Appellate Court Hearing on View-Blocking Brooklyn Bridge Park Development: Who Knew What And When As A Community Needed Protection? (In the audience Mr. Gutman nods.)

Outside after Friday, the 20th Appellate Court argument: Center background in suit and blue shirt Hank Gutman member of the defendant Brooklyn Bridge Park Corporation, Center in trench coat Otis Pratt Pearsall who sought protection for views from the Promenade, foreground in red tie Steven Guterman who started plaintiff Save The View Now organization to object to view-blocking Pierhouse hotel/residential complex being oversized.

Friday, the 20th, there was an Appellate Court argument on Monroe Place about whether the already mostly constructed “bulky Pierhouse hotel/residential complex in Brooklyn Bridge Park” should be reduced in size because it is 30 feet taller than the view plane height limit negotiated with the community in 2005.   Technically, the hearing was about whether the community group Save The View Now was within the statute of limitations when it brought its lawsuit.  In bigger picture terms, the discussion and questions being asked by the judges involved who knew what when in terms of protecting the community from the encroachment that now blocks the iconic view of the Brooklyn Bridge the public previously enjoyed when visiting the Brooklyn Heights Promenade.

It was explained to the court by a lawyer defending the development and the quasi-governmental Brooklyn Bridge Park Corporation that oversaw it that there were decisions to alter the building by putting additional (view-blocking) mechanical equipment on top of it because of Hurricane Sandy, which hit New York City as Superstorm Sandy October 29, 2012.

When after that was it that, the Brooklyn Bridge Park Corporation made the decision and was the building’s taller height ever made official with any sort of publicly released and available approval document?  That did not appear clear from any response to the judge’s questions.  And, presuming something like that actually happened, when it was incumbent upon members of the public to notice that the assured height limit negotiated in 2005 was being cast aside so that the public needed to take action to protect itself.

One thing I found particularly interesting during the hearing arguments of the lawyers for the Brooklyn Bridge Park Corporation and the developer (Toll Brothers) was to watch Hank Gutman (Henry B. Gutman).  Although sitting in the audience, Hank Gutman tends to be very much a central player:

    •    Mr. Gutman is on the board of the  Brooklyn Bridge Park Corporation, which, with him there, has been promoting maximum development within the “park” for some time now.

    •    Mr. Gutman is also a trustee on the Brooklyn Public Library board, which has been promoting sale of its libraries to turn them into redevelopment projects, like the Brooklyn Heights Library sale benefitting developer David Kramer and his Hudson Companies (plus also benefitting Kramer’s architect, Marvel Architects, the same firm working on and doing the calculations determining how tall the Pierhouse Building would be.)

    •    Mr. Gutman was also on the board of the Brooklyn Heights Association (having also been an officer there too) until the beginning of 2011 when he resigned in protest over a lawsuit the neighborhood brought against improper development in Brooklyn Bridge Park.

    •    Lastly, Mr. Gutman (along with a fellow BBPC trustee also involved in pushing library sales, David Offensend) was one of the first to buy condos in the extra-tall Pierhouse building that was the subject of the litigation.  In theory, any applicable law was interpreted such that the trustees’ purchase of apartments was not considered a breach of ethics.

What was interesting to watch about Mr. Gutman was the way he was nodding his head affirmatively to help communicate to the court that everyone knew that the building was going to be extra tall, so much taller than originally expected.  `Did the community know?’  Gutman nodded his head.  `The Brooklyn Heights Association knew?’: This was when the fellow in the chair immediately in front of Gutman swiveled around happily excited to confer with the nodding Gutman.  That man looked like a lawyer; you know, the briefcase, the suit, the haircut, etc.  Gutman is a lawyer too.

Nodding Mr. Gutman was first out of the court house.

The nodding, or subtle gestures to hopefully communicate with the court, is typical and permitted courtroom decorum.  Members of the audience are not supposed to actually talk or be disruptive, but, like a public hearing, you sort of hope that maybe you’ll have a lot of people on your side of the case in the court room and that subtle facial expressions during the arguments will get picked up upon. . . .  Then there is the subject of chuckling (sometimes absurdities will provoke that reaction in you if you don’t want to actually cry): The United States Justice Department is prosecuting a woman who chuckled during a United States Senate hearing when it was asserted that the record of racial discrimination by Attorney General nominee Jeff Sessions was a “clear and well-documented” record of “treating all Americans equally under the law.”  Senator Elizabeth Warren was silenced and kicked out of the Senate Chamber for attempting to introduce facts that would have set the record on this straight.

