This enemy of developers goes by many names.
“Member deference” in New York. “Aldermanic prerogative” in Chicago. Philadelphia has “councilmanic prerogative.”
The terms boil down to the same tradition: granting final say over a development to the local elected official. This informal veto power plagues developers in these and other markets, driving them away from certain neighborhoods where the approvals process ends up wasting time and money.
But change may come. In New York City, voters will decide in November whether to weaken member deference. In Chicago, the federal government has looked into how aldermanic prerogative may have worsened segregation by blocking multifamily housing in predominantly white neighborhoods, though the Trump administration dropped two investigations in August.
Even as progressives have adopted pro-housing stances, member deference still polarizes elected officials. Proponents of ending it argue that local control over zoning stands in the way of fixing housing shortages. Opponents maintain that local officials are best positioned to act on their communities’ behalf and use influence to pressure developers into making proposals more affordable.
How these cities ultimately address the unwritten rules that make or break development could open the door to more housing and provide a blueprint for other parts of the country grappling with similar approval schemes. The goal: to keep the Democratic process from devolving into bureaucratic morass, without cutting communities out of the conversation.
“All eyes are going to be on New York City,” said Annemarie Gray, executive director of Open New York, a Yimby group that is backing ballot questions that seek to weaken the City Council’s authority over housing projects. “A decisive victory will make history, and prove that blue cities can lead the way to tackle the housing affordability crisis.”
Chipping away at tradition
How does one regulate tradition? Even as leaders of some of the biggest cities in the country recognize that individual Council members perhaps shouldn’t wield inordinate power over housing projects in their districts, solutions are limited.
As former Chicago Inspector General Joe Ferguson once warned then-Mayor Lori Lightfoot, you “can’t legislate relationships.”
Still, when Lightfoot first became mayor, she issued an executive order that tackled aldermanic prerogative as it applied to permits and licensing. As a result, the city’s housing department stopped requiring developers to receive approval from the local alderperson before building certain affordable housing or securing city financing.
“It was a start. It was kind of scratching the surface,” Patricia Fron, executive director of the Chicago Area Fair Housing Alliance, said.
Lightfoot lost her bid for reelection in 2023, and on her way out of office she signed another order that required the zoning administrator’s office to publish its recommendations on a project application before it goes to a City Council vote. The move also empowered the office to make zoning map amendments in cases where an alderperson had run out the clock on a project. Current Mayor Brandon Johnson has not enforced that order, according to the Chicago Tribune and Lightfoot.
Lightfoot called aldermanic prerogative “anti-democratic and unbelievably corrupting” in a recent interview with The Real Deal.
“It cannot be Caesar, thumbs up, thumbs down, whether a project lives or dies.”
“This is the use of a power that puts too much unchecked authority in the hands of a single person,” she said. “That’s not how democracy works.”
“It cannot be Caesar, thumbs up, thumbs down, whether a project lives or dies,” she said.
In 2018, the California state legislature cornered Los Angeles into changing a rule Caesar might have liked. It required developers who sought public funding for affordable or homeless housing to procure a “letter of acknowledgment” from the local Council member. This meant Council members could kill projects simply by withholding the letter or agreeing to issue it only after concessions from developers.
The state approved a law that would bar developments from receiving housing tax credits and other state funding if the project is subject to a “letter of acknowledgment” requirement. In other words, Los Angeles was forced to do away with the rule or lose out on state housing funding.
Of course, it is easier to roll back a regulation than banish an unwritten rule. And, though the state didn’t wipe out Council members’ informal sway over zoning changes in their district, other California laws have created more pathways for housing to be built with just ministerial approvals or as-of-right.
Other efforts have focused on clearing the way for specific project types, rather than attempting to topple local control.
As part of a broader housing package, Philadelphia recently simplified the transfer of 1,000 vacant city-owned sites, only mandating the city’s land bank, and not the City Council, to approve a developer’s acquisition. But the streamlining only applies to those sites.
New York’s fight
Affordable housing developer Kirk Goodrich gets why residents of low-density neighborhoods may not be eager to see multifamily buildings rise nearby.
