Legal Alert

Philadelphia Zoning, Land Use, and Construction Update

November 19, 2021

The Ballard Spahr Zoning and Land Use Team continues to monitor all aspects of the Philadelphia land use approval process, including the issuance of zoning and building permits, regulation of construction work, and zoning and land use legislation in City Council. Below, we provide information on bills recently introduced and passed by City Council, including the Mixed Income Neighborhoods mandatory affordable housing bill, which the Committee on Rules reported favorably on November 15.

Philadelphia City Council Legislative Update

City Council introduced the following Bill No. 210903 at its meeting on November 4.

  • Bill No. 210903 would convey standing to a District Councilmember to appeal a final decision made by the Zoning Board of Adjustment or the Planning Commission whose Council District includes the subject property.

City Council passed the following bills at its meeting on November 4.

  • Bill No. 210637 clarifies that parking required for expansions to historically designated properties, which the Zoning Code currently reduces by 50%, may be provided off-site.
  • Bill No. 210667 amends the /VDO, Fifth District Overlay District to prohibit the Mixed Income Housing bonus and Green Roof bonus. Council President Clarke is the councilperson for the Fifth Council District. The Bill provides exceptions to the Mixed Income Housing bonus prohibition for lots located south of Spring Garden Street where either (1) less than 50% of gross floor area will be in residential use, or (2) at least 50% of gross floor area will be in residential use, provided that affordable units provided pursuant to the Mixed Income Housing bonus must be constructed on-site and may not be earned through a payment in-lieu agreement.
  • Bill No. 210668 amends the /NCO, Neighborhood Conservation Overlay District by physically expanding the existing Strawberry Mansion /NCO area.

Additionally, at its meeting on November 4, City Council amended and placed Bill No. 210778 on its next first reading calendar.

  • Bill No. 210778, as amended, would establish the /AHP Affordable Housing Preservation Overlay District and apply the /AHP to the two blocks bounded by Filbert Street, 39th Street, Ludlow Street, and 40th Street. The /AHP requires that at least 20% of all dwelling units in any development be provided and maintained as affordable for households earning up to 40% of the Area Median Income. Additionally, the bill would establish a maximum floor area ratio (FAR) of 750%, prohibit the use of any FAR bonuses, and provide that all non-residential uses and off-street parking must be located on the ground floor.

At its meeting on November 15, the Committee on Rules voted Bill No. 210633 favorably out of committee. The Bill provides that the ordinance shall take effect six months following its enactment.

  • Bill No. 210633 creates a /MIN Mixed Income Neighborhoods Overlay District that includes the central portion of the Third Council District, including University City, and several areas located in the Seventh Council District. The legality of creating a zoning overlay based upon a legislative district is unclear.
    • The Bill applies to “Residential Housing Projects,” defined as developments including 10 or more dwelling units and/or 20 or more sleeping units, but exempts: (i) developments by educational institutions for the exclusive use of students or institution-affiliated persons, and (ii) any developments where less than 25% of the gross floor area will be in residential use. However, the City may consider whether a development is part of a multi-phase project or shares common ownership or elements with another project in determining what constitutes a Residential Housing Project.
    • Residential Housing Projects must provide at least 20% of dwelling units as affordable housing. Fifteen percent of the affordable units must be provided on-site, while the balance of the affordable units may be either (i) provided within one-half mile of the development site, or (ii) satisfied through a payment-in-lieu to the City, provided the Department of Planning and Development grants a waiver.
    • Affordable housing rentals provided in the /MIN must be affordable to households earning up to 40% of Area Median Income (AMI), and generally cannot be occupied by households earning greater than 80% of AMI. Owner-occupied affordable housing must be sold at prices based on 60% AMI affordability.
    • The bill provides specific maximum unit count calculations by zoning district, based on lot area. Various detailed dimensional requirements also apply, including maximum occupied area and height limits that vary by zoning district, and generally increased floor area ratios, such as a maximum FAR of 750% in CMX-3 and CMX-4 districts.
    • Parking in the /MIN is generally required at a rate of one space per five dwelling units, with certain smaller scale districts not requiring any parking, and RMX-1 districts requiring parking at a rate of two spaces per three units.
    • The Bill also requires that, prior to the issuance of a zoning permit for a Residential Housing Project, developers meet with Registered Community Organizations to present a Marketing and Occupancy Plan and an Economic Opportunity Plan, subject to detailed standards outlined in the bill. The legality of this requirement is unclear.
    • The Bill prohibits issuance of any zoning or building permit for demolition of a principal building in the /MIN unless a building permit has been issued for the construction, expansion, or alteration of a new or existing principal building on the same lot. The legality of this requirement is unclear.
    • Lastly, the Bill provides that for properties located in the /MIN, the Zoning Board of Adjustment cannot approve a variance for the required affordable housing unless failure to do so would constitute a taking under the Fifth Amendment of the U.S. Constitution. The legality of this requirement is unclear.

