December 10, 2009


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ZBA decision on Good Food Market ‘not unusual,’ attorney says

The surprise variance denial that ended the four-month Good Food Market saga has forced the Chestnut Hill Community Association leadership to closely examine how it vets applications for zoning relief.

In a crucial first step, CHCA president Walter Sullivan last week invited Carl Primavera, a renowned land use and zoning attorney with Klehr Harrison Harvey Branzburg & Ellers, to brief the board’s land use, planning and zoning subcommittee on the intricacies of the city’s zoning-review process.

“It is very unusual that there is no controversy,” Primavera said, indirectly referencing the bitter dispute between market owner Jennifer Zoga and near neighbors of the 12-18 W. Willow Grove Ave. property. “The process is really one that is uniquely democratic. It’s a very transparent process.”

Some business leaders in Chestnut Hill, most notably business association president Greg Welsh, have argued that the CHCA’s process was undermined by political interference. Even though the CHCA board of directors voted unanimously to support Zoga’s variance – after Zoga agreed to a set of provisos that the most vehemently opposed neighbors dismissed – the zoning board voted 3-1 to deny variance.

Donna Reed Miller, the Hill’s representative in City Council, wrote a letter to the Zoning Board of Adjustment opposing Zoga’s application for takeout coffee, gelato, sandwiches and salads. So did William Greenlee, a councilman-at-large, and State Rep. Cherelle Parker.

The Democrats also drew heat from Paul Davies, a deputy editorial page editor of the Philadelphia Inquirer and Chestnut Hill resident, who said in a Nov. 20 opinion piece that Zoga and her business partner, Liz Bales, had been “kneecapped by petty Philadelphia politics,” and that “the opposition amounted to a political mob hit on a couple of moms trying to launch a small business in the middle of a recession,” which “sends absolutely the wrong message in a city struggling to generate jobs and tax revenue.”

Nonetheless, Primavera suggested that the Good Food Market dispute was transparent and democratic.

Near neighbors may not be “entirely objective about what they see as a negative impact” when it comes to a zoning variance, Primavera said. But under current zoning law, their perception of a development’s impact carries the most weight because they are most directly affected.

Previously, city zoning law provided any aggrieved taxpayer with legal standing, according to Primavera, but the state courts have since ruled that localities, even those with their own home-rule charter, must limit legal standing to those who are most directly impacted by a development.

When considering requests for zoning relief, the ZBA must find that an applicant has proved unnecessary hardship – i.e. the property is structured in such a way that enforcement of the zoning law would be unfair to the applicant – and that the variance would preserve the community’s health, safety and welfare.

Defining near and direct is a more complicated matter, Primavera said. Civic groups like the CHCA are expected to turn a community’s many disparate opinions into one voice through compromise. The zoning board tries to balance the needs of the community and neighbors, but that’s not always possible.

Sometimes a consensus cannot be reached, and the near neighbors retain their right to appeal the zoning board’s decision if a variance is approved.

In terms of impact, Primavera said, the zoning board tries to determine the degree of change that will come with a variance approval.

Both public and expert opinion is factored into the ZBA’s decision-making process, which tends to be subjective in the end.

But then there’s councilmatic prerogative.

City Council has the power to change zoning law by statute, according to Primavera, and “the reality is, whatever a council person for the district wants will be supported.”

The zoning board tends to respect that power when a district councilperson weighs in on a variance application, Primavera said, especially when near neighbors of a property feel that their quality of life will be negatively impacted by a development.

“It may have been unusual in the Chestnut Hill situation, but it’s not unusual for the zoning board to go against the community,” he concluded.

* * *

Chestnut Hill College, whose plan to seek an Institutional Development District designation from the city has already ignited opposition from a group of near neighbors. If the IDD status were approved, the college would be exempt from filing variance applications at every step of its expansion so long as it sticks to its master plan.

In a recent e-mail to Sullivan, George Thomas, a spokesman for the Northwest Wissahickon Conservancy (a group of near neighbors that has raised serious concerns about the consequences of awarding the college an IDD), said he opposed the IDD “because it is obviously destructive and it is the vehicle by which massive, unwarranted change comes to this area, and once it comes, becomes the model for every other organization with a large site.”

Still, recognizing the college’s need to expand, Thomas said that members of the conservancy were willing to form a Working Group with other community stakeholders “to get a good and enforceable and mutually beneficial agreement with the college.”

Although the group is still in its early stages – it was not clear at deadline who would participate in the six months leading up to the college’s IDD presentation to the city – there is already evidence of dissension, both in the Working Group and among near neighbors of the college’s Sugarloaf property at Bells Mill Road and Germantown Avenue.

Following Primavera’s presentation at the Dec. 3 LUPZ meeting, committee member Larry McEwen, whom Sullivan appointed to head the Working Group, took issue with Thomas’ “premature” dismissal of an IDD, which, according to Primavera, can be specially tailored to meet the needs of the broader community.

McEwen explained his position in an e-mail to Thomas before the LUPZ meeting: “As we have discussed, the Working Group intends to study in greater detail the implications of the proposed Master Plan and the request for changed Zoning status, in terms of environmental and cultural preservation, design framework and infrastructure issues, financial commitments, and development value.

“The expected result is the formation of a workable agreement that will allow the College to productively advance its mission in a manner that respects the historic and natural fabric of this area of Chestnut Hill, and can be monitored as the College’s needs inevitably change over time. While by no means decided, it is thought by many that the agreement would most appropriately be made between the College and the Community Association on behalf of the entire Chestnut Hill community.”

McEwen also wrote that the process calls for “ample input” from the Chestnut Hill Business Association, the Chestnut Hill Historical Society, Friends of the Wissahickon and the conservancy.

“It is of paramount importance that the Working Group pursue, with our considerable talent and intellect, an interest-based study, formulating a position together as a result, not as a prerequisite of our work,” he wrote.

McEwen’s was writing in response to an e-mail from Thomas to CHHS president Frank Niepold concerning a Dec. 7 meeting to be convened by the conservancy at 7 a.m. 

“Frank – there had better not be a mob at the door … this is a by invitation only meeting as per our communication to all – some of whom will not stay for a mob meeting,” Thomas wrote. “As you know, we have organized this meeting and we will run it including all in the process.”

Both McEwen and Sullivan seemed to regard this as a snub to the community association. But at the meeting and in subsequent e-mails to conservancy leaders, Sullivan has asserted the board’s authority to run the Working Group and include near neighbors of Sugarloaf who told the LUPZ that the conservancy did not represent them.

“We understand that no organization no matter how effective will likely attain complete unanimity,” Sullivan wrote in an open letter to conservancy president James Pope on Dec. 5. “However, CHCA, as the organization which represents the entire community including all the residents, may not properly participate in any undertaking which does not include all. I leave to Larry the responsibility of resolving with George and yourself this important and perhaps delicate matter.”

The details of the Dec. 7 meeting were not clear at deadline, but e-mails suggest that the conservancy and CHCA leaders want to forge a good relationship going forward.

“All agree that the process be conducted under the auspices of the CHCA and specifically under Larry’s direction,” Sullivan wrote to CHC president Carol Jean Vale on Dec. 7.

“There is unanimous support for the growth of the College, and a recognition of the importance of the Sugarloaf site to you,” McEwen wrote to Vale. “We are working to organize notes taken in several breakout sessions into a cohesive document, and I will forward that to you as soon as possible.”

The group is expected to start analyzing the college’s master plan in January. An initial meeting with the college will likely be held Jan. 12.



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