I was fascinated by how firm and opinionated Mr. Gutman seemed to be about how everybody knew what they supposedly knew.  I remember back to February 3, 2015 when the there was a vote by the Brooklyn Bridge Park Community Advisory Committee (CAC) calling for a halt to the building’s construction.  The CAC is supposed to be comprised of members from the community to represent it and is supposed to exist to help keep track of what is happening with respect to Brooklyn Bridge Park.  The CAC that night voted for a halt in construction partly based on the fact that the CAC had not been informed of how the building would be extra tall blocking the views that were supposed to be protected.  The CAC may have no actual powers, but at the meeting the BBPC described the CAC as the “primary vehicle for communicating with the public.”

Brooklyn Eagle coverage of the CAC vote meeting attended by a public very upset about the oversized development.

At the meeting the Brooklyn Bridge Park Corporation representatives provided their explanation of how the building had become so extra tall.  What I remember asking myself and listening carefully for at that meeting was what the Brooklyn Bridge Park Corporation board knew and approved.  That’s the BBPC board that Mr. Gutman is on.  It seemed to me that violating the agreed upon view protections, something so important to the community, something giving so much extra benefit to the developer in terms of extra building rights, was something that the BBPC board should have approved. . . What did the BBPC board know and when?  - It would seem that in a rational world the board should have had to debate and formally approve it.  I didn’t hear anything about that.

Instead, I heard the most obfuscatory explanations about how the much bigger building just sort of happened at staff level, ostensibly for a conglomeration of strange and obscure technical reasons.  I quote:

When you are dealing with height, height should be a very easy thing to understand, but when you are dealing with a building’s it’s more complicated to understand, which involves a question of where are you measuring from and where are you measuring to?  One of the questions I like to bring up on that is with respect to One Freedom Tower and, is it the tallest building in America or not.  Do you count the spire as height?  There are a lot of questions. . . .[the public audience got impatient at this point and started complaining volubly] . .

     . .  So we got questions from developers about where do you start counting from and where do you count to?  And we went to the ESDC [the Empire State Development Corporation, the nominal state authority parent of the city-controlled BBPC, an obscure quasi-governmental authority famous for having the freedom from being exempt from rules and getting to make them up instead.  The exemption enjoyed by ESDC and BBPC as its nominal subsidiary includes exemption from the standards of NYC zoning and NYC’s normally applicable ULURP process for public review]  A construct that ESDC uses for a lot of project plans is that whenever you have project plan those project plans are specific, and then you have a design attached to them. The general plan you have for Brooklyn Bridge Park, as you saw, is actually very general, and people have had problems with people asking questions that are not covered in the general project plan.  And what they have done in order to deal with that discrepancy is that in those cases they would defer to the local zoning plan [from which they are exempt].  The project plan does not actually say what the hundred feet is or where you measure it to.  Let’s look at how the New York City zoning code answers those two questions, and then the New York City zoning code there is a height restriction and there are lots of ways to calculate . . 

One would think that in order to implement the agreement with the community about preserving views, one would naturally look first and foremost to the BBPC's overall basic project plan for the building.  That plan had no need to be subject to any limiting constraints, but the BBPC representative went on to explain how BBPC instead chose to go outside the project plan to refer to NYC zoning (to which it was not subject) to pick a higher-up starting point to measure the building (referring to the floodplain calculations) and also allow things like “basically mechanical things, back of generators, HVAC equipment, elevator overrides, things like that . . to exceed height restrictions.”  He said, they then told developers they could exceed the height limitations these ways, “having got that instruction from ESDC.”

Thereafter when Superstorm Sandy happened, the BBPC representative said things got even worse for the community in terms of the building’s extra height.  The representative explained, floodplain elevations were changed to raise the building up higher “and that changed all the math that was involved.”  That extra elevation for the starting point at the bottom of the building was additional to the other changes blamed on Sandy at the court hearing about moving view-blocking mechanicals to the roof to make it taller at its top.  Naomi Klein warns us about “disaster capitalism”: When disasters strike, the monied interests take advantage of those disasters in self-serving ways.

