Preemption and Its Discontents: Zoning and Billboards

Building on both our attempt to go over recent history, as well as to deal with a big issue in Philly- the constant preemption of our laws by the State- I recently wrote about preemption and guns. Today, I am tackling some very recent history- the State and its attempts to save the Billboard industry from our pesky billboard laws:

Philadelphia’s right to zone, while recently in the news due to the Casino fight, has in fact been an ongoing issue for a number of years. In fact, a significant preemption of the City’s zoning rights came in 2005, in an attempt to appease the Philadelphia billboard industry and silence a number of successful Philadelphia anti-billboard activists. That law, known as Act 193, could be described as the “Leave No Billboard Behind Act.”

The zoning and billboard controversy starts like many zoning issues do in the City, with the City’s own zoning board not following the law. In 1991, the City passed a strict zoning law to restrict the number of new billboards that could be placed in the City. In response, the Zoning board, appointed by Mayors (Rendell and Street) who accepted large donations from the billboard companies, granted a variance for any new billboard anyway, effectively neutering the City law.

In response to the City’s non-enforcement of its own law, a community group named the Society Created to Reduce Urban Blight (SCRUB) began to appeal the variances to the Court of Common Pleas. SCRUB began to see a fair number of successes in getting the rulings of the zoning companies overturned. Effectively, SCRUB was simply doing what the Zoning Board was not, and getting the Court to enforce the law, through the appeals process. In response, the billboard companies went to work at the State level to make it much harder for SCRUB to go after them.

Unlike simply taking over schools or parking, or preempting the City’s right to regulate lending, the billboard attack did something much different: it fundamentally altered and severely restricted the rights of ordinary citizens to appeal zoning decisions. In Philadelphia, to have standing to challenge a zoning decision, a citizen needed only to be a taxpayer. In the amendment, written by the zoning industry, the legal standing was changed so that only “aggrieved parties” that were “detrimentally harmed” could challenge zoning decisions in Philadelphia. The term “aggrieved parties” meant that the only people who have legal standing to appeal zoning decisions were effectively adjacent property owners. In other words, no matter the zoning decision, and importantly, whether the issue is billboards, casinos, or anything else, Philadelphians no longer within a very short distance of a problem property have standing to appeal a zoning decision. And, even if they can appeal, first, they must go through expensive court battles to prove they have standing.

As would be expected with a law such as this, battles in the Court are now ongoing to determine just how far reaching its implications are. However, if Rep. Mark Cohen is correct, the bill not only hurts groups like SCRUB, it also hurts the ability, for example, of neighborhood groups to go after nuisance properties.

In the aftermath of the Statewide uproar over the legislative pay raise, one constant has been that the average voter of Philadelphia was not concerned with the pay raise, nor with the ensuing structural reforms that have been proposed by the Legislature and the Governor. Theories abound as to why this is, from the salaries of Councilmen, to the Philadelphia-centric scandals, to concerns instead with more pressing problems, such as gun violence. What is clear is that the push for one particular reform, an end to the late night vote, should be more important. Why? Because when it comes to their zoning rights, Philadelphia experienced a significant setback, in a little noticed amendment, attached in the middle of the night.

The zoning and pre-emption issues did not stop there of course, as we have seen with the Casinos. In any case, as far as I can tell, the long term ramifications of this preemption are still unclear. And, if we actually get a zoning board that follows the law, maybe it won't be huge. But, under the current framework, it is a pretty crappy bill, that the state imposed on us.

Well, I don't agree

Well, I don't agree completely with the City wanting control of certain legislation, I do agree that local zoning should be a municipality power and the state shouldn't regulate it outside of certain large encompassing issues (environmental, for example).

Does anyone have the list of people that voted for it?

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"yes adam gave some informative comments but he also seems to sprinkle a little adam dust on it." - merkin

It was slipped in, in the

It was slipped in, in the middle of the night, as a rider that very few people read or understood they were even voting for. A lot of people voted for it, and then the next day when it came out what just happened, protested- including the original bill's sponsor- Rep. Josephs.

