Zoning Reform: The Musical

OK, OK, there's not a musical about zoning reform. (But can you imagine if there was? Oh, the fun.)

This document contains the preliminary recommendations of the Zoning Code Commission's (ZCC) Work Plan Committee, dated September 27, 2011. They respond to 16 modifications to the preliminary draft of the Zoning Code Proposals (May 2011) as recommended by City Council persons. Although the Zoning Code Commission members have reviewed these preliminary recommendations, they have not yet taken official action on them.

The ZCC thanks members of City Council for sharing their concerns with the Commission and for providing this opportunity to address each of their recommendations. The ZCC is dedicated to continuing its review of these issues and to working with Council persons to improve on the current Zoning Code Proposals.

1| COUNCIL RECOMMENDATION: Eliminate the automatic expansion of nonconforming commercial and industrial uses and structures.

ZCC Response: Nonconforming uses are afforded a legal right to natural expansion. The current code caps this legal right for a nonconforming use to expand to 10% of the use's gross floor area, whereas the Zoning Code Proposals establishes a 15% cap. The ZCC's recommendation is to reinstate the current 10% limit on expansion. See the appendix for the proposed amendment to the Zoning Code Proposals.

2| COUNCIL RECOMMENDATION: Councilman O'Neill: Treat regulated uses in the new code the same as in the current code. Councilman Green: Specifically map regulated uses in commercial and industrial districts where such uses are determined appropriate through district remapping.

ZCC Response: The ZCC accepts Councilman O'Neill's recommendation and proposes to amend §14-603(3) to list the same city-wide regulated uses as the current code. The draft new code carries over the spacing requirements for regulated uses that are in the current code. However, some Commissioners question the need to treat pool and billiards rooms as a regulated use and request further clarification from City Council on this particular issue.

The ZCC also proposes to amend the use tables so that regulated uses are permitted in the same districts as the current code. Currently, the code permits regulated uses by right in the LR (converts to I-3) industrial district1, permits regulated use by certificate in the L4/L5 (converts to ICMX) and G2 (converts to I-2) districts, and prohibits regulated uses in all other districts. See the appendix for the proposed amendment to the Zoning Code Proposals.

1 The C-6 district also permits regulated uses by right; however no C-6 zoning districts exist in Philadelphia. The draft new code eliminates the C-6 district.

3| COUNCIL RECOMMENDATION: Councilman O'Neill: Prohibit any use that currently requires a variance in residential districts. Councilman Green: Prohibit or permit by special exception all proposed residential uses that are potentially harmful to some residential neighborhoods until such residential use is otherwise accepted by constituents who reside in the neighborhood through district remapping. These uses are: group living, assisted living, family community homes, group community homes, single room occupancies, active recreation, educational facilities, libraries and cultural exhibits, religious assembly, basic utilities and services, wireless towers, wireless antennas, bed and breakfasts, and home occupations.

ZCC Response: The ZCC accepts Council's proposal to make the use regulations in the Zoning Code Proposals for the above-listed uses the same as the existing code:

Prohibit religious assemblies in RSD districts, and permit them by right in all other R districts.

Permit family community homes with up to three unrelated individuals by right in all R districts. Prohibit family community homes with four to eight individuals in RSD districts, and permit them by special exception in all other R districts.

Prohibit the remainder of the above-listed uses in RSD districts and permit them by special exception in all other R districts.

In addition, the ZCC proposes amending the definition of bed and breakfasts to be consistent with the definition in the Pennsylvania Food Code2, which limits bed and breakfasts to 10 bedrooms, and adding a use-specific standard which requires registration with the Pennsylvania Tourism and Lodging Association (PTLA) as well as continuous enrollment in the PTLA's biennial B&B Inspection program.

2 PA Code Title 7, Chapter 46 defines bed and breakfasts as "A private residence which contains ten or fewer bedrooms used for providing overnight accommodations to the public, and in which breakfast is the only meal served and is included in the charge for the room."

