Bloomberg & NYC Rezoning

Alexander J.
Nicas
THE BLOOMBERG MACHINE EXPLOITS NEW YORK CITY’S FLAWED LAND USE
DECISION-MAKING PROCESS: WHY REFORM IS NECESSARY TO ENSURE
ORDERLY GROWTH ACROSS ADMINISTRATIONS.
Alexander J. Nicas
St. John’s University School of Law
Land Use Planning
Fall 2010
1
Alexander J. Nicas
I. Introduction
According to a population projection survey published by the Department of City
Planning in 2006, New York City is projected to grow to 9.1 million people in 2030.1 This
population survey, a necessary predicate for any long-term development plan, ultimately became
the backbone for PlaNYC 2030.2 PlaNYC 2030, a 127-page comprehensive plan outlining a
common vision for future growth, was put together by the Bloomberg Administration
(“Administration”) in 2007 to address five key dimensions of New York City – land, air, water,
energy, and transportation.3 During the Administration’s pro-growth first term – focused on
major redevelopments and large rezonings designed to create jobs and increase the City’s tax
base – it became clear that there was no overarching land use strategy guiding these decisions.4
In the summer of 2005, as the Administration was preparing for a 2012 Olympics bid, City
agency staff comprehensively analyzed land use and infrastructure issues for the first time in
decades.5 Noticing the shortfalls in past decisions, the City actually set out to develop a strategic
land use plan to utilize resources more efficiently and to prepare for the expected population
growth of the future.6 Although PlaNYC began as a strategic land use plan, sustainability was
the common theme, and the report moved to encompass many issues related to the development
of New York City.7 PlaNYC is still lauded as “exhibiting the best characteristics of a
comprehensive plan, tying long-term goals like sustainability to demographic projections and
1
See Report, New York City Population Projections by Age/Sex & Borough, The City of New York & The Department of City
Planning (December 2006), http://www.nyc.gov/html/dcp/html/census/popproj.shtml (estimating this increase to be
approximately 14%).
2
See Case Study, The Process Behind the Plan: How the City of New York Developed its Comprehensive Long-Term
Sustainability Plan, ICLEI – Local Governments for Sustainability USA (April 2010),
http://www.nyc.gov/html/planyc2030/html/downloads/download.shtml [hereinafter Case Study].
3
See PlaNYC, A Greener, Greater New York, The City of New York (April 2007),
http://www.nyc.gov/html/planyc2030/html/downloads/download.shtml) [hereinafter PlaNYC]. For the purposes of this paper, I
will only be focusing on the land use component of PlaNYC. Any references to PlaNYC will only relate to this section.
4
Case Study, supra note 2, 11-12.
5
Id. at 13.
6
Id.
7
Id.
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holistic solutions.”8 Critics argue that because it was created “outside a charter-authorized
process, PlaNYC never went through a proper public review process and lacks the institutional
power to force city departments to comply with its goals.”9 In light of the fact that the
Bloomberg Administration has pursued a “massive and unprecedented rezoning agenda,” a long-
term plan with common vision is necessary.10 If the New York City Planning Commission is
really to stick to their Charter mandate – “planning relating to the orderly growth, improvement
and future development of the city”11 – a comprehensive plan12 must guide this development.
Recent studies indicate that the Administration has effectively implemented the basic
land-use goals outlined in PlaNYC, but Mayor Bloomberg & Co. won’t be around forever. To
ensure orderly development across mayoral administrations, something must be done. The most
reasonable solution would be an overhaul of the 1961 Zoning Resolution. Another option could
be to formalize the development goals in PlaNYC. A third option could be to increase the power
of local community boards in the land use planning process. Some solution, some middle
ground must be found. The orderly growth and future development of New York City depend
upon it.
This paper outlines the history of zoning in New York City, the procedural steps required
to propose site-specific rezoning, the relevant and recent cases delineating the law governing
rezonings, and a basic analysis of city-initiated rezonings since 2002. This paper also points out
8
Noah Kazis, Land Use Process Likely Safe in Charter Revision, But Major Issues Simmer, Streetsblog New York City, June 25,
2010, http://www.streetsblog.org/2010/06/25/land-use-process-likely-safe-in-charter-revision-but-major-issues-simmer/.
9
Id.
10
Amy Armstrong, Vicki Been, Josaih Madar & Simon McDonnell, How Have Recent Rezonings Affected the City’s Ability to
Grow, Furman Center for Real Estate & Urban Policy, New York University, March 2010,
http://furmancenter.org/files/publications/Rezonings_Furman_Center_Policy_Brief_March_2010.pdf (researching the net impact
of the Bloomberg Administration’s 100 rezoning projects, and how these decisions will accommodate new growth, or how the
outcomes square with the city’s stated goals).
11
See NYC Zoning History, Department of City Planning, http://www.nyc.gov/html/dcp/html/zone/zonehis.shtml#how.
12
The enabling statutes that require zoning regulations to be in accordance with a comprehensive plan are Town Law §263 for
towns, and Village Law §7-704 for villages. General City Law §20(25) makes reference to a well-considered plan in place of
comprehensive plan.
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Alexander J. Nicas
a few deficiencies in the current system, and proposes a couple reforms that could help ensure
orderly and efficient growth as New York City continues to develop and prosper.
II. Zoning as a means to further growth and development. But, we can’t forget to follow
the plan…
N.Y. General City Law §20(25) states that every city is empowered to regulate
development “in accord with a well considered plan.”13 Zoning, the means by which regulation
is enacted, seeks to plan for the future development of the community.14 Therefore, any
proposed zoning, rezoning, zoning amendment, etc. must be “in accord with a well considered
plan.”15 New York City doesn’t have an official comprehensive plan.16 Instead, a plan is
developed within the framework of the zoning resolution and applied in patchwork during site-
specific rezoning initiatives. In record numbers, the Administration’s ad hoc, site-specific
initiatives are upheld as well-considered plans.
A. NYC zoning from 1916 to 1961 to Today.
New York City enacted the nation’s first zoning resolution in 1916.17 Rapid growth and
out of context development made it clear that height and setback controls, and designated areas
for manufacturing, commercial and residential uses were necessary.18 Although limitations to
the 1916 Zoning Resolution soon became apparent, “[i]t fostered the iconic tall, slender towers
that epitomize the city’s business districts and established the familiar context of three- to six-
13
N.Y. GENERAL CITY LAW §20(25). In it’s entirety, §20(25) empowers every city “[t]o regulate and restrict the location of
trades and industries and the location of buildings, designed for specified uses, and for said purposes to divide the city into
districts and to prescribe for each such district the trades and industries that shall be excluded or subjected to special regulation
and the uses for which buildings may not be erectd or altered. Such regulations shall be designed to promote the public health,
safety and general welfare and shall be made with reasonable consideration, among other things, to the character of the district,
its peculiar suitability for particular uses, the conservation of property values and the direction of building development, in accord
with a well considered plan.”
14
Asian Americans for Equality v. Koch, 72 N.Y.2d 121, 131 (1988) (stating that “zoning is a means rather than an end”).
15
Id.
16
Noah Kazis, Planners Tackle Big Questions About How to Shape NYC Development, Streesblog New York City, July 22, 2010,
http://www.streetsblog.org/2010/07/22/planners-tackle-big-questions-about-how-to-shape-nyc-development/.
17
18
Id.
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Alexander J. Nicas
story residential buildings found in much of the city.”19 In response to changing times, it was
constantly amended, and by 1960, it “resembled a patchwork, reflecting forty-four tumultuous
years of technological, social and physical change.”20
The need for a new zoning resolution was evident, and after significant public debate, the
1961 Zoning Resolution was passed.21 The 1961 Zoning Resolution brought the zoning
framework up-to-date by coordinating use and bulk restrictions, encouraging the use of open
space, introducing incentive zoning22, and incorporating parking requirements.23 Many of these
changes guaranteed that new development would out of context24 with existing city blocks.25
Under the 1961 Zoning Resolution, contextual zoning was difficult to achieve because the
Resolution controlled height and bulk through floor to area ratio (“FAR”). As FAR relates the
size of a building to the lot size, the size of the lot often dictated the form of development.26 To
counter the issue of out of context development in certain locations, the New York Planning
Commission proposed a new zoning technique called a Special District in 1967.27 A Special
District “stipulates zoning requirements and/or zoning incentives tailored to distinctive qualities
that may not lend themselves to generalized zoning and standard development.”28 Today, over 40
Special Districts exist across all five boroughs of New York. The thrust of a Special District – to
19
Id.
20
Norman Marcus, New York City Zoning – 1961-1991: Turning Back the Clock – But With an Up-To-The Minute Social
Agenda, 19 Fordham Urb. L.J. 707, 707 (1992).
21
22
Incentive zoning refers to a bonus of extra floor space if a development includes public spaces or below market-rate housing.
23
24
Marcus, supra note 16, at 713 (stating that “context” means the surrounding conditions in which something occurs.
“Contextual zoning” extends the definition a step further and lets the context control the development).
25
Id. at 709 (noting that on a smaller lot basis, the changes created an awkward dissonance within an established neighborhood).
26
Id. at 712.
27
Id. at 713. (discussing the Special Theatre District, and its aim of preserving “New York City’s position as a national theatre
capital without curtailing construction of the high-rise office buildings which were steadily replacing the old, uneconomic, two
and three-story theatres … [r]ather than inhibit the building of new office space in the Times Square area which was well served
by the City’s mass transit network, the demarcation of the Special Theatre District in 1967 offered the developer an incentive in
the form of a floor area bonus of up to forty-four percent in exchange for the promise to build a legitimate theatre as part of the
project).
28
See Special Purpose Districts, Department of City Planning,
http://www.nyc.gov/html/dcp/html/zone/zh_special_purp_dist.shtml.
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Alexander J. Nicas
maintain context during growth and development – was important, but the enactment of even one
eroded general zoning enforcement.29 A better way was necessary, and in 1989, the concept of
contextual zoning was formally adopted into the Zoning Resolution.30 Contextual zoning
“regulate[s] the height and bulk of new buildings, their setback from the street line, and their
