How City Council's Zoning 'Overlay Mania' Could Put Statewide Democrats at Risk

With four members of City Council now having resigned to run for Mayor, there have been several fascinating new developments this past week that could be consequential for the politics of the 2023 election, the legislative math for passing bills in the lame duck City Council, and even the 2022 statewide elections.

So far, At-Large Councilmembers Allan Domb and Derek Green have resigned their seats, and so have 7th District Councilmember Maria Quinones-Sanchez and 9th District Councilmember Cherelle Parker. At-Large Councilmember Helen Gym is also expected to resign to run for Mayor at some point this fall, along with perhaps Republican At-Large Councilmember David Oh, but neither resigned in time to make the cut-off to be replaced in November via special election. 

All of the four members resigned with enough time for Council President Darrell Clarke to call special elections to replace them, which would run concurrently with this November’s general election. After a lot of speculation that CP Clarke would only choose to hold special elections for the two District seats, and not the vacating At-Large members for various reasons, that is exactly what he announced—before a surprise reversal at the end of last week. 

For people of our general political persuasion who tend to be skeptical about the lopsided power wielded by District members over City Council’s agenda, compared to At-Large members, the original decision to hold only the District elections was a bit of a mixed-bag. 

On the one hand, some might say the City Charter already creates an unfavorable ratio of At-Large members to District members on City Council—establishing the voting math that makes Councilmanic Prerogative possible—so letting existing At-Large seats go unfilled would tend to push Council’s voting coalitions and legislative agenda even further in that direction. 

On the other hand, because the ward leaders on Democratic City Committee (DCC) would get to pick the Democratic nominees for those two At-Large seats, and because of the general political valence of the DCC, it seems unlikely that the specific individuals who could get the Party nod would be as aligned with our brand of politics as a Derek Green or an Allan Domb, so perhaps it would be better if the seats just went unfilled through the rest of 2022 and 2023.

After Clarke’s original announcement about the two District elections, Democratic City Committee held meetings last Wednesday to vote on the party nominees for the 7th and 9th District seats. The way the process works is that only the ward leaders overlapping those districts have a vote on the nominations, and their votes are weighted based on the number of divisions they have in that district. The ward leader representing the ward with the highest voter turnout presides over the meeting. 

In the 7th District, the relevant ward leaders voted to support Quetcy Lozada, former chief of staff for outgoing Councilmember Maria Quiones-Sanchez and a current VP for Community Engagement and Organizing for Esperanza, by a vote of 109 to 47. That’s a really significant shift from prior years, since the Democratic Party (and really, the ward leaders in the 7th) had previously supported Sanchez’s Council opponents four election cycles in a row

In the 2019 primary, the ward leaders had voted to endorse Rep. Angel Cruz over Sanchez, and in 2022, Rep. Cruz was once again campaigning for the seat in the special election. So the move by the Party to endorse Lozada—someone clearly from the MQS family—over Cruz this time represents something of a political earthquake that’s worth paying more attention to, especially as the 2023 primary nears. It is expected that Rep. Cruz will run in the 2023 primary in the 7th District, and there will be another contested ward endorsement vote next year. 

The change can partly be chalked up to the results of the 2022 ward elections, and some shifting alliances. Sanchez and her former political foe Carlos Matos had joined forces to oust prior 43rd ward leader Emilio Vasquez from that post and replace him with Sanchez/Lozada ally Rep. Danilo Burgos. The open 18th Ward also evidently played a decisive role on the margin in throwing the nomination to Lozada.

In the 9th District, the ward leaders unanimously voted to support Anthony Phillips, executive director of Youth Action, for the nomination to serve the rest of Councilmember Cherelle Parker’s term. You can read a recent op-ed from Phillips on debt-free college options, and an older interview from an Urban Consulate event where he talks about transit and some other topics. He is expected to run for a full term in 2023, but may have some competition from former 200th House District candidate Janay Hawthorne. 

Until Thursday afternoon, that was expected to be it for special election nominations, since September 15th had been considered the last day for CP Clarke to file writs with the City Commissioners. But then, Clarke reversed his previous position and announced he would be filing writs for the At-Large special elections too.

The reason, as spelled out in a press release from the Council President, is that the shrunken Council body would give the Mayor a fighting chance to veto Council bills he doesn’t like, and actually have those vetoes stick. That’s because, regardless of how many members are seated, Council still needs 9 votes to pass bills, and 12 votes to override a Mayoral veto even with a lower denominator.

“The Council President’s action in issuing writs for special elections for At Large seats followed a Meeting in City Council at which Mayor Kenney vetoed a bill concerning a neighborhood overlay for the 9th District – legislation originally sponsored by now-former Councilmember Parker [...]

“It is vitally important that City Council be able to conduct its business, whether that is passing legislation, considering an override of a mayor’s veto, or even legislation to change the Home Rule Charter.”

With the four resignations, there are currently 13 members of Council, and if Helen Gym and David Oh both resigned, there would be 11. So during the window after those two resignations, but before the two new District reps are seated, Mayor Kenney will be able to veto any bills he wants, and Council won’t have the votes to override him. And even with 13 members seated, all it would take is two members siding with the Mayor to make vetoes stick. 

This isn’t just a theoretical concern for CP Clarke. Mayor Kenney had issued a veto in Thursday’s Council session of now-resigned Councilmember Cherelle Parker’s bill No. 220446, making changes to the 9th District Overlay.  

That bill would add to the list of mostly reactionary zoning policies that Councilmember Parker has adopted specifically for the 9th District, which include bans on some more affordable construction materials like siding, a larger minimum lot size than is required for rowhomes citywide, and special restrictions on ‘Missing Middle’ housing like accessory dwellings, sometimes called “granny flats” or “inlaw suites,” that are needed to help more seniors age in place in their communities. 

