get us started, I think that we need to get a bunch of community groups together to forge a common strategy on zoning reform as soon as possible.
Feel free to reach out
after health care is a little less frantic about touching bases on civic association cooperation. I'm very interested.
-Sean
MrLuigi, my cat, actually only types half as badly as I do.
Marc, I agree with
Marc, I agree with everything you say - particularly that community groups need to get together and speak with a single, public voice on this.
One tidbit that I found worrying - and that motivated me to post about this here - is that when I raised the above concerns with a member of the ZCC, I was told (among other things) that the language giving the developers the power/responsibility to hold community meetings, take minutes, and report the results, was put in there for the communities that don't have zoning committees or development experience/resources. In other words, I was being told that this idea of letting developers run the meetings was for the benefit of less-empowered communities. Oy.
community involvement
I agree it's important to have the community involved in developing the new zoning code's district regulations. But any provision authorizing community input on an ongoing, project by project basis would probably violate Due Process requirements (at least insofar as by right development is concerned).
Your point is an interesting one that I think many involved in community organizations have missed. The existing zoning code may be flawed, but its flaws are an important reason community groups have grown to be as influential as they are. Rewriting the zoning code to allow more uniform and predictable results is expected to drastically reduce the number of variances required. This will, in turn, deprive community groups of their most effective weapon in dealing with developers; without the threat of appeal, they'll lack the leverage to force concessions and shape new projects in their neighborhoods.
This makes community input at the front end of the process all the more critical.
Right but upthread
It says existing language leaves all responsibility for publicizing, convening, keeping records of the "input" at the front end falls on the developer. That means the developer just says they had a "community meeting" with their two friends and two employees, take the notes themselves suggesting "overwhelming community support" and play dumb to any knowledge of existing neighborhood groups. No process where community groups with a history of working with developers to make positive improvements get officially brought into the circle by any public notice - just an empty promise. Its a recipe designed to exclude community groups, masquerading as building them in.
Typically when community groups convene the event a huge cross section of the community, both pro and against will turn out. But the developer has a vested economic interest in reducing de facto "community input" on the front end as much as possible, no matter how screwey their plans may be.
As long as developers run the show in terms of "community input" legwork and the city does not keep a list of neighborhood groups they have to at least absolutely, positively notify, why would any smart or self-interested developer invite actual community input? Obviously they would figure out the bare minimum of notification their lawyers could argue for and try to make an end run around any concerns, no matter how valid.
If they got a ruling that said flyers had to be up for at least 48 hours they would pay someone to them up from midnight till 6 am on 8 consecutive nights to meet the minimum requirements. The developers that participate on zoning commission boards and the developers who convert old houses into virtual unlicensed boarding houses are really two different business models and it sort of sounds like you are assuming all developers fall in the first class when in reality the second class is much more the norm in most Philly neighborhoods.
-Sean
MrLuigi, my cat, actually only types half as badly as I do.
I disagree. No lawyer in
I disagree. No lawyer in his or her right mind would recommend the approach you're suggesting.
The required meeting is an informational meeting intended to advise the community that an application will be submitted. Although the meeting takes place before the zoning application has been submitted to L&I, the developer -- based on advice of project architects and zoning lawyers -- will likely know going into it whether the proposed development will be approved as of right or sent to the ZBA for variances.
If the former is true, i.e., if the project qualifies for an over the counter permit, there'd be no reason to avoid a meeting with the legitimate community group. In fact, the developer would have every reason to dot all of his i's and cross all his t's. While the meeting might be unpleasant, it would also be meaningless in terms of impact on the project. The developer would go through the motions because there'd be no downside to doing so. However much the neighbors might object, they'd lack any power to block a by right development. Avoiding the legitimate civic group would be idiotic because it could potentially create a basis for appeal where there was none before. When the neighbors became aware of the project --- as they certainly would at some point -- they could challenge the permit on the ground that the developer's actions didn't satisfy the code's pre-application meeting requirement. Given the amount of money at stake, no developer would want to risk that kind of challenge at a stage when construction had already begun.
If the project, on the other hand, required variances, the developer would be foolish to risk antagonizing the legitimate group by bypassing them at the pre-application stage. Since the organization will certainly get to review the project before the zoning hearing, and make its recommendations to the zoning board, the developer could only benefit from developing an early working relationship with the group and learning the likely sticking points.
One more thing. The
One more thing. The requlation places the responsibility for publicizing and convening the meeting and documenting community input on the developer because, as the applicant, he or she has the burden of establishing compliance with applicable code requirements. The city can't impose publication and record keeping expenses and duties on a private organization that isn't itself seeking any corresponding benefit. It's the developer's application and the developer should therefore bear the expense and perform the tasks necessary to complete its submission. (this isn't much different than rules requiring an applicant to send out notification letters to everyone living within 500 feet of a project -- a practice that's common in suburban communities).
As for your suggestion that developers be required to meet with groups recognized by the Planning Commission, I think it's a good idea -- and one developers would probably welcome since it might insulate them from future claims by competing organizations claiming they should have recieved notice.
Right the solution is not to encourage new neighborhood groups
but to "empower" areas without civics by taking away all the clout from existing civics. Neighborhoods with active, organized civics are often more effective at voicing their concerns over zoning issues so the solution is take away that clout from everyone so noone has incentive to organize themselves.
Curious logic there. Sort of like saying "well some workers are not organized into unions so therefore to be fair we should make all unions illegal". Gotta love it.
-Sean
MrLuigi, my cat, actually only types half as badly as I do.
Again, I don't see how the
Again, I don't see how the new provision takes clout away from existing civic organizations. It merely adds another step to the approval process. In addition to everything it's had to do in the past, the developer of a qualifying project must now meet with the community before even submitting a zoning application to L&I.
But if the developer runs the show
their interest is in turning the show into an meaningless gesture. They run a "public input" meeting they intentionally try to keep as few people as possible from finding out about, if they actually have it at all - instead of just fabricating ficticious notes. Its not in the developer's economic interest to behave in good faith in this arrangement, so why would they do it? That's absurd.
-Sean
MrLuigi, my cat, actually only types half as badly as I do.
The pre-application meeting
The pre-application meeting requirement only applies to large, complex projects. No developer of such a project would take that risk. If anything, they'd be more inclined to go to the other extreme -- contacting every organization even remotely touched by the project -- as a means of avoiding a future challenge on the issue.
Zoning Code Commission
I think you've misread the proposed public meeting requirement (or else I have). The requirement is for a pre-application meeting with the community. In other words, the developer of a qualifying project would have to meet with the community before even submitting a zoning application to L&I. The requirement isn't limited to proposals requiring ZBA approval, so it would apparently apply even to as of right projects.
Under the current system, Community groups are generally notified after L&I has issued a refusal but before the applicant's zoning hearing. Nothing in the new provision would seem to change that. Developers would continue going to the community group for the same reason they always have -- to avoid opposition testimony before the board and to ensure that any variance granted isn't appealed.
The new requirement doesn't detract from the community associations' power; if anything, it adds to it. For larger projects, the community would have earlier advance notice of the proposed development. If L&I determines that the project requires a variance, the community would have a second opportunity to review it (and the right to oppose it if the developer doesn't agree to further presentations). If L&I, on the other hand, issues an as of right zoning permit, the community at least would have been made aware of the proposal at the time of application -- something that doesn't happen at all under the current system.