The phrase “councilmanic prerogative” does not appear anywhere in Philadelphia’s City Charter. It is not found in the more voluminous City Code, either. Although everyone in City Hall knows what it means, it is found nowhere in print. 

But councilmanic prerogative is among the more important concepts in city government: an informal preference held by the ten district council members over all land use decisions in their districts. This immense, unchecked power determines whether multi-million-dollar developments will succeed or fail, and represents a massive temptation for even the most honest council members.

Since Center City began to revitalize and repopulate in the 1990s, there has been almost endless construction there. Now, thirty years on, that boom has spilled out into many of its surrounding neighborhoods, like Fishtown and Grays Ferry, and rippled out to Philadelphia’sborders. Investors are willing to earmark millions of dollars for many of these projects, which often require zoning variances. That creates a powerful lever, and the informal prerogative places this lever in the hands of Philadelphia’s ten district council members.

The federal indictment of 2nd district Councilman Kenyatta Johnson reveals the temptation that this system causes. In January, prosecutors charged the three-term Democrat and his wife with accepting tens of thousands of dollars in bribes from executives at Universal Companies, a land development company that owned the Southwest Center City property in Johnson’s district. The executives, who were also accused of stealing from their own company, were indicted as well. It is not the first time councilmanic prerogative got a councilman in hot water—three went to jail in the early 1980s in the ABSCAM affair, when they were caught promising undercover FBI agents they would exercise their councilmanic prerogative to push through a zoning change — in exchange for cash.

And with two current Councilmen now under federal indictment, it can be said for certain that Philadelphia politics has not gotten cleaner since then.

The Johnson indictment centers around the former Royal Theater at 15th & South, which had grown increasingly blighted since it was closed in 1970. For more than a decade, despite grants that according to The Philadelphia Inquirer totalled nearly a half-million dollars from various governmental organizations, no progress was made in rehabilitating the building, and zoning restrictions blocked more profitable development on the site. In 2014, Johnson pushed zoning changes through City Council that opened the door to denser development. As he was the councilman for the district, no one opposed the changes: the prerogative at work.

The planned development from Universal Companies never came about, but the zoning change made the land suddenly much more valuable. The company sold it a year later for a profit of nearly $3.5 million—quite a windfall, even in Philadelphia’s frothy real estate market. That kind of money presents a powerful temptation, and when one council member can bring it about without accountability or oversight, events like this will happen time after time. A political ally can buy a property, encourage his councilman to implement a zoning change, and reap a hefty reward. As long as politicians control people’s ability to make money with their own property, those with the money will seek to influence politicians.

What can be done? How can an informal practice be outlawed, especially when the people who could outlaw it are the ones who benefit from it?

In fact, as long as City Council controls the zoning code, no reform can prevent a corrupt member from proposing a bill. And when they do, their fellow members almost never object. A study by the Pew Charitable Trusts examined 730 votes on zoning changes between 2008 and 2014 and found that 726 of them passed unanimously. Putting control of zoning completely in the mayor’s hands might solve that problem, but it would only work so long as the mayor is a paragon of virtue himself. That is not unheard of in the city’s history, but it is not reliable enough to base a policy on.

What can be done? How can an informal practice be outlawed, especially when the people who could outlaw it are the ones who benefit from it? The authors of the 1951 City Charter thought the solution to local corruption was to weaken the City Council and give more power to the mayor. It worked for a while, especially when the office was occupied by reform-minded mayors like Joseph S. Clark (1952-1956) and Richardson Dilworth (1956-1962).

Prerogatives are a legal concept, though just not an American legal concept. In Britain, the prerogative powers are those that are reserved exclusively to the crown, the vestiges of the days of divine-right monarchs who wielded near-dictatorial power. Our Founding Fathers did not include any such power in our Constitution when they wrote it, knowing that no one person could be trusted with it. Instead, they created a system of check and balances to restrain office-holders. Unchecked prerogatives are at odds with the American theory of governance.

It is evident that the power itself is the problem, not the hands that wield it. Zoning laws create a pressure point, a place where those with the power to change the law can exert unfair pressure on property-owners. If City Council cannot be trusted to use their power over zoning ethically, why not do away with it all together?

Unchecked prerogatives are at odds with the American theory of governance.

It’s not a crazy idea. The City of Houston, which is larger than Philadelphia, famously has no zoning code. It has a building code, some height restrictions, and other regulations that do some of the work of the zoning system, but there is no mechanism for politicians there to shake down property owners for bribes — or property owners to exert undue influence on elected officials. 

And it works: Houston looks much like other Texas cities that have zoning codes. Land use there remains unencumbered by crooked politicians and bureaucratic minutiae, meaning more freedom for individual land owners — and in turn, property buyers and renters. 

Cynical Philadelphians may shrug and say that all of our politicians are crooks. But it doesn’t have to be this way. The last election saw some rumblings of change, if in the direction of more harmful regulations like rent control, not fewer. When that fails, as it inevitably will, and when enough of our city politicians are behind bars for abusing their power over zoning, maybe the people will turn to a truly revolutionary idea: take the power away from them and give it back to the people.

Kyle Sammin is a senior contributor to The Federalist, co-host of the Conservative Minds podcast, and resident of Montgomery County. @KyleSammin

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