Did Community Board 8's disapproval-with-conditions vote on two proposed towers mean conditional approval? The developers take advantage of "tricky" language. Board leaders/members at odds.

See collected coverage of M-CROWN rezonings: click here.

Two spot rezonings, which would bring residential buildings rising 17 stories (or maybe 15) along broad Atlantic Avenue, are pending before the City Council, presaging a further transformation of Prospect Heights and Crown Heights. 

Council Member Crystal Hudson, after first expressing clear opposition to the proposed 870-888 Atlantic Ave. (from Y & T Development, Yoel Teitelbaum) and 1034-1042 Atlantic Ave. (from EMP Capital, Elie Pariente), has more recently said she's undecided about the one-off upzonings, which would unlock development at sites currently shackled by low-rise manufacturing zoning.

Meanwhile, there are conflicting interpretations of what Community Board 8's disapproval-with-conditions vote means.

A lawyer for the applicants claims it means "conditional approval." And two leaders of CB 8 have said, unequivocally, that the board supports the applications because the developers have agreed to their requested modifications--though those modifications come third in the list of the board's priorities.

Consensus elusive

Consensus, or even a majority vote, was hard to come by, after weeks of meetings.

The board's Land Use Committee essentially deadlocked on two votes: to reject the rezonings out of hand, in favor of just a neighborhood rezoning; or to offer ranked priorities for the sites, while ignoring the neighborhood rezoning.

What passed, in narrow 12-10 Committee votes for each project, was a combination of the two, as indicated in the screenshot at right. 

It made the neighborhood rezoning the top priority but--almost with a wink-and-a-nudge--also recommended project revisions that board leaders had negotiated with the developers. (After Committee approval, the resolutions passed the full board by broader margins, as described below.)

Those revisions include, as the screenshot states, having the applicant commit to deep affordability (Option 3 of the city's Mandatory Inclusionary Housing), a cut in height from the proposed 17 stories--as guided by the Department of City Planning--to 15 stories (without a cut in bulk), and a commitment to ground-floor space for jobs. Those revisions would mean 206 and 200 apartments, respectively, instead of 228 each, as originally proposed.

Two perspectives were in tension. Given the Department of City Planning's unwillingness to back CB 8's longstanding push for the M-CROWN neighborhood rezoning that would cross-subsidize both affordable housing and light industrial jobs, is the best tactic negotiating with developers to fulfill such goals piecemeal, as CB 8 leaders insisted? 

Or, as critics, especially from nearby blocks and from the Crown Heights Tenant Union, emphasized, is the cumulative impact of such spot rezonings--especially since they deliver more density than M-CROWN contemplated--such that they should be delayed until a broader city rezoning brings civic investments, as in other neighborhood rezonings? Complicating that is a neighborhood rezoning--for which a petition recently launched--could take years.

Big money at stake

For Community Board 8 and Land Use Committee members, civic volunteers willing to put in punishing amounts of time, it's a debate about the future of their neighborhood. (M-CROWN refers to “Manufacturing, Commercial, Residential Opportunity for a Working Neighborhood," but it is rarely spelled out in CB 8 presentations.)

For the developers and their investors, there's big money at stake: upzonings are worth tens of millions of dollars in buildable floor area. 

Consider--as I'll describe in a subsequent post--two parcels known as 1010 Pacific Street were sold in 2015 for $8.5 million, in anticipation of a rezoning. Six months after the rezoning was passed in May 2019, the owner sold the parcels for $20.25 million.

Map by Kaja Kühl; rezonings in light blue are pending; apartment counts, from Environmental Assessment Statement filings, include full areas rezoned, not just promised projects

At City Council

I'll discuss below the debate at CB 8 and the City Planning Commission, but let's first consider a 3/8/22 hearing of the City Council's Zoning and Franchises Subcommittee. (I'll write separately about how that hearing shed some new light on the developers.)