The logic of these calculations didn’t go by unchallenged when they were explained at that February 3, 2014 CAC meeting: Local community activist Tony Manheim said that given that the BBPC project plans "trump" New York City zoning when desired, “It’s a little bit disingenuous to take advantage of avoiding New York City zoning when it’s convenient to do so and then cherry pick zoning practices to allow the exceeding of height limitations by bulkheads which somehow seem to also include a bar and café.”

The Sandy related changes that made the building still bigger were, according to the ESDC representative, being made until September 2013.  If construction of the building started in summer of 2013 as was stated at the court hearing, that would mean that Sandy related design changes were being made even after construction started.  At the hearing it was discussed that people in the community were first beginning to notice that the building was getting too tall in September 2014.  The plaintiff organization Save the View Now was formed because of this in December of 2014.

Mr. Gutman’s nodding of his head doesn’t necessarily indicate anything beyond that fact that he wanted the court to rule that the community knew and that Brooklyn Heights Association knew about the extra large size of the building at times early enough to cause the statute of limitation impediments the team of development supporting attorneys were arguing should defeat the case.  It doesn’t necessarily mean that Mr. Gutman (a BBPC board member), or the BBPC board knew at these or these (or other even earlier) times of the building’s extra large size.  (Rather than it being just the BBPC staff engaging in technical interpretation somersaults).  But it makes me wonder and sort of gives me that feeling that this was pretty much the case. . . .

. . . And if that is so, I have to ask: Brooklyn Bridge Park Corporation is a governmental entity endowed with enormous governmental power- Doesn’t it thereby stand to reason that it owes a responsibility to the public to be absolutely clear, and should clearly alert the public when it is not planning to honor an agreement about protecting an important identified and agreed to public interest?  Is the BBPC entitled to play cat and mouse games about what it is doing?

Notwithstanding Mr. Gutman’s head nodding, it was not until very late in the game that public really figured out or knew what was going on.

At the hearing the development defending attorneys argued that the community reacted to the size of the building with “Rip Van Winkle” tardiness.  It was asserted that community had “inquiry” notice, “constructive” notice, and “actual” notice of the bigger building and the mechanicals “above the roof of the building.”  Leave it to lawyers to come up with assertions involving such parsed out multiplicities.   There was no assertion of “information gotten by pulling teeth” notice, “cat and mouse game triumph” notice, or “able to decipher technological gobbledygook” notice.  I also heard no direct explanation of what notice the Community Advisory Committee, the BBPC’s “ the “primary vehicle for communicating with the public,” got when it believes it got no notice and that instead the BBPC “dribbled out” information in a way that was deliberately intended to be uninformative.

It was even hinted that maybe notice letting the public know didn’t even matter: A development lawyer made the dodgy assertion that the “view was improved” by the project.  It was affirmatively asserted there was no stealth or concealment on the part of BBPC.

Respecting the Brooklyn Heights Association the argument was particularly interesting.  The lawyers defending the development’s size argued that by virtue of a December 2011* letter from BHA President Jane McGroarty that referred to an acceptable height for the building that was “exclusive of mechanical equipment” the record showed that Brooklyn Heights Association, the “the dominant civic organization” of a community of what was “not a bashful community,” had notice and was aware and was not objecting to the ultimate height of the building.

    (* Hank Gutman had left the BHA board earlier that year.)

Really?  Is that a good argument?  December 2011 was nearly a year before Superstorm Sandy and the cascade of rejiggering alterations with all the “math” involved changing (concluding September 2013) that, among other things, put an unexpected and atypical amount of extra stuff on the building’s roof making it taller.

There is other stuff we could brawl about here like what people are referring to the “bulkheads” being permitted on top building.  If you think you know buildings “bulkheads” might sound relatively innocuous and if you Google images of “bulkheads” for examples, the small slant-roofed minimalist protrusions you’ll see are not likely to suggest to you what has been constructed atop this building under the “bulkhead” rubric. .  including, as Tony Manheim put it, “a bar and café” ?

Crowd lingers to analyze after the hearing. Plaintiff attorney Jeff Baker on highest steps.

 This article is not intended to parse the exact legal arguments that forayed into the field at the Friday appellate court hearing, nor analyze the relative strength of the arguments and why certain arguments should perhaps logically prevail.  This musing over the situation is more for the purpose of giving a general feel for what is happening and the overall context in which it is taking place.

Closer up: Plaintiff attorney Jeff Baker on steps, Steve Guterman in red tie.

