Philadelphia Zoning, Land Use, and Construction COVID-19 Update - April 22, 2020
This is a current status report on a number of key items, including several changes since our April 15, 2020, update. We will continue to update this list, which may change as new information becomes available. Please call or e-mail the Ballard Spahr Zoning and Land Use Team with any questions regarding this information; in particular, please consult with an attorney regarding all filing deadlines.
State and City Government – General
With limited exceptions, all Philadelphia government buildings are closed to the public, and all non-essential government operations are suspended.
Pursuant to a March 19 order, updated on March 24, Pennsylvania Governor Tom Wolf ordered all non-life sustaining businesses in Pennsylvania to close their physical locations and to remain closed until further notice. The list of life sustaining and non-life sustaining businesses is available here. Notably, maintenance or repair work essential to the upkeep of an existing building is permitted.
State agencies and local officials were instructed to begin taking enforcement actions against all non-life sustaining businesses that were not compliant on March 23. These enforcement actions include citations, fines, license suspensions, or criminal charges, along with the forfeiture of any applicable disaster relief, and the termination of State or grant funding, including Redevelopment Assistance Capital Project funding. Requests for exemptions from business closure requirements were due by April 3.
In response to the Governor’s order, the Mayor of Philadelphia issued a City order, available here. The City order prohibits the operation of non-essential businesses and defines the terms “essential” and “non-essential.” The order also states that businesses performing Essential Governmental Functions, including essential construction for the City of Philadelphia and the School District of Philadelphia, need not obtain an exemption from the State to continue work. Businesses conducting essential infrastructure projects for the City have been notified by government officials. Any construction sites permitted to continue construction must practice social distancing and prioritize the health and safety of their workers. Construction requirements are discussed in greater detail below.
All previously scheduled Philadelphia public hearings remain postponed, including meetings of the Historical Commission, City Planning Commission, Art Commission, Board of Building Standards, and Civic Design Review Committee. It appears unlikely that any City public meetings will be held during the month of April. Although, on April 20 Governor Wolf signed into law Senate Bill 841, which allows public meetings and hearings to take place virtually.
Under SB 841, local agencies may conduct public meetings or hearings through an “authorized telecommunications device” that allows, at a minimum, audio communication between individuals. The local agency must notify the public of the proceeding and allow for public participation to the extent practicable, with questions or comments submitted via e-mail or postal mail.
Notably, SB 841 does not require local agencies to conduct virtual meetings, and municipalities retain their discretion to proceed with such meetings. If an applicant submits a request for a meeting and an agency does proceed, the applicant and parties receiving notice of the proceeding are deemed to have waived any challenge to the proceeding under laws governing notice or participation in the meeting. In Philadelphia, it is not clear if SB 841 covers meetings convened by Registered Community Organizations (RCOs), which are required under the Philadelphia Code to hold public meetings as part of the Civic Design Review and Zoning Board of Adjustment processes. The current RCO meeting requirement is holding up many midsize to large projects in Philadelphia, even those that are as-of-right under the Philadelphia Zoning Code.
SB 841 also hits the pause button on municipal approvals, tolling—for a 30 day period—the number of days otherwise provided by law to satisfy statutory time limits. Specifically, time limits for reviews, hearings and decisions are suspended as of the date of the COVID-19 emergency declaration, or as of the date an application is received during the emergency. Time limits will resume 30 days after the effective date of SB 841. This suspension of deadlines applies to the expirations of zoning and building permits, as well as the deadlines for municipal agencies to act on applications before they are automatically deemed to have been approved.
Lastly, due to the COVID-19 emergency, the City has also suspended the deadlines for all pending and incoming Right-To-Know requests until normal operations resume. Urgent Right-To-Know inquiries may be directed to Feige Grundman at firstname.lastname@example.org. The inquiry should include an explanation detailing the urgent need for the information and a request that the relevant department, agency or office continue to review the inquiry during the period of official emergency declaration.
Pursuant to the Governor’s order, all construction and construction-related businesses in Pennsylvania are required to shut down their physical locations until May 8. This mandate, however, does not apply to emergency repairs, substantially completed residential projects, or the construction of health care facilities. Per the Governor’s guidance, a project is considered “substantially completed” if a final occupancy permit has been issued for the property. All other residential construction projects may only continue to the extent necessary to stabilize the site, temporarily prevent weather damage, or make emergency repairs. No new construction or non-emergency rehabilitation or remodeling may be performed. The Pennsylvania Department of Labor and Industry is suspending certain regulations related to building construction (where permitted), including but not limited to the expiration of asbestos professional licenses and lead professional certifications.
In Philadelphia, all non-life sustaining, non-emergency construction sites had until March 27 to be made safe and secure. L&I is tracking all stop work orders issued for non-compliant work sites and will pursue action against non-compliant license holders. Failure to comply with the City’s order will result in the issuance of violations and a corresponding fine of $1,000 per day of violation, the suspension or revocation of the contractor’s license, and a referral to Commonwealth authorities.
