February 10-16, 2005

loose canon

Princes of Darkness

What will it take to curb the Zoning Board's love of high-rises?

by Bruce Schimmel

Denise Goren is thrilled that she will continue to see the sun from her apartment near Rittenhouse Square. Ironically, she may have a pair of high-rise developers to thank for it.

In a new ruling in the feud between developers vying to outsoar each other near City Hall, a judge put a pox on both their high-rises. Commonwealth Court President Judge James Colins sharply criticized the Philadelphia Zoning Board for "abusing its discretion" by, among several errors, granting a variance that lifted the building height limit on a 15th and Chestnut streets location from 521 to 615 feet, casting City Hall further into shadows. (According to the judge, that's up to City Council to grant.)

For Goren, the appellate ruling provides a powerful precedent to beat back the board in her own neighborhood after it green-lighted a high-rise building at 17th Street and Rittenhouse. A lawyer and City Hall insider during the Rendell administration, Goren believes that "the decision significantly limits what the Zoning Board can do."

But David Auspitz, who heads the board (whose members serve at the mayor's pleasure), couldn't say if the court's decision would change the way he does business. "We are there to build the city of Philadelphia, to help the city of Philadelphia," said Auspitz from his Famous Fourth Street Deli in Queen Village.

Auspitz not only defended his board's decisions but how they're reached. "We are making a place, a people's court," said Auspitz, "where their opinions are respected."

Gersil Kay, another Rittenhouse Square resident fighting another high-rise, scoffed at Auspitz's description.

"David may say that it's a people's court," Kay said, "but it really isn't. The public is not being heard, because they hold [board meetings] when the public can't make it. They have their hearings during the day." Developers and lawyers can sit it out, but ordinary people can't, Kay said, calling many of the board's rulings "construction without representation."

And even when people are heard, Kay is skeptical that pro-conservation advocates are taken seriously. "I've been sitting in zoning for years, and no matter that you say, they decide for the developer," she said. "The developers who put thousands into election coffers get their way."

The proposed 37-story building on Walnut Street that she's fighting will take up much of the block. "The size is terrible for the square," Kay said. "It's the last open end, the last piece of the sky you can see from the park." If the building goes up as planned, "we'll be fenced in. David doesn't look at the overall consequences" of a building project, Kay said. "They ought to look at the quality of life issues."

Kay's attorney, Hal Schirmer, agreed with Goren, admitting that "a freshly minted case" should make it easier to defeat the board in court. But he quickly added that the thrust of the court's recent decision — that the board has again overstepped its authority — is nothing new. "There are a stack of decisions that ought to be stamped, "Duh, it's the law,'" said Schirmer, who regularly represents clients before the board. In allowing minor variances from the code, the board "is supposed to be a check valve, but this one is stuck open." According to Schirmer, developers routinely buy less expensive low-density zoned property located next to pricier high-density areas. "You go into a place where you can buy low," he said. "Then you change the rules [through zoning] and sell high."

For many, the Zoning Board is a rogue agency, and Schirmer predicted that this ruling alone will not change its ways. "What will change things is the new demographic of younger people who expect the law to be followed." He said young residents are not moving here to live in dark urban canyons.

Will the mayor rein in the board, or will they continue to issue huge and sometimes illegal variances? Ultimately, political observer Ed Goppelt said, how the board acts depends entirely on the mayor. "They have to do what the mayor wants," Goppelt said, "or get fired." And at the moment, despite another blistering court opinion, it appears that it's business as usual for the Zoning Board.