The project site is not anticipated to experience substantial change in the future without the proposed project by 2016 due to the existence of the open rail yard and the low-density industrial zoning regulations.
The Park Slope Civic Council and Park Slope Neighbors challenged that, commenting:
The DEIS claims that without the proposed project, current zoning (largely for manufacturing use, due to the rail yard) would remain unchanged, and thus, desirable redevelopment of this portion of the site could not take place. There is no reason to assume that New York City would not or could not rezone these parcels to encourage such redevelopment. Such rezoning would involve professional planners whose job is to advance the public interest, rather than a reliance on private interests to establish de facto zoning. Such rezoning should be inclusionary.
In the Final Environmental Impact Statement, the ESDC responded:
While the City, if it desired, could rezone the project site, it has not. Given the attempts over the life of ATURA to encourage development, the challenges of developing over the rail yard have resulted in the project site remaining underutilized and blighted, rendering any rezoning of the rail yard parcels unable to affect desired change. Although the proposed project would be implemented via the affirmation of a GPP [General Project Plan] as proposed by ESDC, development of this GPP and its design guidelines have been developed in consultation with the City, including DCP [Department of City Planning] and EDC [Economic Development Corporation]. The proposed project is inclusionary as it would provide below-market-rate housing for low-, moderate-, and middle-income households.
First, there's no reason to think the city couldn't rezone the project site, or at least part of it. After all, the city has moved ahead to rezone the area around the Hudson Yards in Manhattan, and wants to lead the development, rather than let a private developer take the lead and have DCP and EDC chime in.
The DCP's Winston Von Engel was asked at a hearing last March why the city hadn't acted. As I reported:
"We didn't decide to take a look at the yards," Von Engel replied. "They belong to the Long Island Rail Road. They use them heavily. They're critical to their operations. You do things in a step-by-step process. We concentrated on the Downtown Brooklyn development plan for Downtown Brooklyn. Forest City Ratner owns property across the way. And they saw the yards, and looked at those. We had not been considering the yards directly."
A subsequent step for the city, given the rising land values and the decreasing amount of space for development, might in fact have been a rezoning. Instead, Forest City Ratner came up with a bold proposal and, as then-EDC president Andrew Alper said at a City Council hearing in May 2004, "So, they came to us, we did not come to them. And it is not really up to us then to go out and find to try to a better deal."
Except it might run afoul of the Supreme Court's Kelo decision on eminent domain. Jerold S. Kayden, co-chair of the Harvard Graduate School of Design's Department of Urban Planning and Design set out some post-Kelo guidelines.
One of them, according to David Smith's affordable housing blog:
Use an RFP (Request For Proposal) or other competitive process to select the plan and developer and to eliminate the presumption of a hard-wired sweetheart deal.