November 2015

Yesterday, the House of Representatives – by a wide margin-  passed the “Fairness to Veterans for Infrastructure Investment Act of 2015.” Simply put, the Bill amends the DOT DBE regulations to include veteran owned small businesses (VOSB) within the definition of disadvantaged businesses.  If this Bill is signed into law, this means that VOSB’s could be used towards a prime contractors DBE hiring goal on projects receiving any form of DOT funding assistance.

This change in the law is something I have long petitioned for.  This Bill opens the door to lucrative subcontracts to veteran owned businesses.  By creating a new pool of eligible firms, the Bill also helps prime contractors, who often struggle to meet qualified minority and women owned firms, in meeting their DBE subcontractor goals.

While the federal government has long maintained rules giving preference to veteran owned firms, the breadth of those rules was limited mainly to construction projects owned by the Veteran’s Administration.  This Bill gives veteran owned firms preference on any project receiving some form of funding through the DOT.  These project include airports, transmit systems, and highway projects.

In my previous post, I discussed proposed legislation that would require notification and meetings with RCO’s even when a “by-right” permit is issued.  I understand that the Bill has been amended.  (A copy of the revised bill is available here: Bill No. 15064301, As Amended (1).)  Under the amended Bill, developers will NOT be required to meet with an RCO even for by right permits.  However, the Bill still requires L&I to:

“Send by email to all Registered Community Organizations and
all councilmembers a notification of the zoning permit that
includes the date of issuance, the name of the permit holder, and
the address, zip code, and council district of the permitted

While this is significantly better than requiring a meeting with the RCO, the problem still remains that an RCO or City Councilmember can unnecessarily hold up a by right permit by filing an appeal with the Court of Common Pleas.  Therefore, the Bill remains superfluous.  The RCO and City Councilmember are still involved with the by right permit.  If so what is the purpose of the zoning code?  Does by right mean by right or just by not having to go to the ZBA?

MarxAny developer unlucky enough to need a zoning variance in the City of Philadelphia knows it is an arduous process. Needing a zoning variance means your project is not in compliance with the zoning code and you essentially need an exemption.  One of the first steps in the process is presenting your project to the Socialist Registered Community Organization, which consists of a group of un-elected individuals who more or less tell you how to build your project – despite having no development experience themselves.  Moreover, if the RCO politburo simply doesn’t like the developer no amount of compromise will garner their support.

On the other hand, sometimes developers propose a project in full conformity with the zoning code (the law) and obtain what is known as a “by right” permit to build.  It is known as a by right permit because the zoning code grants you to the right to construct what you are proposing on your property.

The general purpose of zoning codes is to set out an overall plan for a community where most projects are built by right – and thus according to the plan – and projects by variance are the exception.  For many years, this was nearly impossible in Philadelphia because the zoning code had not changed since the 1950’s.  So, the plan that would have to be followed was one for an industrial city rather than the modern city we have become.  In 2012, after many years of hard work by a dedicated group of volunteers, Philadelphia overhauled its zoning code with an eye towards increasing by right building that suited the City’s 21st Century development plan.  However, City Council recently introduced legislation to scrap all of that hard work.

On Monday, City Council’s Rules Committee moved legislation to the floor of City Council that would require developers (or any property owner for that matter) to appear before the RCO cabal even when they have THE RIGHT under the zoning code to build what they are proposing on their property.  If this legislation passes, the zoning code is effectively rendered meaningless because a developer would still need to obtain the permission of the RCO before it could construct a project that the zoning code grants it a right to build.

How could an RCO be permitted to nullify the zoning code?  Because for $100 an individual or an RCO can appeal a building permit issued by the Department of License & Inspection even when that permit is issued by right.  In other words, the RCO can file an appeal with the Philadelphia Court of Common Pleas saying that L&I was wrong to issue the permit and that the Court should supplant its judgment for that of the plan inspector that issued the permit.  If the RCO is unsuccessful at the Court of Common Pleas, it can appeal the decision to the Commonwealth Court and, if it is unsuccessful there, it can file an appeal to the Supreme Court.  Then, if it is lucky, two years after it was issued a permit to build what it had the right to build on property that it owned, a developer can move forward with its project.

I appreciate – but do not entirely agree with – the process that requires a developer to present its project to the community when it is asking for an EXEMPTION from the zoning code.  But, requiring a developer to obtain permission from the “community” before it proceeds with developing its private property according to the law, leads me to wonder if the concept of private property even exists in the minds of some of our elected officials in Philadelphia.


In the past week, members of the media greatly overestimated my legal abilities and thought they were sufficient enough to quote me in recent articles.  If you care to read them they can be found by clicking here and here.  (One of the reporters recorded our interview and I am happy to say I don’t sound like a complete dunce.)

In a move that I never would have expected, Pennsylvania Governor Tom Wolf signed into law HB 874 which removes exceptions to the offenses of stalking, harassment and threatening to use a weapon of mass destruction from those involved in labor disputes.  This move is shocking because Big Labor heavily supported Governor Wolf’s election campaign and the bill itself was opposed by nearly all Democrats in the Pennsylvania Senate.

As I have argued, the exemptions from prosecution for the crimes of stalking and harassment had become perverted from there original intent.  Passed when the labor movement was in its nascency, the exemptions were meant to prohibit criminal codes from being used to thwart organizing efforts and chill protected speech.  However, over the years the exemptions moved from being a shield to a sword that (much like the Supreme Court’s Enmons decision) organized labor wielded in conducting a host of objectionable – and now criminal – actions, such as following their adversaries’ children to school, videotaping them getting on the school bus, and outright assaulting non-union managers.

A favorite slogan of regressives progressives in passing laws is “common sense.”  Typical that slogan is used to justify them taking away more and more of your rights.  However, with the signing of HB 874 a progressive has actually done something that is actually common sense.  HB 874 makes it no more difficult to join a union or organize a work place to become union, and union members can continue to protest non-union companies vocally and visibly.  What they cannot do is engage in conduct that has no place in any civil society, which, indeed, makes common sense.