width along the street frontage, to produce buildings that are consistent with existing
neighborhood character.”31 The inclusion of contextual zoning only added to the confusion for
developers.32 It took ten years, but in response, the New York City Department of City Planning
(“DCP”) proposed the Unified Bulk Program in 1999.33 When the Program was announced,
there was a clear understanding that the Planning Commission had “encumber[ed]the 1961
Resolution with limited height districts, contextual districts, [etc.] … which have in the aggregate
produced an unduly complex, incoherent, and unpredictable set of regulations … that only
experts understand.”34 The Unified Bulk Program was supposed to “establish reasonable
parameters for new development that give communities, developers and regulators a clear sense
of what is and is not allowed in a given district, while allowing appropriate flexibility in the
design of individual buildings.”35 Clarity would close the “numerous loopholes and [minimize
the] interpretive gymnastics yielded by present zoning,” while a “public review and approval
process w[ould] allow for sufficient flexibility to address unique conditions and allow for
29
Marcus, supra note 16, at 714.
30
Andrew Watanabe, The Social and Spatial Imperatives of Contextual Zoning in New York City During the Bloomberg
Administration, Unpublished Thesis, Columbia University, May 2010, http://andywata.com/index.php?/ongoing/thesis-
contextual-zoning/.
31
See Glossary, Department of City Planning, http://www.nyc.gov/html/dcp/html/zone/glossary.shtml.
32
See Unified Bulk Program, Department of City Planning, http://www.nyc.gov/html/dcp/html/pub/unibulk.shtml (stating that
current zoning generally sets appropriate controls on the amount of floor area that can be built, but the rules governing building
height and massing reflect several competing visions of the city’s development, often applied simultaneously in the same zoning
district … [and] … this confusing situation has developed over the years, as the City Planning Commission has repeatedly
adopted amendments to limit or provide alternatives to the “tower-in-the-park” prototype underlying the 1961 Zoning
Resolution).
33
Armstrong, supra note 10, at 2.
34
See Unified Bulk Program, Department of City Planning, http://www.nyc.gov/html/dcp/html/pub/unibulk.shtml.
35
Id.
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Alexander J. Nicas
architectural innovation.”36 The Unified Bulk Program report went on to state that the “less
appealing possibilities inherent in the 1961 [Resolution] appear with greater frequency now,
because market conditions are more favorable that in most of the preceding 40 years and good
development sites are in ever shorter supply … [and] … [n]ow more than ever, reforms are
needed to rebalance the zoning regulation and development economics.”37 Unfortunately, in the
face of significant opposition from real estate developers and unenthusiastic support from the
New York City Council, the Program was never adopted.38 Foresight was necessary, and I
believe the New York City Council ceded to the interests of those developing the city as the
technology boom of the late 20th century fueled growth.
In over 10 years, nothing has been done to simplify the 1961 Zoning Resolution. The
honest critiques of the Unified Bulk Program report still hold true today, but the Resolution is the
only tool planners have to shape development. In the absence of an explicit comprehensive
plan39, the 1961 Zoning Resolution must be able to accommodate the City’s future development
goals. Since taking office in 2001, the Bloomberg Administration has eschewed rewriting the
Resolution and focused instead on site-specific neighborhood rezonings initiated by the DCP.40
The impact of these rezonings will be discussed in Part VI, but one thing is very clear – the
Bloomberg Administration is a sophisticated, professional, well run organization, and has
become exceptionally adept at implementing its rezoning agenda. Part III will outline the major
procedural requirements that the Administration must satisfy when it proposes site-specific
rezoning, and Part’s IV + V will discuss the role of the courts in adjudicating challenges to city-
initiated rezonings.
36
Id.
37
Id.
38
See Armstrong, supra note 10 at 2; Watanabe, supra note 28 at 4.
39
Kazis, supra note 16.
40
Armstrong, supra note 10, at 2.
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III. ULURP, SEQRA, CEQR
A. Uniform Land Use Review Procedure (ULURP) - §197-c
Since 1976, all “applications by any person or agency respecting the use, development, or
improvement of real property subject to city regulation shall be reviewed pursuant to a uniform
review procedure.”41 For purposes of this paper, §197-c applies to all DCP-directed rezoning
projects.
First, a standardized Land Use Review Application must be filed with the Department of
City Planning.42 A completed application will include: (1) an application; (2) any amendments
made prior to approval of an application; (3) any written information submitted for purposes of
determining whether an environmental impact statement will be required by law, and; (4)
documents or records intended to define or substantially redefine the overall scope of issues to be
addressed in any draft environmental impact statement required by law.43 The DCP is
responsible for certifying a completed application, and must do so within six months of receipt.44
To certify, the DCP must have all forms, plans and supporting documents that are necessary to
address all issues, including a negative declaration, conditional negative declaration or a notice
of completion for Draft Environmental Statement.45 If certification is not given within six
months, the City Planning Commission has appellate review of the application and will either
certify or state in writing what further information is necessary.46 After certification, the
complete application is sent to each affected Community Board who then have sixty days to
41
New York, N.Y., CHARTER §197-c.
42
See Land Use Review Procedure, Department of City Planning, http://www.nyc.gov/html/dcp/html/luproc/ulpro.shtml.
43
New York, N.Y., CHARTER §197-c(b).
44
Id. §197-c(c) (stating that if the application is not certified with six months after filing, both applicant and, “if the land use
proposed in and application is consistent with the land use policy or strategic policy statement of the affected borough president,
the affected borough president shall have the right at any time” to appeal the DCP for certification).
45
See Land Use Review Procedure, Department of City Planning, http://www.nyc.gov/html/dcp/html/luproc/ulpro.shtml.
46
New York, N.Y., CHARTER §197-c (2008).
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Alexander J. Nicas
notify the public47, and either hold a public hearing or submit a written waiver of the right to
hold a public hearing, and then submit a written recommendation to the CPC and affected
Borough Presidents.48 The Borough President(s) then has thirty days to submit a written
recommendation to the CPC.49 Finally, the CPC then has an additional sixty days to “approve,
approve with modifications, or disapprove the application.”50 The CPC has ultimate control over
the process before a possible City Council vote because it also must establish rules providing: (1)
guidelines, minimum standards, and procedural requirements for community boards and borough
presidents; (2) minimum standards for certification of applications, and; (3) specific time periods
for review of applications prior to certification.51 The City Council has mandatory review of
specific issues: zoning map changes, zoning text changes, housing and urban renewal plans, and
dispositions of residential buildings (except to non-profit companies for low income housing).52
The City Council may elect to review additional actions, by assuming jurisdiction within 20 days
of CPC approval, with majority vote.53 If a ULURP action is under review, the City Council
must hold a public hearing (after notice of not less than five days in advance), and vote within
fifty days of receipt.54 A majority vote of the Council shall be required to “approve, approve
with modifications or disapprove” a filing.55 The Mayor has the right to file a written
disapproval of any approval within five days.56 The City Council then has the last vote, and may
47
Id. §197-c(e)(1).
48
Id. §197-c(e)(2).
49
Id. §197-c(g).
50
Id. §197-c(h) (stating that any approval, or approval with modifications shall require the affirmative vote of at least seven of
the members, except capital projects, and sales or dispositions of city property which require nine).
51
Id. §197(c)(i).
52
Id. §197-d.
53
Id. §197-d(b)(3). Also, if both an affected community board (after holding a public hearing) and the affected borough
president have recommended in writing against approval, and the borough president files an appeal with the commission within
five days, the matter may be reviewed. Id. §197-d(b)(2).
54
Id. §197-d(c).
55
Id. (stating further that a failure to act, shall be deemed an approval of the decision by the CPC).
56
Id. §197-d(f).
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override the mayoral disapproval by a vote of two-thirds.57 The ULURP process governs the
path of an application that has been filed. The next section will outline a major component of
that application, the environmental impact statement.
B. State Environmental Quality Review Act (SEQRA) + City Environmental
Quality Review Act (CEQR)
Article 8 of the New York Environmental Conservation Law is titled State Environmental
Quality Review (“SEQR” or “SEQRA”).58 SEQRA incorporates environmental factors into land
use planning decisions, and requires all governmental agencies to assess the environmental
effects of discretionary actions before undertaking, funding, or approving these actions.59 In
New York City, SEQRA procedures are governed pursuant to City Environmental Quality
Review (CEQR).60 CEQR designates establishment and implementation of the rules relating to
environmental review to the CPC.61 The first step in a CEQR action is deciding the appropriate
lead agency.62 In private ULURP applications, §197-a plans, and all actions primarily involving
a zoning map or text change, the CPC is the designated lead agency.63 For other ULURP
applications, the city agency applicant or the agency that will be involved with implementation is
the lead agency.64 Designation pursuant to the above rules is not set in stone though. Lead
agency status may be to be transferred “from the lead agency, at its discretion, to an involved
57
Id. §197-d(g).
58
N.Y. ENVTL. CONSERV. LAW §8 (McKinney 2010) (stating that the purpose of Article 8 is to “encourage productive and
enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the
environment and enhance human and community resources; and to enrich the understanding of the ecological systems, natural,
human and community resources important to the people of the state”).
59
N.Y.C.R.R. tit. 6, ch. VI, §617.1(c) (2010); see also Matter of Coca-Cola Bottling Co. v. Board of Estimate, 72 N.Y.2d 674,
679 (emphasizing that SEQRA’s fundamental policy is to inject environmental considerations directly into governmental
decision maing).
60
New York, N.Y., R.C.N.Y. tit. 62, ch.5 (2009).
61
Id. §5-01.
62
Id. (stating that the CPC has selected the involved agency principally responsible for carrying out, funding, or approving the
action.
63
Id.
64
Id.
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agency that agrees to become the lead agency.” 65 In the context of all DCP-directed rezonings
