I don't dispute a word you say.
There is, though, an old saying: "The Supreme Court follows the election
returns." Indeed, in the year 2000 it actually did decree the election
returns.
Surely both ZBA members and Court judges follow the election returns
also. While perhaps they shouldn't, several UC-list posters have
asserted City officials were responding to political and economic
pressures every time they delivered a decision that didn't satisfy the
Campus Inn's foes. Perhaps these critics were right.
If I were advocating on behalf of a campaign against the 40th & Pine
development, then, I would prepare as good an argument as possible in
favor of its development somewhere else. It can't hurt and it might help.
Quite recently a Philadelphia Court judge dismissed as illegal a
decision on the sale of Burholme Park land to Fox Chase Cancer Ctr.
arrived at by Fairmount Park and City Council, a decision plainly based
on politics and economics. So it can be done.
I would not go so far, though, as to bet in advance on its being done.
In that case, the City was trying to beat a will, which is much harder
than trying to beat a zoning reg. The hijackers of the Barnes Foundation
beat the plainest will in America -- but the value of the conquest of
that bequest has been estimated at $2 billion, so it made sense for the
City to spend $X million to beat it. Fox Chase wasn't worth that much,
so less was spent and the case was lost at the initial hearing. Time
will tell if the City does lose that one in the end.
In the Campus Inn case, City money won't be spent on advocacy but it
will still be consumed by litigation. Courts cost money and they are
under tremendous pressure, just like libraries and recreation, to save
money in FY 2008-09. They'll have a natural tendency toward outcomes
that are cheaper, and also toward outcomes that yield more revenue. How
to work this tendency? That's the $64 question.
-- Tony West
If ZBA does any of these things, and it certainly may, it is not
following the law as set forth explicitly in the Philadelphia Code.
Unlike the PCPC, which seems to have no formal guidelines at all and
is apparently free to ignore its own earlier findings (e.g., "The Plan
for West Philadelphia" which explicitly puts the southern end of the
"40th Street Commercial Corridor" at Locust Street), and the
Historical Commission, which has rather vague guidelines and
therefore has some room for interpretation and preference, results
whose basis seems to be in that age-old maxim "/de gustabus non
disputandum est/" does not apply to zoning decisions. The Philadelphia
Code is quite explicit about the criteria for granting a variance and
about the burden of proof being on the applicant. To the extent that
alleged value to the city, for instance, is factored into ZBA's
deliberations, that administrative body is acting contrary to rather
clearly stated law and is opening itself up to embarrassing rebuke in
court.
Al Krigman
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