October 12, 2006 Issue                                       

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©2006 The Chestnut Hill Local

Civic groups fight for zoning rights
by KRISTIN PAZULSKI

Ten Philadelphia community organizations have joined together to form Neighborhood Defense, a coalition dedicated to preserving the right of such organizations to influence land use, zoning and planning in the city.

Marc Stier, the coalition’s co-founder, is a current board member and former president of West Mt. Airy Neighbors. He said the coalition is attempting to raise public awareness of Act 193, legislation passed in November 2004 that threatens to take away a community organization’s standing on Philadelphia zoning issues in the appellate courts.

The effect this legislation would have on community organizations was demonstrated just this past July, when two Court of Common Pleas judges decided that three community organizations did not have the standing to appeal decisions of the Zoning Board of Adjustments.

Neighborhood Defense launched a Web site in September (neighborhooddefense.org), where individuals and community groups that support the coalition’s goal of having Act 193 repealed can sign a petition.

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Act 193 removed a tax-paying citizen’s right to appeal a decision of the Philadelphia zoning board, a right stated in the city’s zoning code, under the Philadelphia Home Rule Charter.

Until recently, the effect this law would have on a community association’s standing was unclear. But in July, two community organizations, a city group and a citizen were denied standing in two Court of Common Pleas cases, based on provisions of Act 193.

The law states that an “aggrieved person” may appeal decisions of the ZBA, but adds that “the term ‘aggrieved person’ does not include taxpayers of the city that are not detrimentally harmed by the decision of the zoning board or other board or commission created to regulate development.”

On July 5, Judge Joseph Dych ruled that citizen Gary Spahn did not have the standing to appeal a pair of single-family homes being constructed about a block and a half from him. The decision states that “citizens of Philadelphia are no longer afforded standing to protest zoning decisions based upon their status as taxpayers.”

About a week later, Judge Gary Glazer ruled that the Wynnefield Heights Civic Association, the Belmont Village Community Association and the Society Created to Reduce Urban Blight, better known as SCRUB, lacked the standing to participate in an appeal of a ZBA decision to allow a billboard to be rebuilt on a property in their community.

In the end, the ZBA’s decision was reversed partly because of testimony from George David Jr., an “aggrieved” neighbor to the property receiving the billboards.

Stier said Act 193 was developed and lobbied for by the billboard companies in an effort to cripple SCRUB’s ability to appeal cases such as the one decided on by Glazer. Most of what SCRUB, a non-profit organization, does is fight billboard expansion in the city and work to have illegal billboards removed. The legislation is a severe obstacle to its work.

“People who should be involved in the process keep getting eliminated,” said Mary Tracy, SCRUB’s director and co-founder of Neighborhood Defense.

She said there have been about 20 cases where SCRUB has appealed a ZBA decision in the courts and it was overturned in SCRUB’s favor.

“Without the power of the courts, without the ability to challenge a decision, whatever you say at the zoning board is of little value,” Tracy said.

And Stier agrees. He said that communities are fortunate that the ZBA now relies heavily on their input to make decisions. There is no law stating they have to, but the unwritten, well-known rule is that developers rarely get ZBA approval without written or verbal support from a community association.

But the leverage community organizations have in the ZBA is dependent on their ability to appeal, Stier noted, and if that ability is stripped from them, what leverage they will have in future cases is questionable. He added that most of a community associations’ role is comprised of these zoning issues.

“Essential to what community associations do is regulating development in its neighborhood,” Stier said. “Act 193 really threatens our involvement in the process. We should be able to ensure they follow the law — it’s nine-tenths of what I did as WMAN president.”

While taxpayers, who can prove “detrimental harm” to themselves or their properties, can still appeal, Stier raises the concern that many individual citizens may not be willing to take action against a developer. Removing the community’s power to influence zoning could hurt the community as a whole, especially when individuals do not care to or cannot be involved, he added.

“Very few developments affect only the neighbors, they affect the whole community,” Stier said. “I’m sure there will be some monstrosity built that will show why Act 193 should be appealed, but we’d like to appeal it before the monstrosity is built.”

Tracy agreed that the average citizen who does not understand the appellate process is hesitant to get involved and relies on community organizations. Many residents do not even get involved in the ZBA hearing process, she noted, because the meetings are held in Center City during the workweek, and many cases require numerous hearings.

“Very few people can take that amount of time off work in this city,” Tracy said.

Community zoning committees, on the other hand, usually meet in the evenings, allowing citizens to voice an opinion that can be represented in the zoning and appeal system by the organization’s representatives or by letters of recommendation.

In the course of a recent battle in the ZBA hearing system between the Chestnut Hill Community Association and Commerce Bank, just concluded, CHCA had to attend three ZBA hearings and hold a town hall meeting in the evening to hear what community members had to say. If the CHCA was unable to represent the community in ZBA cases, Chestnut Hill could have ended up with a standard suburban Commerce Bank branch on the avenue.

CHCA has a rigorous, multi-level development review process that ZBA chair David Auspitz has praised during hearings. To take away that part of the association’s power would impair its ability to protect the historical and architectural charm of Chestnut Hill.

“If the CHCA is no longer interpreted as an aggrieved party, it could take away our standing in ZBA hearings,” said Harriet Brumberg, a representative of the association’s Land Use and Planning committee.

In February the CHCA board voted to sign a petition authored by SCRUB, asking the ZBA to focus on the “legal merits” in its hearings rather than whether the community organizations have standing, according to Brumberg.

Brumberg said when she reads the legislation, she does not interpret Act 193 as applying to Philadelphia taxpayers. “Just like anything else, it depends on interpretation,” she said

For WMAN, zoning issues have become so demanding that the organization recently established a zoning committee, which meets monthly to hear community members’ reactions to development in the neighborhood. The 30-odd folding chairs in a second-floor room at Summit Presbyterian Church are often filled with Mt. Airy resident concerned about zoning issues.

At the latest meeting, neighbors addressed a problem with a local rehabilitation center, which was trying to legalize certain changes and a parking lot it had been using; commented on a large, 17-unit housing development that would also restore a historical home on Germantown Avenue; and reported to WMAN that a property owner was beginning construction on a house without permits.

Fortunately for these civic organizations and SCRUB, some judges in the Commonwealth Court of Pennsylvania — the step after Court of Common Pleas — have not supported Act 193’s application to these groups. Last month, a court panel of judges reversed a ZBA’s decision supporting the installation of 38,000 square feet of billboards near the Philadelphia Airport. While there were other factors that led to this decision, one of the court’s reasons, described by SCRUB, was that: “It was wrong for Act 193 to be applied retroactively to SCRUB and other community groups, given the chronology of this case.”

The case had gone to the ZBA before Act 193 was enacted, and therefore the issue of SCRUB’s standing in the hearing was not “ripe” for the review, said Brumberg.

Commonwealth Court Judge James G. Collins dissented, “Act 193 makes it clear that taxpayers who are not individually harmed by a zoning decision do not fall within the definition of aggrieved persons…”

Brumberg said she expects the issue to reach the state Supreme Court.

Contact staff writer Kristin Pazulski at 215-248-8819 or Kristin@chestnuthilllocal.com.