Governmental regulations have tightened in 2023 with regards to excavation and demolition activities in Philadelphia.

These new regulations were pushed forward due to the construction accidents that have spiked during Philadelphia’s rapid increase in real estate development over the past few years.

The city of Philadelphia’s Department of Licenses and Inspections (L&I) now requires preconstruction surveys as well as licenses and permits to allow contractors to dig more than 5 feet into the ground if the excavation occurs within 10 feet of an adjacent building structure, as excavation has been one of the main causes of construction accidents.

Furthermore, contractors are now obligated to hire site safety managers and obtain a general liability insurance policy of at least $2 million in connection with these construction activities.

In addition to increased regulations regarding excavation work, the new law tightens the regulations on modifications to party walls, requiring preconstruction surveys for the exposure of a party wall, removal of perpendicular walls, floor diaphragms, and the addition of load to the wall.

Under the new law, preconstruction surveys must include documentation of adjoining or adjacent buildings, photographs of such structures, and a statement signed by a representative of the entity performing structural observations, confirming that existing conditions identified in the survey will be monitored throughout the construction or demolition operation.

Prior to the submission of the permit application to L&I for excavation and demolition work, the contractor must now provide the adjoining or adjacent property owner with the following information: a description of the nature of the work, an estimated schedule and duration for the work, a pre-constriction survey and plans or details depicting work that may affect the adjoining or adjacent property, details of monitoring to be performed on the adjoining or adjacent property, and protections proposed to be installed on the adjoining or adjacent property.

At the time the permit application is submitted to L&I, the contractor must then either (i) include the adjoining or adjacent property owner’s signature affirming receipt of notification and statement of the adjoining or adjacent owner’s rights on the form established by L&I, or (ii) if the contractor carrying out the excavation and demolition work is unable to obtain the adjoining or adjacent property owner’s signature of receipt despite the contractor’s reasonable efforts to do so, no permit may be issued less than 60 days after either the permit application submission or the date that the notice was so transmitted, whichever comes later.

In conjunction with excavation and demolition work taking place on the site, adjoining or adjacent property owners are also entitled to receive advance notice of at least 10 days prior to the commencement of any such excavation and demolition work updating the construction schedule and providing any changes to the details required for the initial notification to the adjoining or adjoining property owners.

Please feel free to contact Alan Nochumson at either (215) 600-2851 or alan.nochumson@nochumson.com if you wish to learn more about these newly enacted governmental regulations,

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The Pennsylvania Commonwealth Court recently issued a ruling in Landlord Service Bureau v. City of Pittsburgh, 2023 Pa. Commw. LEXIS 24 (March 17, 2023), striking the city of Pittsburgh’s residential housing rental permit program (the program) under the “business exclusion” of Pennsylvania’s Home Rule Law.

In 2015, Pittsburgh enacted the program through an ordinance with the purpose of ensuring rental units meet “all applicable building, existing structures, fire, health, safety, and zoning codes, and to provide an efficient system for compelling both absentee and local landlords to correct violations and maintain, in proper condition, rental property within the city of Pittsburgh,” the opinion said.

The ordinance required rental units to be registered within the city of Pittsburgh “so that an inventory of rental properties and a verification of compliance can be made by city officials.”

Furthermore, the ordinance required rental property owners in Pittsburgh to obtain a permit designating them a “responsible local agent,” and to submit personal identifying information for themselves and any agent responsible for the property or authorized to collect rent, the opinion said.

Under the ordinance, rental property owners in the city of Pittsburgh are charged an annual permit fee, and all identifying information is entered into a publicly available database.

The ordinance authorizes the city of Pittsburgh’s Department of Permits, Licenses, and Inspections (the department) to inspect each registered rental unit at least once every three years, requires the department to issue regulations and issue a “manual of good landlord practice,” and allows the department to levy fines for violations of the ordinance, the opinion said.

After the ordinance was enacted, the Landlord Service Bureau (the bureau), a membership organization for landlords doing business in the city of Pittsburgh, initiated a lawsuit in the Allegheny County Common Pleas Court against the city of Pittsburgh and others, arguing that the ordinance was unconstitutional and seeking a permanent injunction to end the program’s enforcement.

In the lawsuit, the bureau, among other things, argued that the requirements set forth in the ordinance “constitute a regulation of its business, which a home rule municipality lacks power to do under the Home Rule Law.”

The trial court in Landlord Service Bureau held that the ordinance was a valid exercise of police powers, enacted to protect the health and safety of rental housing residents.

The bureau thereafter appealed the trial court’s ruling to the Commonwealth Court.

From the outset, the Commonwealth Court in Landlord Service Bureau reiterated that the right of home rule is constitutionally protected.

Citing to City of Pittsburgh v. Fraternal Order of Police, Fort Pitt Lodge No. 1, 161 A.3d 160 (Pa. 2017), the Commonwealth Court in Landlord Service Bureau noted that home rule allows municipalities broad authority with respect to how their government functions, so long as the locally enacted law falls within the confines of the United States and Pennsylvania Constitutions, the home rule charter, and an act of the General Assembly.

