Philly City Council To Have Greater Power Over Zoning, Land Use After ZBA Ballot Question Passes

Voters approved a ballot question that will significantly change how the Philadelphia Zoning Board of Adjustment is constituted, hoping that it also changes how the body operates.

By a margin of 70%-30% with 96% of precincts reporting, the ballot question to change the section of the Philadelphia Home Rule Charter pertaining to the ZBA passed on Pennsylvania's primary election day Tuesday, according to data published by the Office of City Commissioners.

Changes to the Home Rule Charter require a public vote, and Philly voters have virtually always voted "yes" to ballot questions in recent history, as they did for all four questions on Tuesday. Only a handful of districts in Northeast Philadelphia had a majority of "no" votes to the first question, which dealt with a law passed by Philadelphia City Council late last year to change the ZBA in three ways. The three changes are as follows:

• The board will grow from five members to seven.
• The mayoral appointees that make up the board will now require council approval.
• One seat on the board must be reserved for an architect, an experienced zoning attorney and an urban planner, while two seats must be reserved for community leaders with "demonstrated sensitivity to community concerns regarding development.”

By far the most controversial of the three changes, at least for the commercial real estate industry, is the requirement of council approval, which puts more power over zoning and land use in the hands of city council. Recent instances of council wielding that power have been decried by the development community, from mandatory inclusionary zoning in parts of two districts to downzoning a stretch of arterial Girard Avenue.

"City council, under the leadership of Council President [Darrell] Clarke, has methodically chipped away at the mayor’s influence in housing and land use governance, and I think it’s gone really badly," said Jon Geeting, engagement director for urbanist advocacy group Philadelphia 3.0. "If what we want is more housing and more affordable options, the planning commission and the mayor’s office need to have a larger role. If you want to have fights over a lot of projects and to throw a lot more sand in the gears, then you want more council power.”

The body already has the power to pass overlays that create exemptions to the citywide zoning code, which it often does for areas small enough to raise accusations of spot-zoning, an illegal practice. Most recently, an overlay meant to block the sale and redevelopment of an affordable housing complex in University City has been challenged in court by the owner of the affected property.

For both overlays and disposition of city-owned land, decisions that fall within a single council district are left exclusively to that district's council representative, and the tradition of councilmanic prerogative has meant that such decisions are rubber-stamped by the rest of council. Trading favors for zoning or land disposition decisions was at the heart of the federal case against Councilmember Kenyatta Johnson, which was declared a mistrial in April.