Philadelphia Zoning, Land Use, and Construction COVID-19 Update - April 30, 2020

This is a current status report on a number of key items, including several changes since our April 22, 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. Non-life sustaining businesses will be allowed to open on a phased, regional basis beginning May 8. Construction related businesses, however, may reopen beginning May 1, as described in the Mayor’s Executive Order.

Until businesses are allowed to reopen, state agencies and local officials have been instructed to take enforcement actions against all non-life sustaining businesses that are not compliant. 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 were due by April 3.

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, as described in the Mayor’s April 29, 2020, Executive Order. Construction requirements are discussed in greater detail below.

Public Meetings

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 unlikely that any City public meetings will be held during the month of April. Although, on April 20, Governor Wolf signed into law Act 15, formerly Senate Bill 841, 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. In Philadelphia, it is not clear if Act 15 covers meetings convened by Registered Community Organizations (RCOs), which are required under the Philadelphia Code to hold public meetings as part of the Civic Design Review and Zoning Board of Adjustment processes. The current RCO meeting requirement is holding up many midsize to large projects in Philadelphia, even those that are as-of-right under the Philadelphia Zoning Code.

Tolling of Deadlines

Act 15 also hits the pause button on 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 are suspended as of the date of the COVID-19 emergency declaration, or as of the date an application is received during the emergency. Time limits will resume 30 days after the effective date of Act 15. This suspension of deadlines applies to the expirations of zoning and building permits, as well as the deadlines for municipal agencies to act on applications before they are 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 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 were required to shut down their physical locations until further notice. Starting May 1, all construction-related businesses will be allowed to reopen in accordance with Governor Wolf’s and Mayor Kenney’s orders. Upon restarting, businesses must adhere to safety guidelines issued by Pennsylvania’s Secretary of Health and the Centers for Disease Control. Construction in Philadelphia must adhere to guidance issued by the Mayor by Executive Order on April 29. More information about the restart of construction can be found here, and the Mayor’s guidance can be found here.

Until May 1, the moratorium on construction remains in place. This mandated shutdown, 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. All other residential construction projects may only continue to the extent necessary to stabilize the site, temporarily prevent weather damage, or make emergency repairs. No new construction or non-emergency rehabilitation or remodeling may be performed. The Pennsylvania Department of Labor and Industry is suspending certain regulations related to building construction (where permitted), including but not limited to the expiration of asbestos professional licenses and lead professional certifications.

In Philadelphia, all non-life sustaining, non-emergency construction sites had until March 27 to be made safe and secure. L&I is 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 a corresponding fine of $1,000 per day of violation, the suspension or revocation of the contractor’s license, and a referral to Commonwealth authorities.

Testing, maintenance, certification and repair of life safety systems may continue. Construction to ensure the safety of a building and habitability of an occupied residence may continue as long as permission is obtained from the Department of Licenses and Inspections. The permission request must include the project address, permit number, the nature of the work, the time required, and the proposed safety provisions. Requests to perform structural work or weatherproofing should include site pictures and engineering reports about the needed construction. Contractors must also obtain a permit within three days of commencing any emergency repairs and replacements. Additional guidance can be found here.

If a waiver was granted, the business is limited to the scope of the waiver and is subject to compliance with social distancing and other mitigation measures issued by the State to protect employees and the public. The business must also provide proof of the waiver, including the specific job site, to L&I via e-mail at codeissues@phila.gov and to the Water Department at pwd.planreview@phila.gov.

If a construction business is exempt from the shutdown, due to its classification as a life-sustaining business, it should notify L&I and the Water Department of its exempt status. Even though the business is exempt, it cannot begin construction unless the construction pertains to one of the permitted categories enumerated above or otherwise complies with the Mayor’s guidance.

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 contact L&I at codeissues@phila.gov. All physical copies of issued permits will be held at the Municipal Services Building at 1401 JFK Boulevard until the City shutdown ends, but electronic copies will be made available, along with electronic billing statements. 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.

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 e-mail L&I at codeissues@phila.gov.

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; applicants should disregard any automated notifications received in the meantime. Formal guidance will be issued in the coming days. L&I has also 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 March 13. 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 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 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.

Permit denials and the ability to appeal are currently available through eCLIPSE if the denial was issued after March 15. In addition, the Board of Building Standards and the Plumbing Advisory Board will begin holding hearings virtually starting in May. Participation in the hearings will be optional. 

Zoning Board of Adjustment

All ZBA hearings through May 16 have been cancelled and will be rescheduled once the Board reopens, which will likely occur a few weeks after the City reopens. When the Board reopens, 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.

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 ZBA. 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 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. The Pennsylvania Department of Environmental Protection 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 e-alert on that topic. Here is a link to the previous Ballard Spahr e-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 do 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 US 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 Northern Plains Resource Council v. United States Army Corps of Engineers 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.

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. 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.

Water Department

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

The Water Department is also 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 June 1.

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. Delays of five to seven business days 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 preservation@phila.gov. 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 preservation@phila.gov. 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 April 9 meeting of the Historical Commission, the April 15 meeting of the Committee on Historic Designation and the April 21 meeting of the Architectural Committee have been postponed. New dates for the meetings will be announced when they are rescheduled. The Historical Commission hopes to begin conducting virtual meetings in May.

Philadelphia Art Commission

Art Commission staff members are working remotely. All Art Commission and committee meetings for April, however, have been postponed. The Department of Planning and Development is actively working to arrange for the May meeting of the Art Commission to proceed remotely.

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 Planning Commission will hold a public, virtual meeting the afternoon of Thursday, April 30. Details about streaming the meeting can be found here. PCPC is still evaluating their plans for Civic Design Review Committee meetings because PCPC cannot compel Registered Community Organizations to hold community meetings during the current stay-at-home order. Although, PCPC is surveying RCOs to understand their current capacity.

Courts

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 on April 28. The new order extends the statewide judicial emergency to June 1, but mandates 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. Philadelphia county courts, however, are still under a local emergency order, and the First Judicial District will remain closed until May 29. As a result, in Philadelphia, all time calculations and deadlines are suspended through May 29. 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 prior to May 29.

In addition, all Philadelphia Sheriff’s Tax Sales and Mortgage Foreclosure Sales scheduled for May have been postponed to July. More information can be found here.

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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.