Sunday, May 20, 2007

Zoning Out: The Need to Reform ULURP

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Sunday, May 20, 2007

Zoning Out: The Need to Reform ULURP

We have been actively involved in the city's land use review process for the past twenty five years, primarily in opposition to large shopping center and box store projects. As a result of this experience we can say, without any doubt, that the process is a sham; it avoids real planning and provides a technical evaluation charade that is developer-driven and inconsiderate of an real concern with community impact.

That's not to sat that we haven't learned how to use the process to maximize the power of communities and small businesses. We have, and in the process have stopped over 20 separate development projects. So we understand ULURP- as the philosophers would say, immanently. It is a process that can no longer be depended to provide good public policy outcomes, only victories or defeats that usually have no relationship to environmental issues.

Which is why the recently issued report from the Manhattan Institute, Rethinking Environmental Review: A Handbook on What Can Be Done, is such an important, and long overdo, policy evaluation. It is especially timely in the context of the mayor's long range concern with sustainability. A truly sustainable planning approach must include the reform of a land use review process that is an active impediment to the goals that PlaNYC has laid out.

That being said, there are things in the MI document that we would take issue with (Our new good friend Norman Oder has laid out some of these qualms in a recent post). Let's begin by underscoring what we find to be excellent criticisms in the MI report. In the first place, "the process has little to do with planning." Here the report is right on target.The entire ULURP review inevitably begins with a developer's vision, and is then narrated by consultants who are hired to embellish the vision with facts that fit the preconceived narrative. The resulting environmental impact statements are certainly "impenetrable," designed as "litigation insurance" rather than as an explication of any real environmental impact.

The impenetrability is by design, since the goal is, as the report points out, "to be sure nobody reads it." We found this out exactly twenty five years ago. In one of the first projects we worked on, the Cherry Street Pathmark, we closed the parking lot for six months because we actually read the traffic study-and found that the developer had submitted the very same study that had been done for Pathmark's first urban store in Gowanus.

The consultant's have gotten a great deal more sophisticated since then, but the game is the same. And Oder's comments about the role of AKRF in all of this-both judge and jury-is right on target (something we can see most clearly in the Columbia expansion). It is the same phenomenon that we see on the Federal regulatory level: a revolving door between the private sector and government that makes legitimate regulation problematic.

The MI report captures this in quoting a unnamed consultant who said:
"Politicians have no time to read thousand-page volumes of technical data,and bureaucrats are overwhelmed by their workload...{which leads to}...Therevolving door between powerful government and highly paid private-sectorCEQR jobs means that no wants to go om record blowing the whistle...A guy worksfor the city, then goes to work for AKRF...and you can't get out of the circle."

The quality of the technical review is also called into question in the report. In developing mitigation for traffic impacts, consultants for developers tend to evaluate a narrow range of local impacts, and avoid looking at the wider possible damage that can be done to surrounding neighborhoods. This can be seen in the traffic signal retiming mitigations: "It is perfectly possible for a retiming, proposed to address congestion at an intersection, within the study area, to make things worse in the larger neighborhood just outside the study area."

So, for instance, with the Yankee Stadium and the Bronx Terminal Market projects that will certainly have a cumulative impact on the South Bronx, but were examined as if they were two discrete projects without any contiguity whatsoever. And of course no one bothered to look at traffic on the Deegan, since there appears to be no requirement to look at state roads-even if they are on "Asthma Alley."

So the MI report has a number of important observations, but its major weakness is its attempt to narrow the scope of review to what it feels are legitimate environmental issues. Neighborhood character and socio-economic conditions are eschewed in favor of very narrow parameters. This overlooks a number of salient points.

In the first place, the review process is a political process as much as it is an environmental one. Developer visions have a political component, and their impact needs to be evaluated on a number of levels that transcend narrow environmental concerns. When ULURP becomes a "weapon of choice" for activists-something that MI sees pejoratively-it is because it is the only available venue to express the concerns of communities and small businesses.

In addition, the issues of community character and socio-economic impacts often do have an important environmental impact. As we have commented concerning the mayor's congestion pricing plan, the building of auto-dependent shopping centers creates congestion and threatens the sustainability of local {often walk-to-shop} commercial strips. And why shouldn't the nurturing of local economies be a focus of any review? If not in ULURP, where?

Which brings us to what we feel is a major lapse in the MI report. It is spot on in showing how consultants collude with developers-and how beleaguered city bureaucrats play matador with the review-but it fails to call for the removal of developer-paid experts from the review process. As we have said before, experts should be hired by the city and paid for by the developers; and they should be given a wider planning agenda for their review.

So the MI report is a good start in the reformation of a broken ULURP process. Ultimately, however, it is too developer-friendly and insensitive to the needs of communities and small businesses. A comprehensive reformation should be made an integral part of PlaNYC so that, going forward towards sustainability, we have as disinterested (and as community-friendly) a review process as possible.