Testing, maintenance, certification and repair of life safety systems may continue. Construction to ensure the safety and habitability of an occupied residence may continue as long as permission is obtained from the Department of Licenses and Inspections. The permission request must include the project address, permit number, the nature of the work, the time required, and the proposed safety provisions. Contractors must also obtain a permit within three days of commencing any emergency repairs and replacements. Additional guidance can be found here.
If a waiver was granted, the business is limited to the scope of the waiver and is subject to compliance with social distancing and other mitigation measures issued by the State to protect employees and the public. The business must also provide proof of the waiver, including the specific job site, to L&I via e-mail at email@example.com and to the Water Department at firstname.lastname@example.org.
If a construction business is exempt from the shutdown, due to its classification as a life-sustaining business, it should notify L&I and the Water Department of its exempt status.
Licenses and Inspections
L&I employees working on zoning and building permits are generally telecommuting. L&I’s online eCLIPSE permitting and licensing system has been live since mid-March. In general, all electronic applications are being processed under standard review times, although some delays should be expected. Currently, L&I is processing all paper applications received before the shutdown. L&I guidance on obtaining permits for pre-eCLIPSE applications is available here. We have successfully obtained permits based on pre-eCLIPSE applications. All physical copies of issued permits will be held at the Municipal Services Building at 1401 JFK Boulevard until the City shutdown ends, but electronic copies will be made available, along with electronic billing statements. The Municipal Services Building also has a small security staff on site that is receiving mail deliveries to L&I during normal business hours, but visitation by the public is prohibited.
L&I will maintain a small crew of inspectors, who will prioritize inspections based on the severity of building and safety issues. The Department requests that all inspections be scheduled through its Interactive Voice Recognition system (IVR). Instructions for IVR are available here. If a contractor needs to meet a critical deadline, he/she should e-mail L&I at email@example.com.
Notably, contractors will not be able to schedule inspections if their licenses are not up to date. To schedule an inspection, the contractor must update his/her insurance and tax clearance documents in eCLIPSE. To obtain a “make safe” permit for a dangerous building, an appointment must be scheduled with L&I. Instructions for requesting a “make safe” permit are available here.
L&I has suspended the expiration of previously issued permits during the shutdown; applicants should disregard any automated notifications received in the meantime. L&I has also suspended all deadlines for filing appeals otherwise due after March 13. The time for filing appeals will likely be extended for two weeks in every instance where the original filing deadline would have fallen after March 13. The suspension of the appeal filing deadlines may be extended further at the discretion of the Chair of the License and Inspection Review Board. All appeals currently before the Board will be stayed at least through April 17 unless the Board determines an emergency warrants immediate consideration. An emergency is defined as anything that immediately concerns public health, safety, and welfare.
Anyone requesting an emergency hearing must complete an Emergency Hearing Appeal Form and submit it to firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, Joanna.email@example.com, and firstname.lastname@example.org. Upon receipt of the form, the Board will either deny the request or schedule an emergency hearing that will take place telephonically.
Zoning Board of Adjustment
All ZBA hearings through May 15 have been cancelled, and will be rescheduled once the Board reopens. When the Board reopens, additional hearings will be scheduled to account for the backlog. In addition, the ZBA is suspending indefinitely all deadlines for filing appeals otherwise due after March 13.
Registered Community Organizations will not be penalized for postponing community meetings after March 13. The RCOs are encouraged to work with developers to figure out an alternative to public meetings. At this time, the City will not be changing the statutory timelines for when a case must be heard by the ZBA. The Zoning Board will not, however, hear a variance or special exception case when an RCO meeting was not held due to the COVID-19 shutdown period. In any event, at this time, it is not clear when the statutory 45-day RCO consultation period commences. We are hopeful that the City will provide guidance on this issue in the coming days.
Pennsylvania Department of Environmental Protection/U.S. Environmental Protection Agency/U.S. Army Corps of Engineers
By order of Gov. Tom Wolf, Pennsylvania DEP offices throughout the Commonwealth remain closed. However, much of the regional staff is telecommuting and reachable in connection with inquiries on the status of pending environmental approvals/applications. The U.S. EPA remains open via telecommuting options, and the U.S. Army Corps of Engineers also is reachable.
Developers may have some flexibility in their efforts to comply with environmental laws, at least as far as the U.S. Environmental Protection Agency is concerned. Provided that “good faith” efforts are made to comply, and incidents of non-compliance are remedied and documented, EPA’s latest enforcement guidelines offer some understandable relief as Companies struggle to comply with Covid-19 requirements. The policy should apply to enforcement of nearly all federal environmental laws, including the Clean Water Act and its NPDES Storm Water pre- and post-construction permit control requirements. The Pennsylvania Department of Environmental Protection has chosen to handle such matters on a case by case basis, requiring those who have failed to comply as a result of the Covid-19 crisis to submit an application for an enforcement waiver. Here is a link to our Environmental Group’s e-alert on that topic. Here is a link to the previous Ballard Spahr e-alert discussing the EPA policy.
