Philadelphia Zoning, Land Use, and Construction COVID-19 Update - June 18, 2020
The Ballard Spahr Zoning and Land Use Team is continuing to monitor all aspects of the Philadelphia land use approval process during the COVID-19 emergency, including the issuance of zoning and building permits, regulation of construction work, and changes to relevant court filing deadlines.
This week, we provide an update on the Philadelphia City Planning Commission’s newly issued regulations. This summary is followed by our weekly zoning, land use, and construction update. For specific guidance, please reach out to members of the Ballard Spahr Zoning and Land Use Team.
Philadelphia City Planning Commission’s Regulations
On June 16, the Philadelphia City Planning Commission (PCPC) issued temporary regulations pertaining to notice requirements and Registered Community Organizations (RCOs). Under the temporary regulations, with respect to any appeal or referral to the Civic Design Review (CDR) Committee that occurs between March 13 and September 30 for which PCPC has not sent the required notice, PCPC is now required to send the notice as soon as practicable. The date on which the notice is received shall constitute the date of receipt under the Zoning Code.
With respect to RCOs, PCPC has extended the 45 day meeting period by an additional 45 days for all coordinating RCOs whose 45 day meeting period began prior to March 13 and expired between March 13 and September 30. Furthermore, from March 13 through September 30, all coordinating RCOs will be deemed to have met the public meeting requirements if they hold their meeting within 45 days of receiving notice. Virtual meetings hosted through telecommunications technology will satisfy the public meeting requirements. If a coordinating RCO cannot host a public meeting, they must contact PCPC, the Zoning Board of Adjustment (ZBA), the CDR Committee, and the applicable District Councilperson prior to the date of the scheduled ZBA hearing and/or CDR meeting. PCPC may then ask the District Councilperson to select another coordinating RCO or PCPC may make an alternate recommendation to the ZBA and/or CDR that “best serves the interests of the City of Philadelphia.”
This is a current status report on a number of key items, including several changes since our June 10 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
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. These non-life sustaining businesses were allowed to open on a phased, regional basis beginning May 8. On May 29, the Governor announced that Philadelphia County would be allowed to reopen on June 5. More information about the Governor’s phased reopening can be found here
Although some previously scheduled Philadelphia public hearings remain postponed, including hearings of the Zoning Board of Adjustment, several agencies have begun to resume meetings virtually, such as the Art Commission, Planning Commission, and Historical Commission. On April 20, Governor Wolf signed into law Act 15, which allows public meetings and hearings to take place virtually.
Under Act 15, 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, Act 15 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.
Act 15 also paused 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 were suspended as of the date of the COVID-19 emergency declaration, or as of the date an application was received during the emergency. Time limits resumed on May 20, 30 days after the effective date of Act 15. This suspension of deadlines applied to the expirations of zoning and building permits, as well as the deadlines for municipal agencies to act on applications before they were 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.
On June 11, construction work of all types was authorized in the City of Philadelphia. While construction may begin, construction sites must still comply with all applicable State and City guidance. All work must conform to the requirements of the Secretary of the Pennsylvania Department of Health issued on April 15 (regarding business safety measures for in-person operations) and April 5 (regarding building safety measures), all applicable guidance of the Centers for Disease Control (including the April 8 guidance regarding critical infrastructure workers who may have been exposed to COVID-19), the Governor’s April 28 guidance (regarding real estate industry operations), and the City’s Safer-At-Home guidance. Also, the Philadelphia’s Water Department must be notified of the project at email@example.com. More detailed information is available here.
L&I’s Audits and Investigations Unit is conducting patrols in order to ensure compliance with COVID-19 requirements. L&I is also 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 corresponding fines of up to $2,000 per day of violation, the suspension or revocation of the contractor’s license, a referral to Commonwealth authorities, and any other remedies available under law.
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. Since the majority of applications are being processed in under 10 days, L&I has suspended accelerated review. Currently, L&I is in the final stages of 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. If you have not received any information regarding your paper application, you should submit your inquiry to L&I via 311 using an online form available here. All physical copies of issued permits will be held at the Municipal Services Building at 1401 JFK Boulevard, but electronic copies will be made available, along with electronic billing statements. Individuals can pick up their permits and plans from the Municipal Services Building by appointment only. 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. In addition, L&I will be increasing all fees, excluding inspection and administrative fees starting July 1. The new fee schedule can be found here.
L&I maintains a crew of inspectors who prioritize inspections based on the severity of building and safety issues. Crew members will also conduct inspections for compliance with violation orders. 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 submit an inquiry to L&I via 311 using an online form available here.
