Comments on Charter Revision Commission Proposals

Good afternoon, Chair Buery and Commissioners. My name is Howard Slatkin, and I am Executive Director of Citizens Housing and Planning Council, an 87-year-old policy research organization. I am pleased to submit testimony for CHPC in strong support of the proposed Charter revisions on land use and housing.

In February, at the start of this Charter revision process, I testified about the skewed political incentives embedded in the structure of ULURP, how todays environment differs from what the City faced in 1989, and what we have learned since then. We articulated a set of principles to guide reforms:

• Return to the original ULURP concept of “local voice, citywide responsibility.”
• Build into the process a check against member deference.
• Promote cooperation rather than stoking conflict or rivalry.
• Make minor actions faster and less resource-intensive.
• Accelerate urgent affordable housing investments with procedural relief.

CHPC is heartened that the Commission’s recommendations significantly address all of these principles. The proposed Charter revisions reflect a deliberative consideration of the proposals offered by CHPC and numerous other stakeholders, and chart a practical way forward. Together, the creation of a “fast track” for affordable housing approvals, an expedited review process for actions of lesser scope, and an appeals process for ULURP decisions will better align our land use processes with the critical priorities of building sufficient housing and promoting equitable housing creation among neighborhoods.

The proposed changes will leave us far better prepared to achieve these goals, yet it will still require commitment and effort from our democratically elected officials. For instance, in the rulemaking for and administration of these reforms, it will be important to ensure that these revised processes remain straightforward and navigable without undue delay or cost.

We have reviewed the details of the proposed Charter language with the goal of ensuring that it will accomplish the purposes the Commission has described. Our specific comments on this language are attached to our written testimony.

Thank you.

