Zoning Matters: How Decisions That Seem Routine Can Have a Big Impact

Back in January, I went to a Swarthmore Zoning Hearing Board meeting. I’ve been chewing over what happened there ever since. 

It wasn’t a dramatic hearing, or a long one. Not like some. The issue before the board was whether to allow the Sanders family to build a screened porch on the back of their Union Avenue house, 4 feet closer to the neighbor’s lot than Swarthmore’s zoning code specifies. 

The hearing took about half an hour. The vote was unanimous. The porch was a go.

So why couldn’t I get it out of my mind?

In Swarthmore, as in many places, if your lot is “nonconforming,” you can apply for what’s called a “variance.” This is an exemption from certain provisions of the zoning code, such as how much of your ground your house can cover, or how tall your house can be, or how close to the edge of your lot you can build. 

Nonconforming lots are often smaller than standard lots, or narrower, making it difficult to site a house. If you have such a lot, you can pay a fee, then ask the Zoning Hearing Board for permission to do something not strictly permitted by the code. Many Swarthmore lots are nonconforming, and hearings like this are common.

At the January hearing, Dave Sanders explained that his lot is both small and narrow. The house itself is already 4 feet closer to the neighbors’ yard than the code specifies. Back in 2016, the developer ABH Builders survived a contentious zoning hearing to get a variance to build the house in the first place, on what had been an empty lot. 

At the porch hearing, Dave Sanders explained that his planned deck would extend the line of the existing house somewhat farther back. He showed some drawings of what the end result would look like and produced a letter from his next-door neighbors on one side, attesting that the porch was all right with them.

After he’d made his case, the board talked it over. One board member said that it made sense to put the porch where Sanders proposed “for the continuity of the structure and the visual effect.” Another cited consistency as a principle, suggesting that if a variance had been granted for the house, one should also be granted one for the porch. 

An Objection

“The Lee girls” — daughters of Betty Ann Wilson and Donald Lee — (left to right) Jeannine Osayande, Donna Diakite, and Annette Holmes, at the July 4 celebration in the Historically Black Neighborhood of Swarthmore, 1980. Photo courtesy of Jeannine Osayande

About 20 minutes into the hearing, a neighbor asked permission to speak. Chenoa Osayande wanted to express his objection to the porch, which he said he would be able to see from his property a couple of houses down Union Avenue. “I can look through my windows and see all the way across” the intervening yards, he testified. (Note: Chenoa Osayande is the father-in-law of Swarthmorean associate editor Satya Nelms.)

Osayande was concerned about his view, but he had a deeper concern as well.

“I feel like there’s been a history of letting these things go through, particularly in this neighborhood,” he told the board, referring to the Historically Black Neighborhood of Swarthmore. Union Avenue is one of the main streets in that small enclave, where Osayande has lived since 1989. His wife Jeannine grew up there and traces her family’s history in the area to her great-grandmother Martha Tillman, who census records show was living in Swarthmore by 1910. 

Osayande is Black. The Sanderses, the neighbor who wrote the supporting letter, and all the board members are white.

Perhaps more saliently, the Sanderses and their supporting neighbors are newcomers to the neighborhood, which was segregated until the 1960s and has changed tremendously over the last decade or two. They may not know about the history of zoning concerns in the neighborhood. No one on the current ZHB was a member during the 2016 fight over building the house, and board chair Jenny Shulbank told me she wasn’t familiar with that hearing. The Sanderses declined to be interviewed for this editorial. 

Some History

Osayande isn’t the only person who is suspicious of past zoning decisions made in the HBNS. Several residents told me they believe the board permitted things in their neighborhood over the years that would not have been allowed elsewhere in town. Some mentioned the siting of a commercial garage on residential Bowdoin Avenue in the 1980s. 

Osayande sees the siting of the garage as an example of outsiders taking advantage of HBNS residents. “People would do things because many of the people who lived in this neighborhood were older, they weren’t paying attention,” he says. 

A more painful case involves the Countryside Market, which occupied the corner of Yale and Kenyon avenues until it burned down in 2011. In 1995, owner John Caraffa applied to the zoning hearing board for a variance to put tables outside on his patio. Even though it happened 26 years ago, several people I spoke with remember it bitterly.

That zoning case turned on the question of whether the butcher shop and grocery store that had operated in the building before Caraffa acquired it had provided table service. If it had, Countryside could continue to serve food to seated customers, and it could add more tables inside and out. The zoning code did not permit a change of the use of the property, but it allowed new businesses to continue existing uses. In other words, if the previous business had not already been a restaurant, the new owner would only be allowed to sell food to go.

At that long and often heated 1995 hearing (the official transcript runs 53 pages), Caraffa testified that the previous proprietors had run a sandwich shop with a little bit of indoor seating. He said that had been his original intention too. But then, he told the board, customers began to press him to serve more food. That was why he wanted tables on the patio. 

The ZHB ruled in Caraffa’s favor. At the same time, they tried to address some of the neighborhood’s worries, limiting the hours of operation and prohibiting outdoor lights or music. One board member suggested he talk with his neighbors and listen to their concerns.

