Last Tuesday, the city Zoning Board of Adjustment postponed a decision over a proposed Super Wawa at the northeast corner of Columbus Boulevard and Tasker Street, delaying the next chapter in the story of a zombie-esque development proposal that has been defeated in the past in a different iteration but nonetheless carries on in ZBA hearings today.
The project was initially proposed by developer Bart Blatstein’s company Tower Investments several years ago. That original plan was thwarted when it was rejected by the ZBA for being an auto-centric use fronting on Columbus Boulevard – something the Central Delaware Overlay (CDO), a zoning overlay that in part aims to encourage pedestrian-friendly development on the waterfront, prevents. But the Wawa project was revived two years ago in a slightly different format. In an effort to circumvent the overlay, Tower’s new proposal basically picks up the proposed Wawa and moves it 20 feet to the east. As a result, there is a 20-foot wide “barrier lot” between the proposed Wawa and Columbus Boulevard with a curb cut on Tasker Street. Tower’s argument is that this new Wawa project is different from the previous one because it now fronts on Tasker Street, not Columbus Boulevard. It’s an attempt to bypass zoning laws, and Tower’s attorney, Carl Primavera, acknowledged this much at the meeting.
“The ordinance says that we can’t have frontage on…Columbus Boulevard,” Primavera said. “This barrier lot technically satisfied that so we don’t have a prohibition, which would require a variance.”
But the Pennsport Civic Association isn’t buying it. Essentially, it thinks Tower is brazenly skirting the rules of the overlay and undermining the whole pedestrian-first ambition of the CDO.
“We are disappointed that this application fails to follow the spirit of the vision agreed upon by the waterfront communities and stakeholders in the Master Plan,” said Pennsport Civic president Pat Fitzmaurice in an email to SPR. “We continue to be deeply concerned about the numerous externalities this project will create, the legal maneuvering to avoid the clear wishes of our neighborhood to the detriment of a pedestrian-friendly waterfront, and the precedent this will set not only for the rest of the City’s waterfronts, but Philadelphia at-large.”
The Delaware River Waterfront Corporation, which hired an attorney to fight the project at the ZBA meeting, concurs:
“DRWC supports a variety of retail uses along the waterfront but we are opposed to a developer subdividing to create a strip of land intended to circumvent the zoning code, the Master Plan for the Central Delaware, and years of work by thousands of Philadelphians who determined that while the current character of the area is suburban and auto-oriented in form, that was not what should be built going forward,” said DRWC’s Director of Planning Karen Thompson in a statement to SPR. “We know that this area can and does support new commercial development in a variety of forms that do not conflict with the framework developed through the Master Plan and zoning overlay, but this current proposal is rooted in outdated ideas of development and takes the waterfront several steps backwards with its lack of vision and understanding of the waterfront’s potential.”
The CDO, which is a piece of legislation passed by former City Councilman Frank DiCicco (who coincidentally is now the chair of the ZBA), was aimed, in part, at preventing “all of the big box gas stations” south of the proposed Wawa site from continuing north, DiCicco explained at Tuesday’s meeting. Opponents think that’s precisely what Blatstein’s project is doing – extending the mishmash of big box stores on South Columbus Boulevard farther north.
But there’s more to the story, and understanding it requires some knowledge of the city’s zoning law. Essentially, a lot depends on whether the gas station fronts on Columbus Boulevard or Tasker Street. If the Wawa is determined to be fronting on Columbus Boulevard, it would surely be issued a refusal by the ZBA, just like last time. When a project is refused, it means the developers must file for a variance from the zoning laws. But the catch is that filing for a variance requires community support for approval. Tower knows it doesn’t have the community on its side (at Tuesday’s meeting, nearly every hand in the room went up when DiCicco asked how many were against the project), and as a result, the variance route is one the developers would prefer to avoid.
If they can get the ZBA to buy the argument that the gas station fronts on Tasker Street, however, the developers’ path to getting the project approved becomes much easier. Instead of being issued a refusal that triggers a variance, the ZBA would likely issue a referral since the project technically doesn’t front on Columbus Boulevard. The referral would trigger a special exception because, even though the project doesn’t front Columbus Boulevard, it’s still within the CDO. In the event of a special exception, opponents of the Wawa would have to prove that the project would have an “adverse impact on the surrounding community” to prevent it from being built, as Primavera put it. The special exception route isn’t exactly a slam dunk for the developers, though; opponents could still argue that the Wawa would create more traffic and lead to more delivery trucks on the road. It’s more like a jump shot. The variance route would be more akin to a Hail Mary half-court shot since the community would surely vote against it. (Technically, it could get by without community support if it’s approved by Councilman Mark Squilla anyway, but Squilla’s spokesman, Sean McMonagle, told SPR that this won’t happen. The councilman “is opposed to the placement of a gas station along Christopher Columbus Boulevard or Delaware Avenue” and “has worked with and on the Delaware Riverfront Overlay for years to codify the intentions of the Master Plan,” McMonagle said.)
When this project was first proposed in its original incarnation, L&I issued a referral (which, remember, triggers a special exception), explained Fitzmaurice in a phone call. But after protest from the DRWC and the Pennsport Civic Association, the referral was revoked and replaced by a refusal (triggering a variance). Tower then withdrew its application, subdivided the property to include the 20-foot-wide barrier lot and submitted a new application that included the subdivided property. L&I still issued a refusal, but changed it back to a referral this past September. The debate is also important because it could set a precedent for developers who hope to add auto-centric developments along (but not necessarily fronting on) Columbus Boulevard. This is an argument mentioned in a recent column from the Philadelphia Inquirer’s Inga Saffron.
“If Blatstein’s subdivision strategy is allowed to stand, it will break the zoning code,” Saffron wrote. “You can easily imagine other developers trying the same maneuver, along the waterfront and in other places in Philadelphia. Don’t like your property’s zoning restrictions? Subdivide!”
Tuesday’s meeting, which was nearly two hours long, was almost entirely taken up by Primavera and the development team. A continuance was issued when it became clear there wasn’t enough time for opponents, including DRWC attorney Michael Mattioni, to voice their opinion. Because the development does have a curb cut on Tasker Street, opponents are expected to argue that while the proposal technically may not violate the CDO, it comes close enough. Fitzmaurice hints at this in a letter he sent to the zoning board.
“This application ignores the concerns of our community regarding a proposed use which, if not in violation of the letter of the Overlay, certainly violates its spirit,” he wrote.
The argument will be continued on Jan. 21 at 9:30 a.m. at the ZBA’s hearing room on the 18th floor of 1515 Arch St.