Philadelphia Tax Abatement Timeline Update

As developers and property owners work to submit property tax abatement applications ahead of the implementation of changes reducing the value of the tax abatement that take effect after December 31, 2021, the City has released guidance regarding permitting timelines, available here. As described below, we recommend submissions be made well in advance of the City-recommended deadlines, as the timing of agency reviews can be unpredictable.

  • Tax abatement applications must be submitted by December 31, 2021at the latest.
    • Prior to applying to OPA for the tax abatement, a building permit must be obtained from the Department of Licenses and Inspections (L&I).
    • The filing date for the tax abatement is recorded as the date the application email to OPA is submitted.

Philadelphia Zoning, Land Use, and Construction Update

This is a current status report on a number of key items, including several changes since our last update. We will continue to update this list, which may change as new information becomes available. Please call or email 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.

Construction

Construction work of all types is authorized in the City of Philadelphia. Construction sites must comply with all applicable State and City guidance. More information about the City’s construction protocols can be found here. 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.

As of August 12, 2021, the City’s most recent indoor mask mandate also applies to construction work. The masking requirements differ according to the type of construction. More information can be found here.

Additionally, all permit applications for new construction or additions filed on or after April 1, 2021, must include a separate energy compliance plan depicting the full building thermal envelope. Further, projects utilizing the prescriptive method complying with the Philadelphia Energy Conservation Code require a COMcheck or REScheck Compliance Certificate signed by the design professional. More information here.

Licenses and Inspections

Effective January 1, 2022, all building and zoning permit applications must contain the full name and address of the owner of the affected property. If the owner is not a natural person or publicly traded company, the full name and address of each natural person with more than 49% equity interest in property must be provided. If no such individual exists, contact information of two individuals with the largest equity interest in the property must be included with the application.

Additionally, all new rental license applications filed for properties owned by a “company” must include contact information for each natural person with more than 49% equity interest in the property, or the contact information of two natural persons with the largest equity interest in the property.

As of October 1, 2021, permit submissions for new, residential construction must include an HVAC equipment design worksheet with all applications for new mechanical equipment in residential developments.

L&I also has developed a new master approval process for residential and commercial developments with at least 5,000 sq. ft. of floor area. An applicant for a multi-building or multi-phase development under one design or construction contract may elect for the master approval process, which is intended to reduce overall permit processing times. More information about this process can be found here.

Streets Department

As of January 19, 2021 certain permits that require approval from the Philadelphia Streets Department must first submit an associated Streets Review application electronically through eCLIPSE. Details about the electronic submission procedure can be found here.

Water Department

As of August 2021, the Philadelphia Water Department (PWD) has consolidated its Utility Plan Review, Stormwater Plan Review, and related support groups into a single unit to better serve private development needs. Questions regarding the new Development Services Unit of PWD can be directed to PWD_DevServices@phila.gov.

Stormwater Plan Review submissions may be mailed or dropped of in-person at PWD Headquarters. However, in-person deliveries remain by appointment only. Appointments can be scheduled by contacting Toni.Todd@phila.gov.

All general questions and meeting requests should be sent to pwd.planreview@phila.gov. Additional information about submitting materials and payments can be found here.

Any zoning, demolition, site, or building permit that requires PWD sign-off must be applied for via eCLIPSE. Additionally, PWD has created an Electronic Pre-Application Form. This form is recommended for projects that have yet to make an ERSA Application, but wish to meet with PWD virtually in advance of submission to discuss the project.

At this time, PWD will not terminate water service for residential customers through April 1, 2022.

Philadelphia Historical Commission

Historical Commission offices have reopened and staff is currently operating on a hybrid schedule. All in-person or in-office appointments with staff must be scheduled through the Commission’s new online appointment system found here. All public meetings will continue to be held remotely at least through December 2021.

Philadelphia City Planning Commission (PCPC)

The Civic Design Review Committee continues to hold virtual meetings. More information about upcoming meetings can be found here. Staff members are available to provide preliminary Civic Design Review comments by email at CDR@phila.gov.

PCPC is required to send out notices as soon as practicable for any appeal or referral to the Civic Design Review (CDR) Committee. The date on which the notice is received shall constitute the date of receipt under the Zoning Code. 

With respect to Registered Community Organizations (RCOs), 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 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.

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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.