Relying upon Adams v. City of New Kensington, 55 A.2d 392 (Pa. 1947), the Commonwealth Court in Landlord Service Bureau stated that the police power authorizes “broad and varied municipal activity to protect the health, morals, peace and good order of the community.”

However, according to the Commonwealth Court in Landlord Service Bureau, Section 2962(f) of the Home Rule Law prohibits a home rule municipality from regulating the conduct of a business enterprise unless expressly authorized by a state statute.

In Landlord Service Bureau, the Commonwealth Court then discussed several rulings handed down by appellate courts in Pennsylvania which have addressed the application of the Home Rule Law to municipal ordinances.

In Smaller Manufacturers Council v. Council of City of Pittsburgh, 485 A.2d 73 (Pa. Cmwlth. 1984), the Commonwealth Court analyzed an ordinance that addressed the economic disruption caused by plant closings. In Smaller Manufacturers Council, the ordinance required the employer to notify the city of Pittsburgh when a plant closed, relocated, or reduced operations. The Commonwealth Court in Smaller Manufacturers Council ultimately found that this ordinance was in violation of the Home Rule Law because it regulated the duties, responsibilities, or requirements of businesses without being empowered by the state government to do so.

In Building Owners and Managers Association of Pittsburgh v. City of Pittsburgh, 985 A.2d 711 (Pa. 2009), the Pennsylvania Supreme Court considered an ordinance that imposed requirements upon city contractors providing janitorial and security services to commercial buildings. Under the ordinance in Building Owners and Managers Association of Pittsburgh, city contractors awarded a new contract were required under that ordinance to retain the employees of the prior city contractor for 180 days after commencement of the new contract. The Supreme Court in Building Owners and Managers Association of Pittsburgh struck down the ordinance because it placed affirmative duties upon city contractors similarly in violation of the Home Rule Law.

In Apartment Association of Metropolitan Pittsburgh v. City of Pittsburgh, 61. A.3d 1036 (Pa. 2021), the Supreme Court of Pennsylvania reviewed an ordinance that prohibited property owners from refusing to rent to person receiving housing assistance. In Apartment Association of Metropolitan Pittsburgh, the apartment association argued, and the Supreme Court agreed, that the ordinance placed an affirmative duty on property owners by making them participate in an otherwise voluntary federal housing subsidy program, which involved numerous and burdensome governmental requirements, which were not authorized by the city of Pittsburgh’s general police powers or a state statute.

Here, in Landlord Service Bureau, the city of Pittsburgh argued that the ordinance is authorized by its police power to protect the health and safety of rental housing residents.

The city of Pittsburgh pointed to Berwick Area Landlord Association v. Borough of Berwick, 48 A.3d 524 (Pa. Cmwlth. 2011), which held that rental registration and inspection ordinances are a valid exercise of the police power.

The Commonwealth Court in Landlord Service Bureau countered that the registration and inspection ordinances in Berwick and other similar cases were not as extensive in scope as compared to the one at issue in Landlord Service Bureau, in that those ordinances required a permit but limited the inspections to periods of vacancies or required a warrant.

In comparison, the Commonwealth Court in Landlord Service Bureau pointed out that the burdens outlined in the ordinance include inspections of rentals units, the employment of a licensed real estate management firm, and participation in a newly created “landlord academy” and directs the city of Pittsburgh to create a database on rental units, their inspections, and landlords, including their personal identifying information, and make this information available to the public.

The Commonwealth Court in Landlord Service Bureau concluded that, in light of express limitation of the Home Rule Law, the city of Pittsburgh was without the authority to enact the ordinance.

The ruling in Landlord Service Bureau may have an affect on other municipalities whose authority derives from the Home Rule Law, including the city of Philadelphia. It will be interesting to see if Philadelphia’s rental inspection and licensing ordinances may now be challenged as a result.

Alan Nochumson is the sole shareholder of Nochumson P.C., a legal services firm with a focus on real estate, land use & zoning, litigation, and business counseling for the people of Pennsylvania and New Jersey. Nochumson is a frequent author and lecturer on issues commonly confronting businesses, individuals and professionals. You can reach him at 215-399-1346 or alan.nochumson@nochumson.com.

Alex Goldberg is an associate attorney at the firm. You can reach him at 215-399-1346 or alex.goldberg@nochumson.com.

Reprinted with permission from The Legal Intelligencer © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.

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The Pennsylvania Commonwealth Court recently issued an opinion regarding zoning ordinance interpretations and the relationship that neighboring properties may have when an easement exists between them.

In Waldman v. Borough of Fox Chapel Zoning Hearing Board, 2023 Pa. Commw. Unpub. LEXIS 79 (Feb. 14, 2023), a property owner in the borough of Fox Chapel (the appellant) appealed a ruling of the Allegheny County Court of Common Pleas that authorized his neighbors (the landowners) to build a three-car garage on their property.

