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A start on trading cumbersome (city) environmental review for the civic work of planning

Nobody’s happy with the way projects get approved in New York. Rather than planning, there’s an environmental review process--city, state, or federal depending on the overseeing authority—that aims to disclose adverse impacts rather than actually mitigate them. Reams of paper produced by high-priced consultants allow developers to insulate against lawsuits, but otherwise don’t serve the public well.

The indictment, as applied in the city’s implementation of the 1975 State Environmental Quality Review Act (SEQRA), is detailed thoroughly in a new publication, Rethinking Environmental Review: A Handbook on What Can Be Done, written by Hope Cohen, deputy director of the Center for Rethinking Development at the Manhattan Institute, with a foreword by Richard Ravitch, former head of the Metropolitan Transportation Authority.

While the institute has a free-market bent, it gathered a panel of good government types for a panel discussion yesterday, who endorsed the critique even if they differed at points over the prescription. They included Ravitch; Robert Yaro, president of the Regional Plan Association (RPA); Kent Barwick, president of the Municipal Art Society (MAS); and Jerilyn Perine, executive director of the Citizens Housing and Planning Council of NY and former commissioner of the New York City Department of Housing Preservation and Development.

Though Atlantic Yards, as a project overseen by the state, was not addressed in the handbook, it was brought up yet again by the panel as an emblematic example of poor planning.

(The handbook was limited to the city review, because changing state requirements would require amendment of the law but the city process could be changed via mayoral executive order and a set of guidelines issued by the Department of City Planning.)

Costly and opaque

Cohen’s handbook points out that even a small-scale environmental review in New York City can cost $100,000, and larger reviews can cost more than $2.5 million. (Note that AKRF’s tab for the state review of Atlantic Yards approaches $5 million.)

Cohen writes:
Politicians have no time to read thousand-page volumes of technical data, and bureaucrats are overwhelmed with their workload, which means that only projects with a patron get far fast. The revolving door between powerful government and highly paid private-sector CEQR jobs means that no one wants to go on record blowing the whistle. As one developer explained, “Ninety percent of EASs are done by a small circle of firms where you’re buying the ability to influence the bureaucrats—whom they hire. A guy works for the city, then goes to work for AKRF [a leading consulting firm for environmental review], and you can’t get out of the circle.”

(AKRF even wrote the technical handbook, the City Environmental Quality Review Technical Manual, as the company states proudly.)

And it’s possible to game the system. Signal retiming “to address congestion at an intersection within the study area [can] make things worse in the larger neighborhood just outside the study area,” according to the report, and that’s certainly been a charge regarding the Atlantic Yards review.

Reforms suggested

The recommendations include exempting some projects, including smaller projects and variances that do not increase infrastructure demands, from review; new time limits for reviews; and the designation of an office to implement mitigations, such as the Mayor’s Office of Operations, which also houses the new Office of Long-term Planning and Sustainability, which is behind the PlaNYC 2030 project.

More controversially, the report recommends that the city review of environmental impacts should include a narrower definition of the environment. It “should drop topic areas that do not relate to the natural environment, infrastructure, or municipal services,” thus keeping topics like community facilities and services, open space, shadows, traffic, sanitation, transit, air quality, and noise, while excluding land use and zoning, socioeconomic conditions, urban design/visual resources, and neighborhood character, among others.

Cohen's argument is that current environmental reviews can offer little to deal with such impacts: “All it does is disclose. There’s nothing short of stopping the project that would change it.”

Afterward, I asked Cohen if she would make the same recommendations to reform the state environmental review, given that issues like neighborhood character and zoning were huge issues in the Atlantic Yards review. She noted that “my mandate was to look at the city” because that's where changes are clearly possible.

She added an important distinction. In projects overseen by New York City, the Uniform Land Use Review Procedure (ULURP), which accompanies the environmental review, addresses issues of zoning, at least, while state agencies are exempted from ULURP.

The Center for Rethinking Development, she added, has always believed that the Empire State Development Corporation (ESDC), which oversees state projects, “should not be exempt from zoning considerations and ULURP.”

Public role

At the panel, Barwick offered some cautions, suggesting that, despite the energy behind New York’s growth spurt, “it’s also a time in which there’s a severe and growing disaffection of the public.” Virtually all the large-scale development is “completely divorced” from the approval process, citing “all of the West Side, the Atlantic Yards, and Ground Zero,” he said.

Barwick said he thinks Bloomberg’s sustainability initiative will succeed over time, “but it’s an impediment to that kind of leadership to have the kind of disaffection we have today.’

While he finds many of the proposed reforms legitimate, he warned that “it’s ironic at this moment in our history to begin to define the environment as narrowly as the Manhattan Institute wants… to dismiss the consequence of the shapes and size of buildings… is to misunderstand why people live here.”

Ravitch later challenged Barwick, suggesting that people lived in New York because it was a place for opportunity, with housing subsidies, great public transit, and cheap higher education. (All true, but if people didn’t care about neighborhood character, we wouldn’t have historic districts.)