Will the appellate judges issue an order that could result in 30 feet being removed from the top of the unexpectedly tall view-blocking building?  People find that outcome startling to imagine, but it is absolutely within the judges' power to do so, although situations of this type presenting precedent are rare.  And, as counsel for the plaintiffs told the court, the defendants knowingly proceeded to build at their own risk.

The judges by their tone and skepticism seemed to at least consider that the community was likely treated badly.  But when do judges these days ever decide against the money?  One thing we might expect is something we have seen before in these situations: An opinion that scolds the BBPC and public development officials (including its board?), but then protects the monied interests from lose of their ill gotten gains despite such a judicial upbraiding.

This was in the first posting of Save The View Now December 31, 2015 to alert the community about the building's height.

Hey, Mom, I Won’t Be Home Tonight: The Parks Are So Dangerous They Say They Can't Let Me Out And I Have To Spend The Night In Them

Parks Department employees telling two of a whole string of bicyclists that they can't leave the park because it would be too dangerous to let them enter the park 

Admitted, after a superstorm of the magnitude of Hurricane Sandy there is a lot for everyone to do, dealing with and making sense of, things afterward.  By and large I think our government and emergency workers are doing their very best and acquitting themselves well.  I am sure that most everyone is earnestly doing the things they think they ought to do and I’ll endorse this as a time for us all to pull together.  But that doesn’t mean that when you see something supremely silly it should be off-limits to comment on it.

Coming down the Manhattan’s West Side bike route along the river today I saw New York City Parks Department workers at 59th Street cordoning off a section of that route because it was “a park” and they were therefore not going to allow people to cross their erected cordon and enter.  They were doing this despite the fact that the section of park they were closing off was heavily occupied and the bike traffic coming through the park along the bike route, arriving from the north (and already in the "park"), was much higher then usual, maybe five or more bikes every minute.

The Parks Department workers were busy more impressively fortifying parts of the cordoned off entrance with more tape and some newly arriving wire fencing.  The bikers arriving in a steady stream at the still not very effective barrier were being halted and told that they could not cross any of the tape demarcations being set up.  The bikers were told that the park was being closed because those were the orders the Parks Department employees had received (because the park was theoretically dangerous) and therefore the bikers, would not be permitted to pass through or go around the tape demarcations of the barricaded entrance in order to leave it.  When the bikers asked what they should do (most of them were impatient) they were told to go find another entrance/exit to leave the theoretically dangerous park.  The workers suggested that bikers should leave the park the same way they had arrived.  But, as was pointed out, if park workers were closing off egress around the entire perimeter of the theoretically dangerous park that wasn’t going to be a possibility.

Other people enjoying the park on the hill in the background- Click to enlarge

Since I had originally come down from the north I knew that the boundaries of the park were probably still as entirely porous as they had been shortly before: You could find your way into the park confronting no barrier at all or, other places, entrances of the park showed tattered shreds of tape evidencing that at one time during the Sunday/Monday storm the park had been declared off limits. These vestigial pieces of history were being ignored by women pushing baby carriages and all sorts of other New Yorkers, which is why the park was so chock full. Nevertheless, all these citizens would wind up being locked in the park for night if the Parks Department succeeded in delivering enough wire and manpower to secure the perimeter.

The good news was that this was Thursday afternoon and, just hours before, Mayor Bloomberg had announced at an afternoon press conference that as of Saturday morning he deemed that the danger in the parks would be over proclaiming that all the New Yorkers who had been cooped up for a week could then come out and play communally in the parks as the weekend arrived.

I don’t mean to disparage the legitimate danger of trees or of parks, especially when they get subjected to any kind of storm, but none of this makes sense.  Obviously, what would have made sense is for the Parks Department workers to allow people to go past the barriers to leave the “dangerous” park while telling them they were not welcome to return until Saturday AM.
 
Was the heavily visited park dangerous this afternoon ?  Arguably It was maybe slightly dangerous but if there was danger it would have been from a tree and it’s a fairly new park so almost all the trees are of the smaller variety.  There were so many bikers on the bike route going through it for an important reason: With so much mass transit out of commission in the city due to the storm biking was very likely the most attractive and efficient transportation alternative there was.  The West Side bike path along the river was especially attractive for biking because the electricity being out in lower Manhattan meant that traffic lights were out.  The riverside bike path makes it possible to avoid dealing with all but a few traffic lights.  Yes, it's true that traffic lights were working up north at 59th Street but once you’ve embarked on such a good route is one then inclined to detour, heading out into car traffic?  Riding through the park may have been the safer thing to do.