pursued by the Bloomberg Administration, the DCP has often been the lead agency in CEQR
reviews, even if the CPC was the lead agency by statute.
SEQRA defines two types of actions – Type I66 and Type II67. All the rezoning
initiatives pursued by the Administration fall under Type I classification.68 For Type I actions,
the first step is to complete an environmental assessment form/statement (“EAF” or “EAS”),
which helps the agency determine the environmental significance or non-significance of its
actions.69 A completed EAS must contain enough information “to describe the proposed action,
its location, its purpose and its potential impacts on the environment.”70 An EAS may be waived
if a draft environmental impact statement (“EIS71”) is prepared, with the draft EIS being used to
determine significance.72 Once all documentation is provided, including the EAS or draft EIS,
the lead agency must determine the significance of the action within fifteen calendar days.73 The
lead agency’s determination must be in writing, and elaborate and provide all supporting
documentation.74 If one significant adverse environmental impact is found, a positive
declaration is issued and an EIS is required.75 If no adverse environmental impacts are identified
65
Id. §5-03(i) (defining “involved agency” as any agency that has jurisdiction to fund, approve or directly undertake an action but
requests or is requested to participate in the review process because of its specific concern or expertise about the proposed
action).
66
N.Y.C.R.R. tit. 6, ch. VI, §617.4 (2010) (acknowledging that there is a presumption that Type I actions may have a significant
adverse impact on the environment and require preparation of an EIS).
67
Id. §617.5 (acknowledging that Type II actions have been determined not to have a significant impact on the environment and
are otherwise precluded from environmental review under Environmental Conservation Law, article 8).
68
Id. §617.4(b)(3) (noting that a granting of a zoning change is a Type I action if it is directly undertaken, funded or approved by
an agency).
69
Id. §617.6(a)(2).
70
Id. §617.2(m).
71
Id. §617.2(n) (defining “EIS” to be a document that weighs the social, economic, and environmental factors early in the
planning and decision-making process, and then systematically consider the significant environmental impacts, alternatives and
mitigation possibilities).
72
Id. §617.6(a)(4).
73
New York, R.C.N.Y., tit. 43, ch.6, §6-07(a) (2009).
74
N.Y.C.R.R. tit. 6, ch. VI, §§617.7(b)(3) and (b)(4) (2010).
75
Id. §617.7(a)(1).
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or the identified adverse environmental impacts are not significant, then a negative declaration is
issued and no EIS is required.76
If an EIS is required, CEQR mandates that all draft or final copies include ten items,
including: (i) identification of any adverse environmental effects which cannot be avoided if the
proposed action is implemented77; (ii) a discussion of the social and economic impacts of the
proposed action78; (iii) a description of mitigation measures to minimize adverse environmental
effects79, and; (iv) a description of growth-inducing aspects of the proposed action80. Once a
draft EIS is filed by the lead agency, there is a 30 calendar day public review and comment
period81, and a public hearing upon 10 calendar day notice82. If the action is also subject to
ULURP, a public hearing pursuant to that process and held by the appropriate community board
or borough president and/or the CPC may satisfy the public hearing requirement.83 Within 30
days of a public hearing, the lead agency will prepare the final EIS.84 If an agency decides to
carry out an action that may have a significant effect on the environment, a written decision must
state the following findings: (1) consistent with social, economic and other essential
considerations of state and city policy, from among the reasonable alternatives thereto, the action
to be carried out or approved is one which minimizes or avoids adverse environmental effects to
the maximum extent possible, including the effects disclosed in the relevant environmental
impact statement85, and (2) consistent with social, economic and other essential considerations of
76
Id. §617.7(a)(2).
77
New York, R.C.N.Y., tit. 43, ch.6, §6-09(d)(3) (2009).
78
Id. §6-09(d)(4).
79
Id. §6-09(d)(7).
80
Id. §6-09(d)(8).
81
Id. §6-10(a)(iv).
82
Id. §6-10(c)(3). The hearing must commence no less than 15 calendar days or more than 60 calendar days of filing the draft
EIS. Id. §6-10(c)(2).
83
Id. §6-10(c)(4).
84
Id. §6-10(a).
85
Id. §6-12(b)(1).
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state and city policy, all practicable means will be taken in carrying out or approving the action
to minimize or avoid adverse environmental effects86.
ULURP, SEQRA, and CEQR all govern agency-directed initiatives, and provide the
procedural framework for the Administration’s rezoning agenda. The statutes supply the rules,
but courts decide when a violation of those rules has occurred.
IV. Judicial Review in Article 78 Proceedings – A Strict Standard
Zoning is a legislative act. Changes in zoning enjoy a strong presumption of
constitutionality and the burden rests on the party attacking them to overcome that presumption
beyond a reasonable doubt.87 The decision to zone or rezone rests with the local legislative
body, and it’s judgment and determination will be conclusive unless show to be arbitrary.88 The
threshold of arbitrariness is embodied in the Article 78 standard of review: whether “a
determination … was affected by an error of law or was arbitrary and capricious or an abuse of
discretion.”89 The arbitrary and capricious standard is strict, and doesn’t allow a court to weigh
in on the merits of a decision. Instead, a court is only left to determine whether the legislative
body complied with the statue, procedurally and substantively.
A. An Early Trilogy: Lai Chun, Chinese Staff, Asian Americans for Equality
All three of these cases were brought in opposition to the establishment of the Special
Manhattan Bridge District, and all three made it to the New York Court of Appeals. Lai Chun
Chan Jun v. Board of Estimate of the City of New York90, decided first in June of 1984, was
narrowly focused on two issues: (1) the appropriate notice of a public hearing pursuant to
ULURP, and (2) whether the Special District was adopted in conformance with a well-
86
Id. §6-12(b)(2).
87
Asian Americans, 72 N.Y.2d at 131.
88
See Rodgers v. Village of Tarrytown, 302 N.Y. 115, 121 (1951).
89
N.Y. C.P.L.R. §7803(3) (McKinney 2009).
90
62 N.Y.2d 900 (1984).
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considered plan.91 The Court summarily dismissed both of Petitioner’s contentions stating that
(1) notice is sufficient if it is given in any form that is reasonably adapted to inform the public,
and (2) because the CPC Study published and included in the record revealed the effects the
proposed redistricting would have upon the health, safety and welfare of the community, it was
considered pursuant to a well-considered plan.92 The Court of Appeals next decided Chinese
Staff Workers Ass’n v. City of New York93 (“Chinese Staff I”) in 1986. Petitioners in Chinese
Staff I commenced an Article 78 proceeding, and argued that the city’s environmental review
was arbitrary and capricious because it failed to consider whether the introduction of luxury
housing would “accelerate the displacement of local low-income residents and businesses or alter
the character of the community.”94 During planning, the City issued a negative declaration95,
and in response to Petitioners assertion, it stated “absent a determination that the proposed action
will have a significant adverse impact on an area’s physical environment, SEQRA and CEQR do
not require consideration of any social and economic impacts such as those asserted.”96 The
Court, limiting its scope of review, stated: “it is not the role of the courts to weigh the desirability
of any action or choose among alternatives, but to assure that the agency itself has satisfied
SEQRA, procedurally and substantively.”97 The issue was therefore whether the City “identified
the relevant areas of environmental concern, took a hard look at them, and made a reasoned
elaboration on the basis of their determination.”98 The Court determined that the negative
declaration was inappropriate, and that an EIS should have been completed because the potential
91
Id. at 901.
92
Id. at 902-03.
93
68 N.Y.2d 359 (1986).
94
Id. at 363.
95
Id. at 362 (issuing a negative declaration ultimately meant that no EIS (environmental impact statement) was prepared).
96
Id. at 363.
97
Id. (quoting Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 436 (1986)).
98
Id.
14
Alexander J. Nicas
accelerated displacement of local residents and businesses required consideration under CEQR.99
Omission of these effects did not comply with the statutory mandate of CEQR and such omission
was deemed to be arbitrary and capricious.100 The final case relating to the Special Manhattan
Bridge District was Asian Americans for Equality v. Koch101, decided in 1988. Choosing to
bring a class action lawsuit instead of an Article 78 proceeding, Plaintiffs contended that the
Special District was unconstitutional because it was not comprehensive in outlook, and the study
on which it was based was not part of well-considered plan.102 Even though plaintiffs’ cause of
action failed at the pleading stage, the Court went to great lengths to outline the contours of the
law.103 The Court first stated that the function of land use regulation is to implement a plan for
future development, and a well-considered plan not only protects individuals from arbitrary use
of their land but also insures that local authorities act for the benefit of the community as a
whole.104 But, a well-considered plan need not be a single or tangible document, and legislation
is only tested as to whether it “accords with a well-considered plan,” not whether it “defines
[one].”105 Following the “accords with106” language, the Court stated that a zoning amendment
that has been studied, prepared and considered, meets the general requirement for a well-
considered plan and if the statutory requirements are also satisfied, a court will not pass on its
wisdom.107 The Court ultimately debunked the allegation that the development of housing or
rehabilitation of existing housing in Chinatown was inconsistent with the City’s general planning
99
Id. at 367.
100
Id. at 368.
101
72 N.Y.2d 121 (1988).
102
Id. at 130. Plaintiffs also alleged a second cause of action: a mandatory injunction compelling the City to create a zoning plan
for the District which provides for an mandates a realistic opportunity for the construction of low income housing. Id. at 126.
103
Id. at 130. Contrary to the Court of Appeals decision in Lai Chun Chan Jun, the Court in Asian Americans was extremely
thorough in detailing zoning law and justifications. For this reason, it is one of the most heavily cited cases in this area.
104
Id. at 131.
105
Id.
106
The Court parsed the text of G.C.L. §20(25) to caption this phrase.
107
Id. at 132.
15
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goals, and inasmuch as the amendment was enacted after study and consideration, it met the
requirements for a well-considered plan.108
The trilogy of cases relating to the Special Manhattan Bridge District brought clarity to a
couple issues. First, the Chinese Staff I case illustrated how potential social and economic
