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.


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