Changing Skyline | Zoning board thumbs its nose at laws

In the marbled corridors of Philadelphia's government, he is often invoked by nickname, sotto voce, with a touch of grievance:

Lord Auspitz

. In the sunny hearing room, however, it's always

Mr. Chairman

.

The gentleman in question is David Auspitz, the powerful head of the city Zoning Board of Adjustment. When the voluble Auspitz likes a project, he's not shy about letting his colleagues know. Just recently, he gushed about the glassy 23-story Americana, a condo building proposed for Old City by Yaron Properties. Despite one member's warnings about allowing a high-rise in a historic neighborhood, the board gave the 268-foot tower a green light.

There's just one, not-so-little hitch: The legal height limit in Old City is 65 feet. It's been that way since 2003, when City Council passed, and Mayor Street signed, a law to control the incursion of skyscrapers into a neighborhood that includes Christ Church, Betsy Ross' house, and a rich collection of cast-iron buildings.

The height cap, known as a zoning overlay, was put in place to preserve Old City's low-rise scale and to protect views of Christ Church's 300-year-old steeple. But in granting Yaron's request last month for 10 variances, the board unilaterally chose to ignore the law - and the public will.

It's not the first time that the Auspitz-led zoning board has acted in a manner that appears inscrutable, if not outright capricious. In July, the board revoked approvals for the proposed 47-story Barnes Tower just off the Ben Franklin Parkway after city licensing inspectors determined that it met zoning requirements. But Auspitz, whose Famous Fourth Street Deli once served as an unofficial Democratic clubhouse and who now runs a high-end cookie-baking company, didn't like it. The tower, he declared, was too tall for the neighborhood.

Who makes the land-use law in this town, anyway? Philadelphia's elected officials or its famous cookie maven?

That question will gain extra urgency if Council passes a major package of zoning bills when it returns from vacation this month. The main bill, sponsored by Frank DiCiccio and Jim Kenney, would create a special commission to streamline and modernize the city's sclerotic zoning code. The bill could kindle the most significant reform effort Philadelphia has seen in half a century.

An updated zoning code would eliminate the constant requests for variances - and, in theory, the wheeling and dealing and political contributions that go with them. Since New York City updated its zoning code, variances are as rare as three-dollar bills. But what happens if Philadelphia's proposed Zoning Reform Commission spends 18 months and half a million dollars rewriting the code, only to have the zoning board continue to decide cases on its own erratic terms?

The response from DiCiccio, Kenney and others basically boils down to "Let's hope for the best."

"Dave Auspitz acts like a tyrant," Kenney concedes. "Some have tried to tamp that down, but it hasn't been successful."

Both he and DiCiccio note that City Hall will be occupied by a new mayor by the time the new code is finished. Since it's the mayor who appoints the zoning board, Auspitz and his colleagues will gradually be replaced as their terms expire. Yet who's to say that Auspitz's successor won't be just as heavy-handed?

Auspitz denies that he or the board acts arbitrarily, and insists he has adopted a populist approach to zoning. "I feel I do what is right in my heart," he said.

When asked why he voted to approve Yaron's 268-foot-tall Americana, he argued that "height is not a critical issue" in zoning - a position at odds with his stand on the Barnes Tower. He added that high-rises are essential if Philadelphia expects to prosper. "Listen," he said, "you can't build a 21st-century city in an 18th-century body."

As a philosophical stance, it's not outlandish. But it's sure not an accepted legal basis for zoning variances. The law allows exceptions to the zoning code only when developers can prove "hardship."

That occurs when a site's zoning classification is so out of sync with modern reality that nothing can be built there. But Yaron would have had no problem building a typical 21st-century residential or commercial building at Second and Arch Streets, as long as it was 65 feet tall.

It's true that zoning is as much an art as a science. Hardship decisions will always be subjective, especially in a city where the zoning code dates to the dawn of television. But it's not up to the zoning board to pick and choose the parts of the code it likes. Unlike other Philadelphia agencies, no city solicitor attends zoning board meetings to offer legal guidance.

What makes the Yaron decision glaring is that Old City's height limit is fresh law, scarcely three years old. "We spent so much time trying to do the right thing, and look where it got us," said Rich Horrow, president of the Old City Civic Association. The group is considering an appeal.

Auspitz's zoning board has played loose with the hardship standard before. Over the objections of the city's professional planners, the board approved the fistful of variances for a controversial new parking garage in the heart of Chestnut Street's struggling retail corridor. At the time, Auspitz promised it would spark a retail revival. So far, the garage's retail is unrented.

The Yaron decision particularly stands out because it was opposed by a high-powered coalition that included Christ Church, the National Park Service, the Design Advocacy Group, and the Preservation Alliance. It did have several prominent supporters. They included Gov. Rendell, who received $200,000 in campaign donations from developer Michael Yaron and sent Auspitz a letter enthusiastically supporting the high-rise. In the letter, Rendell explained that he loved the look of the building.

While the design of Yaron's tower, by the Pei Partnership, is a notch better than some recent Philadelphia high-rise projects, praising its form misses the point.

What Philadelphia needs even more than good architecture are good zoning policies, the kind determined by law, not by the whims of men.

Inga Saffron blogs about Philadelphia architecture at http://go.philly.com /skylineEndText