A few years earlier, the billboard industry tried the same thing before, but didn't have the sense to slip it in during the middle of the night, so Perzel had to backtrack.

Should we give a free ride

Should we give a free ride to legislators that are signing bills without reading changes?

Has there been any recent work on implementing a "freeze period" for legislation? Something where there is a 24 hour period between voting and allowed changes to the bill?

honestly, I don't have much sympathy for legislators crying foul. Stuff has been getting slipped it at the middle of the night all the time. They should know to read the stuff.

In fact, unless there is somethign to the process I don't understand, I have even less sympathy for the legislators that say "I was tricked!". It shows them or someone on their staff, is not doing their job reviewing changes before they vote.

Again, doesn't seem to be one of those things that need to be fixed via legislation (midnight votes). It can easily be fixed by holding our legislators accountable.

Again, if I am misinterpreting the process, let em know.
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"yes adam gave some informative comments but he also seems to sprinkle a little adam dust on it." - merkin

You are misinterpreting the

You are misinterpreting the process.

There is no realistic way given all the last minute changes, etc., that legislators actually can always read through what they are voting on given the general PA framework. So, you many times vote partially blind, or on the recommendation of the leadership.

You have a couple choices- either give House members more staff so that everything can be read- which costs money- or put into place safeguards so that changes to bills can be read by the public, by advocates, etc- to see what is going into these bills- like the 72 hour cooling off period, or whatever.

Ok, so basically 5 minutes

Ok, so basically 5 minutes before the deadline to vote people are still sticking amendments into the bill?

Yeah, some sort of moratorium would be the easiest way.

What is the current status of legislators fighting for this? Wasn't there a little bit of a news bite with the Dems saying they wanted to reform this and then it sort of disappeared?

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"yes adam gave some informative comments but he also seems to sprinkle a little adam dust on it." - merkin

Any taxpyer standing

Unfortunately, the issue of taxpayer standing gets clouded because of the fact that people, like the commentators on this blog, believe that billboards are the only beneficiaries of the new standing law. The truth of the matter is that numerous unscrupulous people have manipulated "taxpayer standing" to conduct frivolous appeals of zoning decisions in order to delay legitimate development in this City, and/or extort property owners. Before the passage of this law, Philadelphia County was the only county in the Commonwealth that had such an open ended legal standard for taking an appeal of a zoning decision. All other counties in this state have honored that old-fashioned notion that you must actually be impacted by a decision in order to bring an appeal.
While I do not condone dead of the night legislation, and agree that our state legislature has handled legislation corruptly, this Bill eliminating "any taxpayer" standing is just and was desperately needed. While it might appear that it was intended to benefit billboard companies, the true beneficiaries are all property owners, from homeowners to small businesses to major developers. The elimination of "any taxpayer" standing represents fundamental fairness in the legal system, and the time honored notion that in order to bring a lawsuit or appeal, you must be impacted by the decision. Without common sense laws regarding legal standing, the legal system will become a circus.
And guys, it is just flat out wrong to suggest that community groups are adversely impacted by this change. If a community group has membership in the area of a property which is the subject of a zoning decision, the courts will uphold their standing. Recent court decisions have interpreted this law liberally with regard to community groups, and they will maintain their ability to file zoning appeals where their constituents are impacted by the decision.

Taxpayer Standing and the Zoning Board

Please provide an example of the "numerous unscrupulous people" who have manipulated taxpayer standing to file a frivoulous appeal of a zoning board decision; as well as how they have manipulated it. While you are right that Philadelphia was the only county to have the broader standing rule, many state laws pertain only to Philadelphia as City of the First Class.

