Philadelphia Zoning and Land Use Update - November 7, 2022

To: Ballard Spahr Real Estate Clients and Colleagues

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.

Philadelphia City Council Legislative Update

City Council introduced the following Bill No. 220843 at its October 20 meeting:

Bill No. 220843 would amend the /VDO, Fifth District Overlay to impose new affordability requirements for residential construction projects containing 10 or more units. The affordability provisions, which would require 20 percent of units be provided on-site as affordable for people earning 60 percent of the Area Median Income (AMI), would apply to certain properties located along Broad Street, 13^th Street, and 15^th Street between John F. Kennedy Blvd. to the south and Roosevelt Blvd. to the north. A hearing on Bill 220843 has not yet been scheduled.

New Regulations - Philadelphia Department of Licenses and Inspections (L&I)

Bill No. 220414, which amended the on-site landscape and tree requirements of the Zoning Code and is summarized below, was enacted on June 23, 2022. In October, L&I promulgated regulations to address the changes imposed by Bill 220414. The following summary incorporates the recently promulgated L&I regulations, as applicable.

• Bill No. 220414 amended the applicability of the Zoning Code’s landscaping requirements of Section 14-705(1) and Section 14-803(5) as follows:
  
  • Grants the Philadelphia City Planning Commission (PCPC) prerequisite approval authority for zoning permits triggering the requirements of Section 14-705 (On-Site Landscape and Tree Requirements).
    • L&I Regulation Section 1: Creates an exception to PCPC prerequisite approval authority for applications that are limited to site-clearing. L&I will review all site-clearing applications for compliance with Zoning Code and PCPC regulations.
  • Applies the on-site landscape and tree requirements of Section 14-705(1) to all development on lots greater than 5,000 square feet; all zoning applications for such developments must include a professionally-prepared landscape and tree plan.
    • L&I Regulation Section 2.1: Clarifies requirements for projects incorporating phased site-clearing and development; if site clearing is performed less than a year prior to submitting an application for development, exceptions related to site clearing activity, landscape buffering, and yard tree requirements will not apply.
  • Yard trees are generally required to be planted in RM, CA, CXM, I, IRMX, ICMX, and SP zoning districts at a ratio of one tree per 1,600 square feet of open area required.
  • Healthy trees 2.5 inch DBH or larger that are removed from the property as a result of development activities must be replaced on the same or an abutting lot unless a certified arborist determines that such tree is dead, damaged, diseased, is an undesirable species, or poses a danger to life or property. 
    • L&I Regulation Section 2.2: Clarifies that “Development Activities” are defined as any construction, reconstruction, modification, extension, expansion, or substantial improvement of structures; filling, dredging; mining; grading; paving; excavation; drilling operations; or storage of equipment or materials; land improvement; or any construction thereof.
  • Creates a new fee-in-lieu option which will allow the Planning Commission to waive landscape and tree planting requirements where existing site conditions make such landscaping or tree planting impracticable. Waiver requests should be submitted at the time an applicant makes a zoning application. A fee-in-lieu will be required for waivers from tree requirements. 
  • Requires that parking landscape and screening requirements of 14-803(5) will generally apply to the entirety of all principal or accessory use parking lots, loading spaces, drive-through driveways, and Personal/Commercial Vehicle Sales and Rentals uses, with certain exceptions.
    • L&I Regulation Section 2.3: Clarifies that 1) for outdoor Personal/Commercial Vehicle Sales and Rentals uses, the only applicable landscaping provisions are Section 14-803(5)(d) (Perimeter Screening from Public Streets for Parking Lots); 2) the provisions of Section 14-803(5) shall not be considered minimum parking and loading requirements; and 3) for the purposes of 14-801(2)(e)(.5), “newly constructed” shall mean “newly created.”
  • Increases the number of trees required along the boundaries and within the interior of parking lots.
  • Requires trees in new locations not currently regulated by the Zoning Code, including in rear yards, between certain zoning districts, along highways and railroads, for drive-through uses, and for vehicle sales and rental uses.

Amended Zoning Permit Application Requirements

Amended L&I regulations establishing criteria for zoning permit amendments became law on October 24, 2022. The amended criteria will be applied to all zoning permit amendment applications received after October 24, 2022.

• An application to amend a Zoning and Use Registration Permit must address the same subject matter as included in the original application and must include one of the following:
  • Compliant changes (increase or decrease) in building height which do not exceed 10 percent of the approved height or a single story.
  • Compliant decreases in gross floor area (GFA) or building footprint.
  • Compliant increases in GFA or building footprint which do not exceed 10 percent of the original approval.
  • Additions, removal, or modifications of roof decks and roof deck access structures complying with Section 14-604(5) of the Philadelphia Zoning Code.
  • Compliant modifications to parking configuration.
  • Compliant modifications to legal signs.
  • Removal of a use from a group of previously approved uses.
  • Comparable changes that do not increase the intensity of the approved use.
• A new Zoning Permit is required for any new uses or increases in GFA, building footprint, or height which are greater than 10 percent of the original approval. It is possible that pursuit of a new Zoning Permit for such changes could subject an application to amendments or updates in the Zoning Code that have occurred since the original Zoning Permit application was submitted.
• A deviation (increase or decrease) in building height of three feet or less that complies with the maximum building height allowed by the Zoning Code and does not result in a change in the number of stories is permitted under original approval and does not require a permit amendment.
• Modifications to permits that were approved by variance or special exception are permissible provided that the application is consistent with the variance, special exception or proviso.
• A permit application awaiting a decision of the Zoning Board of Adjustments (ZBA) may only be amended under the authorization of the ZBA.

- The Ballard Spahr Zoning and Land Use Team

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