The properties in Waldman are divided by a north-south property line, and along the landowners’ side of the said property line exists a paved 40-foot-wide access and utility easement, the opinion said.

This easement provides access to the appellant’s property, the landowners’ property and the neighboring Kelley family’s property (the Kelleys).

All of these properties fall into the A-Residence zoning district, which requires a minimum lot size of three acres, the opinion said.

In 2017, the landowners’ house and garage were damaged in a fire.

Subsequently thereafter, the landowners submitted for and obtained a building permit application to the borough of Fox Chapel to reconstruct a three-car garage with a bedroom suite above it.

After the building permit was issued, the appellant objected to the issuance of the building permit, claiming that it violated the applicable setback provisions of the borough’s zoning ordinance (the ordinance).

More specifically, the appellant argued that the setback requirement should be measured from the easement line, rather than the property line, which the landowners used to measure the side setback for the garage.

The appellant stated that because the easement was paved and used as an access point for three properties, which would otherwise be landlocked, it should be considered a street.

At the hearing before the borough of Fox Chapel’s Zoning Hearing Board, the borough’s zoning officer, Paul Bell, testified that, if the borough were to treat the easement as a street, then the landowners’ lot size would fall below the required three-acre minimum. After hearing expert testimony, the zoning hearing board denied the appeal, stating that the “garage setback must be measured from the property line, not from the easement boundary.”

The appellant appealed to this administrative ruling to the trial court, which affirmed the zoning hearing board’s decision, concluding that the north-south property line between landowners’ and the appellant’s respective properties was the property starting point for the measure of the side lot setback because “no recorded plans, deeds, or other documents indicated that the easement was a right-of-way for a road, street, or lane.”

The appellant appealed to the Commonwealth Court in Waldman, raising the following issues: whether the trial court erred in holding that the required setback for the landowners’ garage was properly measured from the common boundary line; whether the trial court erred because the zoning hearing board improperly adjudicated title questions; and whether the trial court erred in affirming the zoning hearing board’s decision permitting reconstruction of a nonconforming structure in violation of the ordinance.

As to the first issue, the appellant again argued that the side setback should have been measured from the easement line because the easement is a right-of-way because, even though it is not opened for travel, it is the only means of access to the public right-of-way the Kelleys’ property has.

Regarding the applicable setback, the ordinance states that “no structure of any character shall be closer to any street line or property line of any street, road or lane than 75 feet; and not closer to any side lot line than 40 feet.”

The appellant argued that, to satisfy the setback, the landowners’ garage must be located 75 feet from the boundary line of the easement because the easement should be considered a street, road, or lane under the ordinance.

The Commonwealth Court in Waldman looked to testimony at the zoning hearing board level, which stated that an easement is not a right of way, that easements do not negate open space and that easements do not detract from the land area countable for minimum lot area purposes.

The testimony also differentiated an easement, which implies a specific and limited use of land by the holder of the easement, from a right-of-way, which benefits the public at large and is created by condemnation by the commonwealth or municipality.

The appellant objected, arguing that “while the entirety of the easement is not now opened for travel, it will be as it is the only means of access to the public right-of-way the Kelley property has. The purpose of in establishing setbacks is not just for what is built in the present, but to protect, preserve and facilitate property development in the future.”

The Commonwealth Court in Waldman again disagreed, pointing to a 2002 lot reconfiguration plan of the properties known as the “Waldman plan,” which did not state that the easement was ever intended to be a road, street or lane.

Further, the Commonwealth Court pointed out that, “were the 40-foot-wide easement to be removed from the landowners’ lot, it would no longer meet the three-acre minimum for the A-Residence zoning district.”

Finally, the Commonwealth Court in Waldman emphasized Bell’s testimony, which stated that for a subdivision plan to show a road, the plan would have to show curves and radiuses, and none of these are shown on the Waldman plan. Rather, according to the opinion, the Waldman plan shows the entirety of the easement on the landowners’ property, and explicitly states that it is an “access easement” and “utility easement.” Additionally, the area designated as an easement does not meet the zoning ordinance’s definition of a road or lane, and therefore, the Commonwealth Court agreed with the trial court’s determination that the “boundaries of the easement are not a street line and that the setback was property calculated by the borough’s zoning officer.”

On his second issue, the appellant in Waldman argued that the zoning hearing board did not have jurisdiction to decide issues of title, determination of real property interests, private contracts, or agreements affecting zoning. The trial court found that this issue was waived by not being raised before the zoning hearing board and the Commonwealth Court in Waldman agreed with this finding.

Finally, the appellant argued that the trial court erred because the building permit would allow the landowners to rebuild a nonconforming garage in violation of the setback requirement from a street line in effect when it was built. The ordinance “prohibits the reconstruction of a nonconforming structure that has been more than 50% destroyed.”

The appellant argued that the prior garage was nonconforming and was completely destroyed.

