Sunday, May 20, 2007

Zoning Out: The Need to Reform ULURP

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

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

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

That being said, there are things in the MI document that we would take issue with (Our new good friend Norman Oder has laid out some of these qualms in a recent post). Let's begin by underscoring what we find to be excellent criticisms in the MI report. In the first place, "the process has little to do with planning." Here the report is right on target.

The entire ULURP review inevitably begins with a developer's vision, and is then narrated by consultants who are hired to embellish the vision with facts that fit the preconceived narrative. The resulting environmental impact statements are certainly "impenetrable," designed as "litigation insurance" rather than as an explication of any real environmental impact.

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

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

The MI report captures this in quoting a unnamed consultant who said:

"Politicians have no time to read thousand-page volumes of technical data,
and bureaucrats are overwhelmed by their workload...{which leads to}...The
revolving door between powerful government and highly paid private-sector
CEQR jobs means that no wants to go om record blowing the whistle...A guy works
for the city, then goes to work for AKRF...and you can't get out of the circle."

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

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

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

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

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

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

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