If you bought your home because you were drawn to quiet, tree-lined streets, you might worry about new development changing the streetscape and overall feel of a neighborhood. But he doesn’t think the conversation should stop at those reservations.
“We’re in a housing crisis, and we all need to do [our] part,” he said. “It’s not fair to the city at large and neighborhoods that have borne most of the multifamily housing burden.”
Goodrich, who heads Brooklyn-based Monadnock Development, has been a vocal supporter of New York’s ballot measures to reduce member deference.
Since changes to the city’s charter in 1989, New York’s land use review process has effectively ended with the City Council, whose yay or nay nearly always hinges on how the local Council member feels about a project or rezoning.
One of the ballot questions would create a shorter review for modest housing projects, skipping either review by the City Council or City Planning Commission, depending on the type of project. A separate measure would eliminate Council review for projects in districts that have permitted the lowest amount of affordable housing during the past five years. A third would create a three-person appeals board that could reverse City Council decisions on affordable housing.
Up until September, not a single housing proposal had been approved through the city’s land use review process without support from the local Council member in 16 years, according to a report by the City’s Charter Revision Commission, which approved five questions to be placed on the ballot in November. The City Council recently overrode member deference on two small housing projects. At least 45 applications that began public review in the past decade were abandoned, the report notes. Neither statistic captures the cases where developers decided against filing an application, knowing that they’d almost certainly face local opposition.
“It not only stops and curtails development, it doesn’t even allow discourse,” Goodrich said. “I won’t even have a conversation with particular Council members because their positions on these issues are so well known that it is futile.”
In the same decade, only five of the city’s 51 Council districts saw, on average, more than one rezoning application to allow housing, according to the report.
During the past 16 years, not a single housing proposal has been approved [in NYC] through the city’s land use review process without support from the local Council member.
City Council leaders are not going to let deference go easily. Unsurprisingly, they oppose the ballot measures and unsuccessfully tried to convince the city’s Board of Elections to nix them. City Council Speaker Adrienne Adams called the questions “misleading,” saying they strip the Council of the power to hold developers “accountable to the needs of neighborhoods and its residents.”
“It is not about the power to block housing. This is not about member deference either,” she said during a press conference in September.
“Our opposition is about preserving the public’s power to make development better and housing more affordable for everyday New Yorkers,” she continued. “Developers do not automatically produce housing that is affordable to New Yorkers without being pushed to do so. And the city also often fails to invest in our communities unless pushed to do so by the Council.”
Developer promises made during the process don’t always pan out. Council member Julie Won pushed the developers on Innovation Qns, a massive housing development in Astoria, Queens, in 2022, winning a big affordable housing commitment. Of the 3,200 apartments planned, 40 percent would be set aside as affordable. But three years later, the development team has broken up, and only smaller projects are planned for the sites. One reason? The uncertainty over the project’s financial viability, according to one of the developers, Silverstein Properties.
The Council has described the ballot measures as a power grab by Mayor Eric Adams, and leaders have pointed to projects that the mayor himself has killed during his tenure, including senior housing planned for city-owned land at the Elizabeth Street Garden. The administration also recently withdrew its support for a plan for Just Home, an 83-unit supportive housing project for formerly incarcerated people in the Bronx, amid opposition from the local Council member.
The fight over Just Home is well timed: Council leaders have insisted that they do not always honor member deference. Buttressing that argument, the Council approved the project in September over Council member Kristy Marmorato’s objections. Still, such overrides are rare.
Council Majority Leader Amanda Farías noted that developments can stall for a number of reasons, including market forces or lack of staffing at a city agency.
“That doesn’t mean that the response to that is to remove the agencies from the process, or the Council or public either. Our land use process is one of the few avenues [where] everyday New Yorkers can shape what is happening in each of their neighborhoods,” she said.
Some labor groups have also come out against the measures, since deference can allow City Council members to clinch promises from developers to use union workers.