In Philadelphia you have a zoning board that is run by Prince Auspitz and before that was run by King of Sheet Metal Tom Kelly. While other PA jurisdictions may have bad zoning boards that do not know how to apply the hardship standard correctly, and that ignore parts of the zoning code, the Philadelphia zoning board is a joke and has been for decades in terms of their near total disregard of the hardship standard; their making up regulations as they go (e.g. central air and garbage disposals in most mixed use renovations because we as the zoning board like the idea, who cares if it is no where in the zoning code or is not even relevant to the matter before the zoning board); and their browbeating developers and citizens without cause (e.g. your architect is from the Main Line, why don't you have him build the project there and hire a Philadelphia architect). People appeal zoning decisions in part beacuse the decisions and the decision making process is terrible and often times ignores the zoning code.

Earlier this year in the test case of the Presidential City billboard on I-76 off of City Avenue, the local civic was a party at the zoning board and they got tossed out by the courts on appeal as not having standing under the anti-SCRUB standing statute. The property was in the civic's recognized area. How is this upholding the civic's standing? In cases like the Dunkin Donuts/SEPTA/1234 Market St. case, who, short of a business or institution, is a near neighbor impacted party, as there is no nearby residential property?

In Philadelphia, people that drive down I-95 every day are impacted by the bad decisions of the zoning board everytime the people see a billboard that was unjustly given a variance due to the disregard of the zoning code by the zoning board.

Exactly right.

Exactly right.

And, true- it effects more than just billboards- which only makes it worse. In order to protect the billboard industry, the Legislature stuck its finger in the eye of community groups all over the City, on all kinds of zoning issues.

If there is no question who this bill served. A couple days after the bill passed, Dave Davies got a quote from the lobbyist for the industry, who said that he wrote the provision.

Taxpayer Standing was not a Philadelphia Invention

Section 14-1807 of the Philadelphia Code defines who may appeal a decision of the Zoning Board to the courts: “Any person or persons jointly or severally aggrieved by any decision of the [Zoning] Board or any taxpayer…may appeal…”

Rule 501 of The Pennsylvania Rules of Appellate Procedure specifies who may file an appeal: “Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order … may appeal therefrom.”

Under the provisions of the Home Rule Enabling Act of 1949, Philadelphia’s ordinance providing for taxpayer standing in zoning appeals has the force of statute, as if the ordinance were enacted by the Assembly.

It has long been recognized that the right to appeal zoning decisions was enlarged by statute to include any taxpayer. See: SCRUB v. Zoning Board of Adjustment, 729 A.2d 117 (Pa. Cmwlth. 1999). So applying Rule 501 of the Rules of Appellate Procedure, under the Philadelphia Code, any taxpayer has a right to appeal a decision of the Zoning Board (provided that the taxpayer was also a party to the hearing before the Zoning Board).

By decisions issued on April 4, 2007 Commonwealth Court held that the Assembly had effectively repealed Philadelphia’s taxpayer standing provision, by amending certain provisions of the Home Rule Enabling Act of 1949. See: Spahn v. Zoning Board of Adjustment, http://www.aopc.org/OpPosting/CWealth/out/1425CD06_4-4-07.pdf, and SCRUB et al. v. Zoning Board of Adjustment, http://www.aopc.org/OpPosting/CWealth/out/1528CD06_4-4-07.pdf.

Contrary to popular belief, taxpayer standing to appeal a Zoning Board decision is not a Philadelphia invention. The “any taxpayer” language was written by the Assembly, and goes back at least as far as the Zoning Enabling Act of 1929. The Zoning Enabling Act allowed any city of the first class (namely, Philadelphia) to adopt a Zoning Code, and provided guidance regarding key provisions of the zoning code, including the taxpayer standing provision.

When Philadelphia implemented its Zoning Code in 1933, provisions of the earlier enabling acts were left in place to the extent that they were not contracidted by Philadelphia’s own code. So taxpayer standing has been the rule in Philadelphia ever since 1933, because Philadelphia left in place the Assembly’s provision that any taxpayer may appeal.

In 1951, Philadelphia adopted the Home Rule Charter, giving the City greater independence from Harrisburg in governing its own municipal affairs.