impacts of rezoning must be taken into consideration when performing a CEQR analysis.
Second, the Asian Americans case illustrated how deferential a court is when determining
whether a proposed rezoning initiative is in accord with a well-considered plan.
B. Akpan refines & Save the Audubon proves interesting
In April of 1990, the New York Court of Appeals decided Akpan v. Koch109. Plaintiffs
argued that the Board of Estimate (BOE) failed to take a “sufficiently hard” look at the
environmental impact of the Atlantic Terminal Project, an urban renewal project initiated by the
City of New York.110 For the project, the DCP and DEP111 were designated “co-lead”
agencies.112 While preparing the draft EIS, the issue of secondary displacement was raised in a
scoping hearing, and the final draft contained demographic data demonstrating a gentrification
trend already taking place.113 In response to concerns raised during the public hearing and
comment period, the DCP ordered additional studies to be done on the issue.114 Based on the
work of outside consultants, the DCP and DEP issued a final EIS stating that the project would
108
Id. In regards to the second cause of action, referenced in note 102, the Court held that it would not effectively rewrite the
zoning ordinance because the City was not compelled to facilitate the development of housing affordable to lower-income
households. Id. at 136.
109
75 N.Y.2d 561 (1990).
110
Id. at 565-66.
111
Department of Environmental Protection.
112
Akpan, 75 N.Y.2d at 567.
113
Id.
114
Id. at 567-68 (detailing how outside consultants reviewed dwelling unit data including rent stabilization statistics, and owner-
occupied and one or two family home rates, finally concluding that the Atlantic Terminal Project would not have a significant
impact on the secondary displacement already in progress there).
16
Alexander J. Nicas
not have a significant impact on secondary displacement.115 The Court in Akpan helped define
what a “hard look” means, and whether the co-lead agencies actually took one. The Court first
stated that the inquiry is not a de novo review of the data, but that it must be guided by a rule of
reason, and refrain from substituting its judgment for that of the agency.116 The narrow review
doesn’t absolve the agency from conducting an investigation and reasonably exercising its
discretion “so as to make a reasoned elaboration as to the effect of the proposed action on a
particular environmental concern.”117 The Court further stated it must “ensure that, in light of
the circumstances of a particular case, the agency has given due consideration to pertinent
environmental factors.”118 The Court reasoned that because the issue of secondary displacement
was raised at every level of planning, the BOE’s acceptance of the analysis was not irrational,
nor should it be subject to substituted judgment as to the accuracy of the data.119 Consequently,
the Court held that the agency’s action could not be characterized as arbitrary and capricious or
an abuse of discretion.120
In an interesting case decided by the First Department Appellate Division in 1992, Save
the Audubon Coalition v. City of New York121, the City’s environmental review related to the
development of a commercial laboratory building and project in the West 160’s.122 On the
development site sat the Audubon Theater and Ballroom123, a city-owned building largely vacant
115
Id. at 568 (noting how the final EIS included a “Response to Comments” chapter addressing the issue of secondary
displacement, and how the project would not be reversing or modifying land use trends nor would it be responsible for triggering
significant secondary displacement).
116
Id. at 571.
117
Id.
118
Id. (allowing for any determination to be made on a case-by-case basis).
119
Id. at 573 (stating further that the appropriate inquiry is not whether the project will have any impact, but whether the project
will have a significant impact on secondary displacement).
120
Id. at 574.
121
180 A.D.2d 348 (1st Dep’t 1992).
122
Id. at 349.
123
Id. (describing how the building is an example of the architecturally significant early 20th century neoclassical revival style,
and how it is also historically significant as the location of the assassination of Malcolm X in 1965).
17
Alexander J. Nicas
and in a state of disrepair.124 Petitioners focused their challenge on health and safety issues of
the lab, with a main emphasis on the use and potential release of hazardous chemicals,
radioactive materials and biohazardous chemicals.125 Turning to the 600-page final EIS, the
court pointed out places where the risks were identified and analyzed.126 Furthermore, the court
heard testimony from two expert witnesses who bolstered the final EIS determination.127 The
court ultimately held that petitioners failed to prove that the site-specific changes were not
rationally based, constituted an abuse of discretion or resulted from an error of law.128
Akpan and Save the Audobon help to illustrate the ends of the EIS spectrum. It was
sufficient, in the case of Akpan, for the agencies to rely on outside consultants’ analysis of the
displacement issue. As long as the issue was raised and addressed at every step in the planning
process, regardless of whether the final decision was meritorious, a court should defer to the
governmental agency. Save the Audobon, and the city’s 600-page EIS exemplifies how much
planning actually goes into some decisions. The point is, this 600-page EIS was prepared for a
four block rezoning – minute by today’s standard. It was only the early 1990’s, but the DCP’s
sophistication was beginning to show itself.
C. 4 Recent Major Rezoning Initiatives: (1) Greenpoint & Williamsburg; (2) Far
Rockaway; (3) East Village: (4) Sunset Park
Nash Metalware Co., Inc., v. Council of the City of New York129, was an unreported
Supreme Court decision ruling on the 2005 rezoning of Greenpoint & Williamsburg.130 In total,
124
Id.
125
Id. at 355.
126
Id at 355-57 (detailing the issues identified and analyzed: (1) hazardous chemicals used at the facility would be solvents but
the facilities would be equipped with fume hoods; (2) any biohazards used would be of the same Biosafety level as being used in
research at nearby Columbia Presbyterian Medical Center, and furthermore the staff would be specially trained).
127
Id. at 357.
128
Id. at 358. The Appellate Division decision fully affirmed the Supreme Court decision of Judge C. Beauchamp Ciparick, a
graduate of St. John’s Law School now sitting on the New York Court of Appeals.
129
14 Misc.3d 12311(A), No. 400331/06, 2006 WL 384906 (Sup. Ct. N.Y. County 2006).
18
Alexander J. Nicas
the massive rezoning project related to about 184 blocks, most of which had been zoned
manufacturing for many years.131 Recognizing the shift from manufacturing to housing, the City
reviewed and studied the area for over fifteen years.132 Petitioners challenged the 2005 City
Council Resolution authorizing the rezoning on procedural grounds, alleging that the Council
failed to make environmental findings as required by SEQRA.133 The City countered with
multiple arguments: practicality134, time constraints135, and omission by scrivener’s error136. The
court ultimately rejected all of the City’s arguments, and found that the 2005 Resolution was
ineffective to enact the zoning change.137 For Petitioners, their small victory was short-lived.
Recognizing the deficiencies inherent in the 2005 Resolution, the City Council passed a new
Resolution in 2006, correcting their mistakes.138 The court upheld the 2006 Resolution stating
that it was “effective to insulate the zoning changes against Petitioner’ procedural challenged
under SEQRA.”139
The value of Nash is not found in its holding. Returning to the City’s assertion that
certain environmental findings were omitted by “scrivener’s error,” the court found multiple
instances where procedural errors in the SEQRA process were excused.140 The court stated that
130
Id. at *1. In my opinion, it is quite a shame that this decision went unreported. Not only did Judge Lewis Bart Stone review a
handful of cases where procedural defects in the SEQRA process were deemed excusable errors, he outlined the law relating to
SEQRA/EIS/”hard look” in excruciating detail, all while managing to quote former German Chancellor Otto Von Bismark (“laws
like sausages are best not observed in their making”), and compare the “hard look” to the Moh’s Scale of mineral hardness.
131
Id. at *3.
132
Id.
133
Id. at *6 (noting that specifically, the City Council as an involved agency was bound by SEQRA and therefore had to make
the requisite environmental findings as part of their ruling to adopt the zoning amendments).
134
Id. at *7 (asserting that the changes were subject to extensive survey already, and the Council was fully aware of the findings,
and actually balanced the interests as necessary prior to adoption of the 2005 Resolution).
135
Id. (contending that if the 2005 Resolution was found to not be effective, the entire rezoning process would have to be
restarted from square one).
136
Id. at *8 (stating that petitioner’s assertion of defect was merely procedural, and that although noncompliant with the explicit
requirements of SEQRA, the error could be excusable).
137
Id. (reaching this conclusion on two grounds: (1) the procedural defect was not excusable error when compared to other cases
where the governmental action was approved notwithstanding technical non-compliance with SEQRA; (2) the practical
construction of SEQRA in years of unbroken precedent for substantially similar situations).
138
Id. at *12 (stating that the 2006 Resolution made it clear that the Council wished, in every way, to assure that the zoning
amendment would be valid).
139
Id.
140
Id. at 8
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Alexander J. Nicas
“[a]lthough the Article 78 standard of review of the procedural requirements of an administrative
proceeding directs the Court to consider whether procedural requirements have been met, the
Appellate Divisions have regularly applied a less than literal standard in the SEQRA context.”141
The Second Department once held that even though a village didn’t prepare an EAF or draft EIS,
but instead issued a negative declaration and prepared an EIS, the purpose of SEQRA wasn’t
frustrated and thus the defect was excused.142 The First Department has held that even though a
notice of completion, expressly required by CEQR, was not issued, this defect was overlooked
because the information was timely disseminated in another manner.143 These, an additional
cases cited in Nash, show that deviation from express statutory requirements are tolerated, so
long as the reasons for non-compliance leave the core principals of SEQRA unsullied.
Considering how an Article 78 proceeding already presumes propriety on behalf of the
governmental agency, “excusable error” tilts the scales even farther.
In 2009, the Supreme Court ruled on the proposed rezoning of Far Rockaway in Collier
Realty LLC v. Bloomberg144. Zoning in Far Rockaway had been largely unchanged since the
1961 Resolution, and the plan, covering approximately 280 blocks, sought to bring future
development more in line with the reality on the ground.145 Residents of the area originally
pushed for the change, expressing concern that any future development could change the
essential character of the neighborhood if the 1961 Resolution was left in place.146 In response,
the DCP studied the area for two years, discussing potential amendments with numerous civic
141
Id.
142
Rusciano & Son Corp. v. Kiernan, 300 A.D.2d 590 (2nd Dep’t 2002)
143
