Evan M. Lopez
[ zoning ]
In June, City Council passed a law introduced by Councilman Frank DiCicco — to the rejoicing of one developer and the grousing of many nearby neighbors — to repeal, for one city block, a zoning overlay that had been put in place in 2002 to protect Fishtown and Port Richmond from the northward spread of the rowdy Delaware Avenue nightclub scene. On Oct. 6, DiCicco quietly introduced a second bill to repeal the repeal, reinstating the zoning protections that neighbors had fought for a decade ago.
What's up with the revolving-door legislation?
It turns out, the developer's plans — for a massive music venue (capacity: 2,700) on Richmond Street — have hit a roadblock. "We're redesigning: We have to move the venue to a different location on the site because of technical issues, and that means some delays," explains David Grasso, the developer behind the venue, in partnership with concert promoter Live Nation. "[DiCicco] didn't want to leave the community with the zoning in place if we didn't do our project. He told us that he was not going to move forward with the bill ... but he wanted to be careful."
This may be business as usual in the Philadelphia development world, but there's also another name for zoning a specific area to benefit a specific property owner: spot zoning. And that's illegal.
"Spot zoning is where you take a parcel of land and enact conditions on it without regard to the community around it; it's unrelated to the uses that are adjacent to it," explains Stephanie Kindt, staff attorney at SCRUB: Public Voice for Public Space, a local anti-blight group. "There's no rhyme or reason to it, and it's specifically for the benefit of one property owner. Clearly, creating a law that would allow a nightclub at this area to benefit this one property owner is spot zoning."
"The bill was introduced to spur some development for that particular piece of property, which may or may not at this point happen, so the councilman wanted to revert the zoning back to its original classification in case it does not happen," says Sean McMonagle, the councilman's legislative aide.
Even though the proposed repeal seems to make clearer than ever that the rezoning was designed not just for any developer, but specifically for Grasso, McMonagle discounts any legal qualms: "I don't believe it's spot zoning. I know several people have indicated that they believe it is, but I guess that's a matter of opinion. But it's not a specific address; it's an entire block of properties."
Actually, that distinction wasn't drawn until the bill's second draft. The first draft, says David Fecteau, a city planner with the Philadelphia City Planning Commission (PCPC), rezoned just the one parcel. That, says Fecteau, "was blatantly spot zoning." Eventually, he says, "[DiCicco] said, 'Fine, I'll avoid the legal hassles and take it to the whole block.'"
While that block of Richmond Street could certainly use an injection of life (and PCPC did eventually approve the proposal), some neighbors are more concerned with the injections of capital both Grasso and the firm that represented him at zoning meetings — Klehr Harrison Harvey Branzburg — provided to DiCicco's campaign fund. (Grasso gave $2,000 in June 2010; he contributed $1,000 more on Nov. 8, 2010, the same day Klehr ponied up $500.)
It's not the first time development watchdogs have cried foul in regard to legislation sponsored by DiCicco. SCRUB is currently pursuing legal action against the city over a billboard — legalized by a law introduced by the councilman — that sits at 73 Moore St., advertising a Risque Cabaret directly above a daycare. They're equally fired up over a new zoning proposal to allow 7,000-square-foot (minimum) digital billboards on a single square block in the Callowhill neighborhood — a proposal that, once again, would likely impact only one building on the block.
"The problem is when you don't go through the process — and there is a process: You have a hearing, you have meetings with the neighborhood, you go before the zoning board," Kindt says. "When there's legislation, all of that is circumvented. A lot of these laws do make it through because of councilmanic privilege" — in which Council members allow each other to manage their respective districts as they please — "and it's really inappropriate. It's not good planning, it's not good for the city and it's not following our laws."
DiCicco has introduced or co-sponsored an impressive 75 bills in this, his final year in office. (He ended his re-election bid in March after facing criticism for his participation in the Deferred Retirement Option Plan, or DROP.)
On Richmond Street, Grasso won approval despite neighbors' worries over traffic, which were exacerbated by the I-95 expansion, says Neil Brecher, president of the Fishtown Neighbors Association. "This project doesn't exist in a vacuum. There will be effects beyond the four walls of the club. There's traffic, there's noise, there could be ancillary businesses — and that could be good or bad," he adds.
But in this case, an outcry from constituents wasn't enough.
"It helps that this is not a re-election year for Frank DiCicco. I think he's just trying to tie up loose ends before he leaves office, and I'm definitely one of them," says a businessman on whose behalf DiCicco is shepherding legislation through committee hearings. He didn't want to give his name because his bill is still in process, but says his experience dealing with the city changed drastically once he hired a prominent lawyer with Council connections.
"I've had a very bittersweet time dealing with the city. I ended up obtaining a lawyer at one of the city's very large, very powerful and very expensive zoning firms," he says. "I could not have resolved [my current issues] without this particular attorney and the clout of his firm."
As for Grasso, he remains confident. He says plans could be finalized and presented to DiCicco within a week; he hopes to break ground in first quarter of 2012 and open by October. In which case, the legal issues will be moot.
"It's very difficult to say that zoning passed for a single block isn't spot zoning," muses one local zoning attorney. "On the other hand, if nobody challenges it, then what difference does it make? It's purely academic."