“While it is understood that the area prefers an area-wide rezoning, as do we,” said land use attorney Richard Lobel, at that moment representing 1034-1042 Atlantic, “at the end of the day, Community Board 8 provided a conditional approval for this application, recognizing that this did comply with the M-CROWN resolutions in providing mixed-use development, additional housing, additional affordable housing, and additional commercial use and jobs.”

CB 8 recommendation 1034-1042 Atlantic

Lobel, who also represented the other project at the hearing, has successfully eased the way for three of the four previous spot rezonings within CB 8.

The well-prepared Hudson didn't let that pass. "Before I get into the questions I wanted to clarify a point that Mr. Lobel made earlier," she said. "Community Board 8 did not approve with conditions. They disapproved with conditions." 

Hudson then listed the conditions in order of preference, noting that the first preference was to withdraw the application in favor of a neighborhood-wide rezoning.

CB 8 support?

Later in the hearing, however, CB 8's new Land Use Chair Sharon Wedderburn complicated the issue. 

"We support this project," she said, "It hews to the board's vision." She cited the provision of deep affordability and the 15-story height limit.

Notably, though CB 8's listed priority after the neighborhood rezoning is to have the applicants refile their rezoning request to meet M-CROWN's limits, that got no discussion. 

Instead, CB 8 leaders focused on modifying the projects at hand. In that way, its disapproval-with- conditions was similar to its stance on the Pacific Grand rezoning, which was presented to the City Planning Commission in 2019 as support for the project if the changes were made.

As shown in the screenshot at right, in exchange for offering deep affordability and more job-creating space, the developers of 1034-1042 Atlantic would get a 15% bonus in bulk, or FAR (Floor Area Ratio), beyond the M-CROWN plan.

Esteban Giron, a leader in the Crown Heights Tenant Union, later responded sharply. 

"With all due respect to Ms. Wedderburn, her testimony completely misrepresented the vote of the board," he said. "As Council Member Hudson correctly stated, this application was disapproved with conditions, the main condition being a development of a neighborhood plan. It's not surprising then, when we say that we aren't being heard, this is what we mean."

870-888 Atlantic

In discussion of 870-888 Atlantic Ave. later in the Council Subcommittee hearing, land use attorney Lobel maintained that the project had also gained the board's approval--though it's described by CB 8 as "conditional unfavorable."

"We'll read the Community Board approval," Lobel said, "so there is no questions about the nature of the approval. The Community Board did issue a determination that said that they wanted to allow for an areawide rezoning. This is something which we had mentioned and agree with. However, understanding that, the text was that, if that is not possible... the committee recommends the following possible scenarios..."

CB 8 recommendation 870-888 Atlantic

CB 8's Wedderburn spoke more carefully. "It is the Community Board's strong preference for the rezoning that is known as M-CROWN," she said. "However, we have been unable to make progress with the Department of City Planning."

"Here's the thing: we absolutely support [this application] because it hews to the M-CROWN vision."

Peter Krashes, a Land Use Committee member and president of the North Prospect Heights Association, countered that "there's a kind of wordplay happening here."

He added that "what's being described as M-CROWN" was presented as "only benefits," but a rezoning would require setting neighborhood priorities through a broader public process, especially involving tenants vulnerable to displacement.

As shown in the screenshot below right, the 870-888 Atlantic project would get a 21% bonus in bulk beyond the M-CROWN guidelines in exchange for offering that deeper affordability and job-creating space. (The reason for the larger bonus, compared to 1034-1042 Atlantic, is that the latter project extends to narrower Pacific Street, which can accommodate less bulk.)

Giron observed that "the language is very tricky here when they're saying... that the Community Board approved this. What the Community Board approved was a recommendation to have these application sent back, withdrawn, and then do a neighborhood-wide rezoning." 

But not just that.

