Tuesday, February 15, 2011

Regaining City Council Oversight Authority

We have been arguing strenuously about the need for the city council to exercise rigorous oversight over EDC's efforts to change the rules of the game governing development at Willets Point. We made this point three years ago when we questioned the wisdom of the council giving the development agency what basically amounts to a blank check-owing to the fact that, after it gives the city its approval, the council cedes all control over the project to the mayor.

With no developer and no consequent development plan, the council approved, just what exactly did it approve?  We don't know what, but what we do know is that the council took itself out of the crucial decision making prematurely-and in the process drastically diminished its key governing responsibility over the land use process.

So, when EDC now alters its direction and contradicts testimony it made before the council concerning the key issues of traffic and eminent domain, the council is left with little more than regrets about what it has squandered-unless it gathers the courage to revisit the approval based on the fact that EDC has essentially created a new development in its Phase I plan.

But the issue of council ceding its authority shouldn't be a shock to anyone who followed the Willets Point debate-and it was an assortment of council members who raised the red flag over the diminution of power that the body was willfully ceding to the mayor. During 2007 and the start of the ULURP in 2008, Council members openly resented that the manner in which EDC chose to proceed with the Willets Point ULURP -- i.e., without any developer presenting itself to the Council, to be vetted together with a specific plan which that developer would be responsible for implementing -- meant that the Council was being expected to cede its final land use authority as specified in the Charter, to EDC and Mayor's Office, who would then select one or more developer firms and a specific project plan, only after the City Council approved just a proxy "master plan," and thereby concluded its role in the process.

The concerns expressed by Council members at the time about this were not incidental, but quite grave. The late Tom White referred to this as an "institutional issue" with implications for the Council's future retention of its power. We excerpt a few of these other prescient comments:

(1) Council Member Thomas White, Chairperson, Economic Development Committee – City Council Economic Development Committee and Land Use Committee Joint Hearing, November 29, 2007:

"After the ULURP procedure is completed, the plan is to issue a Request for Proposal to developers. … This process differs from the usual process in that the City will issue the Request for Proposal only after the ULURP procedure has been completed, as opposed to prior to the ULURP process. This can be seen by some as an encroachment of the Council Land Use authority granted as a result of the 1989 Charter Revision …"

"I think that it would be important for our colleagues, as well as the City, to understand that this is an institutional issue and not a specific issue related to who is for and who is against. The history and the Charter revision section on Land Use states in 1989 that the Supreme Court ruled that the Board of Estimate violated the one person one vote mandate. In response, the new Charter abolished the Board of Estimate and provided for the redrawing of the City Council district lines to increase minority participation on the Council. It also increased the number of members from 35 to 51. The Council was then granted full power over the municipal budget, as well as authority over zoning and Land Use and franchises. Under the 1990 Charter revision, the Council acquired the power to review Land Use issues and approve zoning changes, housing and urban renewal plans, and community development plans, and the disposition of City-owned property. This power gives the Council the most significant voice in the growth and development of the City."

(2) Council Member Melinda Katz, Chairperson, Land Use Committee – City Council Economic Development Committee and Land Use Committee Joint Hearing, November 29, 2007:

"Well, just so it's clear, my issue in the last hearing and this one is clearly that if we do the ULURP process first, it takes the New York City Council out of the process as we move forward. It historically is not done that way. Historically we do the RFP first, the developer is chosen, then you do the ULURP process, and the reason that the community and the Council and the community boards are normally involved in the process, is because we have to vote on it. And, so, what's happening now, and the fear that I have, is that as we move forward and we do the ULURP first, I'm not sure what mechanism will be in place to assure community involvement. And to assure that the project goes forward in a way that makes everyone satisfied."

(3) Council Member Helen Sears – News conference statement, April 9, 2008:

"What we are being asked to do, is to bypass a very key part of the process; allow the certification of what they wish to do, and not do what we have to do to make that certification viable; to have it comply with the law; and move on to another step in the process. Now I ask you: Can any one of you give us a reason why the City Council should give up that major prerogative, which has a major effect on anything future in the development of the City? To give that up, which is a key part of the checks and balances of the government of the City of New York? Any one of you – Can you give me a reason, why? And none of you can, so as a result, you know why we are standing here today. Because when you begin to chip away at what those pieces are that weigh the scales of justice, you begin to chip away at what the rights are of everyone in the City of New York."

(4) City Council Speaker Emeritus Peter Vallone Sr. – City Council Subcommittee on Planning, Dispositions and Concessions Hearing, October 17, 2008:

"It took many, many years for the United States Supreme Court to declare the Board of Estimate unconstitutional and to say that only the City Council, only the City Council, has jurisdiction over land use. And while the Administration may propose, as it does a budget, this Council has to dispose." …

"So now you have a situation where they're asking the Council to say yes, you have land use power, but we will – the Executive Branch – we will make this so much better." …

"I can't believe that the Council would say to the Administration oh, hey, okay, take over. You're – forget our jurisdiction. You take it over 'cause you know better than us."

These are only a few of the comments surrounding this key issue of the cessation of the council's charter mandated authority-but, when read today, they do have a haunting quality to them. Whether its CM Ferreras' concern about a possible Walmart at Willets Point; or former CM, now state senator, Tony Avella's concern about EDC's abuse of eminent domain, it all comes back to the council's fatal decision to write the mayor a blank check in 2008-and, as former CM Katz pointed out, disregarding all land use precedent in the process.

As we have argued, however, the EDC end around Phase I gives the council the opportunity to undo the damage that was done in 2008. It should treat this de novo- from the beginning, as it were. But first an oversight hearing that brings in EDC to explain itself-its thinking and its plans. From there, a demand for a new SEQR review that sees this new phase of EDC's-along with the entire plan-with new eyes. It's not the same world in 2011 as it was when the council wrote the mayor that ill fated check, and there's no reason why it can't cancel it now-legitimately so-for insufficient funds.