Councilman Brian O'Neill

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A new bill would give City Council members unprecedented control over private development in their districts.

Councilman Brian O’Neill, a Republican who’s represented parts of Northeast Philadelphia for decades, introduced legislation on May 19 that would require changing private lot sizes to be approved by the district councilperson prior to getting approval from the Planning Commission.

What’s that mean for developers? Any time someone wants to split apart or consolidate lots, it would have to be approved by the district councilperson who oversees where the development is taking place. Some developers who build larger homes that cover multiple smaller lots say they almost never build without splitting or consolidating parcels.

On top of that, it’s essentially codifying councilmanic prerogative, the long-time unwritten rule in Philadelphia that allows district council members to have the final say on development in their districts. This bill could take that a step further.

Here’s the language in the legislation that sticks out:

The applicant shall provide documentation, in the form of a letter, that the District Councilmember supports any proposed changes to the City Plan before the Commission may consider approval the Preliminary Plat.

Currently, subdivision creation can be approved by the Planning Commission. The new language requires developers produce a letter from their district councilperson expressing explicit support for the move before going to the Commission, meaning that the councilperson could simply not produce a letter in order to shoot down development.

O’Neill didn’t respond to a request for comment from Billy Penn on the bill, and it has no co-sponsors. But developers have already taken notice.

Ori Feibush, the outspoken Point Breeze developer who just won a court case against Councilman Kenyatta Johnson over issues related to councilmanic prerogative, called the bill “unconstitutional” and said it gives legislators executive power.

“You’re taking 100 steps backwards,” he said. “You would effectively be stopping all development and allowing every district councilperson to have absolute discretion.”

The city has massaged its zoning code for years and created a uniform code with the Planning Commission that developers have become accustomed to with an overhaul in 2012. But all along, there’s been a practice in City Council called councilmanic prerogative that means how ever a district councilperson votes on development in his or her district, so goes the rest of Council. There’s a feeling among Council members that the person who represents that district is in the best position to be in touch with residents there. Some neighborhood organizations like the practice, as they have one point person on council to go to with concerns related to development.

Others have decried councilmanic prerogative, saying it gives district Council members too much power over development in their districts.

That’s the issue that was at the center of Feibush’s lawsuit against Johnson. The developer, who ran against Johnson for his 2nd District council seat last year and lost, claimed Johnson abused councilmanic prerogative and didn’t approve development for political reasons. Feibush won the lawsuit.

But what was more significant is that it was the first time a judicial body recognized that councilmanic prerogative is a common practice in Philadelphia’s legislative body — and it’s one that can’t exactly be repealed, because it’s not codified. O’Neill’s bill could change that.

“What Councilman O’Neill’s bill is doing,” Feibush said, “is ripping the Band-Aid off and saying ‘let’s just codify it.’”

Several members have used councilmanic prerogative to stall or deny projects in their districts. Councilwoman Jannie Blackwell stalled a project that would have moved the Youth Study Center from the Parkway into her district in order to make room for the Barnes Museum. In 2007, former Councilman Frank DiCicco held out on introducing zoning for Sugarhouse to open on the Delaware River in Fishtown.

But one of the most derided uses of councilmanic prerogative was by O’Neill in 2007, when he stalled an $800 million expansion of the Fox Chase Cancer Center because he wanted them to donate to community development.

Anna Orso was a reporter/curator at Billy Penn from 2014 to 2017.