At City Planning

Two months earlier, at the City Planning Commission hearing 1/5/22 on 1034-1042 Atlantic, CB 8's Gib Veconi, the leader of the M-CROWN sub-committee, testified on behalf of CB 8, noting that the "long wait" for a Department of City Planning (DCP)-endorsed rezoning "has fueled a speculative market for land in the M-CROWN district, which reduces the opportunity to cross-subsidize affordable housing and new light industrial uses."

"So although our strong preference is a neighborhood rezoning, we find ourselves compelled to work with private applicants bringing proposals like the one before us today," he said, given DCP's unwillingness to work on a rezoning, which would include a multi-agency study of area needs.

"In the present case, the Community Board has resolved to support these applications"--he also transmuted a ranked preference to clear support--"if the applicant enters into a binding commitment" for M-CROWN space, deeply affordable housing, a 15-story height limit, and a blended Floor Area Ratio of 7.2.

"The board finds the greater density along avenue relative to its M-CROWN resolution is justified," Veconi said, given the opportunity for more light industrial use than originally planned and for "deeply affordable housing." 

Krashes, though, told the CPC that approval of individual applications "undercuts the community's leverage to develop a holistic plan that addresses an eventual near doubling of Prospect Heights’ population." 

Original 1034-1042 Atlantic/Archimaera

He warned against "the need for the Community Board to offer development bonuses in exchange for benefits which have been defined by a few behind closed doors."

The CPC approved each proposed rezoning by an 8-2-2 vote.

What happened at CB 8?

Urban planner Kaja Kühl, a neighborhood resident who specializes in community engagement, told the City Planning Commission she observed a CB 8 "process that is really challenged, where at times the majority of the meeting was taken up by discussing why a chat function was disabled or not."

To reconstruct what happened, I watched videos of five long meetings--two Land Use Committee meetings, two Special Land Use Committee meetings, and one full Board meeting--where these projects were discussed for more than 13 hours. 

That length attests to the dedication of Community Board and Land Use Committee members, even if such meetings can be attended remotely. It also attests to the structural barriers that deter others from serving on boards and their committees. 

So whatever the vote counts, it's hardly clear those results represent a full cross-section of Community District 8. Perhaps that's why Hudson has said she'd seek input “from the entire community, not just individuals who attend community board meetings, to determine what they want to see in their neighborhoods.”

And these were only the meetings that discussed honing the board's posture toward the projects, which were first discussed at a meeting in April 2021.

Original 870-888 Atlantic Ave./Archimaera

"Too into the weeds"?

Even the nature of the approved resolution is in debate. At the 11/10/21 meeting, Board Member Sarah Lazur said that the preferred comprehensive neighborhood rezoning, as indicated in the Land Use Committee's list of preferences, was not limited to the M-CROWN guidelines.

"That comment was made by someone who voted against the motion," responded Veconi, referring to Krashes. (That said, Krashes had separately voted for the motion requesting just a neighborhood rezoning.)

Committee Member John Buckholz, an urban planner, expressed disappointment in the process. "I analyze very large data sets for a living and I cannot for the life of me follow the presentation that Gib has given on multiple occasions," he said, criticizing "technobabble and jargon."

"My disposition is different from members of the board," said Buckholz, who on LinkedIn calls himself a "YIMBY [Yes In My Back Yard] scold." "I think that Atlantic Avenue should be transformed from a suburban car sewer into a highway of towers, but that's not relevant. If the board cannot agree on what it voted on, that indicates that maybe we're getting too into the weeds and complexifying things that should be simplified." So he voted no.

Lessons from one rezoning

It took a while to get to that point. At the 10/7/21 meeting, then Land Use Committee Chair Ethel Tyus called on Veconi, saying, "We rely on Gib to be our chief analyst." He then pressed the teams behind the two projects to offer deeper affordability (Option 3) than they originally proposed.

Mandatory Inclusionary Housing
From HPD, using 2016 income levels

Architect Nick Liberis of Archimaera readily agreed, saying that Veconi had shared information about the rising incomes in CB 8 and the need for greater affordability.