Save the Audobon v. City of New York, 180 A.D.2d 348 (1st Dep’t 1992)
144
24 Misc.3d 1071 (Sup. Ct. N.Y. County 2009)
145
Id. at 1072 (stating that the 1961 Resolution encouraged construction of high-rise buildings and high density developments
near the oceanfront, but the neighborhood was dominated by low-rise, low-density housing).
146
Id. at 1072-73 (noting that residents also pushed for any rezoning to permit limited commercial establishments within
residential zones, and a relaxation of the Resolution’s restriction on the size of the footprint of houses in certain areas).
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Alexander J. Nicas
groups, consultants, elected officials and developers.147 Once the application for rezoning was
filed, the DCP issued a draft EAS and negative declaration.148 Public review ensued, and after
prolonged dialogue with the local community board and residents, a revised EAS with resident-
initiated modifications was finalized.149 Petitioners, five real estate development companies who
collectively owned nine lots within the proposed rezoning area150, challenged the application’s
adequacy on procedural and substantive grounds.151 The court dismissed each of Petitioners
challenges, stating that the revised EAS considered the “short and long-term effects as well as
the primary and secondary effects” of all points of review, and that in reference to substance, “a
court is not free to substitute its judgment for that of the agency,” but instead must satisfy itself
that “in light of the circumstances … the agency has given due consideration to pertinent
environmental factors.”152 Although the rezoning was a Type I action – carrying a presumption
of significant adverse environmental impact, with a low threshold for a positive declaration153 –
the court’s scope of review in an Article 78 proceeding limited the analysis to whether the
“agency identified the relevant areas of environmental concern, took a hard look at them, and
made a reasoned elaboration of the basis for its determination.”154
The next challenge to a major rezoning initiative, Chinese Staff and Workers Ass’n v.
Bloomberg155 (“Chinese Staff II”), was also decided in 2009.156 The rezoning application in
147
Id. at 1073.
148
Id.
149
Id.
150
Id. at 1072.
151
Id. at 1075-77 (stating that petitioners argued: (1) that since the original EAS was a prepared, filed and approved on the same
day it was a sham; (2) the proposal was defective in that it lacked input from various agencies; (3) the negative declaration was
unwarranted given the presumption that a Type 1 action may have substantially adverse affects on the environment, and; (4)
substantively, the content of the EAS is substandard, and DCP failed to take a “hard look” at all relevant factors).
152
Id. at 1077-78 (stating that the negative declaration was supported by consideration, consistent with standard methodology of
a “reasonable worst-case scenario” in a “no-action” determination, and that the mitigation of environmental issues were taken
into consideration after a “hard look”).
153
Id. at 1075.
154
Id. at 1076 (quoting Fisher v. Giuliani, 280 A.D.2d 13, 19 (1st Dep’t 2001)).
155
26 Misc.3d 979 (Sup. Ct. N.Y. County 2009).
156
Id. at 979.
21
Alexander J. Nicas
Chinese Staff II involved a 110-block area encompassing the East Village and the northern
portion of the Lower East Side.157 Petitioners – entities, organizations, and individuals who lived
and worked in the rezoning area – claimed that the rezoning “accelerates and concentrates luxury
development in low-income communities of color,” and that the final EIS prepared by the DCP
failed to consider the disproportionate impact of the rezoning, the indirect displacement of low-
income people of color, the displacement of businesses, and the availability of affordable
housing.158 The arguments advanced by petitioners in Chinese Staff II were very sophisticated,
and supported by a Hunter College study which heavily criticized the final EIS for failing to
analyze all areas of concern, specifically the disparate socioeconomic effects of the rezoning.159
Petitioners explicitly argued: “concentrated upzoning, i.e. the expansion of FAR in specific
areas, would increase luxury development opportunities in areas where 60 to 90 percent of the
population are people of color, and are more vulnerable to displacement.”160 The court
countered by stating that the City’s assessment of socioeconomic impacts followed the two-step
approach set forth in the CEQR manual.161 By following the two-step approach,162 and
calculating affordable housing unit figures in-line with methodologies in the CEQR Technical
Manuel, the court determined that petitioners’ argument was based on “the conclusions reached
by DCP, and not on valid evidence which would warrant invalidation of respondents’ reasoned
157
Id. at 980 (outlining the rezoned area as Third Avenue to the west, Avenue D to the east, East 13th Street to the North, and
Grand Street to the South).
158
Id. at 981.
159
Id. at 987. The Hunter College Study, authored by Dr. Tom Angotti (Professor of Urban Affairs and Planning at Hunter
College, and Director of the Hunter College Center for Community Planning and Development) and Kate Ervin, is titled Analysis
of Draft Environmental Impact Statement, East Village/Lower East Side Rezoning. It was put out by the Hunter College Center
for Community Planning and Development in August 2008.
160
Id. at 984.
161
Id. at 987.
162
Id. at 988 (defining the approach as: (1) conducting “a preliminary assessment to learn about the effects of the proposed action
in relation to existing conditions and future trends, in order to rule out the possibility of significant adverse impacts,” and; (2)
conducting a detailed analysis if the assessment “reveals [that] the action’s effects could be significant in the context of existing
conditions and future trends).
22
Alexander J. Nicas
analysis”.163 Although the court sided with the City-respondents, it noted that petitioners
“advanced very valid concerns in its application and th[e] court is very sympathetic and aware of
the need for affordable housing in New York City, the concerns of overdevelopment and the
often economically driven shifting of demographics within neighborhoods.”164
In Chinese Staff and Workers’ Ass’n v. Burden165 (“Chinese Staff III”), an unreported
decision from 2010, petitioners challenged the rezoning of a 128-block area in Sunset Park,
Brooklyn.166 Area residents and community groups, concerned about out-of-context
development, sought DCP’s help in 2007 to ensure preservation of neighborhood character and
scale while “supporting local retail corridors and reinforcing existing uses.”167 Petitioners – the
same Chinese Staff and Workers’ Association as in previous suits, and multiple churches whose
congregations consisted of low-income Hispanic residents – brought suit, alleging that the
rezoning “will allow more opportunities for market-rate development, thereby increasing rental
prices and accelerating displacement of low-income tenants.”168 This argument is very similar to
petitioners’ argument in Chinese Staff II due to the fact that Dr. Tom Angotti (the author of the
Hunter College study referenced in Chinese Staff II) testified as petitioners’ expert witness. Dr.
Angotti expounded on petitioners’ attack of the negative declaration169, stating that it failed to
consider specific developable lots, ignored buildings with six or more residential units, failed to
adequately analyze the impact of commercial zoning changes in existing districts, and failed
163
Id. at 988-89.
164
Id. at 989.
165
27 Misc.3d 1219(A), No. 111575/09, 2010 WL 1852948 (Sup. Ct. N.Y. County 2010)
166
Id. at *1 (describing Sunset Park, Brooklyn to include one of the city’s Chinatowns and comprised of a majority Asian and
Hispanic working class residents).
167
Id.
168
Id. at *3.
169
Id. Petitioners’ alleged that in issuing the negative declaration, DCP’s action was arbitrary, capricious, and an abuse of
discretion because it (1) failed to take a hard look at developable lots, thus undercounting the projected net increase in residential
units; (2) failed to take a hard look at the likely impact of commercial zoning changes, and (3) ignored required CEQR technical
areas such as socioeconomic impacts and neighborhood character.
23
Alexander J. Nicas
analyze the proposed rezoning’s effects on neighborhood character.170 In the face of substantial
testimony and evidentiary support to the contrary, the court determined it would be
“impermissibly weighing the desirability of the proposed action, resolving disagreements among
experts, and substituting its judgment for that of the agency,” if it found the negative declaration
to be arbitrary and capricious.171 Coming to this determination, the court cited two Appellate
Division cases172 to support the proposition that “where the proposal is subject to input from the
community, and the agency takes the requisite hard look at the areas of concern, and rationally
articulates the basis for its action, the presumption [that a Type I action is likely to have a
significant adverse impact and may require an EIS] may be overcome.”173 This conclusion
creates additional headwind for plaintiffs, and as you will see in Part V, the threshold for
plaintiffs in an Article 78 action has moved beyond arbitrary and capricious, to almost
unwinnable.
V. Impact of Judicial Review – The Deck is Stacked, and Not for the People.
“If an agency identifies the relevant areas of concern, writes them up in moderate detail,
takes action consistent with the write-up, and follows the procedures reasonably closely, the
agency is highly likely to eventually win any SEQRA lawsuit brought against it.”174 The author
of this quote conducted a statistical study of nearly 2000 judicial opinions issued under SEQRA
between 1975-2000, and boiled his findings down to that one sentence.175
The early trilogy of Lai Chun, Chinese Staff I, and Asian Americans were a few of the
first Court of Appeals decisions focused on rezoning or special districts in the SEQRA era.
170
Id.
171
Id. at *8.
172
Matter of Friends of Port Chester Parks v. Logan, 305 A.D.2d 676 (2nd Dep’t 2003); Matter of Village of Tarrytown v.
Planning Board of Village of Sleepy Hollow, 292 A.D.2d 617 (2nd Dep’t 2002).
173
Chinese Staff and Workers’ Ass’n, 2010 WL 1852948 at *5.
174
Michael B. Gerrard, Judicial Review under SEQRA: A Statistical Study, 65 ALB. L. REV. 365, 379 (2001).
175
Id. at 365.
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Alexander J. Nicas
Although early, the latter two decisions are still regularly cited today. Of particular importance,
Chinese Staff I showed the DCP and CPC that socioeconomic effects, and accelerated
displacement needed to be included in review. Even though Chinese Staff I was decided for
plaintiffs, the agencies quickly learned from their mistakes. Akpan, decided in the face of
voluminous expert reports detailing why the EIS analysis was deeply flawed, signaled that it was
not the courts job to second-guess the agencies judgment, but rather to defer to it when the
agency studied the issue and reached a reasoned conclusion.176 Akpan set plaintiff’s bar
extremely high, and is a major reason why plaintiffs seldom win cases in which an EIS has been
prepared.177 Turning to the last three cases highlighted – Collier Realty LLC, Chinese Staff II,
Chinese Staff III – a positive declaration and final EIS was only filed in Chinese Staff II. This
was likely the result of intense negotiation between community members and the DCP at the
beginning of the three-year period preceding the rezoning.178 In the other two cases, Collier