The Commonwealth Court in Waldman found that the evidence in the record failed to establish the previous garage was nonconforming or that it was completely destroyed in the fire.

Alan Nochumson is the sole shareholder of Nochumson P.C., a legal services firm with a focus on real estate, land use & zoning, litigation, and business counseling for the people of Pennsylvania and New Jersey. Nochumson is a frequent author and lecturer on issues commonly confronting businesses, individuals and professionals. You can reach him at 215-399-1346 or alan.nochumson@nochumson.com.

Alex Goldberg is an associate attorney at the firm. You can reach him at 215-399-1346 or alex.goldberg@nochumson.com.

Reprinted with permission from The Legal Intelligencer © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.

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The recent ruling handed down by the Pennsylvania Superior Court in Lomuscio v. Cole, 2022 Pa. Super. Unpub. LEXIS 2867 (Dec. 6, 2022), examines whether landlords and residents of a leased property are liable when a guest of a party held at the leased property is injured.

In 2014, the plaintiff in Lomuscio was physically attacked and severely beaten at a party in East Stroudsburg, Pennsylvania.

Thereafter, the plaintiff in Lomuscio brought an action in the Monroe County Common Pleas Court against the property owners and the individuals who were residing at the property at the time of the incident, some of them of which were tenants on a lease signed with the property owners and some of them who merely resided in the property, the opinion said.

In Lomuscio, the plaintiff asserted that he suffered brain injuries as a result of this physical attack on him and that the property owners breached a duty to him as a landlord out of possession of the property at the time and the residents in the property breached a duty to him as hosts of the partygoers, the opinion said.

During discovery, it was revealed that the lease included a provision that prohibited the tenants from operating any business on the property. This lease provision is relevant because the residents in the property charged a $5 entry fee in exchange for alcohol and entry to their party.

Following discovery, the property owners and the residents in the property both filed summary judgment motions.

The trial court in Lomuscio granted both summary judgment motions.

As for the summary judgment motion filed by the property owners, the trial court in Lomuscio held that they should not be held liable to the plaintiff because they were landlords out of possession, and generally, landlords out of possession are not liable for injuries to nontenants and because the plaintiff failed to show evidence of any agreement or undertaking by the property owners to provide security for the party.

With regards to the summary judgment motion filed by the residents in the property, the trial court in Lomuscio held that the residents who were not a party to the lease agreement could not be held liable based upon the cited lease provision of the lease that prohibited the tenants from operating any business on the property.

The plaintiff in Lomuscio appealed the trial court’s rulings to the Superior Court. ‘ As for the residents of the property, the plaintiff in Lomuscio argued that, because they were in possession of the property at the time of the attack, they owed him a duty to protect against harm from third parties because he was an invitee.

Citing to Reason v. Kathryn’s Korner Thrift Shop, 169 A.3d 96 (Pa. Super. 2017), the Superior Court in Lomuscio noted that “a possessor of land who holds it open to the public for his business purposes owes a duty to his invitees to take security precautions to prevent harm from other persons if he knows or has reason to know of a likelihood that conduct, or other persons will endanger his invitees.”

Relying upon Castellano v. Local 302 International Association of Firefighters, 70 Pa. D.&C. 4th 415 (C.P. Lehigh Co. 2004), the Superior Court in Lomuscio stated that “a guest at a party to which the general public is invited and for which an admission fee is charged is considered an invitee of the party organizers and the possessor of the premises where the party is held.”

Since the plaintiff in Lomuscio paid an admission fee to attend the party and the party was open to any individual who paid the entry fee, the Superior Court believed that a jury could find that the plaintiff was an invitee.

The Superior Court in Lomuscio then pointed out that discovery revealed statements that showed the residents had reason to know of a likelihood that the party would attract gang members to the property based on previous parties the residents had hosted.

Because a jury could find from the statements of the residents that they knew their parties had been invaded by dangerous people in the past, the Superior Court in Lomuscio reasoned that there was evidence that the residents had a reason to know of a danger to support a duty to protect their partygoers from harm from third parties.

Although the Superior Court in Lomuscio found that the trial court erred in holding that the residents did not owe the plaintiff a duty to protect against or warn him of the danger of criminal acts of third parties, it limited this finding of a duty to only those residents who were in possession of the property at the time of the attack.

In other words, the Superior Court in Lomuscio concluded that those residents not formally leasing the property but staying there and hosting the party, may have owed a duty toward the plaintiff and, therefore, genuine issues of material fact existed for those residents.

However, the Superior Court in Lomuscio agreed to dismiss one of the residents as a party defendant who was not a tenant, and who the evidence failed to show either resided at the property at the time of the party or assisted in the organization of the party should not be held liable because there was insufficient evidence to impose a duty on this nonoccupant to protect person on the premises from harm by third parties.

Ultimately, the Superior Court in Lomuscio reversed the granting of summary judgment motion in favor of these other residents due to these genuine issues of material fact.