“While we emphatically support the construction of more affordable housing, this should not come at the expense of the public’s ability to weigh in on large projects which employ hundreds of New Yorkers and have significant impacts on the communities where they’re built,” Candis Tall, executive vice president and political director of 32BJ SEIU said during a public meeting in July.
Chicago’s plight
Concern about local officials’ discretionary power over their neighborhoods isn’t just about housing, or building enough of it to solve for citywide shortages. Proponents of reform also argue that such power reinforces discrimination and enables corruption.
In 2018, housing groups, including the Chicago Area Fair Housing Alliance, filed a complaint with the Department of Housing and Urban renewal, alleging that aldermanic prerogative reinforced segregation in the city.
At the time, to secure public financing for affordable housing, including low-income housing tax credits and community block grants, developers had to include a supportive letter from the local alderperson. Between 1992 and 2017, the city approved such financing for 3,394 units in newly constructed multifamily buildings. Most of those units, 90 percent, were located outside predominately white and low-poverty areas, according to the complaint.
Local alders are able to prevent new construction in their districts, either by rejecting specific projects or through downzonings, because the Council tends to vote according to their wishes on land use matters. The complaint argued that, as a result, 75 percent of the city’s land that is zoned for multifamily housing is located outside of majority white wards and is also home to 98 percent of new, affordable multifamily housing construction.
In a 2023 letter, HUD agreed with the complaint’s findings. But in August, the agency indicated that it was dropping the case, saying it would instead “continue to prioritize investigations of specific allegations of actual discrimination, rather than dictate or influence land use policy,” according to the Chicago Tribune.
Chicago Area Fair Housing Alliance’s Fron said her organization has continued discussions with City Hall to find resolutions to the allegations laid out in the complaint. A representative for Mayor Brandon Johnson did not reply to a request for comment.
The unwritten deference to local alders creates a “whole host of problems from kiss-the-ring corruption to barriers to housing,” Fron said.
A highly publicized example of the former was the conviction of Alder Edward Burke in 2023, on charges that he pressured developers to hire his real estate law firm in exchange for moving the redevelopment of an old post office.
As to the latter, a former bank has sat vacant since 2014 on the city’s northwest side. Last year, the local alderperson, James Gardiner, rejected a proposal to build 40 apartments, mostly market rate, on the site.
Four years ago, the City Council made the rare move of overriding the local alderperson in approving a nearly 300-apartment building on the Northwest Side. Lightfoot said she tried to tour the area with Alderperson Anthony Napolitano and finally visited the site on her own; after that, she pushed for the project, alongside construction unions and other alderpeople.
“We rallied the troops, and we were able to approve the project,” she said.
Approval isn’t everything: the developer has reportedly struggled to secure financing.
The road ahead
Those advocating for and against New York’s ballot measures have vowed to spend the next few months educating voters. Housing groups, including Open New York, formed a political action committee that plans to spend $3 million to promote the measures.
Even those who would weaken member deference acknowledge the role of local officials in representing the interests of their constituents.
“On its face it makes a lot of sense,” Fron said. “We, as members of the ward, elect who we want to represent us. That should create equal representation. But in reality, how it plays out in some of the most critical decisions, the tradition of aldermanic prerogative tends to pit ward against ward.”
Lightfoot said an alderperson should have input but should not be the final arbiter of what happens in a ward. She added that she found that some of the most progressive alderpeople were also among the worst offenders.
“Having watched and observed it, it is highly ironic to me that people who talk a good game about democracy wield aldermanic prerogative like they are some kind of old-time machine politician,” she said.
Elected officials use discretionary regimes to negotiate specific benefits for their communities — sewer upgrades or a public park, for instance — as part of negotiations over new developments. Weaning cities off these private streams of investment could require unpopular changes like increasing property taxes, Michael Manville, a professor of urban planning at UCLA Luskin School of Public Affairs, said. Local officials won’t easily relinquish the ability to deliver concrete wins.
“This is an opportunity to very visibly bring something to your district without raising anyone’s taxes,” he said.
He added, “Long term costs are going to be somebody else’s problem.”