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. The expiration dates on all construction permits active on or after March 16 have been extended by six months. An additional six month extension may be requested upon the expiration of the extended period. These extensions do not apply to fire code, make safe, or rough-in permits. All zoning permits, including conditional zoning permits, active on or after March 16 have also been extended by six months. This extension is not in addition to any extension issued by the Zoning Board of Adjustment; all permits granted by variance or special exception are still subject to ZBA regulation. Similar to construction permits, zoning permits can be extended one time for up to one year. Lastly, all permit applications active on or after March 16 have been extended for six months from the date that the permit would be deemed abandoned. This extension, however, does not apply if there have been subsequent submissions. Notwithstanding the new extensions, applicants may still receive automated L&I notifications with the old dates. The system-generated expiration dates will, however, be updated by the end of May.
The Board of License and Inspection Review has also issued regulations pertaining to appeal deadlines. As of May 22, any appeal of an action for which the appeal deadline would have fallen on or after March 13 will be deemed timely if filed by June 8 or the deadline applicable under the Philadelphia Code, whichever is later. The regulations also provide detailed instructions on how to file appeals. The regulations can be found here. Furthermore, all appeals currently before the Board will be stayed until further notice 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.
Permit denials and the ability to appeal are currently available through eCLIPSE if the denial was issued on eCLIPSE after March 15. Individuals can make amendments via eCLIPSE if the application was filed on eCLIPSE; amendments to pre-eCLIPSE documents must be submitted by mail or by contacting L&I. In addition, the Board of Building Standards and the Plumbing Advisory Board hope to begin holding hearings virtually soon. Participation in the hearings will be optional.
Zoning Board of Adjustment
All ZBA hearings through July 8 have been cancelled and will be rescheduled once the Board reopens. The Board hopes to reopen soon and is working with the Law Department to resolve any legal concerns regarding virtual hearings. If possible, the Board may hear uncontested cases in the coming months. We will continue to monitor the situation. When the Board does reopen, 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.
The ZBA has also extended the expiration dates on all approvals issued by the Board if the approval would have expired on March 15 through December 31. All such approvals have been extended by 180 days from the date that the approval would have expired.
Some Registered Community Organizations are meeting remotely. Other Registered Community Organizations do not appear to be holding meetings. RCOs will not be penalized for failing to host community meetings between March 13 and September 30. The RCOs are encouraged to work with developers to figure out an alternative to in-person public meetings. More information about RCO meetings can be found under the Philadelphia City Planning Commission section.
Pennsylvania Department of Environmental Protection/U.S. Environmental Protection Agency/U.S. Army Corps of Engineers
By order of Gov. Tom Wolf, PADEP 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. PADEP 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 alert on that topic. Here is a link to the previous Ballard Spahr 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 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.
Linear Infrastructure Permitting
A Federal District Court in Montana has invalidated U.S. Army Corps of Engineers Nationwide Permit 12 because the Court found that the Corps did not, while reauthorizing the general permit in 2017, take into proper account the impact of use of the permit on certain endangered species. As a result, work on the Keystone XL Pipeline through areas of Montana has been impacted. The permit has been relied upon by developers of linear infrastructure projects, as it authorizes the filling of jurisdictional wetlands along the route of such developments as electric transmission projects, gas pipeline projects, rail projects, etc. The decision in can be reviewed here, and has left developers of such projects scrambling to identify other Nationwide Permits that may be utilized to keep projects moving forward and avoid the need to seek individual wetland fill permits for work along the entire route.
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.
If a permit has expired or is approaching expiration as a result of work stoppage due to COVID-19, the Department advises individuals to email the permit number and their contact information to email@example.com to request a permit extension.
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, especially utility plan reviews. There is a backlog in utility plan reviews, and applicants should expect at least a three-week turnaround. All general questions and meeting requests should be sent to firstname.lastname@example.org. Additional information about submitting materials and payments can be found here.
The Water Department is processing plumbing permits for new connections, repairs, service discontinuances, backflow protection, and meters. For all new connection requests, applicants must have a pre-permit, which can be requested by contacting email@example.com. The request should include acceptable documentation, an approved Utility Plan, a list of the pre-permits being requested, and the name and license number of the plumber performing the work. Once a pre-permit is created, the applicant must call (215) 768-8323 for the permit to be issued. More information about plumbing permits can be found here. The Water Department is also currently granting time extensions to expiration dates for project permits and approvals impacted by the shutdown. Time extensions only apply to PWD-issued permits and approvals.
Regular billing will continue, but PWD has waived late payment fees and suspended non-payment terminations for all customers. The termination freeze will remain in place until July 10.
The Stormwater Incentives Team has extended the Stormwater Grant application deadline beyond July 1. No specific deadline has been set. Pre-application meetings can now be scheduled. 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 is slowly reopening. In-person services are still unavailable but limited staff are now in-office to help process mail, email, and phone requests. Also, e-recording via third party vendors is still operating. Delays 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 Historical Commission is now meeting remotely. Members of the public can watch or listen to the Commission’s meetings via WebEx. The public may also submit comments either through WebEx or via email at firstname.lastname@example.org. More information about upcoming meetings can be found here.