As an aside, the Superior Court in Lomuscio rejected the plaintiff’s argument that regardless of whether the residents in the property owed him a duty as occupants of the property, they should be liable to him on the grounds that they served alcohol to persons who were under the age of 21, relying upon Orner v. Mallick, 527 A.2d 521, 523-24 (Pa. 1987) which states that an adult host who knowingly serves alcohol to persons under age 21 is liable for injuries caused by the underage drinker’s intoxication.

The trial court in Lomuscio found, and the Superior Court in Lomuscio agreed, that this claim failed because there was no evidence that the plaintiff’s injuries were caused by any underage consumption of alcohol.

The Superior Court in Lomuscio also addressed whether the property owners should have been held liable to the plaintiff under the circumstances.

In citing to Brown v. End Zone, 259 A.3d 473 (Pa. Super. 2021), the Superior Court in Lomuscio emphasized that, “generally, landlords out of possession do not owe any duty to nontenants and are therefore not liable for injuries suffered by nontenants on the leased premises,” unless “where the injury is caused by a physical defect in the premises;” “where the landlord leases the property for a purpose involving the admission of the public and neglects to inspect for or repair dangerous conditions existing on the property before possession is transferred to the lessee;” and where the injury was caused by activities of the lessee or other person on the premises and the landlord at the time of the lease consented to those activities or knew that they would be carried on; and knew or had reason to know that the activities would unavoidably involve an unreasonable risk or that special precautions necessary to safety would not be taken.”

The Superior Court in Lomuscio found that none of these exceptions applied, in that while there were some physical defects on the property, they had no causal relationship with the plaintiff’s injuries; no evidence supported a duty to plaintiff based upon the purpose for which the property was leased or the property owners’ knowledge of the activities to be carried out on the property when they leased it, as the applicable written lease specifically stated that “operation of any business from the property is not permitted;” and no evidence existed that the property owners had any knowledge or any notice at the time that they leased the property that the residents intended to use the property to host parties open to the public or for which admission was charged or at which underage drinking occurred nor did the property owners know or have reason to know that activities posing unavoidable risks requiring special safety precautions would be occurring at the property.

Nonetheless, the plaintiff in Lomuscio argued that, although none of the exceptions for landlord liability applied, the property owners should be held liable because they were allegedly aware that the residents were charging an entry fee for parties they were hosting and that they were serving alcohol to minors.

The Superior Court in Lomuscio found that the property owners’ knowledge post-lease execution did not rise to a level that is sufficient to make an out-of-possession landlord who leases a property for residential purpose liable for harm to his tenants’ guests caused by violent acts of third parties, especially since no evidence showed that the property owners had any knowledge of violence at parties held at the property prior to the party where the plaintiff was attacked.

Alan Nochumson is the sole shareholder of Nochumson P.C., a legal services firm with a focus on real estate, land use & zoning, litigation, and business counseling for the people of Pennsylvania and New Jersey. Nochumson is a frequent author and lecturer on issues commonly confronting businesses, individuals and professionals. You can reach him at 215-399-1346 or alan.nochumson@nochumson.com.

Alex Goldberg is an associate attorney at the firm. You can reach him at 215-399-1346 or alex.goldberg@nochumson.com.

Reprinted with permission from The Legal Intelligencer © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.

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This past year, the city of Philadelphia approved and implemented a number of impactful pieces of legislation affecting land use and zoning law. These changes impacted the process of developing real estate, managing rental properties, dining outdoors, and even the makeup of the city of Philadelphia’s Zoning Board of Adjustment itself.

In this article, we highlight some of the most important changes to land use and zoning law in Philadelphia in the year 2022.

Bill No. 210669—Change in Composition of Zoning Board of Adjustment

At the end of 2021, the city government submitted a ballot measure under Bill No. 210669 to amend the Philadelphia Home Rule Charter in order to change the amount of members on the city’s Zoning Board of Adjustment from 5 to 7 and to require Philadelphia City Council to confirm any members appointed by the mayor to the Zoning Board of Adjustment.

As for the composition of the Zoning Board of Adjustment, it would be required to include an urban planner, architect, zoning attorney, a real estate finance expert, and two members from community organizations.

Furthermore, member of the Zoning Board of Adjustment would also have to show “sensitivity to community concerns regarding development and protection of the character of Philadelphia’s neighborhoods.”

Voters in Philadelphia approved the ballot measure in May 2022, and, while the approved changes have not yet gone into effect, we expect to see a change in the composition of the Zoning Board of Adjustment, etc. sometime in 2023.

Bill No. 210633-A—Mixed Income Neighborhoods Overlay

This past summer, the Mixed Income Neighborhoods Overlay went into effect, mandating certain affordable housing requirements for real estate development projects in select tracts of the 3rd and 7th Councilmanic Districts.

Bill No. 210633-A requires 20% of residential dwelling units in any new housing development of 10 or more residential dwelling units in these certain areas of Philadelphia to be made available at restricted pricing for a 50-year period by way of a deed restriction.

