Changing Skyline: Zoning by fiat may be on the way out in Philadelphia

Chelten Plaza in Germantown , a development site where zoning was changed this year by City Councilwoman Donna Reed Miller as her term ended. Neighbors protested her councilmanic prerogative, a tradition in the city.
Chelten Plaza in Germantown , a development site where zoning was changed this year by City Councilwoman Donna Reed Miller as her term ended. Neighbors protested her councilmanic prerogative, a tradition in the city. (ED HILLE / Staff Photographer)
Posted: December 30, 2011

This has not been a good year for despots. North Korea's Kim Jong Il met his maker, Egypt's Hosni Mubarak is under arrest, and Syria's Bashar al-Assad faces a future that looks rocky. But in Philadelphia, City Council members get to rule their districts with an iron hand - at least for now.

Philadelphia is one of a dwindling number of big American cities where local legislators adhere to a courtly tradition called councilmanic prerogative. Like its royal antecedent, the prerogative grants the city's 10 district Council members the right to do as they please in their own patch. Whatever the measure - a history plaque or a major zoning change - the rest of Council will rubber-stamp it, knowing the favor will be returned.

You may be relieved to hear that Philadelphia is not alone in holding fast to this aberrant practice, which is a favorite way to generate campaign contributions. The prerogative is still invoked in Chicago, where local aldermen are legendary for ruling their districts like medieval fiefs. It's also used in Dallas, where a federal civil rights lawsuit was supposed to produce a fairer, cleaner system.

Yet nowhere in Philadelphia's city charter will you find a word about councilmanic prerogative, or its most common application, zoning by fiat. "It's tradition," members declare in the same booming tones favored by Zero Mostel's Tevye. Maybe so, but it's one that should have gone out with smoke-filled rooms and envelopes fat with cash.

Council members defend the practice on the grounds that they know what's best for their districts. What they have failed to notice is that such paternalism doesn't play as well as it used to.

There are now signs, however faint, that the prerogative's days may be numbered. This fall, residents of Germantown and Chestnut Hill rose up in revolt after retiring Councilwoman Donna Reed Miller used the prerogative to change the zoning of two sites, Chelten Plaza and Magarity Ford, to clear the way for controversial developments.

It was no coincidence that the constituents' revolt occurred while Council was debating a new zoning code to replace the city's bloated, Kennedy-era rule book. Weighted down with amendments and clauses, the old code was nearly impossible to understand without the assistance of a high-priced lawyer.

Such complexity created the perfect market conditions for councilmanic prerogative to thrive. The more barriers you throw up, the more work you create for gatekeepers. Developers were encouraged to express their thanks with campaign contributions.

Although there are certainly times when Council rezonings are essential to democratic checks and balances, more often they feel like end runs around the process. For instance, when the Zoning Board of Adjustment grants a variance, it comes with a deadline. The site reverts to its original zoning classification if nothing is built. But a Council rezoning is forever.

Meanwhile, Council rezonings often occur before anyone knows the projects exist. Neighbors didn't learn the Family Court site at 15th and Arch Streets had been rezoned to accommodate a taller, bulkier building until construction was ready to start. The zoning board requires developers to display bright orange signs on their property to advertise a hearing. No such tip-offs are required for Council rezonings.

Now that Council has approved a modern zoning code, it should have few opportunities to exercise its cherished privilege. Unlike the old code, the sleek new, 384-page zoning rule book tells people what they can build, rather than listing all the things they can't. That means there should be less need for Council gatekeepers to offer their fix-it services. Councilmanic privilege could even be rendered obsolete someday.

At least that's the optimistic view.

Actually, it's happening in Chicago, according to Jim Peters, a former city planner who teaches at the University of Illinois. Since the city passed a new code in 2004, he says, aldermen have tended to invoke privilege less often, leaving planning decisions to professionals.

Of course, Peters adds, the change in behavior may have something to do with the fact that a dozen aldermen have gone to jail for abusing councilmanic prerogative. The practice is so deeply ingrained in Chicago politics that when the Board of Aldermen approached then-Mayor Richard J. Daley in the '70s about a salary increase, he is supposed to have quipped, "Why do you need a pay raise when you have zoning?"

It's hard for Philadelphia good-government types, such as Zack Stalberg at the Committee of Seventy, to imagine that Council will relinquish its prerogative. He fears the practice could even undermine the new zoning code if members continue their ad hoc rezonings.

Unlike a bad law, councilmanic prerogative can't be revoked. But we know from the democratic movements sweeping the Middle East and Russia that even the most arrogant of tyrants can't last forever.


Changing Skyline: Inga Saffron blogs about Philadelphia architecture at www.philly.com/skyline


Contact architecture critic Inga Saffron at 215-854-2213, isaffron@phillynews.com, or @ingasaffron on Twitter.

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