Q&A: Attorney Cheryl Gaston on the Zoning Board's Role in Philly Development and Planning


As part of our ZBA Draft campaign to elevate the conversation about Mayor Kenney's next Zoning Board appointment, we reached out to a few Philadelphians with deep practical knowledge of zoning to answer some questions about the Zoning Board's role in Philly development and planning. 

We sourced questions from people on all sides of city development issues--neighborhood advocates, Planning Commission staff, zoning attorneys, and developers--with the aim of getting at some of the high-level questions the Mayor should be thinking about as he chooses a replacement chair.  

Our first Q&A is with Cheryl Gaston, a zoning attorney at Spruce Law, and one of Jim Kenney's 2016 appointees to the Philadelphia City Planning Commission. Gaston served as a senior attorney at the City's Law Department through four Mayoral administrations, where she worked extensively on zoning issues. Read her answers below, and stay tuned for more ZBA Q&A's.

A philosophical query: What is the purpose of a zoning code?

Zoning allows a municipality to plan for its orderly development. A zoning code should provide a “road map” with clear and consistent guidelines and standards for implementation of the planning and legislative developmental goals of the municipality.

What is the role of each of the following in the variance process: District Council member, RCO, Planning Commission, and ZBA?

The Zoning Board may reverse or affirm wholly or partly the determination of the Department of Licenses and Inspections (“L&I”) to deny a permit and make such decision “as ought to be made” with respect to a variance request.

The Planning Commission makes an advisory only recommendation to the Zoning Board with respect to whether a zoning variance should be granted.

The RCO is to meet with the applicant and provide a summary of that meeting along with their position with respect to the grant of a variance (support, oppose, support with conditions).

The District Council member designates the coordinating RCO and may support the RCO position with respect to a variance request.

How would you determine whether an appellate remedy or a legislative remedy is more appropriate for a given case?

The Zoning Board is not empowered to make either an appellate remedy (exclusively reserved to the Pennsylvania court system) or a legislative remedy (exclusively reserved to Philadelphia’s City Council) concerning a variance request. In addition, such individual remedies may implicate spot zoning (arbitrary exercise of municipal police powers in land classification) or contract zoning (improper trading away of police powers by a municipality), ultra vires (illegal) acts by the municipality.

How much should the ZBA weigh RCO letters of recommendation? If you were appointed, would the feedback provided by RCOs be considered more or less important than testimony/letters provided by City Council or private citizens?

The RCO letter summary format is designed to advise the Zoning Board of the nature and quality of either the support or opposition to a proposed project. The Zoning Board may give whatever weight they choose to such letters/feedback from RCO’s, City Council or private citizens and, such feedback should be considered as part of the total presentation with respect to each variance request.

What are your views on 'minimal relief' for a variance? Please site either a specific project example or common project type that you believe deserved/deserves a variance but exceeded the principles of minimal relief.

The concept of least minimum variance is that the relief granted should not exceed that necessary to cure the applicant’s hardship and/or should be the least modification of Code requirements (e.g. 2-family dwelling, not 3-family dwelling; dimensional variance, not a use variance). To grant a variance, the Zoning Board must determine the following: (1) an unnecessary hardship exists; (2) there is no detriment to the public health, safety or welfare; and (3) the relief granted is the least minimum necessary. While I cannot point to specific examples, ostensibly, the concept of least minimum variance should have been considered in any previous Zoning Board approval.

What level of hardship would need to exist for you to support two controversially granted types of variances: front-loading garages and signage?

The definition of hardship is the same for any use variance, the applicant must demonstrate that the property is: (1) Unique-due to a physical condition such that it cannot be used for any permitted purpose; (2) Valueless-with either no value or only distress value for any permitted purpose; or (3) Useless- the property can’t be converted to a permitted purpose without demolition, extensive reconstruction or prohibitive expense. While the concept of unnecessary hardship should act as a significant impediment to granting any variances that has not been the case over the years. With respect to the specific uses mentioned, the new Zoning Code discourages off-street parking generally and specifically limits off-street parking to the rear in several districts. Signage (non-accessory) is usually in addition to the use permitted at the property and, as a general rule, applicants are not entitled to the highest and best use of a property.

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