What a ban on roof decks in a corner of North Philly says about the city’s zoning code

City Council President Darrell Clarke introduced a bill last week to ban roof decks in the East Poplar neighborhood. The bill would also limit new construction in the area to be no higher than the tallest structure on an adjacent lot.

If passed, Clarke’s bill would establish the East Poplar Overlay District, and the new rules would apply to all land where residential construction is allowed under the current zoning in the quadrant between Spring Garden Street and Girard Avenue and Sixth and Ninth Streets.

Clarke says the East Poplar Overlay District will save rowhouses from being literally overshadowed by newer, taller construction.

The neighborhood “is now a place where significant numbers of large scale developments are being built right in the middle of rowhome communities,” Clarke said. “The need to preserve the character of these rowhome neighborhoods is very significant.”

Councilmembers Curtis Jones and Jamie Gauthier also proposed zoning overlays at last Thursday’s meeting.

Zoning legislation is a complicated topic with a lot of jargon, but it is a vital tool for district City Council members who are granted a lot of leeway over matters of land use in their territories (a tradition known as councilmanic prerogative). By passing overlay legislation, Council members can create carve-outs within the city’s overall zoning code to appease constituents, punish enemies, and implement hyperlocal priorities.

Read on for The Inquirer’s explanation of the jargon and to better understand how Clarke’s new bill exemplifies the way City Council shapes how Philadelphia is built.

Zoning laws allow local governments to control how land in their jurisdictions can be used. They create broad categories — like residential, commercial, industrial, or mixed use — that are mapped across every plot of land in their municipal boundaries. Each category will have exacting rules, including how many units can be built, how high a building can be, and what kinds of businesses can be operated there.

Good-government advocates say that zoning codes should create clear citywide rules that provide simple guidelines for real estate developers, entrepreneurs, or property owners who want to build homes or open restaurant.

Overlays are like patches on the code. They create a hyperlocal set of rules for a specific section of the city, giving every City Council district its own idiosyncratic take on zoning rules.

Greg Pastore, a former member of the Zoning Board of Adjustment, describes them as “baby zoning codes” that allow Council members to “exert control” over “different little areas of the city.”

Downtown Philadelphia’s largest thoroughfares are zoned with the citywide rules that allow for the most flexible, tallest, and densest kinds of development. This is where city planners would like to see high-rise office and housing built, and commercial corridors alive with shops, restaurants, and bars.

But it is also covered by the Center City Overlay, which includes many hyper-local specifications tailored to the demands of neighborhood groups and other interests. Although much of the Rittenhouse Square area is covered with the citywide zoning categories that allow the densest and tallest kinds of residential towers, the overlay specifies that no student housing is allowed in the neighborhood.

Similarly, although the commercial main drags of Walnut, Chestnut, and South Broad Streets are zoned to allow restaurants and bars, the overlay requires business owners to get permission — a “special exception” — from the zoning board before they open. Before their hearing, they must also meet with community groups.

In exchange for a neighborhood group’s support, restaurant owners will often strike deals about their hours of operation, the availability of takeout, or whether dancing is allowed on the premises.

During Mayor Michael Nutter’s term, after a significant influx of population and capital for the first time in half a century, the city rewrote its zoning laws in an attempt to create a simple citywide code that would allow new construction and new businesses.

The old code, created in the mid-20th century, was seen as an obstacle to revitalization. It was hyper-specific — infamously including provisions for which zoning categories allowed factories to make ravioli or angel hair pasta — and the city’s zoning maps were covered in overlays that essentially gave many neighborhoods, or even blocks, their own rules. In many cases, the overlays were so old no one could remember why they existed in the first place.

This made it difficult for aspiring developers and shopkeepers to operate if they didn’t have connections to politicians or city bureaucrats who could help them navigate the byzantine system.

The new code gave Philadelphia a fresh start and incorporated many modern urban planning best practices, including not forcing new housing projects to provide one parking spot for every home.

But for some neighborhood groups, and their City Council members, these new rules made development a little too easy — especially if it created taller, denser, or roofdeck-crowned structures that stuck out in the neighborhood.

“Based on the changes that were put into the new zoning code, unbeknownst to a lot of people, they allowed a significant level of high-density projects,” Clarke said last week.

In response, Council members like Clarke created a few dozen sets of neighborhood-specific rules that have been added to the new code. In the Far Northeast, new medical uses are banned as part of a broader effort to keep out methadone clinics or drug rehab centers. In Society Hill, citywide zoning rules limiting parking requirements and allowing multiple units in historic buildings are voided to temper new development.

Critics of City Council’s overlay-happy ways say that the city’s decade-old zoning code is getting harder to use. The rules are only navigable with a zoning attorney, and connections with local officials and neighborhood groups gives the advantage to monied, or politically connected, business owners. It can discourage newcomers to Philadelphia, or those with historically less access to capital.

“It makes it more difficult for smaller mom-and-pop people, because they need way more legal help than they would if the system was uniform and straightforward,” said Gary Jonas, president of the Building Industry Association, which represents residential developers.

Those challenges have been exacerbated for business and property owners as the zoning board — which considers applications from those seeking to build around zoning rules — has slowed to a snail’s pace. During the pandemic, wait times doubled, and in 2022 the average wait for a hearing was six months. That puts intense financial pressures on small-business owners, some of whom can’t afford to wait half a year with no income to open their shop.

Business owners new to Philadelphia or who can’t afford to have a lawyer on retainer “might get in a bad situation by buying something assuming they can do certain things and then find out they can’t because there’s this goofy overlay that somebody put in place,” said Jonas.

Despite those challenges, there is little incentive for City Council to do things differently.

Overlays have given Council members like Gauthier a way to implement affordable-housing requirements in the most desirable parts of her district, which she could never pass at a citywide level due to intense opposition from developers.

They have given Clarke the power to assuage concerns about parking, which has become more competitive as new residents move in. For politicians like the Council president, the overlays are a means to address fears of neighborhood change and fight back against aspects of the new zoning code he does not like. It is a tangible win he can deliver to constituents in neighborhood groups who are the ones most likely to attend community meetings, call his office, or vote.