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The Fix: Councilmanic Prerogative at its Worst

Councilmember Cindy Bass wants to ban new day cares from her district. As Philly 3.0’s engagement director notes, it’s a shameful example of how politics works here

Councilmember Cindy Bass wants to ban new day cares from her district. As Philly 3.0’s engagement director notes, it’s a shameful example of how politics works here

City Council is back in session for the fall, and with the primary elections coming up next year, some endangered members are looking to make a splash.

In the 8th District in Northwest Philly, Councilmember Cindy Bass already has a declared primary challenger, educator and activist Tonya Bah, and there are several other candidates rumored to be eyeing the seat who could make a race of it.

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It’s hard to name many concrete Bass accomplishments on City Council, so heading into the 2019 election, it appears her strategy will be to introduce some “messaging” bills that either have no chance of passing, or are meant to signal to different groups that she’s on their side.

That’s the best lens from which to view Bass’s surprise decision last week to introduce a doomed bill completely ending the 10-year tax abatement on property improvements—with no prior political legwork to get her colleagues on board—and also for this latest “Eighth District Overlay” she introduced this week that straight-up prohibits daycares from opening in the entire 8th district, along with some other locally-unpopular land uses like auto repair and tire sales.

If it passes—which means enough other Council members going along with Bass’s proposal—this is an excellent illustration of Councilmanic Prerogative at its worst.

Councilmanic Prerogative refers to the near-absolute power each of the city’s 10 District council members wield over development projects in their respective districts. This longstanding tradition—not codified in any law or the Home Charter—gives them the power to green-light or stall all projects in his or her district, whether for good or ill. It’s as if a sitting Congressperson were to go to D.C. and pass laws for her own congressional district, not the country as a whole. It’s bad politics, and bad for the city.

Now, Councilmember Bass says nobody who lives outside the 8th District is allowed to have an opinion on this, but I know people all over the city, and I have to say that none of the parents I know, whether they live in Germantown or Mt. Airy or South Philly or the Riverwards—nobody with young kids that I know would agree with the notion that there are plentiful affordable childcare options around.

Everywhere you go there’s a space crunch and a waitlist. There’s a sense sometimes among some of the neighbors that because there are a lot of child care providers that this must mean there are enough childcare providers, but that’s obviously faulty logic. In most cases the providers all full, and where you see problem businesses enrolling more kids than they’re allowed to, that’s a symptom of too few daycare options, not too many. And in those cases, the better solution would be to appropriate funds to hire some more L+I inspectors to inspect daycare facilities. Leaning on zoning as the tool is like reaching for a sledgehammer when you need a scalpel.

The way it would work under this zoning overlay is that day cares—but not adult day cares, because why even pretend—would be a prohibited use, and then to open any daycare, you’d have to request a zoning variance. That would send the project through the much more political zoning variance process, where there’s a required meeting and a vote of the near neighbors, and a vote of the political hack-dominated Zoning Board of Adjustment on whether it gets approved. That adds time and money costs to the project, since the applicant typically has to hire an attorney, and it could always get bogged down in lengthy appeals—oftentimes for no good reason.

As multiple people brought up on social media, making it harder and more politicized to open above-board day care facilities—which already have to comply with lots of appropriately-stringent regulations even when opening by-right—will only work to the benefit of new illegal, unregulated daycares operating in the 8th District. People are still going to get childcare one way or the other.

In the course of doing this, they’ve created all kinds of other unintended problems, like an affordable childcare shortage and a ballooning black market for in-home daycares. This is an excellent illustration of Councilmanic Prerogative at its worst.

So this is an all-around terrible policy idea that’s going to make child care scarcer and more expensive in the 8th District, and limit convenient and affordable options for working families. It’s also potentially a violation of the city’s Fair Practices ordinance or the federal Fair Housing Act—an angle I hope some of our attorney friends will explore as this gets debated.

But the question of the effect this would have on working families being able to afford and access childcare is really beside the point of this bill, which is fundamentally about shoring up Cindy Bass’s voting base with older homeowners who don’t like children and don’t want to be around them.

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Anti-children politics is disturbingly widespread everywhere, and the basic sentiment was best encapsulated in the recent Billy Penn piece on the Rittenhouse Square residents who tried to block a daycare because they hate the sound of children laughing.

“One person complained and said, are we going to have to listen to the sounds of kids laughing and yelling?” developer Jason Nusbaum told Billy Penn. “We could have worse problems.”

While zoning board members ultimately voted to welcome the childcare facility into the tony neighborhood, their unanimous decision did not come without a massive argument about noise, traffic and, of course, parking […]

Pleading to ZBA Chairman Frank DiCicco, Rittenhouse area residents insisted that a daycare center would only aggravate the neighborhood’s existing problems: traffic and noise.

“There is total gridlock in the neighborhood,” said Kristin Hayes, who said she’s raised two daughters from her home at 22nd and Pine. “Traffic is backed up through Graduate Hospital. It’s going to be a complete fiasco.”

While Bass staffers on Twitter tried to defend the bill as a check to ensure only high-quality child care options get approved, anybody who’s ever been to a zoning meeting knows this is absolutely not what’s going to drive the politics. Not even close!

This is an all-around terrible policy idea that’s going to make child care scarcer and more expensive in the 8th District, and limit convenient and affordable options for working families. It’s also potentially a violation of the city’s Fair Practices ordinance or the federal Fair Housing Act.

What’s going to happen whenever a new daycare is proposed is that near neighbors who don’t want to hear children laughing, or don’t want to deal with the extra traffic and activity during drop-off and pick-up times, are going to come out and complain and try to do politics to stop it. Every single time. And it’s not going to be about the quality of the school, but they’re going to say it’s about high-quality facilities and safety and all these other reasons when really it’s always about the same underlying things: children-related noise and transportation headaches during drop-off.

And just to be clear, there are some legitimate gripes about living near a daycare facility that nobody’s really figured out how to mitigate, as far as I can tell. Children will laugh. Lots of parents who drive their kids to the center will need to try and park all at once. It’s pretty bad. But because it’s universally bad, we need to acknowledge that every nearby homeowner is going to be tempted to NIMBY these places wherever they’re proposed, and if we think the most important value is that new daycares be allowed to continue to open, we’re better off just not inviting people to come out and complain in the first place.

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Bass argues that flipping the default decision from Yes to No, and then running everything through the zoning variance process so that neighbors have a better shot at killing unwanted daycare facilities is going to weed out the bad projects and leave only the good projects, but this is pure fantasy. When you invite people to come out and complain about something, at least some people are going to take you up on it, always.

In the course of doing this, they’ve created all kinds of other unintended problems, like an affordable childcare shortage and a ballooning black market for in-home daycares. This is such an amazing and clear-cut abuse of zoning powers that perfectly illustrates why Councilmanic Prerogative is bad and needs to end.

Jon Geeting is the director of engagement at Philadelphia 3.0, a political action committee that supports efforts to reform and modernize City Hall. This is part of a series of articles running in both The Citizen and 3.0’s blog.

The Fix is made possible through a grant from the Thomas Skelton Harrison Foundation. The Harrison Foundation does not exercise editorial control or approval over the content of any material published by The Philadelphia Citizen.

Photo via City Council

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