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ALLOWING SOME TO SIDESTEP ULURP

City Council Member Margaret Chin.

City Council passed a bill that would exempt certain government entities from pre-application requirements for zoning text amendments. On August 24, 2017, Council Member Margaret Chin introduced Int. No. 1685, exempting certain government officials from the Department of City Planning’s “time-consuming” pre-application process. “This bill would allow Borough Presidents, Mayoral Agencies and the Land Use Committee of the City Council to file applications for zoning text amendments without filing a pre-application statement.” The bill was referred to the Committee on Land Use. The Committee held a public hearing on the bill on October 26, 2017 and on October 31, 2017, the City Council passed the bill.

The text of the bill gives land use applicants an option to forgo the Department of City Planning’s pre-application process if one of the applicants is a Borough President, the Mayor, or the Council Land Use Committee with two-thirds Committee member approval. The requirements of the pre-application process are quite extensive—an Informational Meeting with the Department Borough Office, a Pre-Application Statement, an Interdivisional Meeting, a Reasonable Worst Case Development Scenario memorandum, a Draft Land Use Application, a Draft City Environmental Quality Review form, and then filing a Land Use Application and an Application for Environmental Review. The pre-application process is intended to help the City Planning prematurely identify issues with the proposed land use action and allocate resources earlier in the process.

At the October 26th Land Use Committee Hearing, Council Member Chin stated the pre-application process “makes community based planning difficult, cumbersome, at times seems futile.” Chin added that the pre-application process adds nearly a year to land use applications and can even delay the application indefinitely. When “communities are under threat by over development,” Chin believes it is necessary to “fast track truly community based applications” and “encourage strong partnerships between communities” and their public officials. Chin explained that exempting certain government officials from the DCP’s pre-application process will provide a “timely start to the ULURP process” and allow these officials to “help shape the future of neighborhoods.”

Both Council Member Chin and Land Use Committee Chair David Greenfield emphasized that the bill was specifically drafted to be narrowly tailored. Chin explained that “not just any council member can come up with [an application] and rush in.”

The Department of City Planning does not support the exemption. A City Planning representative testified at the October 26th hearing that the “pre-application adds value to the overall process and the outcome on all sides…leading to a more efficient and quicker review.” The stated rationale behind creating the pre-application process was to create predictability. City Planning testified that the current process provides “measurable time frames” and “allows quick identification of issues as projects proceed.” Prior to the pre-application, there was no defined procedure on the sequencing of application materials. Now, there are “clear benchmarks for moving forward” with “sequential steps to facilitate organizing material.” The pre-application ensures “applications are comprehensive and complete before review.” City Planning’s testimony also emphasized that the pre-application “always begins with a conversation and not a filing…to gather basic information for guidance.” The goal of the conversation is “not to assess the merits of the proposal…but to assign appropriate staff and coordinate review,” to “better allocate Department resources.” City Planning does not want applicants to “fill out technical documents without guidance,” and believes the pre-application is necessary to “avoid redundancy and do-overs.”

Another opposing view comes from Frank Chaney, counsel with Rosenberg & Estic PC, writing for Law360. Chaney argues that exempting certain government officials from the pre-application will not speed up the process as desired, because the bill simply shifts the required City Planning review from before filing to later in the application process. Chaney’s second argument is that the exemption is inconsistent with the City Charter, as the Council is using local laws to “make an end run around existing land use rules and procedures.”

At the October 31st Land Use Committee meeting, it was stated that the Real Estate Board of New York calls the bill a “threat to as of right development” and Council Member Chin said that she “couldn’t agree more.” Chin stated, “It is not our job to represent developers. It is our job to give people a greater voice in their neighborhoods, and that’s what democracy is about.” Chin explained that “skyscrapers rise with little to no transparency or public review…frightening the reality of those in affordable housing in the neighborhood.” At the October 31st City Council Meeting, Chin repeated this concern of the “scary reality [for her constituents] of losing the neighborhood they worked so hard to build.” Chin stated, “Elected representatives chosen by the people must be allowed to give communities a fighting chance against overdevelopment.”

The exemption will be codified by adding new section 25-115 to Chapter 1 (City Planning) of Title 25 (Land Use) of the administrative code of the city of New York.

CC: Int. No. 1685-2017 (Oct. 31, 2017).

By: Shelby Hoffman (Shelby is the CityLaw Fellow and a New York Law School Graduate, Class of 2017.)

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