The fact is the likelihood of any serious risk in the park (and similarly walking much of the rest of the city in general) was pretty minimal and well worth taking.  By announcing that the city parks were closed, the city may hope to avoid legal liability if anything happens in this space of time.  Will the parks suddenly be significantly safer as of Saturday morning?  Not likely.  Another approach to avoiding city liability way would be for the city to caution people that there are dangers and that the city can’t assure that the parks are safe as might normally be hoped.

No doubt, when big storms hit it is important for everyone to stay conscious that storms change the environment rearranging, the typical equation with respect to danger, but when things get tipped who knows exactly where or what the danger will be.  I have tried to be conscious walking all the city streets this week: A weakened tree or masonry could fall on any city street.  Telling the public at his press conference that the parks are dangerous so that they should not yet go out into them, Bloomberg offered as a confirming illustration an incident of two children who died in the days following the storm when, staying home and not venturing outside, a tree fell on their home.  (That unfortunate incident happened in North Salem, New York.)  Suggestions tendered in retrospect are never truly helpful, but perhaps venturing outside to assess the situation might have altered fate’s course in that instance.  It's horrible to think, but you never know.

The mayor has sometimes addressed New Yorkers during this crisis as if they are absolutely incapable of being responsible for themselves.  At one press conference he advised New Yorkers not to take the initiative to deal with downed trees and tree limbs on their own: To “leave it to the professionals.”  Do we, by living in the city, become incompetent to deal with matters of nature?  I’ve spent a lot of my life in rural environments and the idea people there would be advised never to pick up a chain saw or clear their own land of limbs and branches seems absurd.  Isn’t it enough to remind New Yorkers that trees can be heavy (as the Mayor actually said) and tell them that if they have not dealt with such things before don’t assume they know as much as they need to know to take on these tasks?  (Obviously, stay away from any downed electric wires if you are in an area of the city where electric wires are above the ground.)  But at the same time certainly a lot of New Yorkers know enough to competently take on some of these tasks! 

Must everything be handled with corporatist nicety by personnel trained and certified and working for some large organization to whom an exclusive franchise has been handed over?

I went out after the height of the storm when the winds were down to seventeen miles an hour, though gusting occasionally higher.  By that time the storm was nowhere near as bad as many storms we regularly experience.  The police, shooing me away with a recorded announcement, didn’t want me to view the East  River from the foot of Remsen Street (a perch of high vantage) “because it was not safe.”  But I was not under a tree or anything that could fall on me and there was little wind.  I had hoped to get a good picture for Noticing New York of the not yet receded storm surge waters still in Brooklyn Bridge Park.  Why?   Because seeing is believing and without images and pictorial evidence we may not believe in global warming.  If we all have to go indoors whenever nature is being nature, and come out only a week later when the authorities have cleaned up afterwards we may even cease believing in nature altogether.

Park patrons ignoring the yellow tape and barricades to keep them out

As it was, I went through much of New York today and New Yorkers were consistently ignoring police tapes and filling the city’s parks.  In doing so they were not only getting out for sorely needed respite in a time of stress, they were also informing themselves about their city’s relationship with nature and the harbor waters that surround it.

Strollers in the park

City Hall Park, one Park that was locked safe and secure, with Bloomberg's City Hall in background

Entrance to Brooklyn Heights Promenade: Brooklynites broke through replaced yellow tape so many times you can no longer count the remaining scraps

So much has been said about Bloomberg’s paternalistic approach to the citizens of New York that I am hardly adding anything to note it too.  I myself have interventionist tendencies and am known to make it a point when I find friends and acquaintances smoking to tell them that they really need to consider how bad bad it is for them and that my cousin, a smoker, died of lung cancer at thirty-five leaving behind her two young sons.  I also wish that people would limit the volumes of sugared soft drinks they consume, believing that it is one of the worst things they can do to themselves.  I am therefore naturally sympathetic to the idea of making large bottles of the stuff illegal even if I have qualms about whether I think that is a good idea.