Under this new law, at least 15% of these affordable residential dwelling units must be on-site. However, this new law does offer real estate developers and investors the chance to apply for a waiver from the city Planning Commission to fulfill up to 5% of the requirement via offsite units or a contribution to the city of Philadelphia’s Housing Trust Fund.

These residential dwelling units must be affordable for rental households earning up to area median income (AMI) of 40%, and for owner-occupied households earning up to 60% of AMI. These residential dwelling units must be offered at a total monthly cost that does not exceed 30% of the gross monthly income for households earning up to 40% of the AMI, including utilities, and adjusted for household size.

The zoning overlay created by this new law does offers significant incentives for providing affordable housing, including bonuses under the Philadelphia Zoning Code for the amount of allowable residential dwelling units, the maximum occupied area, the maximum building height, the maximum floor area ratio, and the minimum required parking spaces.

In December 2022, city council president Darrell Clarke introduced similar legislation that would apply to a sliver of the 5th Councilmanic District along the North Broad Street corridor. Stay tuned in 2023 to see how that legislation progresses through Philadelphia City Council.

Bill No. 210776—Revamped Outdoor Dining Program

This past fall, the once-temporary outdoor dining program has been made permanent with the passage of Bill No. 210776.

This governmental program, which incorporated feedback from restaurant owners and residents alike, allows restaurant establishments to provide outdoor seating on designated city sidewalks and streets.

The new outdoor dining program offers licenses for sidewalk cafés and streeteries.

A sidewalk café license allows eligible restaurant establishments to occupy sections of the sidewalk in front of their storefront for outdoor dining. This license grants restaurant establishments the privilege of additional seating while maintaining adequate sidewalk access for pedestrians and those with disabilities, while also regulating for issues like noise and cleanliness standards.

A streetery license allows eligible restaurant establishments to occupy a designated portion of the parking lane on authorized city streets in front of the restaurant establishment. This license includes provisions for furniture, shelters, enclosures, and crash-worthy protective barriers. Streeteries are only permitted “by-right” in designated commercial areas throughout the city to ensure that residential areas are less effected by the noise and other impacts of streeteries.

Applications for the streetery and sidewalk café licenses are now available through the city of Philadelphia’s Department of Licenses and Inspection’s eCLIPSE system and must be renewed annually.

To be eligible for these governmental licenses, the applicant must have a commercial activity license, a business income and receipts tax identification number, a valid food preparation and serving license, and be either tax compliant with the city of Philadelphia or on an approved tax repayment plan with the city of Philadelphia.

Bill No. 210081—New Rules and Regulations for Airbnb and Short-Term Rental Properties

Bill No. 210081, effective as of Jan. 1, created new governmental rules and regulations for operators of Airbnb’s and other short-term rental properties across the city.

This new law was enacted in 2021 to tighten the reins on bad actors who were operating rental properties illegally or doing so as a nuisance to the surrounding community.

This new law requires limited lodging operator’s licenses for rentals hosts who live in the unit.

Additionally, hosts will be required to list the rental through a booking agent with a limited lodging and hotels booking agent license, such as Airbnb.

While the monetary costs of obtaining a limited lodging operator’s license is relatively low, hosts will be asked to comply with new governmental requirements that previously only applied to long-term rental properties, and in many cases, hosts will be required to obtain a variance from the Zoning Board of Adjustment because of the restrictive nature of the Philadelphia Zoning Code.

Because the wait for a hearing before the Zoning Board of Adjustment can take upwards of six months, many hosts of short-term rental properties across Philadelphia are outraged about the potential impact this new law will have on their ability to rent their properties until they receive special governmental approval to allow them to use their properties legally.

According to a recent article in the Philadelphia Inquirer, “so far only 247 people have received a limited lodging operator’s license, and 164 have received the hotel permit, out of an Airbnb host count in the thousands.”

For those renting their properties on a short-term” basis and do not reside at the property being rented, they must obtain a zoning permit to use the property as a “visitor accommodation,” a zoning classification for hotels or motels and a rental license that specifies space is rented as a hotel.

Bill No. 210389—Additional Restrictions on Construction and Excavation Activities

Lastly, Bill No. 210389, which was enacted late in 2021, but did not go into effect until Jan. 1, created new governmental rules and regulations to protect residents from construction and excavation in adjoining properties.

During the recent rise in construction and real estate development in the city, many Philadelphians have seen their properties damaged, and, in some cases, destroyed by construction and excavations activities occurring next door to them.

Proceeding forward, the city government will require excavation licenses and a separate excavation permit for contractors to dig more than five feet into the earth.

Contractors will also be required to submit their excavation plans and preconstruction surveys documenting the condition of adjacent properties, as well as obtain site safety managers and a general liability insurance policy with a minimum of $2 million in protection.

Additionally, the new governmental rules and regulations will enhance protections for historically designated properties.