Realty LLC and Chinese Staff III, the DCP’s negative declaration was challenged even though
both actions were classified as Type I. Ultimately, all three cases were dismissed because the
agency was deemed to have taken a “hard look,” but was something else forcing the judiciary’s
hand?
In 1997, the Court of Appeals decided Merson v. McNally179, an Article 78 challenge of a
town board’s issuance of a negative declaration in a soil mining and reclamation project.180 In
Merson, the Court prescribed a “twofold inquiry to examine whether a negative declaration has
been impermissibly conditioned: (1) whether the project, as initially proposed, might result in the
identification of one or more significant adverse environmental effects; and (2) whether the
176
Id. at 369.
177
Id.
178
Chinese Staff and Workers Ass’n, 26 Misc.3d at n. 15.
179
90 N.Y.2d 742 (1997).
180
Id. at 742.
25
Alexander J. Nicas
proposed mitigating measures incorporated into the EAF were identified and required by the lead
agency as a condition precedent to the issuance of a negative declaration.”181 The Court was
clear to point out that the inclusion of mitigating measures did not obviate the need for an EIS
unless the measures “clearly negate[d] the continued potentiality of the adverse [environmental]
effects.”182 But, almost contradicting itself, the court ultimately stated that the modifications in
question were identified by the public, examined openly and deliberatively, and comported with
the overriding purposes with SEQRA; therefore, they “combine[d] to support the conclusion that
the negative declaration … was not improperly conditioned.”183
In all three cases – Collier Realty LLC, Chinese Staff II, Chinese Staff III – there was
significant community input prior to a final determination. Although none of the opinions cited
Merson, community input and the resulting modifications, likely aided the determination that the
agency had taken the requisite hard look.
It is well settled that courts “may not substitute their judgment for that of the agency.”184
As long as the agency discusses potential adverse environmental effects with community
members before making a reasoned conclusion, Merson leads one to believe that the agency’s
decision will be insulated from review. The Merson threshold, coupled with the examples of
“excusable error” outlined in Nash show that the deck is stacked, and not for the people.
VI. The People’s Voice Must Be Heard – Why Strengthening New York City’s Community
Boards Role in Planning Would Be a Good Start.
As the cases indicate, even getting the lead agency in a city-initiated project to draft an
EIS often proves difficult. Without this guarantee, the general public doesn’t participate in the
181
Id. at 752-53.
182
Id. at 754.
183
Id. at 754-56. (noting that what is dispositive is the character and source of the identified modifications, and comparing this to
the type of adverse environmental effects it seeks to lessen or negate).
184
Akpan, 75 N.Y.2d at 570.
26
Alexander J. Nicas
scoping process185, nor is afforded the minimum 30-day review period of a draft EIS186, or a
public hearing as mandated by CEQR187. The general public is therefore only able to rely on the
local community board to be its voice. Even though sole reliance on the community board is
unpalatable, strengthening the role of community boards may be the only option.
New York City’s fifty-nine community boards were created in 1975, and marked a return
to neighborhood-based politics.188 As part of the ULURP process created in the same year,
community boards are given the opportunity to review and make recommendations before any
City Council vote on an application.189 Unfortunately, the community board’s recommendation
is non-binding, and critics suggest that it simply insulates City Hall from neighborhood
concerns.190 Apart from the review and recommendation process, the community board can
effectively advocate for neighborhood change if it is properly organized. In the early 2000’s,
after the Unified Bulk Program failed, the East Harlem community board worked with a local
planning and urban development group to identify zoning and land use regulations that would
better fit the existing conditions in the neighborhood.191 After proposing a plan to the DCP, the
agency debated the scale of the zoning amendment and finally settled on rezoning a fifty-seven-
block area.192 This was less than the community board had pushed for, but was nevertheless a
victory for the neighborhood.193
185
N.Y.C.R.R. tit. 6, ch. VI, §617.2(af) (2010) (“scoping” means the process by which the lead agency identifies the potentially
significant adverse impacts related to the proposed action that are to be included in the draft EIS, but it also provides an
opportunity for early participation by the public in review of the proposal).
186
New York, R.C.N.Y., tit. 43, ch.6, §6-10(a)(iv) (2009).
187
Id. §6-10(c)(3).
188
Richard Bass & Cuz Potter, A Tale of Three Northern Manhattan Communities: Case Studies of Political Empowerment in the
Planning Process, 31 Fordham Urb. L.J. 285, 286 (January 2004)
189
Supra, note 47.
190
Bass, supra note 188, at 290 (stating in contrary that borough presidents appear to be responsive to decisions made by their
appointees, and that the CPC sometimes takes the recommendations into consideration).
191
Id. at 299-300 (explaining that the plan would move to protect the neighborhoods’ character and scale).
192
Id. at 300.
193
Id. at 303.
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Alexander J. Nicas
Two ways a community board could strengthen its voice in planning decisions would be
through the use of community benefits agreements (CBA), or by reforming §197-a of the New
York City Charter. A CBA is a contract between a developer and community organization,
whereby the developer secures the organizations support by making specific promises or
commitments.194 For example, the developer may commit to a percentage of affordable housing
units or using local residents as labor for the cooperation of the community board in the ULURP
process.195 But, the community organization doesn’t need to be the official community board;
sometimes a developer may sign a CBA with different organizations to garner public support for
a project.196 The contractual freedom of a CBA will persistently lend itself to the questions of
whether the parties to a CBA really represent the community, or whether the commitments
extracted really equal support for the project.197 Nevertheless, these concerns should not
eliminate the CBA as a component of the community’s toolkit. The second way the community
could strengthen its role would be to reform §197-a. Section 197-a of the New York City
Charter allows a borough president, borough board, or community board to propose a plan of
development or improvement.198 While this hypothetically gives community members some
control over the planning process, any plan submitted is provisional and subject to approval by
the CPC.199 A report by Manhattan Borough President Scott Stringer, published in April 2010,
laid out multiple recommendations aimed at strengthening community boards including: the
194
Vicki Been, Community Benefits Agreeements: A New local Government Tool or Another Variation on the Exactions Theme?,
Working Paper, Furman Center for Real Estate & Urban Policy, April 2010,
http://furmancenter.org/files/publications/Community_Benefits_Agreements_Working_Paper.pdf .
195
Id. at 2.
196
Id. at 11-12 (describing the Atlantic Yards CBA, signed by Forest City Ratner as developer and various community groups –
New York Chapter of Association of Community Organizations for Reform Now, Brookyln United for Innovative Local
Development, and the Downtown Brooklyn Advisory and Oversight Committee).
197
Id. at 12 (describing how many groups negotiating CBAs have taken care to involve the community, and insure an inclusive
bargaining process, but admitting that there is no mechanism for ensuring that those who claim to speak for the community
actually do, or no guaranteed forum through which the community can express its views about the substance of the agreement).
198
New York, N.Y., CHARTER §197-a(a) (allowing the mayor, CPC or DCP to also propose plans of development, growth, and
improvement of the city).
199
Id. §197-a(b) (stating that upon receipt of a plan by a community board, borough board, or borough president, the CPC shall,
within a reasonable time period, determine whether the plan satisfies their standards).
28
Alexander J. Nicas
mandatory appointment of a full-time qualified urban planner to each board, with the necessary
budget appropriation to fund the position; and requiring the CPC to overturn a borough
president’s “no” vote on a rezoning plan with a supermajority of members instead of a
majority.200 Although the Charter Revision Committee took a pass at reforming §197-a this year,
the fact that it is on political radar is an admission that something needs to be done.201
VII. Has the Administration’s Site-Specific Rezoning Plan Actually Been Effective?
Rezoning is often referred to as a value recapture device – a device that unlocks value
lying dormant based on current zoning regulations.202 This is not the only objective; rezoning
can also shift growth to underutilized areas, or areas better equipped to handle an increase in
population.203 The Housing section in PlaNYC identifies both of these objectives as goals for
development.204 In the absence of a true comprehensive plan, we are left to test the
Administration’s success against these vague benchmarks.
The backbone of PlaNYC 2030 is that New York City will become home to over nine
million people by 2030.205 To accommodate the influx of additional residents, new housing
capacity is necessary. Looking at the Administration’s rezonings from 2002-2009206, one study
indicates that allowable density within rezoned areas increased by 4.9%.207 A second study, with
200
See Recommendations to the New York City Charter Revision Commission, Ensuring Meaningful Community-Based
Planning and Community Governance: The Future of Community Boards and the New York City Charter, Office of Manhattan
Borough President Scott Stringer, April 19, 2010, http://www.mbpo.org/release_details.asp?id=1578.
201
202
See Marcus, supra note 21, at 717; see also Watanabe, supra note 31, at 75 (defining value-recapture as using zoning to
extract public benefits from real estate developers in exchange for incentives like density bonuses).
203
See PlaNYC, supra note 3, at 21 (identifying “transit-oriented development” as a central initiative to the City’s rezoning
strategy).
204
Id. at 14 (stating that “[w]ith competing needs and limited land, we must unlock unrealized housing capacity, complete
unfinished parks, and direct growth toward transit centers. By being smarter about our land-use strategies, we can realize the
promise of an expanding population, while avoiding the pitfalls of unplanned and unbalanced growth”).
205
Id. at 3.
206
See Watanabe, supra note 31, at 36. There are rezonings excluded from the list, but the calculation began with the first 100
rezonings on the DCP website. Id. at 37.
207
Id. at 48.
29
Alexander J. Nicas
a narrower focus208, stated that residential development capacity was increased by about 1.7%.209
On the whole, these two studies indicate that residential capacity has increased, at least to some
degree. Digging deeper, the data is quite interesting:
Upzoned (net increase in allowable density)210
In 25 city-initiated rezonings where there was no evidence of community participation,