My own paternalistic urges aside, in some cases, like with these Parks Department workers who decided they must trap New Yorkers in a New York park because it would have been too unsafe to allow them to enter in the first place, Bloomberg’s paternalism simply provides examples of Bloomberg’s inferior judgement being substituted for our own: I am thinking of another case in point that arose during this hurricane crisis. At the same time Bloomberg was instructing that New Yorkers should all stay out of the city parks until Saturday morning he was telling the populace that would listen that he thought it would be a great idea, despite the hurricane crisis, for everyone, including himself, to figure out how to make it to the Knicks vs. Nets night basketball game that was supposed to have inaugurated the basketball season at the “Barclays” Center yesterday.  The game was called off when people realized what bad judgment that would involve and that, besides, the police probably have better things to do.

City Officials in Their Own Words on “Creating” a Coney Island Amusement Area: We Will Do Again What Hasn’t Worked Before

(Amanda Burden at NYU Coney Island Symposium)

Under the Bloomberg administration, Coney Island’s amusements are disappearing fast and the primary feature of the city’s rezoning plan for the area is, in fact, to purposely shrink the Coney Island amusement area even though that area is readily recognized by all, even those same city officials, as Coney’s greatest asset. Is it possible that this shrinking could actually make sense because, as the city is indicating, it will use a new tool, acquiring and mapping parkland in Coney Island that will allow it to succeed in preserving Coney Island amusement. Nope: Been there; done that. This is something that failed when it was previously tried.

Once More We Use City Officials’ Own Words at a Symposium to Question Their Coney Rezoning Plan

This is our third post in which we are questioning the city’s planned rezoning of Coney Island, carefully examining the remarks of City Planning officials speaking Wednesday, April 29, 2009 at “Which Way Coney Island? A Symposium on Its Future,” at New York University’s Arthur L. Carter Journalism Institute.

In this post, once gain we find that, listened to carefully, city officials’ own words inherently contradict and undermine what they are saying.

In our first post of this series we suggested that the idea that the city is eliminating amusement acreage in order to “create” an “amusement district” should not be believed because elimination of amusement acreage has always been harmful to Coney’s amusement industry before and, empirically, the city’s plan to “save” the amusement area has had exactly the opposite effect in the five years it has been pursued. Meanwhile, city “parkland” is not used for amusements as once promised but for parking lots (and the city is even proposing to de-map it.) Lastly, the city seems indifferent to preserving historic Coney Island icons. (See: Tuesday, May 12, 2009, The City to the Public: “We’ve Got Your Coney Island: If You Want It Back, Better Do Exactly As We Say. . ”)

In our second post we pronounced as suspect several of the city’s stated goals about serving the poor, particularly the city’s claim that by eliminating the waterfront amusement areas it hopes to create improved local shopping opportunities for the neighborhood’s lower-income residents. (See: Saturday, May 16, 2009, City Is Rezoning So Coney Island’s Lower-Income Residents Will Have Place to Buy Back-to-School Shoes, Clothing and Stationery? Right. Sure Thing!)

City Officials on Mapping Amusement Area as City-Owned Parkland to Preserve Them
At the symposium, Amanda M. Burden, the Chair of the New York City Planning Commission and Director of the Department of City Planning, described the city’s proposed acquisition of Coney land to map as parkland as key to preservation of the amusements. Ms. Burden (emphasis supplied):

In the amusement area there are several aspects that we must consider. One is that the open amusements are critical to the identity and the marketability of Coney Island and zoning cannot, and has not, preserved the amusements. The only way to preserve the amusements in perpetuity is for the city to take control of the twelve acres on the boardwalk where the open amusements are located.

(Purnima Kapur, the Director of City Planning's Brooklyn Office)

Ms. Burden handed things off to her deputy, Ms. Kapur, the Director of City Planning's Brooklyn, who elaborated. Ms. Kapur said (emphasis supplied):

Why the parkland, why is the parkland mapping important? If you look at the history of this city and the history of most cities, parks are created by the city government, state government for the benefit of the larger community. Parkland mapping is a tool that has been used to create this public benefit, from Prospect Park to Nellie Bly which is a small amusement area, even the Cyclone which is there today on city-mapped parkland. Rye Playland in Westchester, which is an amusement park, is also a mapped park. Mapping a property as parkland gives it protection in perpetuity, because it is not just about going in and changing the zoning in that case. Once a park is mapped parkland you have to alienate* it and replace it with equivalent parkland in New York City to be able to alienate* that. Without the parkland designation we feel strongly that the amusements will not be protected, they will continue to get eroded and the city will not be able to step in and create this amenity on the beachfront keeping it public, keeping it accessible and keeping it an amusement district for generations to come.