At the special meeting 10/11/21, Veconi described for Land Use Committee members--based on the example with the Grand Pacific rezoning--the use of an Enforcement Agreement to bind an applicant to their promises. 

"We learned this lesson the hard way," Tyus commented, noting that previous promises were not nailed down, and evaporated after the rezoned property was flipped. (That applies both to 1050 Pacific and 1010 Pacific, as I'll describe.)

Kühl lamented that the group had spent 45 minutes talking about the so-called Community Benefits Agreement. "I wanted to find out the appetite of this committee to really push for a neighborhood rezoning," she said, noting that the applications encompass parcels beyond the proposed developments. 

The applicants' lawyer, Lobel, said it is standard for the Department of City Planning, "to provide a land use rationale for the application." (That said, CB 8 has asked that parcels beyond the applicants' properties be rezoned at a lower density.)

Krashes expressed doubt about what had been achieved in the spot rezonings, noting that, even in the seeming exemplar Grand Pacific rezoning, the developer gained a 20% increase in bulk over M-CROWN guidelines in exchange for devoting 25% of the ground floor to job-creating uses. 

(EMP Capital also had to commit to Mandatory Inclusionary Housing Option 1, which offered deeper affordability that Option 2, which the two other Pacific Street parcels gained. And it agreed to build only 9 stories, while the approved zoning allowed 11 stories.)

That allowed "a pretty wide span of use groups," Krashes observed. (Indeed, while the press release cited an agreement for "light industrial use," that obligation may be met, as Pariente said at a City Council hearing, by renting the space to a pre-K program.)

"Can we circle about what’s being achieved, and what’s being lost from moving forward with private conversations behind closed doors?" he asked.

That prompted a sharp response from Veconi. "We have zero leverage to require DCP to proceed with a neighborhood rezoning," he said. "We have been trying for seven years." DCP is unwilling to require use restrictions to preserve jobs, he said, so "we can work with individual applicants and try to achieve some of that."

(The two have also been at odds over Atlantic Yards/Pacific Park, such as when the Dean Street Block Association, now the North Prospect Heights Association, in 2014 criticized the settlement negotiated by the BrooklynSpeaks coalition, which gained a new 2025 deadline for project affordable housing, for agreeing to an oversight body that was merely advisory. Veconi is a key leader of BrooklynSpeaks. The advisory Atlantic Yards Community Development Corporation, on which Veconi now serves, has been ineffectual, as I wrote last December, though he's the best-informed director.)

What's possible now

Architect Liberis noted that the Department of City Planning lacks "bandwidth," focusing on rezonings in Gowanus and SoHo, as well as hotel special permits, and is unlikely to do much hiring.

"So what we’ve discussed with a couple of Community Board members"--he didn't name names, but it did imply a "behind closed doors" aspect--"was, maybe the more prudent thing to do would be to reduce the scope of this community-wide rezoning, and focus on the six blocks that are behind Atlantic" Avenue, Liberis said.

 That, of course, eases the pending projects he's designed--or designing.

From DCP's 5/31/19 update

"And then everything that’s Atlantic, you guys have this amazing civic gumption and this drive to kind of curate this thing," he said. "I think if people see the price of entry is an Option 3 [for deep affordability], and having to work with you, you’ll be having developers knocking on your door all day long to get this done." That implies a huge upside to the new buildable square footage.

"You can pick and choose and really sculpt the neighborhood," Liberis said. (Unexplained: how reacting to private applications allows the board to "sculpt.") With mixed-use zoning, he said, "you could still have the opportunity for the manufacturing uses on those six blocks to the south of Pacific."

The 1034-42 Atlantic Ave. development site is in
red. The full rezoning area is larger. From EAS.

"You confirmed exactly what I just was arguing in the chat," commented Krashes, "that Atlantic Avenue has been removed from the neighborhood-wide rezoning."