average change in density increased by approximately 29%.211
Upzoned lots tended to be in locations with a higher proportion of non-white residents, and
in areas with significantly lower income than the City median.212
Downzoned (net decrease in allowable density)213
In 68 city-initiated rezonings where there was community participation, average change in

density decreased by approximately 5%.214
Downzoned lots were more likely to be located in areas with a higher share of white
residents, and in areas of lower than median income but more affluent than upzoned
areas.215
Pinpointing exactly why there are ethnic and socioeconomic differences is extremely
difficult, but the findings do show a correlation between upzoning and no community
involvement. Although upzoning is generally thought of as pro-development (new housing,
208
See Armstrong, supra note 10, at 3 (stating that researchers looked at the impact of 76 rezonings that took place between
2003-2007, and calculated that 188,000 lots, already zoned to permit residential development, were affected by the City-initiated
rezonings).
209
Id. at 8. A change in residential development capacity is calculated by comparing: (a specific lot’s maximum FAR x
maximum buildable area) in both 2003 and 2007. Id. at 4.
210
Each conclusion under the heading is technically independent from the other. In other words, each conclusion is drawn on a
different data set, but because the data sets analyze approximately the same information, I believe it is fair to look at the
conclusions in tandem.
211
See, Watanabe, supra note 10, at 55. The 5 rezonings that accounted for the largest absolute increases in density were
Jamaica, Hudson Yards, Geenpoint/Williamsburg, Downtown Brooklyn, and Bedford-Stuyvesant South. Id. at 54.
212
See Armstrong, supra note 10, at 9-10.
213
Each conclusion under the heading is technically independent from the other. In other words, each conclusion is drawn on a
different data set, but because the data sets analyze approximately the same information, I believe it is fair to look at the
conclusions in tandem.
214
See Watanabe, supra note 31, at 55. The 5 rezonings that accounted for the largest absolute decrease in density were Bay
Ridge, Bensonhurst, Dutch Kills, Middle Village and North Corona. Id. at 54.
215
Id. at 10.
30
Alexander J. Nicas
businesses, jobs and, retail services), the negative effects (traffic, congestion, and decreased
affordability – gentrification) usually outweigh the positives for neighborhood residents.216
A second guidepost of PlaNYC is transit-oriented development.217 Transit-oriented
development focuses on creating new residential capacity “within a half-mile of mass transit.”218
On the whole, it appears that the city has been able increase density in areas adjacent to rail
transit.219 Specifically, 73% of all upzoned residential lots between 2003-2007 were within a
half-mile walk of a major transportation hub.220 Although downzoned lots were also within a
half-mile of transit 59% of the time, the residential capacity added in upzonings greatly exceeded
what the downzonings took away.221
When you look at this metric from a borough perspective, the shifting of density from
neighborhood to neighborhood is interesting. In Brooklyn, densities have been lowered in the
southern neighborhoods: Bay Ridge, Bensonhurst, and Canarsie, and increased in neighborhoods
closer to Mahattan: Downtown Brooklyn, the Greenpoint/Williamsburg waterfront, and Bedford-
Stuyvesant.222 Queens is somewhat different. In Queens, density has been skimmed off the
entire borough and deposited in the Jamaica and Kew Gardens/Richmond Hill areas.223 Not
coincidentally, these areas provide excellent access to Manhattan, North Brooklyn, JFK Airport
and Long Island.224
216
See Armstrong, supra note 10, at 7 (stating that downzoning is seen as preservation, only allowing development at a scale that
preserves the existing character of the neighborhood).
217
Supra note 3, at 21.
218
Id. at 19. (indicating that all of the PlaNYC policies, taken together, could accommodate 900,000 additional New Yorkers
while creating 95% of the new capacity within a half-mile of mass transit).
219
See Watanabe, supra note 31, at 58 (noting that in areas within one half-mile of transit, approximately 7% of new density was
added, while 17.1% was shifted from one area (less able to handle an increase in density – downzone) to another (more able to
handle an increase – upzone)).
220
See Armstrong, supra note 10, at 11 (defining major transportation hub as New York City Transit Subway, Staten Island
Railway, Metro North or Long Island Rail Road).
221
Id.
222
Watanabe, supra note 10, at 62.
223
Id.
224
Id.
31
Alexander J. Nicas
It is fair to say that the Bloomberg Administration has been effective at implementing its
duals goals: (1) creating or unlocking unrealized housing capacity, and (2) funneling growth
towards transit centers. It is also fair to say that the latter goal is a smart use of existing
resources. The transit system in-and-around New York City is vital to sustainable growth.
Expanding residential capacity around its outlets is solid policy. Any comprehensive plan should
consider this variable a crucial component to success.
VIII. Reforms to the Current System
Reform is necessary because long-run success requires all stakeholders to have a say in
the process. The DCP and CPC have done a valiant job at anticipating and preparing for New
York City’s future needs, but comprehensive urban planning requires meaningful community
involvement, private support, and communication between city agencies.
A. Create a Comprehensive Plan
A comprehensive plan is basically a road map. It provides a framework that guides all
future development decisions. New York City doesn’t have a comprehensive plan225, and has
been left to make piecemeal decisions on how best to accommodate growth. Without a plan,
different City agencies cannot coordinate their activities.226 For example, a neighborhood
upzoned for additional residential capacity may lack the necessary transit or public services that
help facilitate growth. A comprehensive plan would minimize these situations, and make
planning more efficient. The lack of a comprehensive plan also reduces the community’s ability
to plan for it’s own growth. Without a framework, neighborhoods have no way to know if they
are heading in the right direction, or if their plan will be well received.
225
226
See generally Recommendations to the New York City Charter Revision Commission, Shaping the City’s Growth: Improving
the City’s Ability to Perform Land Use Responsibilities and Planning in the New York City Charter, Office of the Manhattan
Borough President Scott M. Stringer, April 19, 2010, http://www.mbpo.org/release_details.asp?id=1578 [hereinafter Shaping
Growth].
32
Alexander J. Nicas
Critics argue that creating a comprehensive plan would be “too complicated and too
inflexible for New York.”227 It is also uncertain who would draft the document, or how it would
be reviewed or adopted. Recently, Manhattan Borough President Scott Stringer recommended
that a new entity – the “Independent Planning Office” – be created to focus on drafting a
comprehensive plan.228 Stringer also recommended that any plan be ratified through a public
review process – similar to ULURP – to ensure that it truly represents New York City’s interests
before being formally adopted as policy.229 Creating and adopting a comprehensive plan would
be a monumental feat requiring incredible political fortitude. But, vision is necessary, and a
comprehensive plan is an essential component to sound future growth.
B. Revising the New York City Charter (“Charter”)
The Charter is New York City’s constitution. It governs city agencies, designates
responsibilities, and controls processes such as §197-a plans discussed earlier. In March 2010,
Mayor Bloomberg appointed a Charter Revision Commission to review the Charter, and propose
possible improvements. 230 Although the Commission ultimately decided not to propose
revisions to the land use process, a few things were considered.231 First, the Commission looked
at ULURP, and whether community boards and borough presidents needed a stronger role in the
227
Kazis, supra note 16 (quoting Adam Friedman, Executive Director of the Pratt Center, who has suggested putting together a
matrix of land-use goals, such as the total number of affordable housing units the city needs, against which zoning can be
measured).
228
See Shaping Growth, supra note 226 (stating that the primary function would be to generate a citywide comprehensive plan
based on agency needs, citywide development goals, mayoral policies, borough presidents Strategic Policy Statements, and
community boards §197-a Plans).
229
Id.
230
See, Press Release, Mayor Bloomberg Announces Appointment of Charter Revision Commission, Office of the Mayor, March
3, 2010,
http://www.nyc.gov/portal/site/nycgov/menuitem.c0935b9a57bb4ef3daf2f1c701c789a0/index.jsp?pageID=mayor_press_release
&catID=1194&doc_name=http%3A%2F%2Fwww.nyc.gov%2Fhtml%2Fom%2Fhtml%2F2010a%2Fpr096-
10.html&cc=unused1978&rc=1194&ndi=1
231
See Final Report, NYC Charter Revision Commission, August 23, 2010,
http://www.nyc.gov/html/charter/html/home/home.shtml (stating that the only two issues put before the voters were: #1 term
limits, and #2 various changes to elections and government administration).
33
Alexander J. Nicas
process.232 Next, the Commission looked at ways to encourage the creation and implementation
of §197-a plans.233 Finally, the Commission looked at the use of community benefit agreements
(CBAs), and whether they circumvented the current process, and therefore needed to be
regulated.234 Although the Commission failed to recommend any changes, it noted that there
was considerable pushback from the DCP/CPC over the community’s role in land-use planning.
What is apparent is that the Charter’s balance of power is skewed heavily towards the Mayor and
city agencies, and they are taking advantage of it. The IPO, as suggested by Borough President
Stringer, would lessen the Administration’s power by forcing development plans through an
additional layer of review. A second suggestion, developed by the Pratt Center for Community
Development, calls for structural changes to the CPC appointment process.235 Currently, the
Mayor appoints the head of DCP to also serve as head of the CPC.236 Additionally, the Mayor
appoints 6 other members to the CPC.237 In total, the Mayor appoints 7 out of 15 members who
sit on the CPC, and as the body only requires 7 members to “approve, modify, or disapprove an
application”, the Mayor’s majority can push through any application it wants.238 Essentially, the
CPC has become an instrument of City Hall. The Pratt Center posits that by limiting the
Mayor’s appointment power (at least so less than a majority are appointed by City Hall), the
232
Id. (explaining that the DCP vigorously disputes the claim that their voice is ignored, but that careful study of what has
actually occurred in the decision-making process is necessary to resolve the competing claims).
233
Id. (recommending that further study be done because there is considerable disagreement between the DCP/CPC and
community advocates over whether the present role of §197-a plans – i.e. planning guides or frameworks – gives the community
satisfactory voice over local land use decisions).
234
Id. (noting that the Commission mainly heard negative feedback about the agreements, specifically that they invite mischief
and lack accountability).
235
See Policy Brief, City Charter Revision: Where Land Use Fits In, Pratt Center for Community Development, March 2010,
http://prattcenter.net/city-charter-revision
236
See About Us, Department of City Planning, http://www.nyc.gov/html/dcp/html/about/plancom.shtml
237
Id.
238
See Land Use Review Procedure, Department of City Planning, http://www.nyc.gov/html/dcp/html/luproc/ulpro.shtml (stating
that if the Borough President has recommended against an application, then nine affirmative votes are required).
34
Alexander J. Nicas
CPC can again become an independent planning body instead of a rubber stamp for DCP-
initiated rezonings.239
C. Overhaul the 1961 Zoning Resolution
The DCP attempted and failed to overhaul the Resolution with the Unified Bulk Program
in 1999. As noted in Part II, passage of the Unified Bulk Program would have given developers
a clearer sense of what type of development (i.e. scale and size) is allowed in a specific
neighborhood. Bringing clarity to the Resolution would be pro-growth. It would allow small-
scale development while not detracting from any city-initiated rezoning agenda. Reforming the
Resolution could also minimize conflict between future goals and current requirements. For
example, the Resolution contains a requirement that new residential construction in most
neighborhoods be accompanied by a minimum number of off-street parking spaces.240 Although
initial research indicates that per-unit parking requirements are, on average, lower near transit
centers, there are still requirements for new development which leave open the question of
whether there is real contradiction between the Resolution and PlaNYC’s transit-oriented
development focus.241
Although it would still be difficult, simplifying the Resolution from a contextual
standpoint would be the least political of the reforms proposed. Most of the city-initiated
rezonings over the last ten years have focused on maintaining neighborhood character.
Developers are more aware of this focus than when the Unified Bulk Program was announced in
1999, and there is a clear understanding that it’s core philosophy is here to stay. Simplifying the
239
See Policy Brief, City Charter Revision: Where Land Use Fits In, Pratt Center for Community Development, March 2010,
http://prattcenter.net/city-charter-revision.
240
Simon McDonnell et al, A Continuing Role for Minimum Parking Requirements in a Dense Growing City? Evidence from
New York City., New York University Law and Economics Working Papers, 2, 2010, http://lsr.nellco.org/nyu lewp/214.
241
Id. at 19-20
35
Alexander J. Nicas
Resolution – the framework for development – would not run counter to the Administration’s
plan, it may actually make it easier.
IX. Conclusion
What began as a pro-growth agenda quickly become a revolutionary plan, and this plan –
the rezoning agenda pursued by the Bloomberg Administration since 2002 – has been a success.
What is apparent though, is how the communities voice is slowly being drowned out. For this
reason, reform is necessary. To ensure orderly development across mayoral administrations,
New York City must take a “hard look” at the land-use process and create a way for all
stakeholders have a seat at the table.
36