See the appendix for the proposed amendment to the Zoning Code Proposals.

4| COUNCIL RECOMMENDATION: Councilman O'Neill: Prohibit any use that currently requires a variance in the C2 district. Councilman Green: Prohibit or permit by special exception all proposed commercial uses that are potentially harmful in some neighborhood commercial corridors and residential mixed-use districts until such uses are otherwise accepted through district remapping by constituents who will experience the impacts of permitted such uses. These uses are: assembly and entertainment, amusement arcades, pool or billiards rooms, nightclubs and private clubs, sit-down restaurants, and visitor accommodations.

ZCC Response: The ZCC recommends partially accepting this recommendation as follows (See the appendix for the proposed amendment to the Zoning Code Proposals):

In accordance with the ZCC's recommendation in Item #2, above, to treat amusement arcades and pool or billiards rooms as regulated uses, the ZCC accepts Councilman Green's recommendation to prohibit them in commercial districts

Given the acceptance of the recommendation with regard to Special Exceptions (See Item #5, below), to shift the burden of persuasion to the applicant for specific criteria (i.e. traffic congestion, fire and safety, etc.) the ZCC proposes maintaining assembly and entertainment and nightclubs and private clubs as special exception uses.

With regard to visitor accommodations, the ZCC is basing its recommendation upon an understanding that bed and breakfasts, rather than hotels, are the primary concern in CMX-2 and CMX-2.5 districts. The ZCC seeks confirmation from Council members that this is the case. Therefore, the ZCC proposes permitting hotels and motels by right and bed and breakfasts by special exception in these districts. See also the ZCC's recommendations to improve the bed and breakfast definition and use-specific standards in Item #3, above.

For sit-down restaurants, the ZCC recommends permitting sit-down restaurants by right in CMX-2 and CMX-2.5 districts, including areas covered by overlays where this use is currently prohibited.

5| COUNCIL RECOMMENDATION: Eliminate the unreasonable burden placed upon protestant neighborhood groups and nonapplicant property owners for special exceptions by incorporating the burdens of proof determined by Bray v. Zoning Board of Adjustment, 410 A.2d 909 (Pa. Commw. 1980).

ZCC Response: The ZCC accepts this recommendation to shift the burden of persuasion to the applicant for specific criteria such as traffic congestion, fire and safety, overcrowding, impairment to light and air, burden on public facilities, and consistency with the Comprehensive Plan. Also, the ZCC recommends including a critical component of Bray which states that the Zoning Board shall deny a proposed use if there is sufficient evidence showing that the impacts of the proposed use are greater than what would normally be expected of that use. See the appendix for the proposed amendment to the Zoning Code Proposals.

6| COUNCIL RECOMMENDATION: Eliminate methadone clinics from the Medical, Dental, Health Practitioner subcategory and separately regulate methadone clinics.

ZCC Response: In 2007, the Federal Court of the Third Judicial Circuit found a Pennsylvania zoning statute regulating methadone treatment facilities differently from other medical offices to be a violation of the Federal Americans with Disabilities Act (see New Directions Treatment Services v. City of Reading, 490 F.3d 293 (2007)). In light of this ruling, the ZCC encourages Council to craft appropriate code language in consultation with its attorneys, or to address the issue of methadone clinics through means other than zoning legislation.

7| COUNCIL RECOMMENDATION: Restrict the primary use of Open Space and Recreational districts to recreation only, and permit multiple accessory uses as a matter of right when it is ancillary and incidental to recreation.

ZCC Response: After consulting with Philadelphia Parks and Recreation Department and the Philadelphia Commission on Parks and Recreation, the ZCC's recommendation is to partially accept this recommendation as follows: 1) accept the proposed changes that would make retail sale of consumer goods, and non-accessory parking prohibited uses in the Special Purpose Parks and Open Space (SP-PO) district; 2) would like to continue to work with members of Council to resolve concerns about the proposed changes that would make day care, libraries and cultural exhibits, basic utilities and services, and take-out restaurants prohibited uses in the SP-PO district, or that would prohibit the use of accessory solar collectors and small wind-energy conversion systems in the SP-PO district; and 3) add a note to the use table (or code language elsewhere) that would permit uses that are expressly authorized by City Council ordinance to be permitted as of right.

