5000 Warrington pt. 2
The first blog post I did about 5000 Warrington is here.
I hadn’t been following the zoning dispute over 5000 Warrington that closely since someone appealed the ZBA’s grant of a variance back in Spring 2022. However. Recently, I was in discovery court*, and the case being argued before mine was somebody trying to compel Councilmember Gauthier to appear for a deposition in a dispute over spot zoning. Sounded so familiar!?! So I went on the docket and checked out this case.
Procedural/factual background: a developer proposed building a 170-unit apartment building with 100% “affordable” units at 50th and Warrington. People in the neighborhood complained about parking and the project got watered down to a 100-unit building with 100 parking spots. The Zoning Board had to approve a variance for this project because the lot was zoned for industrial use only. The ZBA approved the variance, then this lady in the neighborhood filed an appeal to the Court of Common Pleas.
To get a valid variance from the zoning code, you have to establish:
a) That denial of the variance would result in unnecessary hardship;
b) That Applicant did not create the unnecessary hardship supporting grant of the variance;
c) That the requested variance is the minimum variance necessary to afford relief and the least modification possible of the regulation in issue:
d) That granting the variance will be in harmony with the spirit and purpose of the Zoning Code;
e) That grant of the variance will not substantially increase congestion in the public street, increase the danger of fire or otherwise endanger the public health, safety, or general welfare:
f) That grant of the variance will not substantially or permanently injure the appropriate use of adjacent conforming property or impair an adequate supply of light and air to adjacent conforming property;
g) That grant of the variance will not adversely affect transportation or unduly burden water, sewer, school, park, or other public facilities;
h) That grant of the variance will not adversely and substantially affect the implementation of any adopted plan for the area where the property is located; and
i) That grant of the variance will not create significant environmental damage or increase the risk of flooding, either during or after construction.
Philadelphia Zoning Code, Section 14-303(8)(e)(.1).
Judge Coyle reversed the ZBA’s decision, which is actually technically the right thing to do. As written, the zoning code limits what variances should be granted. Most variances should not be granted under the zoning code. (This could be addressed by City Council members introducing legislation updating the zoning code in their district so almost every new construction somehow has to seek a variance. It’s insane to have industrial zoning there now, the neighborhood would go absolutely bonkers if someone tried to put in an industrial plant as they’re allowed to by right currently. I suspect the reason Council Member Gauthier (and all the other district council members) won’t do this is because they like having tight control over every development and change to their district, even if it means nothing ever gets built.)
The developer filed a notice of appeal, but their Pa.R.A.P. 1925 Statement of Matters Complained of on Appeal was LATE.
The Second Lawsuit
Councilmember Jamie Gauthier introduced legislation re-zoning just 5000 Warrington from industrial to RMS-3. That same lady who originally appealed the ZBA’s decision filed a declaratory judgment action in October 2023, trying to get that declared illegal spot zoning and have it reverted to I-2. She summarized the issue in Complaint:
Warrington Development Partners LP, the owner of the property, filed a petition to intervene in the case in June 2024.
from Warrington’s petition to intervene
For the like 2 non-lawyers reading my blog, here is a brief summary of how you do lawsuits. First part is the pleadings: Plaintiff files a Compliant, Defendant maybe files Preliminary Objections to some of it, then eventually the Defendant Answers. After the pleadings are closed, the parties do discovery: exchanging documents, answering interrogatories, taking depositions. This case is currently in the midst of discovery. After discovery, they do dispositive motions (one side will say “even if you give the other side every reasonable inference from the facts and documents in this case, they lose as a matter of law”) which could resolve the case entirely or narrow the issues for trial, or not. Then there’s a trial.
From the docket, it looks like there have been a handful of discovery motions already. The most recent two - that I caught the oral argument on - are a Motion to Compel Councilmember Gauthier and Andrew Goodman for deposition, and Motion for Protective Order seeking to stop it.
Plaintiff wanted to take CM Gauthier’s and Goodman’s depositions, and the city solicitor said no:
one of the exhibits attached to plaintiff’s motion to compel
Here’s the heart of the argument in the Motion to Compel. There was prior motions practice over whether legislative privilege protected certain written documents in the case (emails etc) and Judge Roberts ruled that they were not privileged. So Plaintiff is saying that based on that ruling, testimony would not be protected by legislative privilege either.
The City’s response argued that legislative immunity protects a legislator and/or aide from having to testify about their lawmaking process:
There was also a Motion for Protective Order filed by the City, and Plaintiff’s response, which are produced in full at the bottom of this post. Basically the same arguments, and Judge Roberts addressed them all at once.
The Order isn’t listed on the docket yet, but Judge Roberts indicated he was going to order the depositions to take place and assign a discovery master to oversee it because it would obviously be full of objections over legislative privilege.
There’s two problems with this whole 5000 Warrington matter:
First, CM Gauthier’s failure to update the zoning code in her district requires anyone who wants to build anything to get a variance, which requires a million community meetings and waters down any good project. And opens every variance granted to a protracted dispute like this one! We have an affordable housing crisis in D3 and this system is making it worse.
Second, the people out there who fight against the developments that do make it through this broken ZBA system! How do you spend this kind of money paying Fox to fight against affordable housing and not die of shame? That’s a pretty expensive firm, and as the docket reflects there’s been a decent amount of motions practice, so she is spending thousands and thousands of dollars on this. All because she doesn’t want to live near poor people and/or is worried about her street parking?
Here’s the full set of documents I pulled from the docket. I’ll probably do another post about this when I get some more documents that I have since requested.
*Is this the spot where I can talk about discovery court of pre-covid days? Discovery court has a lot of haters but I always liked it. There are thousands of cases pending in Philly Common Pleas, and the way they deal with the volume of discovery disputes that generates is to schedule like 100+ discovery motions to be heard on the same day at the same time. When I was a much younger associate at my first job, I would be sent to go to discovery court for all of the motions my firm had that day. And it was fun! You would see a bunch of your law school classmates and people you met practicing. And you would probably come to an agreement with your opponent. So by the time arguments began there were probably only like 5-6 cases being argued. But if you had to argue, you also got to sit through the cases before yours and it’s always a good learning experience to watch oral arguments, no matter how long you’ve been practicing.
Anyways, it’s basically the same thing but on zoom now, so you don’t get to schmooze as much.