New York City is busy promoting a significant set of changes to its zoning policy under the “City of Yes” slogan. The three main categories of proposed changes are: carbon neutrality, economic opportunity, and housing opportunity. Under City rules, these changes need the approval of the City Planning Commission (CPC) and the City Council, under a process known as ULURP (Uniform Land Use Review Procedure). Carbon neutrality passed through this process late last year and was approved by the Council. Economic Opportunity passed the planning commission this month and is now with the City Council.

Whatever you think of the City of Yes proposals—and I think there are some good changes in there—it’s impossible to ignore the way in which this is a demonstration of the two biggest flaws in the city’s approach to planning. The first is that, once again, the city substitutes zoning for the difficult and time-consuming, but necessary, task of actually doing neighborhood planning. As a result, one major objection to City of Yes is that its “one size fits all” approach means that one size pretty much fits nobody very well, particularly in the case of Economic Opportunity and Housing Opportunity. The second is that the process by which the City of Yes proposal is reviewed and approved exposes the fundamentally undemocratic and perhaps unconstitutional nature of that process.

Take the City Planning Commission, where the first real “vote” in the ULURP process happens, after the Community Boards and Borough Presidents have held public hearings and opined on the proposal—neither of which are binding, but merely advisory.

Imagine that, in the courtroom, the prosecuting attorney makes his opening remarks to the jury, and then ascends the jury box to take over as the jury foreman. This is essentially what happens with the NYC Planning Commission process .

Imagine that, in the courtroom, the prosecuting attorney makes his opening remarks to the jury, and then ascends the jury box to take over as the jury foreman. Not really credible, right? Not even in the movies. But this is essentially what happens with the New York City Planning Commission process for reviewing and approving land use actions that come before it as part of the ULURP process.

The City Planning Commission and the ULURP process itself has many critics and good suggestions have been made for improvements. But does no one realize that it’s fundamentally unconstitutional? The Commission’s 13 members are headed by a chair, who is appointed by the mayor. But that chair is also the director of the City Planning department that is often the applicant for the projects that the commission reviews. In some cases, the department is a strong supporter of a private application. In such cases, does the chair recuse? No. On the contrary, the chair lobbies the commission to support the department’s proposal, or one that it supports. Hardly an independent assessment of the application. The weight of that lobbying, combined with the fact that 7 of the 13 commissioners are mayoral appointees, means that most city-sponsored or -supported projects get no truly independent review.

The City Planning Commission, established by New York City Charter, began operating in 1938 with seven members appointed by the mayor. The 1989 charter expanded the commission to 13 members. The Mayor appoints the chair, who is also the director of City Planning. The mayor also appoints six other members, each borough president appoints one member, and the public advocate appoints one member. The chair serves at the mayor’s pleasure, while the other 12 commissioners each serve for staggered terms of five years.

The CPC website states the function of the commission: “The Commission is responsible for the conduct of planning relating to the orderly growth and development of the City, including adequate and appropriate resources for the housing, business, industry, transportation, distribution, recreation, culture, comfort, convenience, health and welfare of its population. The Commission meets regularly to hold hearings and vote on applications, as described above, concerning the use, development and improvement of real property subject to City regulation. Its consideration of these applications includes an assessment of their environmental impacts where required by law.

In practice, the commission’s primary business is the review of applications under the City ULURP Review Procedure. Under this process, applicants—typically, either private real estate developers or city agencies—request exemption from, or modification to, certain aspects of the NYC Zoning Resolution, which establishes regulations pertaining to the size and bulk of buildings and the permitted uses in those buildings. Originally conceived in 1916 as both a tool to limit density in a growing city and to separate toxic industrial uses from residential neighborhoods, the Zoning Resolution has evolved over time to a level of complexity that few can comprehend (mostly, specialized zoning attorneys). The resolution has been used by the city as a tool to promote economic growth, to limit or increase density, to incentivize developers to provide certain public benefits (e.g., plazas, subway improvements, and, most recently, affordable housing), in return for additional permitted development rights. 

The majority of construction in the city, some 90%, complies with the Zoning Resolution and the NYC Building Code and is thus considered “as-of-right,” requiring no prior approval other than compliance with zoning and building code, with assurance conducted by the Department of Buildings. However, the remaining 10% that request approval to deviate from the resolution constitute some of the biggest and most impactful development projects in the city. These projects are required to undergo the ULURP process. 

