Philadelphia Zoning, Land Use, and Construction COVID-19 Update - April 1, 2020

The Ballard Spahr Zoning and Land Use Team is continuing to monitor all aspects of the City of Philadelphia land use approval process during the COVID-19 emergency, including the issuance of zoning and building permits, permissibility of construction work, and changes to relevant court filing deadlines.

Below is a current status report on a number of key items, including several changes since our March 25, 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. 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 are available via an online form here.

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 very unlikely that any City public meetings will be held during the month of April. The City is, however, exploring methods of holding virtual public meetings in the future, keeping in mind open meeting law requirements.

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 feige.grundman@phila.gov. 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.

Construction

Pursuant to the Governor’s order, all construction and construction-related businesses in Pennsylvania are required to shut down their physical locations. 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.

In Philadelphia, all non-life sustaining, non-emergency construction sites had until March 27 to be made safe and secure. The City is not providing exemptions for substantially completed residential projects, unlike the Commonwealth. Contractors shutting down construction sites must take proper measures to protect adjacent properties, remove or fasten items that are or could become loose, secure sites against trespass, and complete work necessary to protect and ensure the structural integrity of buildings under construction. Occupied residential properties must be left in a safe and habitable condition. If a contractor plans on performing emergency repairs or replacements, he/she must obtain a permit three days before he/she begins construction. Additional guidance from the Department of Licenses and Inspections is available here.

Licenses and Inspections

L&I employees working on zoning and building permits are generally telecommuting where possible. L&I’s online eCLIPSE permitting and licensing system has been live since mid-March. L&I guidance on obtaining permits for pre-eCLIPSE applications is available here; we have begun to obtain permits based on pre-eCLIPSE applications. The Municipal Services Building at 1401 JFK Boulevard has a small security staff on site that is receiving mail deliveries to L&I during normal business hours, and we are maintaining contact with telecommuting examiners to confirm receipt of deliveries, but most permitting operations are proceeding electronically.

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.

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 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 that date. 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 michelle.rand@phila.gov, suletazba@gmail.com, kristin.bray@phila.gov, Joanna.klein@phila.gov, and lawcodeenforce@phila.gov. 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 are postponed through April 22, and will be rescheduled once the Board reopens. The ZBA is suspending 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 that date.

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 Civic Design Review Committee or Zoning Board of Adjustment. 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 for the U.S. Environmental Protection Agency.  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.  Note that state and local authorities have not announced similar policies, and in fact in the Pennsylvania Department of Environmental Protection’s case, the agency has expressly stated that it intends to enforce all environmental laws without regard to COVID-19 issues. More information is available in an earlier Ballard Spahr alert discussing the EPA policy. 

Permit Postings

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.

Streets Department

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. 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.

Water Department

At least some Philadelphia Water Department employees currently are telecommuting and are actively monitoring projects. Applicants are encouraged to email questions to pwd.planreview@phila.gov.

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.

Courts

As of March 18, 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 from March 19 through at least April 3. 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 3. 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 in the immediate future. The court closure order is clear that it may be extended; each judicial district may extend the closure for its district, although Philadelphia has not yet done so. The Managing Director of Philadelphia announced on March 30 that his office will be issuing a City directive regarding evictions this week, and his office believes that the courts will follow the City’s lead.