On April 7, the PADEP announced guidance regarding Chapter 102 Earth Disturbance Permits. Only those permittees that are engaged in life sustaining businesses may continue to do move earth. Non-life sustaining business are directed to cease further site work, stabilize the site, and wait for contrary determinations. Ballard Spahr’s Environmental Group has prepared an alert on that and other guidance announced by PADEP in response to the COVID-19 crisis.
Zoning and building permits should still be posted on properties in the normal course, to the extent possible. Please contact our Zoning and Land Use Team for any assistance.
The Philadelphia Streets Department is focusing its essential personnel on emergency repairs, so inspections of existing projects may be delayed. At least some employees involved in plan approval currently are telecommuting and are actively monitoring projects. The Streets Department is actively working on preparing surveyors to review subdivision and lot line relocation plans remotely, although plans are not currently being reviewed. Plan Review Counter Submissions (Checklist #1) may be submitted online only through the L&I eCLIPSE system. All Plan Review Intake Submissions (Checklist #2/3/4) must be submitted electronically to StreetsROW.PlanReview@phila.gov. Developer Services Meetings deemed necessary by staff may be held remotely.
The Water Department’s offices are closed to the public; however, Private Development Services’ staff members are working remotely. Staff members are conducting stormwater plan reviews, utility plan reviews, water and sewer sign-offs, along with other reviews. Delays should be expected for all reviews. All general questions and meeting requests should be sent to email@example.com. Additional information can be found here.
The Stormwater Incentives Team has extended the Stormwater Grant application deadline to July 1. The pre-application meeting deadline has been extended as well. The team encourages individuals to email all questions to PWDStormwaterCredits@phila.gov. The account is being monitored periodically, but delays are expected.
Department of Records
The Philadelphia Department of Records remains closed, but e-recording via third party vendors is still operating. Delays of five to seven business days may be expected.
Department of Planning and Development
The Department of Planning and Development has issued emergency regulations governing “deemed approvals” by the Philadelphia City Planning Commission, the Philadelphia Historical Commission, the Philadelphia Art Commission, and their various committees, including the Civic Design Review Committee and the Sign Committee of the Art Commission. From March 18, through 60 days after the termination of the Mayor’s Emergency Order, the non-performance of review by these agencies, their respective Committees or staff, in connection with any applications, plans, materials or other documents will not constitute a deemed approval or a deemed denial of any such applications, plans, materials or documents subject to review.
Philadelphia Historical Commission
While the offices of the Philadelphia Historical Commission are closed, staff members are still working remotely. General inquiries, approvals, complaints, and nominations can be emailed to firstname.lastname@example.org. Staff members will review nominations for correctness and completeness and prepare them for processing for when the Commission is back in session. The staff can also review and approve most applications without referral to the Commission itself. Additional information can be found here.
Requests for guidance on proposed construction projects should be emailed to email@example.com. The e-mail should include: the street address of the property, contact information for the person responsible for the project, the name of the property owner, a description of the proposal, photographs, architectural plans, and copies of any historic documentation.
The April 9 meeting of the Historical Commission, the April 15 meeting of the Committee on Historic Designation and the April 21 meeting of the Architectural Committee have been postponed. New dates for the meetings will be announced when they are rescheduled.
Philadelphia Art Commission
All Art Commission and committee meetings for April have been postponed. The Department of Planning and Development is actively working to arrange for the May meeting of the Art Commission to proceed remotely.
Philadelphia City Planning Commission (PCPC)
Staff members at the Planning Commission are working remotely, although, delays should be expected. Staff members are reviewing plans submitted on eCLIPSE and amendments to master plans. PCPC is working with L&I to develop a plan for requests for modifications to previous approvals. PCPC staff will provide comments on any proposed legislation, a draft of which should be sent to staff members; requesting parties should keep in mind that all legislation is subject to the discretion of City Council. Review of applications related to watersheds or steep slopes are delayed due to the inaccessibility of maps located in PCPC’s offices. In addition, the Planning Commission is not yet meeting remotely, but is working to arrange for remote meetings in the future. PCPC is still evaluating their plans for Civic Design Review Committee meetings because PCPC cannot compel Registered Community Organizations to hold community meetings during the current stay-at-home order.
As of April 1, the Supreme Court of Pennsylvania has ordered that, except for certain essential functions, court facilities in all judicial districts in Pennsylvania shall be closed to the public through at least April 30. The order of closure applies to the Superior Court, Commonwealth Court, Magisterial District Courts and all minor courts in Philadelphia County. In addition, all time calculations and deadlines are suspended through April 30. All evictions and ejectments are stayed, and PA Rules of Criminal Procedure 600(c), with respect to time calculations, is suspended. Commercial landlords may theoretically file ejectment actions but it is very unlikely that they would be able to secure a judgement prior to May 1. The court closure order is clear that it may be extended; each judicial district may extend the closure for its district past April 30, although Philadelphia has not yet done so.
In addition, all Philadelphia Sheriff’s Tax Sales and Mortgage Foreclosure Sales scheduled for May have been postponed to July. More information can be found here.
Copyright © 2020 by Ballard Spahr LLP.
(No claim to original U.S. government material.)
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.
This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.