# posted by Richard Lipsky @ 9:29 AM


Friday, May 18, 2007
A start on trading cumbersome (city) environmental review for the civic work of planning

Nobody’s happy with the way projects get approved in New York. Rather than planning, there’s an environmental review process--city, state, or federal depending on the overseeing authority—that aims to disclose adverse impacts rather than actually mitigate them. Reams of paper produced by high-priced consultants allow developers to insulate against lawsuits, but otherwise don’t serve the public well.

The indictment, as applied in the city’s implementation of the 1975 State Environmental Quality Review Act (SEQRA), is detailed thoroughly in a new publication, Rethinking Environmental Review: A Handbook on What Can Be Done, written by Hope Cohen, deputy director of the Center for Rethinking Development at the Manhattan Institute, with a foreword by Richard Ravitch, former head of the Metropolitan Transportation Authority.

While the institute has a free-market bent, it gathered a panel of good government types for a panel discussion yesterday, who endorsed the critique even if they differed at points over the prescription. They included Ravitch; Robert Yaro, president of the Regional Plan Association (RPA); Kent Barwick, president of the Municipal Art Society (MAS); and Jerilyn Perine, executive director of the Citizens Housing and Planning Council of NY and former commissioner of the New York City Department of Housing Preservation and Development.

Though Atlantic Yards, as a project overseen by the state, was not addressed in the handbook, it was brought up yet again by the panel as an emblematic example of poor planning.

(The handbook was limited to the city review, because changing state requirements would require amendment of the law but the city process could be changed via mayoral executive order and a set of guidelines issued by the Department of City Planning.)

Costly and opaque
Cohen’s handbook points out that even a small-scale environmental review in New York City can cost $100,000, and larger reviews can cost more than $2.5 million. (Note that AKRF’s tab for the state review of Atlantic Yards approaches $5 million.)

Cohen writes:
Politicians have no time to read thousand-page volumes of technical data, and bureaucrats are overwhelmed with their workload, which means that only projects with a patron get far fast. The revolving door between powerful government and highly paid private-sector CEQR jobs means that no one wants to go on record blowing the whistle. As one developer explained, “Ninety percent of EASs are done by a small circle of firms where you’re buying the ability to influence the bureaucrats—whom they hire. A guy works for the city, then goes to work for AKRF [a leading consulting firm for environmental review], and you can’t get out of the circle.”

(AKRF even wrote the technical handbook, the City Environmental Quality Review Technical Manual, as the company states proudly.)And it’s possible to game the system. Signal retiming “to address congestion at an intersection within the study area [can] make things worse in the larger neighborhood just outside the study area,” according to the report, and that’s certainly been a charge regarding the Atlantic Yards review.

Reforms suggested
The recommendations include exempting some projects, including smaller projects and variances that do not increase infrastructure demands, from review; new time limits for reviews; and the designation of an office to implement mitigations, such as the Mayor’s Office of Operations, which also houses the new Office of Long-term Planning and Sustainability, which is behind the PlaNYC 2030 project.

More controversially, the report recommends that the city review of environmental impacts should include a narrower definition of the environment. It “should drop topic areas that do not relate to the natural environment, infrastructure, or municipal services,” thus keeping topics like community facilities and services, open space, shadows, traffic, sanitation, transit, air quality, and noise, while excluding land use and zoning, socioeconomic conditions, urban design/visual resources, and neighborhood character, among others.

Cohen's argument is that current environmental reviews can offer little to deal with such impacts: “All it does is disclose. There’s nothing short of stopping the project that would change it.”

Afterward, I asked Cohen if she would make the same recommendations to reform the state environmental review, given that issues like neighborhood character and zoning were huge issues in the Atlantic Yards review. She noted that “my mandate was to look at the city” because that's where changes are clearly possible.

She added an important distinction. In projects overseen by New York City, the Uniform Land Use Review Procedure (ULURP), which accompanies the environmental review, addresses issues of zoning, at least, while state agencies are exempted from ULURP.

The Center for Rethinking Development, she added, has always believed that the Empire State Development Corporation (ESDC), which oversees state projects, “should not be exempt from zoning considerations and ULURP.”

Public role
At the panel, Barwick offered some cautions, suggesting that, despite the energy behind New York’s growth spurt, “it’s also a time in which there’s a severe and growing disaffection of the public.” Virtually all the large-scale development is “completely divorced” from the approval process, citing “all of the West Side, the Atlantic Yards, and Ground Zero,” he said.

Barwick said he thinks Bloomberg’s sustainability initiative will succeed over time, “but it’s an impediment to that kind of leadership to have the kind of disaffection we have today.’

While he finds many of the proposed reforms legitimate, he warned that “it’s ironic at this moment in our history to begin to define the environment as narrowly as the Manhattan Institute wants… to dismiss the consequence of the shapes and size of buildings… is to misunderstand why people live here.”

Ravitch later challenged Barwick, suggesting that people lived in New York because it was a place for opportunity, with housing subsidies, great public transit, and cheap higher education. (All true, but if people didn’t care about neighborhood character, we wouldn’t have historic districts.)