Alan Nochumson is the sole shareholder of Nochumson P.C., a legal services firm with a focus on real estate, land use & zoning, litigation, and business counseling for the people of Pennsylvania and New Jersey. Nochumson is a frequent author and lecturer on issues commonly confronting businesses, individuals and professionals. You can reach him at 215-399-1346 or alan.nochumson@nochumson.com.

Alex Goldberg is an associate attorney at the firm. You can reach him at 215-399-1346 or alex.goldberg@nochumson.com.

Reprinted with permission from The Legal Intelligencer © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.

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Outdoor dining has long been a part of the dining culture in Philadelphia, from the sidewalk awnings of cheesesteak shops and water ice stands of South and West Philadelphia, to the café tables and umbrellas lining the street in Rittenhouse Square.

At the onset of the pandemic in 2020 and, currently to this day, outdoor dining has provided a lifeline to the restaurant industry when public health restrictions limited indoor seating. Now, the once-temporary outdoor dining program has been made permanent with the passage of Bill 210776. This governmental program, which incorporated feedback from restaurant owners and residents alike, allows restaurant establishments to provide outdoor seating on designated city sidewalks and streets.

The new governmental program offers two different outdoor dining licenses:

• Sidewalk Café License: Allows eligible restaurant establishments to occupy sections of the sidewalk in front of their storefront for outdoor dining. This license grants restaurant establishments the privilege of additional seating while maintain adequate sidewalk access for pedestrians and those with disabilities, while also regulating for issues like noise and cleanliness standards.
• Streetery License: Allows eligible restaurant establishments to occupy a designated portion of the parking lane on authorized city streets in front of the restaurant establishment. This license includes provisions for furniture, shelters, enclosures and crash-worthy protective barriers. Streeteries are only permitted “by-right” in designated commercial areas throughout the city to ensure that residential areas are less effected by the noise and other impacts of streeteries.

Steetery License Application Details

The city has created the following site requirements for restaurant establishments considering the streetery license in order to ensure the streetery will not compromise public safety:

• Streeteries can only exist in the parking lane directly in front of the business that holds the city-issued food license.
• Streeteries can only be located in spaces that do not compromise the deployment of emergency vehicles from fire stations, police stations and emergency medical facilities.
• Streeteries can only be set up in parking spaces adjacent to travel lanes that are 12 feet or wider so that emergency vehicles may travel unobstructed.
• Streeteries must have a 30-foot safety buffer zone from intersections with stoplights or stops signs, or 20-foot safety buffer zones that do not have stoplights or stop signs.
• Streeteries must have a 15-foot safety buffer zone from fire hydrants, and a five-foot safety buffer zone from manholes, water inlets, or any other utility or ventilation access points.

The governmental program also prohibits the use of propane tanks and open flames for heating, the use of shipping containers for streety structures, and the use of electric service coming from outside of the streetery, like an extension cord running from a building. In addition, all streeteries must provide at least one ADA-accessible table of 5% of the available steetery seating space, whichever is greater, and an ADA-accessible route from the sidewalk to the ADA-accessible seating area.

Furthermore, the governmental program created operational requirements for streeteries as well. Streeteries can only operate from 7a.m. to 10 p.m., Sundays through Thursdays, and 7 a.m. to 11 p.m. on Fridays and Saturdays. Streeteries may only be used for serving customers food and beverages coming from the business’ licensed preparation area. Finally, streeteries, at all times, must remain free of food scraps, spill stains, litter and odors.

Applications for the streetery license are now available through the city of Philadelphia’s Department of Licenses and Inspection’s eCLIPSE system and must be renewed annually. The governmental application has a $200 nonrefundable fee credited toward to the $1,750 fee for a streetery license. This $1,750 fee must be paid annually to renew the streetery license. To be eligible, applicants must have a commercial activity license, a business income and receipts tax identification number, a valid food preparation and serving license, and be either tax compliant with the city of Philadelphia or on an approved tax repayment plan with the city of Philadelphia.

Regardless of whether applicants plan to build the streetery on a platform, in a structure, or simply on the pavement, they must first obtain pre-requisite approval from the city of Philadelphia’s Department of Streets via an online form on the Department of Streets’ website. If the applicant is proposing a structure for its streetery, the Department of Streets will automatically request approval from the city of Philadelphia’s Art Commission. With approval from the Art Commission, the Department of Streets will then issue a prerequisite approval letter. The remainder of the application process occurs on eCLIPSE. For applicants proposing a structure, the Department of Licenses and Inspections will visit the site and issue a building permit if the structure is approved. If the structure is approved, or no structure is proposed, the Department of Licenses and Inspections will issue a streetery license after an inter-agency review. If the Department of Licenses and Inspections ultimately approves the governmental application, a streetery license will be issued through eCLIPSE and must be posed at the site within public view.

The city of Philadelphia recently published a streetery license guide, which details the governmental program’s goals, site requirements, placement requirements, structural and operational requirements and more.

Sidewalk Café License Application Details

Sidewalk Cafés are regulated by Section 9-208 of the Philadelphia Code, which includes guidelines for license applications, sidewalk café placement, sidewalk café maintenance and more.

