City Council overturns Kenney’s attempt to veto a zoning bill

Philadelphia City Council quickly voted to overturn Mayor Jim Kenney’s veto Thursday of a bill that he described as an overly broad effort to block nuisance businesses from much of City Avenue in the Wynnefield neighborhood.

The bill, which expands a zoning overlay created by Councilmember Curtis Jones, requires that many businesses seeking to open in parts of Overbrook, Carroll Park, and Wynnefield first go before the Zoning Board of Adjustment.

Jones gave a speech rallying his colleagues against Kenney’s veto and defending the larger concept of councilmanic prerogative — the norm by which district councilmembers are given total deference over land-use questions in their territory.

“Today, it’s my district. Tomorrow it will be your districts,” said Jones, who represents parts of West and Northwest Philadelphia. “If we cannot self-govern in various districts around the city and begin to determine what is acceptable, then why are we here?”

Jones introduced the original legislation, and its expansion, as a means to frustrate the opening of “smoke shops” — convenience stores that sell bongs, blunts, and other paraphernalia commonly used for ingesting weed — which have been popping up across the city.

“This overlay deals with businesses that a lot of people at the Commerce Department, and others, do not consider nuisances,” said Jones. “It may not be a nuisance to you, but they’re a pain in the ass to me.”

The Kenney administration argues that the legislation is overly broad, and that city government already has the tools to crack down on nuisance operators without burdening other businesses.

Jones’ bill requires grocery stores, restaurants, pharmacies, standard convenience stores, and many other kinds of businesses to go before the zoning board if they seek to open in the boundaries of the overlay. The expansion would extend it from covering around four acres of commercially zoned land to 164 acres.

Trips to the ZBA can be a burden for small businesses in normal times, but since the pandemic wait times have extended to six months or more and have prevented some owners from opening.

“Requiring prospective business owners to retain the costly services of an attorney and face the delay and uncertainty associated with a hearing will discourage the establishment of new businesses,” wrote Kenney in a letter explaining his veto.

Jones retorted that smoke shops could potentially open under the guise of standard convenience or grocery stores, saying that’s why the legislation needs to be so broad. He also denied that zoning is a big burden.

“If you really do your homework, talk to the community early, try to get a zoning hearing early, work with our office — we’ll help — it’s not that bad,” said Jones.

He also argued that the bill would simply require businesses to be vetted by the neighborhood. The city requires that applicants meet with the relevant community groups before ZBA hearings, and district councilmembers have often added zoning hurdles to their districts as a means to ensure neighborhood input.

But the Kenney administration contends that these additional regulations are burdensome, especially for those who aren’t already established or politically connected.

“It’s a burden on everyone, but folks who have deeper pockets and bigger staff can manage that a little more than a sole entrepreneur that’s trying to open up their first store,” said Karen Fegely, deputy director of the Department of Commerce.

There are two so-called nuisance businesses that have disturbed Jones in this part of his district, while dozens of others in the area range from Target and Chipotle to small locally owned shops. If they were trying to open today, all would be subject to the new regulations.

In his letter to Council, Kenney noted that Council has passed legislation that makes it easier for the Department of Licenses and Inspections to crack down on smoke shops that are operating in a gray zone of legality. Several have already been ordered to close without the need for burdensome zoning legislation.

“I am confident that continued enforcement of existing laws is the way to achieve the laudable goals of this bill while also avoiding the unintended consequence of excluding traditionally disadvantaged individuals from owning or growing a legal business,” wrote Kenney.

This is not the first time the Kenney administration has sought to block this kind of legislation. Before she resigned to run for mayor, Councilmember Cherelle Parker passed a similar bill that covered her district, requiring any of these small businesses to go to the ZBA to open.

Kenney vetoed that legislation as well — at a point when so many councilmembers had resigned to run for mayor that the legislative body could not muster the supermajority needed to overturn it.

That set off a complicated series of events where City Council President Darrell Clarke quickly moved to set up special elections — delaying the issuance of mail-in ballots for the midterm election — in order to get the legislative body back to full strength and pass the bill.

On Thursday, Kenney also refused to sign several other zoning bills, including one to limit building heights and ban roof decks from the East Poplar neighborhood. They will still go into effect.

The Planning Commission also asked for 45 days to consider Councilmember Quetcy Lozada’s bill that would ban safe injection sites from multiple Council districts. Because this was Council’s last session until September, the bill cannot be passed until the fall.