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City council land use decisions subject to special "prerogative"

Land use disputes in Philadelphia are often decided by the city council after a public hearing. A recent study now explains how such decisions are almost always controlled not by evidence adduced at the hearing but by a long-standing practice called "councilmanic prerogative."

The study, conducted by the Pew Charitable Trusts, studied councilmanic prerogative by examining records of land use decisions made by the city council during the last six years. According to the study, members of the city council almost always resolved rezoning and similar disputes by deferring to the wishes of the council member whose district includes the land at issue. Of the 730 land-use decisions made by the council over the last six years, all but four passed unanimously. Even the seven at-large council members tended to abide by the privilege.

The Pew study did not comment directly on the legality or advisability of the prerogative, but the study noted that it is most commonly asserted when a developer is asking for a zoning change or approval of a conditional use permit. Both for-profit and non-profit developers believe that the council uses the prerogative as a means of coercing political contributions and rewarding political supporters. Defenders of the practice assert that no one is better acquainted with the potential effect of a zoning change than the councilman elected from that district.

Councilmanic prerogative does not mean that rezoning decisions are always made behind closed doors or without regard to factors such as density, parking and impact on near-by uses. Anyone contemplating seeking a rezoning or permit to change the use of a parcel can still benefit from a consultation with an attorney experienced in such matters. A knowledgeable real estate attorney can provide a helpful evaluation of the proposed change and the arguments that support it. Such a lawyer can also offer help in dealing with the council member whose "prerogative" may affect the final outcome.

Source: Philadelphia Inquirer, "Pew study: Council 'prerogative' on land deals is ironclad," Tricia L. Nadolny, July 23, 2015

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