Philadelphia Art Commission
Art Commission staff members are working remotely. The full Commission will meet virtually on July 1, and the Sign Committee will be meeting on June 17. Details about these and upcoming meetings can be found here.
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. Reviews of applications related to steep slopes, frontages, and landscapes are being completed in a timely manner. Reviews of applications related to watersheds or lot lines are delayed due to the inaccessibility of maps located in PCPC’s offices. Staff members are also conducting Urban Design reviews through eCLIPSE. Loading waivers are being processed through e-mail, and staff members are available to provide preliminary Civic Design Review comments by email at CDR@phila.gov.
The Civic Design Review Committee held its first CDR meeting on June 9. More information about upcoming meetings can be found here.
With respect to Registered Community Organizations (RCOs), PCPC has extended the 45 day meeting period by an additional 45 days for all coordinating RCOs whose 45 day meeting period began prior to and expired between March 13 and September 30. Furthermore, from March 13 through September 30, all coordinating RCOs will be deemed to have met the public meeting requirements if they hold their meeting within 45 days of receiving notice. Virtual meetings hosted through telecommunications technology will satisfy the public meeting requirements. If a coordinating RCO cannot host a public meeting, they must contact PCPC, the Zoning Board of Adjustment (ZBA), the CDR Committee, and the applicable District Councilperson prior to the date of the scheduled ZBA hearing and/or CDR meeting. PCPC may then ask the District Councilperson to select another coordinating RCO or PCPC may make an alternate recommendation to the ZBA and/or CDR that best serves the “interests of the City of Philadelphia.”
Philadelphia Parks and Recreation
Tree Management staff members are conducting plan reviews on a limited schedule. Plans can be dropped off between 9:00 a.m. and 3:00 p.m. on Mondays through Fridays via a phone call to Robin Klink at (215) 683-0213 (or by email at Robin.Klink@phila.gov). Once the plan has been reviewed, a notification will be sent by email and plans may be picked up based on the above schedule.
Tax Abatement Applications
According to the Chief Deputy City Solicitor of the Property Assessment Unit, tax abatement applications can still be mailed to the Office of Property Assessment or emailed to Drew.Aldinger@phila.gov. The application will be deemed received on the postmark date. If the deadline to file an abatement application expires while the OPA is closed, the application will still be accepted and considered timely if received within forty-five (45) days of the reopening of the OPA.
On April 1, the Supreme Court of Pennsylvania 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 due to a statewide judicial emergency. The Supreme Court subsequently amended its order and extended the statewide judicial emergency to June 1, but mandated that beginning May 4, unless otherwise provided by a local emergency order, Pennsylvania courts shall be open to conduct all court business, with certain caveats. On May 27, the Supreme Court issued an order terminating its statewide judicial emergency as of June 1. The Supreme Court explained, however, that local administrative orders and emergencies are allowed to remain in full force and effect. Philadelphia County courts are still under a local emergency order—that is, Order No. 33.
Pursuant to Order No. 33, all civil and criminal jury trials in the First Judicial District are suspended through September 8. Landlord-tenant appeals and City of Philadelphia L&I and lead contamination violation cases are postponed. All in-person civil and municipal court trials, hearings, and conferences scheduled through July 6 are administratively canceled and shall be rescheduled. All prior suspensions of time requirements, time limitations or filing deadlines expired on May 11.
Governor Tom Wolf also ordered that foreclosures requiring compliance with Pennsylvania’s Loan Interest and Protection Law or Pennsylvania’s Homeowners Emergency Assistance Act cannot commence until July 10. Similarly, eviction proceedings requiring compliance with the Landlord and Tenant Act of 1951 and the Manufactured Home Community Rights Act cannot commence until July 10. Timelines for evictions and foreclosures will be computed with a start date of July 10. This order only applies to foreclosures and evictions enacted due to a lack of payment or because a tenant overstayed a lease. More information about the Governor’s order can be found here.
Beginning July 10, in compliance with the Governor’s order, the Court of Common Pleas and the Philadelphia Municipal Court will accept filings for new nonresidential landlord-tenant cases and residential landlord-tenant cases in which the leased property is not a “covered property” under Section 4024 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Starting on July 26, the Court of Common Pleas and the Philadelphia Municipal Court will accept filings for residential landlord-tenant cases in which the leased property is a “covered property” under the CARES Act, although no trials will be scheduled before August 26. Furthermore, no final dispositions will be entered in ejectment actions filed after March 16 until at least July 10. The issuance of residential writs of possession and the execution or enforcement of residential writs of possession will resume upon the expiration of Governor Wolf’s Stay-At-Home Order for Philadelphia. For all actions raising landlord-tenant, ejectment and mortgage foreclosure claims filed in the Court of Common Pleas before May 11, no final dispositions will be ordered before July 10. Also, the Municipal Court is terminating actions that were filed during the shutdown and does not envision holding hearings until September.
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.