Committee member Cathy Iselin said no one opposed deeper affordability: "But I don’t think the issue is that simple."

”It’s [increased] density for deeper affordability," Veconi said.

"It’s also the density being accommodated for, with infrastructure," responded Krashes.

Getting closer to a deal

At the 10/27/21 Land Use Committee Special Meeting, Chair Tyus said the "discussion will be how to work with the applicants to bring them closer to our vision of a neighborhood rezoning."

EMP Capital's Pariente, for example, said they would incorporate Option 3 and reduced the building to 15 stories, a maximum of 155 feet high. 

Note: there was no public discussion of the rationale for the height limit; it was apparently an implicit request from board leadership, more willing to compromise on height than bulk.

Krashes asked what elements of the proposed agreements would apply to the other parcels "that are sort of traveling with your proposal."

Land use attorney Lobel said that development rights could not be transferred across zoning district boundaries that have different bulk limits, but agreed that whatever agreements his clients make with CBoard 8 would not apply to other lots within the rezoned areas.

In other words, while Option 3, with affordability at 40% of Area Median Income (AMI), can be added to a rezoned parcel, it cannot be the only option, which means the other owners likely would choose Option 1, with affordability at 60% of AMI. 

The 870-888 Atlantic Ave. development site is in
black. The full rezoning area is larger. From EAS.

By November, the chat is gone

By the 11/4/21 Land Use Committee meeting, Veconi was the surprise interim host, after Tyus resigned, saying she was not consulted by Board Chair Irsa Weatherspoon, who disabled the chat function during meetings. 

"Removal of the WebEx chat function does not permit committee members to share
information, especially website links," Tyus wrote in her resignation note.

Weatherspoon said that the use of chat disadvantaged those attending by phone, and it had been disabled for only Land Use and SLAC (SLA Sidewalk Cafe Review Committee), "because we have the most complaints on those two committees." 

She said the complaints related to distraction and  got backup from Richard Bearak, Borough Hall's Land Use specialist, who said they'd disabled chat since "chats become like rapid-fire meetings within meetings."

However, several (but not all) committee members were harshly critical, saying they thought the chat added transparency and the ability to share information.  It also tamps down on dissent. 

Note: during the contentious discussions around the 840 Atlantic project, for example, a message in the chat seemed to confirm the unspoken key role of Rabsky Group, a developer otherwise referred to as a silent partner.

Getting to the details

At the 11/4/21 Land Use Committee meeting, Veconi introduced the negotiated compromise, noting that he had highlighted in red the changes that committee members might feel were unfavorable, compared to the M-CROWN goals, while the green indicated favorability.

So there'd be deeper affordability but more bulk, and with space for light industrial (broadly speaking) use that was not previously contemplated on Atlantic Avenue.

(That said, there would also be less overall non-residential floor area.)

"Our goal," he said, "is to provide guidance to the later participants"--the City Planning Commission and City Council--in the city's Uniform Land Use Review Procedure

So he offered a motion (below right) with several scenarios, proposing that the committee withhold support until the applicant met one of the scenarios: first, withdrawing the applications in favor of one that meets the previously stated M-CROWN zoning guidelines; then having the lots not controlled by the applicant be rezoned to 14 stories, matching the eastern edge of the 840 Atlantic project and having the applicant commit to the negotiated changes.

Kühl raised the question of a comprehensive planning process for Atlantic Avenue, which would include open space and street safety.

"If we want to include in our resolution a first preference for a neighborhood rezoning. we can include that," Veconi said.

Just say no?

Then Krashes moved for a rejection of the applications in support of a comprehensive plan.

Another committee member, urban planner Elaine Mahoney, said she didn't necessarily support M-CROWN and recognized that rezonings can lead to gentrification and displacement, but said they needed to "be realistic" about DCP's capacities, with "over 17 jobs posted" on their web site. (Today it's 13 jobs.)