A group of residents of the HBNS, including the Osayandes, fought the decision, appealing it to the Court of Common Pleas. When that court ruled against them, they pursued the case all the way to the Pennsylvania Supreme Court, which also ruled against the petitioners in May 1999. The decision was based not on the merits of the case but on a technicality involving the amount of time the neighbors waited before filing their appeal — 14 months, rather than the required 45 days. 

When Countryside turned itself into a bustling restaurant, many Black people who lived nearby felt it as a blow. “We stopped using our backyards because of the noise, people smoking, foot traffic, trash, and parking,” recalls Jeannine Osayande. Neighborhood children, accustomed to playing in what had been quiet streets, had to change their habits “because every couple of seconds a car comes zipping down the street at 30 or 40 mph,” L.P. Terrell of Union Avenue complained to Swarthmore Borough Council, according to a 1996 article in the Swarthmorean. 

Allison Dorsey, who moved to Bowdoin Avenue in 1999, was surprised to discover that delivery trucks would pull up to Countryside at 5 a.m. “and idle for 45 minutes until they woke me up.” When she asked the drivers to switch off their engines, they told her they were not allowed to. “It costs too much gas to turn it back on,” she recalls being told. “And I said, you could not be having this conversation in Swarthmore Hills.”

Zoning hearing boards have a fair amount of leeway in making their rulings. They are guided by a set of standards, but the process is not black and white. Leeway can be useful: It leaves room for judgment. But lack of clarity can also provide an opening for emotion, the bending of standards due to sympathy, and unconscious bias to creep in. (That’s why many human resources departments use predetermined lists of questions and criteria in hiring decisions.)

I asked John Lea, who teaches classes in zoning administration for the Pennsylvania Municipal Planning Education Institute, about the porch case, laying out the facts and recounting the board’s discussion. He called the situation “a gray area” and told me he could imagine reasons for the board to decide either way. 

“You get into judgement calls,” Lea said. “Most zoning hearing boards in Pennsylvania would grant something like that. They feel for the landowner.” (I myself was on the Swarthmore ZHB for about a year, and I understand the impulse to say yes to your neighbors.) He also said that he would probably have voted against it. 

“It’s Multiplicative”

A backyard birthday party for Makeda Redmond in the Historically Black Neighborhood of Swarthmore, circa 1990. Photo courtesy of Jeannine Osayande

Dorsey, the Bowdoin Avenue resident who was awakened by the idling trucks, is a professor of history at Swarthmore College. She told me that the Historically Black Neighborhood of Swarthmore has gone from being mostly Black to mostly white over the 22 years she has lived there. Dorsey, who is Black, says some non-Black people moved into the neighborhood because they “wanted to live in a space of diversity or a space of Blackness,” while others felt they could “get a lot of house a lot cheaper here than they could uptown.”

She recalls understanding when she moved in “that this was the last generation of this neighborhood in this iteration.” In other words, gentrification was underway.

Dorsey says that, as an outsider, she worked to learn the customs of the neighborhood: “When do I make a pie? When do I make a cake? What do I do when somebody dies?” Those traditions, she says, “were the things that knit us together. But it was very, very clear that it wasn’t going to last for the rest of my lifetime.”

When I asked Dorsey why she thought Chenoa Osayande and I were upset about the porch, she suggested that it was the accumulation of events that we experienced as troubling. In other words, history.

“A variance was already allowed to build the house in a very small space — in a way that a long-established, multi-generational Black homeowner felt was an infringement — followed closely by yet another variance,” she said. 

Dorsey pointed out that long-time residents may think of zoning codes as existing to protect their property rights. Then, if variances are extended “for people who are newcomers and do not share the history, race, or culture of the people who have been there, it feels like they are being given a privilege over your standing as a homeowner.” She calls the resulting sense of injury “multiplicative.” 

I heard that multiplicative sense of injury in something else Chenoa Osayande said: “We walk around this neighborhood, and we feel like strangers.” 

Zoning Is a Tool

Like any living entity, Swarthmore continues to grow and change. 2020 saw a testy extended debate about subdividing a lot on North Chester Road. Alcohol sales came to the borough on a new scale. In 2021, several large downtown properties changed hands.

The zoning code is one of the few instruments we have as a community to shape what private homeowners or developers do. To use it, we need to think about our objectives and priorities. 

What parts of our community do we want to preserve? As a town, do we want to continue to become ever wealthier? If we could, would we maintain or even expand our economic diversity? What about our racial diversity? Do we care about ensuring that there is still a place for people whose families have lived here for a hundred years? How about for older people who’ve lived in the borough all their lives? 

In other words, what culture are we creating in this place we call home?

Swarthmore boasts many families who have lived here for generations. But it also has a lot of people like me who only moved here in the last decade or three. A lot of us now hold positions of influence: borough councilor, real estate developer, newspaper editor. 

Decisions about the literal shape of the future lie before us. Even if we ultimately decide to leave the past behind, we should do our homework first. We should understand what we are losing.