CHPC additional comments on proposed Charter language

Fast Track eligibility

• Need for CPC determination of eligibility for 197-e, to prevent misuse or unintended consequences. Eligibility is supposed to be for local land use actions to produce housing and are subject to MIH. The language here is potentially overinclusive (it is not specific to housing-oriented applications, and could encompass downzonings) and underinclusive (a zoning map change to facilitate housing may affect properties that are not subject to MIH or intended to be developed). At certification, in determining that a proposal is eligible for 197-e, the CPC should be required to find that the action meets the specified criteria and that its primary purpose is to facilitate additional housing.
  • To illustrate the problem of overinclusiveness in the proposed criteria:
    • Under established policy, MIH is applied to rezonings that would permit substantially more residential development even if the intended purpose is not residential. This could encompass projects (e.g., Memorial Sloan-Kettering, NY Blood Center, Lenox Hill Hospital) that do not have a housing component and should not be fast-tracked on the basis of insufficient affordable housing production.
    • The downzoning of an existing MIH area would be eligible for 197-e under the criteria specified in the proposed Charter language. In addition, while established policy and legal guidance has been to add MIH only when rezoning promotes new housing development, the proposal leaves the door open to future misuse. The application of MIH to an area without significant upzoning for example, rezoning an existing R10 district to R10A and extending the district boundary by 10 feet would effectively reduce, rather than increase housing capacity, but would also be eligible for 197-e as currently drafted.
  • The problem of underinclusiveness:
    • For example, take a portion of a block where the side street is zoned R4 and the avenue is zoned R6/C2. As was typical under 1961 zoning, the district boundary extends 150 feet from the avenue, the last 50 feet of which encompasses R4-style small homes fronting the side street. The proposed map change might map R7A within 100 feet of the avenue, but bring the remaining 50 feet of the current R6 district into the R4. That should be fine its good planning! and not preclude eligibility for 197-e. The Charter should avoid procedural incentives for inferior planning results wherever possible.
  • Note also that the eligibility criteria for low-density zoning map changes already require reasonable interpretation at the time of CPC certification they must determine that the change would “increase the residential capacity.” This is the correct concept, but in implementing it the CPC must consider not just FAR but also use (single-family, two-family, multifamily), minimum lot size, and other factors. For instance, a rezoning from R4 to R5A entails an increase in FAR and decreases the minimum lot size for detached homes, but limits buildings to single- or two-family detached homes. Guidance for how to make these determinations should be provided in the CPCs rulemaking.
• Need for an appeal for certification under 197-e. Paragraph (b)(4) requires as a condition of eligibility for 197-e that “The department of city planning certifies as complete such application no later than two years after such application is filed.” But this leaves open the possibility for administratively slowing applications by refusing to certify them. This problem led to the 1989 Charter revision introducing an appeal mechanism by which BPs or applicants could help get a delayed application certified. There is no specifically identified avenue for appeal to certify under 197-f/197-e the way there is under 197-c. A similar appeal process needs to be built into 197-e.
  • The timing requirements for certification of an application (197-f(b)(4)) are also potentially problematic. Applications are commonly refiled and should be allowed to be, within reason. If a new list of 12 CDs comes out on Jan 1 (or near this time) that does not include the CD an application is in, a grace period should be available during which a previously filed project may be refiled without losing eligibility for the 197-e process.
• Special permits. The proposed language makes zoning map amendments that increase permitted residential FAR by 30 percent or less eligible for the expedited 197-e process, but does not allow special permits the same expedited process, even though many special permits provide much lesser relief (e.g., floor area bonuses or transfer not exceeding 20 percent). This disparity could create perverse incentives not to utilize special permits, many of which are intended as ways to optimize development. While the Commission may find there to be no categorical way to expedite the full variety of special permits available, it should not abandon the goal of expediting special permits. The Charter proposal should require DCP to conduct a full review of discretionary actions available under the Zoning Resolution, and no later than January 1, 2027, to propose actions (whether zoning text amendments or additions to the 197-e eligibility list) to bring these actions into consistency with the review procedures for comparable actions under these changes.
• Designation of areas of lowest affordable housing production. The calculation of affordable units specifies for the numerator the “total number of affordable dwelling units for which the department of buildings has issued a permit for construction work in the prior five years.” This is ambiguous as to whether it refers to new affordable units only or existing affordable units on which construction work has been permitted. Presumably it is intended to refer to the former. This should be clarified (e.g., “new affordable units“; language that can be further elucidated in the CPC’s rules).
  • Edits to this language: “The director, in consultation with the commissioner of housing preservation and development, shall determine such twelve community districts by measuring dividing the total number of new affordable dwelling units for which the department of buildings has issued a permit for construction work in the prior five years as a percentage of by the total number of housing units located in such community district at the start of each five-year cycle.”
• Actions consisting of multiple applications. The proposed language appears to force eligible applications to go through 197-e. This creates a problem when an action includes multiple actions, only some of which are eligible for 197-e. For instance, a zoning map change and special permit would not be able to proceed through review in tandem. For obvious reasons, this would compromise decision making. The proposed language should be clear (or allow CPC rulemaking to clarify) which actions would proceed under 197-e and which under 197-c/200.

ELURP

• It is not clear from the language proposed for 197-e(e)(b)(2) whether rezoning from an M (or C8) district to a low-density R district is permitted, though it appears to be. Not clear that this is intended; it is not allowed for rezonings to medium- or high-density districts.

Appeals Board

• Timing and mechanics of appeals process.
  • The Appeals Board may “resolve by affirmative majority vote” to initiate review of a Council ULURP vote. This must happen within five days of the Councils vote. Presumably the Appeals Board needs to meet to take this vote. If so, there does not appear to be sufficient time for them to provide notice for doing so. (If not, what is the mechanism by which they would vote?) Need more clarity to understand how this would function within the limited time frame available.
    • Based on the number of meetings required in a short span, it would be preferable to allow this process to be initiated by individual actions of at least two of the three members of the Board (e.g., a statement of intent to appeal), rather than requiring a vote, which requires a public meeting. It shouldnt be harder for the Board to initiate an appeal than for an applicant to do so.
  • In addition, the board must file proposed modifications with the CPC for its 15-day review (during which the Board’s 15-day review is tolled), and only after this may the Board vote on the final changes.
    • Presumably the Board would need to vote to file modifications, which requires a public meeting. This makes as many as three meetings of the Board (see bullet above).
  • Typo in the numbering of 197-g, paragraph (d), which is labeled paragraph (c).