The City of Philadelphia adopted the “any taxpayer” language of the 1929 Zoning Enabling Act, and explicitly incorporated that language into its own Code. The ordinance was signed by Mayor Richardson Dilworth on September 20, 1957.

The 1957 ordinance makes the Philadelphia code the exclusive law with regard to zoning in Philadelphia, superseding the Acts of the Assembly of 1915 and 1929 that related to zoning. But at the same time City Council declared those acts to be superseded by the Philadelphia Code, City Council expressly saved the 1929 language pertaining to appeals, including the “any taxpayer” language. The 1957 ordinance called for presenting to a Court of record a Petition, setting forth the grounds for the illegality of the Zoning Board’s decision.

In 1991, the procedural language was changed, so that an appeal would be initiated by presenting a Notice of Appeal to the Court of Common Pleas, setting forth the date date of the decision…

So taxpayer standing was not a Philadelphia invention. It had its origin in the sage legislative guidance provided by the Assembly in 1929.

Unfortunately, when the Assembly enacted the Pennsylvania Municipalities Planning Code in 1968, the measure for who may appeal a zoning decision was limited to “any aggrieved person”, and did not include the “any taxpayer” language. (The MPC constitutes the zoning law governing areas of the Commonwealth, except for Philadelphia.)

It is not Philadelphia that is out of step, in my opinion, by allowing any taxpayer to appeal. It is my feeling that it is the rest of the state that got Short Schrift when the Assembly neglected to include the “any taxpayer” language in the Municipalities Planning Code.

Sorry, Short Schrift – I didn’t mean to insult you.

Taxpayer standing

Peripatetic, your article fails to mention where "taxpayer standing" exists outside of Philadelphi. Here's the answer for you-it doesn't. It exists only in the Philadelphia Zoning Code. While the City, as a first class city, has the right to enact it's own zoning laws, "taxpayer standing" is solely a Philadelphia phenomenon.

This is all about

This is all about billboards, and that provision has been about billboards for a long time. SCRUB has taken advantage of that provision more than others and the politically connected industry fought in the legislature what they lost continually in court.

While the standard of being a taxpayer is a pretty low one, b/c it gives rights to folks who are not directly affected by zoning changes, most community groups use that standard as the one to get them into court to challenge zoning. The argument that community groups could simply get members from the community and use their standing to establish a sort of derivative standing is a much more tenuous argument.

This is a pro-developer move which will make it much easier for developers to dramatically change the character of the City, b/c fewer folks will be able to go to court to have their day.

And the reality is that what

And the reality is that what the law did- even if a community group has someone 12 inches from a problem property- is to dramatically increase the costs of challenging the decisions.

Because now, before they are able to actually challenge a decision, they have to go through a court battle just to prove they have standing.

I agree more with your last

I agree more with your last sentence, Truthtold ("This is a pro-developer move...") than your first ("This is all about billboards..."). Residential developers are already taking advantage of this provision to deny standing to neighborhood groups and community members who protest zoning variances. (Neighborhood groups aren't the only game in town when it comes to challenging developers -- there are very often individual neighbors with knowledge of the zoning code who contest variances.)

This is why we have so many four-story properties on three-story streets, built all the way to the back of the lot. Again, a serious zoning board (and code) with input from city planners would solve many of these problems.

Taxpayer standing

Elp-Gary Spahn appeals zoning decisions that he doesn't like no matter how far he lives from the property. The new standing law prevents him from filing appeals against zoning decisions which the community either supported or had no objections to. An attorney named Hal Schirmer also files questionable zoning appeals against projects with overwhelming support from the community.
There are MANY others like them.
This law has been a boon to property owners, small businesses and developers who are doing responsible development and run afoul of zealots like Mr. Spahn and Mr. Schirmer who decide that it is their job to file zoning appeals, no matter what kind of support the project has.
Reading responses on this blog, I ask the following question: Why is it that you all think a community group shouldn't have the same responsibility that any other litigant in any appeal matter has-to prove that it is impacted by the decision appealed? And why don't people have sympathy for a small business or property owner with limited funds who has to hire an attorney to fight an appeal filed by a lone individual who lives across the city from his project?
People need to think a little bit about the full impact of this law before having the knee-jerk reaction.
And I agree wholeheartedly with elp regarding the Zoning Board. They are a disgrace and an embarassment to this City.