More specifically, Section 9-208(6) states that: all sidewalk cafés must be easily removable; they must be at the same elevation as the existing sidewalk surface; they must not be within 15 feet of a transit stop; and there must be a clear egress space maintained between the exit door(s) of the structure and the clear sidewalk space.

Section 9-208(7), regarding the maintenance of sidewalk cafés states that: no sidewalk café shall be operated between the hours of 12 a.m. and 8 a.m.; that the sidewalk café license does not create any vested property right in the sidewalk area to which the license applies; and that the issuance of a sidewalk café license does not permit outdoor cooking or outdoor storage of flammable materials.

Applications for a sidewalk café license are now available on the eCLIPSE system. Applicants are required to have an approved café plot plan, business income and receipts tax identification number, a commercial activity license number, a food preparation and serving license. If approved, the Department of Streets’ right-of-way unit will issue an agreement to be signed by the applicant. In addition, applicants must be compliant with all tax obligations to the city of Philadelphia or be a party to an approved repayment plan with Philadelphia. There is a $186 fee for initially applying for the sidewalk café license and thereafter a $186 annual renewal fee.

Importantly, if a restaurant establishment wishes to offer outdoor seating on the sidewalk and in a parking lane, they must obtain both a streetery license and sidewalk café license.

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Victor Adeniran, a second-year law student at Villanova University’s Charles Widger School of Law, who is interning at the firm, assisted in the preparation of this article.

Alan Nochumson is the sole shareholder of Nochumson P.C., a legal services firm with a focus on real estate, land use & zoning, litigation, and business counseling for the people of Pennsylvania and New Jersey. Nochumson is a frequent author and lecturer on issues commonly confronting businesses, individuals and professionals. You can reach him at 215-399-1346 or alan.nochumson@nochumson.com.

Alex Goldberg is an associate attorney at the firm. You can reach him at 215-399-1346 or alex.goldberg@nochumson.com.

Reprinted with permission from The Legal Intelligencer © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.

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Outdoor seating has long been a part of the dining culture in Philadelphia and provided a lifeline to restaurant establishments throughout the height of the pandemic. Now, the once-temporary outdoor dining program has been made permanent with the passage of Bill 210776.

The governmental program, which incorporated feedback from owners of restaurant establishments and residents, allows restaurant establishments to provide outdoor seating on designated city sidewalks and streets.

The new governmental program offers 2 different outdoor dining licenses:

1. Streetery License – Allows eligible restaurant establishments to occupy a designated portion of the parking lane on authorized city streets in front of the restaurant establishment, including provisions for furniture, shelters, enclosures, and crash-worthy protective barriers.

2. Sidewalk Café License – Allows eligible restaurant establishments to occupy sections of the sidewalk in front of their storefront for outdoor dining.

Streetery License

Applications for the Streetery license are now online through the eCLIPSE system to restaurant establishments situated in certain designated areas in the city.

The application has a non-refundable fee of $200 credited towards the fee of $1,750 for a Streetery License issued by the City of Philadelphia’s Department of Licenses and Inspections (L&I). This fee must be paid annually to renew the Streetery License.

To be eligible for a Streetery License, at a minimum, the applicant must have a commercial activity license, a Business Income and Receipts Tax Identification number, a valid food preparation and serving license, and be either tax compliant with the city government in Philadelphia or on an approved tax repayment plan.

The applicant must first obtain pre-requisite approval from the City of Philadelphia’s Department of Streets via an online form on the Department of Streets’ website. The remainder of the application process will take place on eCLIPSE and will be available online on December 1, 2022.

If the applicant is proposing a structure for its Streetery License, the Department of Streets will automatically request approval from the Art Commission.

Next, L&I will physically visit the restaurant establishment and issue a building permit if the structure is approved.

If the structure is approved or no structure is proposed, L&I will issue a Streetery License after an inter-agency review is completed.

The city government in Philadelphia recently published a Philadelphia Streetery License Guide, which details the governmental program’s goals, site requirements, placement requirements, structural and operational requirements, and more.

Sidewalk Café License

Applications for a Sidewalk Café License are now available online on the eCLIPSE system.

At a minimum, the applicant is required to have an approved café plot plan, Business Income and Receipts Tax Identification number, a Commercial Activity License number, and a food preparation and serving license.

If approved, the Department of Streets’ Right-of-Way Unit will issue an agreement to be signed by the applicant.

In addition, the applicant must be compliant with all taxes levied by the city government in Philadelphia or have an approved repayment plan.

The processing fee for the application is $186 and the license must be renewed annually at a fee also of $186.

Importantly, if a restaurant establishment wishes to offer outdoor seating on the sidewalk and in a parking lane, the restaurant establishment must obtain both a Streetery License and Sidewalk Café License.

To learn more about the inner workings of these governmental programs, please contact Alan Nochumson either at (215) 600-2851 or alan.nochumson@nochumson.com.

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