The City Charter requires that ULURP follows a sequence of reviews, each with a statutory time limit. This is to ensure that projects do not get held up in extensive reviews. If the clock runs out at any stage of the procedure, projects are then deemed to be approved and move on to the next step in the process.

The ULURP steps are:

1. Certification by the Department of City Planning. (Ensuring that all necessary documentation to describe the project has been completed and any required environmental review has been completed.)
2. Review by the community board in whose district the project falls.
3. Review by the borough president in whose borough the project falls.
4. Review by the City Planning Commission.
5. Review and approval by the City Council.
6. Final approval by the mayor, whose opposition can be overridden by a council majority).

Each of the main review steps is allocated a specific time limit:

• Community board review: 60 days
• Borough president review: 30 days
• City Planning Commission review: 60 days

While the ULURP “clock” ensures that projects flow timely through the approval process, the process has also taken most of the birth and evolution of major projects out of the review process. Projects are developed and primed ahead of time, to ensure that they can slide through ULURP with ease. The process, known as “certification,” is ostensibly designed to ensure that projects have all the required technical documentation to enable ULURP review. The process requires applicants to work with the Department of City Planning staff. This can take a year or more and is essentially where the application projects are developed and defined. There is no requirement for community input until the project is certified and enters the ULURP process.

Community boards have long complained that projects are thus already “cooked” by the time they enter ULURP, and community input is generally limited to relatively minor tinkering or to outright opposition when it is clear that significant changes will not be entertained. At this point in the process, that application will generally be supported by the City Planning Department and the application will enter ULURP with the benefit of lobbying by the department and by the commission chair. Sensible proposals have already been made to improve the effectiveness of community board input in the planning process, and I will not focus on them here.

The staff of the Department of City Planning are professionals with the best interests of the city at heart. The chair of the Planning Commission and head of the Department of City Planning is currently Dan Garodnick, a man of intelligence and integrity. But the integrity of the department staff and the commission chair is fundamentally undermined by complicity in an unconstitutional arrangement that clearly raises massive conflicts of interest.

As Tom Angotti wrote in a submission to the New York City Charter Commission: “While DCP is an executive agency that acts in accordance with mayoral priorities such as encouraging new housing and commercial development, it is also the agency identified in the charter as the effective custodian of the land use review process. In practice, it is virtually impossible to separate these two functions when they are lodged within the same agency.”

The Planning Commission chair and department head are not exactly the “judge and jury,” but they are pretty close to being the prosecution and the jury foreman. As projects go before the commission for their brief but important review, the planning commissioners are briefed entirely by the department staff and commission chair. Suppose the applicant is a private developer rather than the department itself. In that case, there is an opportunity for the commission to hear a maximum 10-minute presentation by the applicant, followed by a Q&A. Questions can continue after the presentation, communicated by the department staff, until the project returns for a vote. The commission receives testimony from the public, both in person at the public hearing and in writing. The commission also has the benefit of the review and vote by the relevant community board and by the borough president in whose jurisdiction the project falls.

However, since the project has already been under review by the Planning Department for many months before the ULURP process begins, it is already a project that the department and commission chair support. Very few projects find their way into the ULURP process that are not endorsed by the department. So the weight of evidence set before the commission is invariably in support of the project. Since the commission chair and six other commissioners are mayoral appointees, the scales are tipped heavily in favor of the application. The result often leaves commissioners tinkering at the edges of projects in an effort to mitigate any negative impacts identified by the community. Projects are seldom rejected.

There is a relatively easy solution to this particular issue with the commission, and had the Charter Revision Commission of 2010 adopted Angotti’s suggestions, it could have been resolved. First, the chair of the Planning Commission and the head of the Department of City Planning should never be one and the same. The chair of the commission should be an independent member of the commission, elected by the commissioners as their chair for a set term. Second, the head of the Department of City Planning should not be a member of the Planning Commission.

There is a widely held public perception that New York City is in thrall to its real estate industry; that real estate gets what real estate wants, regardless of community interests; and that the city is compliant in this process. While this may or may not be true, it is clearly in line with the perception created by the current unconstitutional arrangement of the City Planning Commission in the ULURP process.

And so, the City of Yes is coming to you courtesy of the ULURP process, where it will receive scant review and little thought about its unforeseen consequences. Backed by almost no research and no community engagement, it’s guaranteed approval by a Planning Commission that labors under a profound conflict of interest.

Featured image: Hudson Yards, under construction, via Flickr.