"We can't expect to engage with them in any meaningful way for a minimum of 12 to 18 months," she said. Noting that Atlantic Avenue makes sense for high-density zoning, she said "as much as I hate ULURP... I think it makes sense to try to work one-on-one until we can engage with DCP on a more meaningful level."

Krashes pointed out that, had not chat been disabled, he would've shared the commitments tracker as an example of a rezoning's value.

Veconi then proposed an amendment to Krashes' motion, essentially adding the list of proposed conditions.

"But who's making that choice?" asked Iselin.

"The participants later in ULURP," said Veconi. "We're just telling them what we want them to do most."

Krashes observed that M-CROWN is a starting point, but suggested it could be made stronger. "I attended a lot of M-CROWN meetings from 2018 on and a lot of the attendees were developers."

From the August 2018 letter 

Veconi noted that the August 2018 letter endorsing M-CROWN, signed by Council Member Laurie Cumbo, Borough President Eric Adams, and then CB 8 Chair Nizjoni Granville, set out the goals and stated that, in the absence of a rezoning, the parties would "advocate for the principles and goals... to the greatest extent possible."

"So we're not doing anything other than than what we said we were going to do," he said.

Borough Hall's Bearak pointed out that the projects being approved would deliver affordable housing at least two years faster than anything that came out of a rezoning.

(That said, construction has just started on one of the 2019 rezonings, which was delayed for business reasons. And the 840 Atlantic rezoning passed last year, while it's led to a plan for foundations, may not deliver a building until litigation with McDonald's is resolved.)

Veconi's amendment didn't pass, by one vote. Krashes's standalone motion for rejection was tied. Given that several people present didn't vote, it's hard to see either vote as definitive.

Moving toward compromise

To break the logjam, Veconi then proposed the hybrid motion, first calling for a neighborhood rezoning, then the list of preferences.

"It's clear that there's not a majority of people here who want to throw this all into chance by just rejecting everything," he said. "It's also clear that there's a group of people who do feel like we need to restate the need for a neighborhood rezoning. This is attempting to accomplish both of those things so we can pass something."

"If we do not elect to give direction as to how we're going to vote, we lose our voice all together," Wedderburn said.

Veconi noted that the vote wouldn't end communication--such as when Cumbo went back to CB 8 last September to encourage changes regarding 840 Atlantic Ave.

From Veconi presentation

The Land Use Committee approved both complex motions by narrow votes of 12-10.

At the Board meeting

At the board's general meeting 11/10/21, Veconi again reviewed the history of the M-CROWN  initiative, and the back and forth with the Department of City Planning, and loss of low-income residents.

He noted that "effectively what we're doing here is sending our priorities forward in the ULURP process to the later participants: and warned of the risks of pursuing the neighborhood rezoning strategy, given the inability to mandate deep affordability or gain job-creating space. 

(That deep affordability doesn't apply, though, to the free-rider lots.)

Neither the incoming Mayor nor City Council Member, he said, had publicly stated a position regarding M-CROWN. (Actually, Hudson had expressed support for the effort.)

Citing Borough Hall's Bearak, Veconi said it might take five years to get the first housing units built under a neighborhood rezoning. 

After the Lazur and Buckholz comments that I cited above, Tyus urged a yes vote: "In the meantime, we can get a few affordable apartments out of these two applications so I urge you to vote for them."

Veconi said only such a vote would allow CB 8 to be a counter-party to separate agreements, outside a Council-passed rezoning, requiring deep affordability, the height limit, and M-CROWN uses.

Krashes commented that the developers were still getting "the equivalent of a 17-story building." 

The 870-888 Atlantic Ave. resolution, endorsing the Land Use Committee's resolution, passed the full board--at least those attending--22-7-5. The similar 1034-1042 Atlantic Ave. resolution  passed 22-10-3. The board has 49 members listed.

So that, if you've read all the way (!), is what has been distilled to "conditional approval."