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Alexander J.

According to a population projection survey published by the Department of City

specific rezoning initiatives. In record numbers, the Administration’s ad hoc, site-specific

initiatives are upheld as well-considered plans.

A. NYC zoning from 1916 to 1961 to Today.

constantly amended, and by 1960, it “resembled a patchwork, reflecting forty-four tumultuous

years of technological, social and physical change.”20

technology boom of the late 20th century fueled growth.

Bloomberg Administration is a sophisticated, professional, well run organization, and has

III. ULURP, SEQRA, CEQR

A. Uniform Land Use Review Procedure (ULURP) - §197-c

that application, the environmental impact statement.

B. State Environmental Quality Review Act (SEQRA) + City Environmental

Quality Review Act (CEQR)

effects of discretionary actions before undertaking, funding, or approving these actions.59 In

reviews, even if the CPC was the lead agency by statute.

the first step is to complete an environmental assessment form/statement (“EAF” or “EAS”),

documentation.74 If one significant adverse environmental impact is found, a positive

issued and no EIS is required.76

proposed action78; (iii) a description of mitigation measures to minimize adverse environmental

to minimize or avoid adverse environmental effects86.

but courts decide when a violation of those rules has occurred.

IV. Judicial Review in Article 78 Proceedings – A Strict Standard

Zoning is a legislative act. Changes in zoning enjoy a strong presumption of

threshold of arbitrariness is embodied in the Article 78 standard of review: whether “a

body complied with the statue, procedurally and substantively.

requirements for a well-considered plan.108

whether a proposed rezoning initiative is in accord with a well-considered plan.

B. Akpan refines & Save the Audubon proves interesting

rationally based, constituted an abuse of discretion or resulted from an error of law.128

sophistication was beginning to show itself.

Rockaway; (3) East Village: (4) Sunset Park

“[a]lthough the Article 78 standard of review of the procedural requirements of an administrative

Considering how an Article 78 proceeding already presumes propriety on behalf of the

governmental agency, “excusable error” tilts the scales even farther.

made a reasoned elaboration of the basis for its determination.”154

often economically driven shifting of demographics within neighborhoods.”164

Brooklyn.166 Area residents and community groups, concerned about out-of-context

In 1997, the Court of Appeals decided Merson v. McNally179, an Article 78 challenge of a

the negative declaration … was not improperly conditioned.”183

agency had taken the requisite hard look.

Boards Role in Planning Would Be a Good Start.

City Council vote on an application.189 Unfortunately, the community board’s recommendation

victory for the neighborhood.193

development or improvement.198 While this hypothetically gives community members some

president’s “no” vote on a rezoning plan with a supermajority of members instead of a

Administration’s success against these vague benchmarks.

degree. Digging deeper, the data is quite interesting:

Upzoned (net increase in allowable density)210

In 25 city-initiated rezonings where there was no evidence of community participation,

Downzoned (net decrease in allowable density)213

In 68 city-initiated rezonings where there was community participation, average change in

involvement. Although upzoning is generally thought of as pro-development (new housing,

affordability – gentrification) usually outweigh the positives for neighborhood residents.216

A second guidepost of PlaNYC is transit-oriented development.217 Transit-oriented

what the downzonings took away.221

neighborhood to neighborhood is interesting. In Brooklyn, densities have been lowered in the

closer to Mahattan: Downtown Brooklyn, the Greenpoint/Williamsburg waterfront, and Bedford-

and Long Island.224

consider this variable a crucial component to success.

VIII. Reforms to the Current System

involvement, private support, and communication between city agencies.

A. Create a Comprehensive Plan

Bloomberg & NYC Rezoning

Bloomberg & NYC Rezoning