These regulations were all established in the recent past, while the new changes vetoed by Mayor Kenney would add a requirement that businesses of the following categories apply for a special exception from the Zoning Board of Adjustment.

The goal, according to CM Parker, is to slow the proliferation of “smoke shops” in the 9th District that are flouting the code and creating nuisances for neighbors. The legislation requires a special exception for smoke shops, but also for a host of other more banal business types as well.

A special exception has a more lenient legal standard of review than a zoning variance does, putting the onus on neighbors to prove that the business would create a unique hardship for them, whereas in the case of a zoning variance, the onus is on the would-be developer to prove a legal hardship.

Still, this new process hurdle inarguably makes it harder and more expensive to open legitimate businesses of these types by essentially requiring the applicant to spend money on lawyers and overhead costs while they wait months to get on the Zoning Board’s calendar. 

In his statement vetoing the legislation, Mayor Kenney's administration made this same point:

“While my Administration is supportive of the bill’s intent to reduce nuisance business activity, this legislation is not the appropriate tool to combat the genuine concerns sought to be addressed,” Kenney wrote. “Requiring prospective business owners to retain the costly services of an attorney and face the delay and uncertainty associated with a special exception hearing will discourage the establishment of new businesses and the expansion of those already in existence.”

The Zoning Board has also been known to reject some decidedly non-harmful uses even in these lower-bar special exception cases, when the District Councilmember weighs in against them. Anecdotally, ever since Mayor Kenney appointed William Bergman as the new Zoning Board chair earlier this year, some zoning lawyers and builders have noted the board has become much more deferential to the opinions of District Councilmembers than was the case when Frank DiCicco was Chair. 

So on balance, the bill would’ve been a net negative in our view for people trying to open legitimate grocery stores, retail shops, and pharmacies in the 9th District—all the common sources of neighborhood small businesses—and it was a good move and a positive sign of life from Mayor Kenney to veto this while there isn’t a 9th District member in office to reintroduce it.

From our perspective, the prospect of a Mayor being empowered to veto the worst of the worst of City Council legislation and having those vetoes stick all the time is absolutely electrifying.

Councilmanic Prerogative dynamics mean that whatever crazy idea somebody has for their district is overwhelmingly likely pass, as the other 16 members turn their critical-thinking faculties off and avoid butting into their colleagues’ district affairs. Often there are sensible bills too, but there are also some really bad ones, and having the Mayor’s office empowered in a real way to sand off the rough edges would be a very positive development for Council legislative politics. 

The next Mayor needs a posse of at least six allies on City Council who want to vote with them loyally to uphold vetoes of bad Prerogative bills, but for at least a little window here, Mayor Kenney could wield a lot more influence than he usually does if he could manage to make two friends on Council for a few months. The Mayor would’ve been wiser to hold his veto of the 9th District overlay until this week, when it would’ve been too late for CP Clarke to issue the writs for the special election for the At-Large seats. That would’ve extended the Mayor’s rare window of having a meaningful veto over Prerogative bills into at least next summer.  

But the special election for At-Large seats is now happening concurrently with the November general election, and that means Democratic City Committee gets to appoint two Democratic nominees, who, because of the lopsided Democratic voting advantage, are overwhelmingly likely to win the seats. The At-Large names rumored at the moment are former Derek Green staffer and 42nd ward leader Sharon Vaughn, and Jimmy Harrity, Sharif Street’s district director who has a background with the Laborers District Council. Gary Masino over the Sheet Metal Workers is also apparently under discussion, and there is some chatter about Anton Moore, Eryn Santamoor, and Rue Landau as well. 

This all merits a discussion about some of the electoral politics ramifications of this episode. 

First, by waiting until the very last minute to call the At-Large special elections, Council President Clarke is delaying the printing and mailing of mail-ballots, potentially causing problems for voters who have signed up to vote that way. They’ll now have a shorter window to receive and return those ballots, increasing the likelihood that more of those won’t be returned at all. This could spell some trouble for statewide Democratic candidates for Senate and Governor if it results in depressed turnout in Philadelphia.

Additionally, the Parker bill really should give some pause to the various pro-growth political actors considering endorsing Councilmember Cherelle Parker for Mayor. While Councilmembers of course tend to retool their positions in shifting from running for one office to another, the specific view of how planning should work in the 9th District Overlay is pretty telling, and it’s concerning for what CM Parker might do as Mayor. 

CM Parker has been one of Council’s big innovators of what we’ve been calling “Overlay Mania”--the pathbreaking recent trend where instead of simply remapping their district’s zoning using the citywide zoning code categories, District Councilmembers are increasingly taking an a la carte approach to the city zoning code text, and simply nullifying the parts that they don’t like. This has led to the absurd situation where there are essentially now 10 different sets of rules for building a rowhouse in Philly, and the same basic problem extends to other kinds of housing or business uses too.

The building trades unions in particular need to wake up to this reality, because the overall effect of this change is to depress the total volume of construction projects and construction jobs in the city.

This general effect has recently been quantified too, with a new study from the Upjohn Institute finding that switching from at-large city councils to district-based ones has been associated with reducing housing permitting activity by 21% in some cases, with even more severe effects for apartment building projects, aka the ones more likely to feature unionized job sites. 

The various pro-growth political constituencies in the city desperately need a new Mayor who is ready to pull out all the stops to bring an end to the destructive ‘Overlay Mania’ governance innovations that this City Council has put in place over the last two terms. There are some hard but important questions that need to be asked about whether some of the most enthusiastic adherents of that style of politics are really going to be able to turn on a dime and reemerge as motivated opponents of that trend if they are elected Mayor next year.

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  • Jon Geeting
    published this page in Blog 2022-09-19 13:10:50 -0400