Community Boards: For Affordable Housing But Against Administration’s Solutions – What’s Going On?

Carol E. Rosenthal, Real Estate Partner. Image credit: Fried Frank

The results are in, and two of the de Blasio administration’s key land use initiatives, Zoning for Quality and Affordability and Mandatory Inclusionary Housing, are not receiving a welcome reception at community boards and borough boards.

In fact, as of this writing, according to CityLand’s vote tracker of the city’s 59 community boards, 45 have voted to oppose Zoning for Quality and Affordability and 38 have voted to oppose Mandatory Inclusionary Housing. Four of the five borough boards have voted to oppose these proposals, with the remaining borough board, Staten Island’s, to vote on December 10. Many borough presidents have issued statements critical of the proposals as well. Such strong opposition is striking as the proposals were thoughtfully crafted and aim to generate more affordable housing, something that everyone seems to want. What’s going on?

1. Citywide Text Changes Are Difficult

It’s always difficult to enact a major text change to the Zoning Resolution, even when the change aims to advance a popular initiative, such as affordable housing. Under the New York City Charter, community boards and borough boards must be notified of zoning text changes and be given an opportunity to be heard. Each of the 64 community boards and borough boards may hold public hearings and offer recommendations on citywide text changes such as Zoning for Quality and Affordability and Mandatory Inclusionary Housing. This occurs prior to the City Planning Commission’s and City Council’s votes to approve, approve with modifications or disapprove the change. Although only the City Planning Commission’s and City Council’s votes are binding, the City Planning Commission and City Council consider the recommendations of the community boards, borough boards and borough presidents.

During the Giuliani Administration, most of the Unified Bulk Program, a citywide zoning initiative, died during the public review process, even though its goal was to limit out-of-scale development and impose height limits in many zoning districts, advancing popular initiatives. Subsequently, the Bloomberg Administration took a different approach to limiting such development by mapping many new contextual zoning districts and height limits on a block-by-block, neighborhood-by-neighborhood basis.

Perhaps, the lesson of Unified Bulk and contextual rezonings is that an administration may be more successful by moving by block and by neighborhood, incrementally advancing a citywide agenda. The de Blasio Administration appears to believe that neighborhood-scale action may be possible even where citywide action is not, as the proposed East New York rezoning would make Inclusionary Housing mandatory in that neighborhood, even if the citywide initiative fails. Subsequent neighborhood rezonings could also mandate Inclusionary Housing absent a citywide zoning change.

2. Complexity Is Hard to Digest

The administration’s proposals, particularly Zoning for Quality and Affordability, are long and complicated. The draft Mandatory Inclusionary Housing text is 57 pages and the draft Zoning for Quality and Affordability text is 469 pages, modifying 58 chapters of the Zoning Resolution and adding a new appendix. Much of Zoning for Quality and Affordability results from technical issues raised by the architecture community, and many of the proposed changes are difficult for a lay person to comprehend, even a lay person with some background in zoning. In opposing both proposals, Brooklyn Community Board 14 noted that the proposed text “conveys so much information at once – hundreds of pages – that all but professional planners and land use experts are challenged to understand the implications of the proposed changes.” While many of the changes are welcome to architects and planning professionals, and make worthwhile reforms in areas such as senior housing, Zoning for Quality and Affordability may be trying to do too many things at once.

3. Height Matters to Community Boards

As noted above, the Bloomberg administration rezoned many neighborhoods to apply height limits and to preserve neighborhood character. Community boards which fought for height limits are now voting whether to raise building heights, in some cases by a maximum of two stories for affordable housing. Manhattan Community Board 3 opposed the administration’s proposals, noting that “contextual zoning districts and their height limits in CB 3 were arrived at after years of work, careful examination of local conditions, and considerable compromise.” Community boards tend to favor strict height limits in zoning, even in areas where Landmarks regulation provides an additional layer of protection. Land use practitioners are accustomed to thinking about bulk regulations in terms of allowable floor area, but to many community members, any height increase in contextual districts, even a floor or two, is problematic.

4. Parking Is the Sacred Cow of Zoning

Zoning for Quality and Affordability would eliminate parking requirements for certain affordable housing and affordable senior housing developments. Numerous scholarly articles in urban planning and urban economics argue that zoning requires far too much parking, increasing housing costs and encouraging people to drive, thereby worsening traffic congestion. In New York City, the majority of households do not own cars, and residents of affordable housing, particularly affordable senior housing, own cars at even lower rates than the citywide average. Moreover, Zoning for Quality and Affordability is careful to differentiate among locations based on subway access. Still, many community board members and elected officials, particularly outside of Manhattan, are concerned about a lack of parking and, instinctively, are skeptical of any reduction in parking minimums. Brooklyn Community Board 10 argued that Zoning for Quality and Affordability “exacerbates overall parking shortages and ignores the parking needs of facility residents, staff, and visitors.”

Theodore D. Clement, Real Estate Associate. Image credit: Fried Frank

5. Any Development Is Perceived as Equivalent to Gentrification

New development often seems like the physical manifestation of gentrification. As Zoning for Quality and Affordability and Mandatory Inclusionary Housing promote development, many community members perceive them to be a Trojan horse, initially appearing as a gift, but ultimately letting in more gentrification. Accordingly, community boards may seek to curtail development or to restrict development to primarily affordable housing. Some community board resolutions, while supporting the general idea of making Inclusionary Housing mandatory, argued that the administration’s proposal was not stringent enough to combat gentrification. Manhattan Community Board 3 opposes Mandatory Inclusionary Housing unless, among other changes, 50% of all units and square footage were permanently affordable at 40 AMI. The de Blasio administration and others would argue that such a requirement is so stringent that no new housing could be built in Mandatory Inclusionary Housing areas, and that a lack of development would not mean a lack of gentrification, as prices can rise for existing housing stock absent new construction.

6. Conclusion: How Much Can Zoning Do?

Among many who oppose Zoning for Quality and Affordability and Mandatory Inclusionary Housing, there was both a strong desire to temper rising housing costs and a deep skepticism that City government will succeed in the face of relentless gentrification. Perhaps this skepticism has some basis, at least as to how much zoning can accomplish. Zoning can advance the health, safety and general welfare through land use regulation which, in some instances, can regulate income levels of residents of certain housing units. While zoning is a powerful tool to shape cities, it is limited in its ability to control market forces or guarantee outcomes.

The de Blasio Administration is hopeful that Mandatory Inclusionary Housing and Zoning for Quality and Affordability would harness the private market to produce more affordable housing, allowing the supply of market-rate and affordable housing to grow together while creating diverse, mixed-income neighborhoods. The proposed zoning changes are, in fact, only a small part of a larger housing plan which involves substantial city investment in affordable housing through a variety of programs. Zoning for Quality and Affordability and Mandatory Inclusionary Housing could play a helpful role in the plan, but will neither solve the city’s housing crisis nor unleash hyper-gentrification. Nonetheless, as the current public review process indicates, the proposals have become a lighting-rod for many of the issues surrounding New York City’s housing dilemma.

—Carol E. Rosenthal & Theodore D. Clement

Carol E. Rosenthal is a Real Estate Partner & Theodore D. Clement is a Real Estate Associate at Fried, Frank, Harris, Shriver & Jacobson LLP.