8| COUNCIL RECOMMENDATION: Eliminate mandatory submission requirements and penalties related to private Community Benefits Agreements.

ZCC Response: The ZCC accepts this recommendation. See the appendix for the proposed amendment to the Zoning Code Proposals.

9| COUNCIL RECOMMENDATION: Permit Registered Community Organizations (RCOs) to set geographical boundaries that align with its organization formation documents. For geographical areas not represented by an RCO, refer developer applicants to the district councilperson, who will exercise the rights of the RCO or assemble unregistered community members to take action on the proposed project.

ZCC Response: The ZCC accepts these recommendations. Also, the City Planning Commission has posted draft regulations for RCOs that are consistent with this recommendation and require RCOs to have written rules that establish the geographic boundaries for the organization's service area and that govern the mission, operation, and regulation of the organization. See the appendix for the proposed amendment to the Zoning Code Proposals.

10| COUNCIL RECOMMENDATION: Allocate resources that will enable the Planning Commission to complete district remapping in two years or less.

ZCC Response: Understanding that the time required engaging the community in a parcel-by-parcel evaluation of zoning remapping proposals is highly unpredictable, the ZCC recommends that Council discuss this recommendation with the Planning Commission.

11| COUNCIL RECOMMENDATION: Prohibit any uses that currently require a variance in industrial districts

ZCC Response: The ZCC did not have adequate time to address this concern prior to September 27th, but will do so shortly.

12 | COUNCIL RECOMMENDATION: Remove C7 and NSC from the proposed CA-1 district and create a second, less-intense automobile-oriented district.

ZCC Response: The ZCC accepts this recommendation to create two auto-mobile-oriented commercial districts: CA-1 would be based upon the current C7 dimensional and use requirements; C7 and NSC would convert to this district. CA-2 would be for larger commercial districts, and Area Shopping Center (ASC) would convert to this district. See the appendix for the proposed amendment to the Zoning Code Proposals.

13| COUNCIL RECOMMENDATION: Adopt use variance standards similar to New York's standards.

ZCC Response: The ZCC accepts this recommendation. Five of the six use variance criteria of the Zoning Code Proposals are the same as New York's variance criteria. The sixth criteria of the Zoning Code Proposals states: "that a viable economic use of the property cannot be permitted by granting a variance from dimensional standards or conditions. New York's variance standard includes a provision which enables the Zoning Board to personally inspect the site of a proposed variance in order to reach a decision. An earlier draft3 of the new zoning code had included a similar provision, but the ZCC removed it based on comments received from the Real Property Section of The Philadelphia Bar Association. In order to respond to Council's recommendation, the ZCC proposes re-instating the provision by making amendments to §14-303(8)(e) of the Zoning Code Proposals. See the appendix for the specific amendments.

3 See §14-304(8)(d)(.a)(.c) from Referral Draft v2 ("Blue-lined draft") dated February 2011.

14| COUNCIL RECOMMENDATION: Consider group daycare (for up to 12 children) to be a special exception use in all RSA and RM districts, similar to educational facilities, religious assemblies, and hospitals. Consider center day care (for 13 or more children) to be a special exception use in CMX-1 districts, similar to educational facilities, religious assemblies, and hospitals.

ZCC Response: The ZCC accepts these recommendations. See the appendix for the proposed amendment to the Zoning Code Proposals.

15| COUNCIL RECOMMENDATION: Carry over the Fox Chase and Roxborough Environmental Control Overlay Districts.

ZCC Response: The ZCC accepts this recommendation and proposes the creation of a new /ENV, Environmental Preservation Overlay District to include the Roxborough and Fox Chase areas. See the appendix for the proposed amendment to the Zoning Code Proposals.