Yaro echoed the general theme, noting that the current process doesn’t work for communities, it’s expensive and time-consuming, it leads to rather than avoids litigation, and “it doesn’t work at all when we’re doing city building.” (RPA’s Rob Lane addressed that city-building issue yesterday, highlighting Atlantic Yards.)

CBA warnings
While activists have used environmental review to try to kill a project, the handbook states, some interest groups now use community benefit agreements (CBAs) that promise jobs, housing and child-care centers to ease projects along, even though they can distract from infrastructure improvements and other “traditional” mitigations. (The report allows that subsidized housing is arguably more impact-related.)Yesterday, panelists took up that theme, noting that a CBA is hardly a substitute for civic planning. Perine warned that the environmental review process is “kind of being co-opted by these kind of agreements.

No community ever says to a developer, ‘There’s no way we’ll approve this project unless you give us a homeless shelter, a garage for the ambulances, and a power plant.’… There has to be some sense made of this, and I think it’s one of the trains running out of the station that’s really at odds with our affordable housing policy and also with what the mayor’s trying to put out in his vision for the city for 2030.”

Yaro spoke similarly. “The avoidance of litigation is leading to what I think is an insidious business,” the CBA, which he defined as “a form of legal extortion.”“Atlantic Yards is a good example,” he said, noting that MTA and city need to fix traffic and transit issues. “But there was absolutely nothing the developer could do, the city could do, or anybody could do” in the environmental review. While the CBA commitments might be worthy , especially to the civic groups that are part of the CBA, the document "didn’t deal with the fundamental issues that were raised by the EIS process.”

Vicki Been of the Furman Center for Real Estate and Urban Policy warned that excising issues like socioeconomic impacts from the enviornmental review process would leave communities “very unsatisfied.” While the answer may be a better planning process, she said that wasn't going to happen first.

So the risk, she suggested, is if some of those impacts are taken out of the process, we’ll get “something perhaps even worse, and we get more Community Benefit Agreements," which she characterized as part of a process less manageable than the environmental review.

Fait accompli
Yaro returned to the planning theme: “We’ve got a regulatory process with no planning process and what we need is, upfront, planning, community input, clear guidelines from the city and the state about what developers should be doing.”

“We’re getting it through these voluminous review processes, which only happen when the development is a fait accompli," he said. "There’s never any serious discussion of alternatives.” Yaro seemingly was endorsing one argument, if not the lawsuit exemplifying it, that challenges the Atlantic Yards environmental review, arguing that the state failed to consider alternatives to Forest City Ratner's plan.

Someone decides
Perine, who said she didn’t see communities embrace density and “the real infrastructure changes that we need,” argued for a distinction: “I think there’s a real difference between planning and what people think of as community planning. Planning should be done by planners.”

She scoffed at the idea that communities don’t have a voice, pointing to the rejection of the West Side Stadium. (Arguably, that had as much to do with the lobbying by Cablevision, owner of Madison Square Garden.) She also cited recent rezoning for the West Side as including community input. She didn't challenge Barwick's examples of Atlantic Yards and Ground Zero.

While communities rhetorically support affordable housing, she said, the process is complex and expensive, and planning comes out of pre-development costs paid for by subsidized loans: “We are wasting scarce subsidies that could be going to solve people’s housing problems on all this morass that doesn’t really make a project better.”

“I do believe there are legitimate reasons to have that community voice be a part… but at some point, if our rhetoric is real," she said, "somebody has to be willing to make a decision and say, ‘This is going here because we need it.’ Instead, we now put subsidies toward process and delay."

Looking forward
Perine offered “an alternative to these kind of willy-nilly Community Benefit Agreements,” suggesting that the sustainability office be placed in the Department of City Planning and that the city consider a “wedding registry idea” that lists needed community improvements.

Barwick called it “frightening” that the public doesn’t have to pay, but that it would all be paid for by the developer.” (The issue of increased responsibility by government and the public is also addressed in Lane's city-building essay.)

Yaro suggested that the mayor’s 2030 plan provides the framework to move forward. Genie Rice of Civitas said that there has been community planning, but 197-A plans produced by Community Boards are “totally ignored.”Barwick noted that most 197-A plans have embraced growth: “There’s a feeling communities are NIMBYs. It’s a false assumption.”

Yaro pointed out that the City Charter that enabled community 197-A plans also calls for the mayor in his first year of office to prepare a four-year strategic plan. “That has been politely ignored, until now.”

Indeed, the Bloomberg administration has begun to put planning on the public agenda. So reform of the city’s cumbersome environmental review process—and reform in a way that can satisfy different constituencies—remains a challenge, but it could be on the horizon.A reform of the state law, that which allowed Atlantic Yards, is even farther away. It may be that ongoing legal challenges to Brooklyn’s most controversial project will keep that state reform issue on the agenda.

# posted by Norman Oder @ 7:26 AM

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