Yaro echoed the general theme, noting that the current process doesn’t work for communities, it’s expensive and time-consuming, it leads to rather than avoids litigation, and “it doesn’t work at all when we’re doing city building.” (RPA’s Rob Lane addressed that city-building issue yesterday, highlighting Atlantic Yards.)

CBA warnings

While activists have used environmental review to try to kill a project, the handbook states, some interest groups now use community benefit agreements (CBAs) that promise jobs, housing and child-care centers to ease projects along, even though they can distract from infrastructure improvements and other “traditional” mitigations. (The report allows that subsidized housing is arguably more impact-related.)

Yesterday, panelists took up that theme, noting that a CBA is hardly a substitute for civic planning. Perine warned that the environmental review process is “kind of being co-opted by these kind of agreements. No community ever says to a developer, ‘There’s no way we’ll approve this project unless you give us a homeless shelter, a garage for the ambulances, and a power plant.’… There has to be some sense made of this, and I think it’s one of the trains running out of the station that’s really at odds with our affordable housing policy and also with what the mayor’s trying to put out in his vision for the city for 2030.”

Yaro spoke similarly. “The avoidance of litigation is leading to what I think is an insidious business,” the CBA, which he defined as “a form of legal extortion.”

“Atlantic Yards is a good example,” he said, noting that MTA and city need to fix traffic and transit issues. “But there was absolutely nothing the developer could do, the city could do, or anybody could do” in the environmental review. While the CBA commitments might be worthy , especially to the civic groups that are part of the CBA, the document "didn’t deal with the fundamental issues that were raised by the EIS process.”

Vicki Been of the Furman Center for Real Estate and Urban Policy warned that excising issues like socioeconomic impacts from the environmental review process would leave communities “very unsatisfied.” While the answer may be a better planning process, she said that wasn't going to happen first.

So the risk, she suggested, is if some of those impacts are taken out of the process, we’ll get “something perhaps even worse, and we get more Community Benefit Agreements," which she characterized as part of a process less manageable than the environmental review.

Fait accompli

Yaro returned to the planning theme: “We’ve got a regulatory process with no planning process and what we need is, upfront, planning, community input, clear guidelines from the city and the state about what developers should be doing.”

“We’re getting it through these voluminous review processes, which only happen when the development is a fait accompli," he said. "There’s never any serious discussion of alternatives.” Yaro seemingly was endorsing one argument, if not the lawsuit exemplifying it, that challenges the Atlantic Yards environmental review, arguing that the state failed to consider alternatives to Forest City Ratner's plan.

Someone decides

Perine, who said she didn’t see communities embrace density and “the real infrastructure changes that we need,” argued for a distinction: “I think there’s a real difference between planning and what people think of as community planning. Planning should be done by planners.”
She scoffed at the idea that communities don’t have a voice, pointing to the rejection of the West Side Stadium. (Arguably, that had as much to do with the lobbying by Cablevision, owner of Madison Square Garden.) She also cited recent rezoning for the West Side as including community input. She didn't challenge Barwick's examples of Atlantic Yards and Ground Zero.

While communities rhetorically support affordable housing, she said, the process is complex and expensive, and planning comes out of pre-development costs paid for by subsidized loans: “We are wasting scarce subsidies that could be going to solve people’s housing problems on all this morass that doesn’t really make a project better.”

“I do believe there are legitimate reasons to have that community voice be a part… but at some point, if our rhetoric is real," she said, "somebody has to be willing to make a decision and say, ‘This is going here because we need it.’ Instead, we now put subsidies toward process and delay."

Looking forward

Perine offered “an alternative to these kind of willy-nilly Community Benefit Agreements,” suggesting that the sustainability office be placed in the Department of City Planning and that the city consider a “wedding registry idea” that lists needed community improvements.

Barwick called it “frightening” that the public doesn’t have to pay, but that it would all be paid for by the developer.” (The issue of increased responsibility by government and the public is also addressed in Lane's city-building essay.)

Yaro suggested that the mayor’s 2030 plan provides the framework to move forward. Genie Rice of Civitas said that there has been community planning, but 197-A plans produced by Community Boards are “totally ignored.”

Barwick noted that most 197-A plans have embraced growth: “There’s a feeling communities are NIMBYs. It’s a false assumption.”

Yaro pointed out that the City Charter that enabled community 197-A plans also calls for the mayor in his first year of office to prepare a four-year strategic plan. “That has been politely ignored, until now.”

Indeed, the Bloomberg administration has begun to put planning on the public agenda. So reform of the city’s cumbersome environmental review process—and reform in a way that can satisfy different constituencies—remains a challenge, but it could be on the horizon.

A reform of the state law, that which allowed Atlantic Yards, is even farther away. It may be that ongoing legal challenges to Brooklyn’s most controversial project will keep that state reform issue on the agenda.


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