The Ordinary Taxpayer

I don't know Hal Schirmer, but I know Gary Spahn, and while he may be a zealot, every appeal he's made to the zoning board that I know of has been within just a few blocks of his house, for nonconforming properties where the "responsible developers" either didn't apply for the variance in the first place, violated the amended plans they submitted for the variance, or did something else egregious that violated the character of the neighborhood -- e.g., the four story building on a three-story street, houses built all the way to the back of the lot to pad the interior square footage, residential buildings on blocks zoned for commercial development, etc. That is, fighting against the irregular, unchecked development that largely works to ruin the continuity, flow, and architectural character of our neighborhoods.

The problem is that for too many developers in Philadelphia, "hardship" means that the zoning code doesn't allow for the maximum of profitability on development of the property, and the zoning board has largely agreed. If we had a legitimate zoning board, who really tried to compel people seeking variances to show genuine hardships and conform to both submitted plans and the existing law, we wouldn't need taxpayers to try to plug the gap. Instead, developers large and small have tried to show that anyone who complains, whether it's an individual, a neighborhood group, or a large alliance of outraged citizens, has no standing, rather than to try to address legitimate concerns about variances and violations of the law. It doesn't matter whether they are "across town" or just around the corner. The law seeks to preclude anyone from hindering any kind of development in any way. That's the full impact of the law, and that's why many people have the same "knee-jerk" reaction to it. The fix is in.

It is the Zoning Board and the Mayors That Appoint Them

My major issue is that the hardship standard is routinely ignored by the zoning board. A self-imposed economic hardship or a desire to build a bigger building than the zoning code allows is not a hardship under the legal definition of hardship. While I realize that a strict interpretation of the hardship standard would basically allow for a hardship on only very rare occasions, and that in the real world some flexibility is needed on when to allow variances, the zoning board gives out hardships when they like the project, when there is support from the local Council person, when there is not the correct type of community opposition, or when they feel the zoning code is not the way they want it to be. True the zoning code is hopelessly out of date, and has a patchwork of amendments, and is in many cases not reflective of present day development needs, but that should not result in the zoning board bastardizing the process further by ignoring the hardship standards and giving out variances like candy on Halloween. Also, it would be nice to actually have some professionals on the zoning board who knew something about planning/zoning/architecture/development/law, rather than the usual rogues gallery of political sycophants.

Ironically, if the zoning board followed the hardship provision more correctly and also did not routinely ignore elements of the zoning code, there would be less need for appeals to be filed by people who oppose the variances, and a lot of time and money could be saved by not having people and groups go to court to try to get the law followed by the zoning board and the City. Also, leaders in the development community and even top zoning attorneys realize how dysfunctional the current process is and have been working to get the zoning code, zoning board, and planning commission fixed, as per the approved referenda in the last election.

As someone who has worked with SCRUB, I can safely state that they would like nothing better than to just have the billboard laws enforced (and not blown off, ignored and circumvented by various Mayors and zoning boards), so they can get away from filing court appeals and worrying about standing, and instead work with neighborhoods and businesses on other projects like developing and implementing better building façade design standards and guidelines.

Taxpayer standing

Elp-it's hard to argue with most of your points-in fact I agree with almost all of them, especially your call for more professionals on the ZBA.
I just want people to understand that property owners, not community groups, are the true victims of the arbitrary zoning process which currently exists. Certain community groups and zelaots, who too often don't represent the true wishes of the community and are usually simply the most vocal and angriest of the community residents, have too much influence on the courts and the zoning process. This law, while it may look to be a boon to the billboard industry, really just requires some fundamental fairness in zoning appeals, i.e., that those who want to stop certain proposals must demonstrate that they have some "skin in the game."

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