(* i.e. sell it.)

Preserving the Amusement Park for the Benefit of the Larger Community

We have previously argued that the Coney Island amusement area is essentially a special form of important parkland that, like Central Park or Prospect Park, serves the entire city. We have argued that if the city is truly growing, as many (including the Bloomberg administration) say it is, the city should not be shrinking such a key city asset. (See: Saturday, July 19, 2008, June 24, 2008- Hearing on Proposed Coney Island Development.)

(BTW: We note that Ms. Kapur describes the three-acre Nellie Bly amusement park in Brooklyn as “a small amusement area.” At twelve acres the city’s proposed Coney Island amusement district would not be all that much larger. The Municipal Art Society recommends more than double that, 25 acres for the amusement area, at a minimum. 25 acres would still make Coney one of the smallest premier amusement parks in the world and still a fraction of what it once was.)

A City Official on How Mapping Amusement Area as City-Owned Parkland Has Not Worked

Would mapping amusement area as city-owned parkland work to preserve the amusement area as Ms. Burden and Ms. Kapur seem to say? Would it ensure that the area used for amusement is not eroded? Would it protect it in perpetuity?

Mapping amusement area as parkland was tried before and it didn’t work. Here are Ms. Kapur’s own words at the symposium (She is pointing to a map when she refers to the “grey”):

One important part of this development is the parks strategy. What we are proposing to do, the two parcels that you see in grey, currently are parking lots. They are asphalt-covered parking lots used by the Keyspan Ballpark for the 38 days that it is in season and there is a game going on there. For most of rest of the year they remain vacant or very sparsely utilized. But they are New York City mapped parks under the Parks Department’s jurisdiction. We are proposing to de-map those as parkland and create two new parks in its place.

The reason these sparsely utilized parking lot acres (9.3 acres) are parkland is that when they were acquired by the city they were supposed to be protected and thereby preserved for use as Coney Island amusement area. Instead, we see that their misuse has been allowed to contribute to the erosion of the amusement area. What we see then is that “mapping” is not necessarily a protection at all. It doesn’t mean that the area will be used as a park or for amusements. It doesn’t guarantee that the land won’t subsequently be de-mapped and used for development just as proposed under the city’s current plan.

Some Pro and Some Con on the Idea

We are not wholly opposed to the acquisition of amusement land for amusement purposes by the city. The Municipal Art Society favors making the amusement area parkland in this fashion. They have studied the issue and their judgment is usually good and worth endorsing. But it is important to realize that this idea, which has not worked before, is not a panacea or guarantee. What matters most is the sincerity and commitment of the city and this is what we question here just as we have in our two prior posts reporting on the symposium. We note that others, particularly the Brooklyn Paper in editorial positions it has taken, advocate against city ownership of the land and believe that acquisition and mapping of parkland will not only be useless but unnecessarily expensive since the city will have to pay land speculators for the land. (See: November 20, 2008, Editorial, More Coney baloney, The Brooklyn Paper and April 19, 2008, Editorial, A good Coney compromise, The Brooklyn Paper.) We also wonder whether the city will be spending paying those speculators too much.

The Brooklyn Paper thinks that regulation through zoning will reduce the cost of providing the amusement area. (We think that if the city enforces the area’s current amusement zoning it would also reduce the cost of any possible acquisition by the city, whereas the city’s pursuit of the rezoning has likely increased the cost of such acquisition.)

City Officials on How Zoning Will/Will Not Work to Preserve Amusement Area

The Brooklyn Paper thinks that regulation through zoning is the answer, but we quoted Amanda Burden above saying “zoning cannot, and has not, preserved the amusements.” Here again we have an example of something that hasn’t worked previously that the city now says WILL work for it in the future under its new plan. What will be different to make that so? Who knows, but here is what Ms. Kapur said at the same symposium after Ms. Burden spoke (emphasis supplied):

So how exactly would this amusement district work? . . . . twelve and a half acres of parkland that then becomes a beachfront amusement park. Complementing that is area to the north which is also amusement area and is being zoned through a special district to allow for a range of open and enclosed amusements, rides, but also bringing in uses such as restaurants that are not permitted here today, movie theaters, water parks, Imaxes, and also hotels that would be limited to the Surf Avenue frontage, also limited to locations in the corners.

If zoning for amusements hasn’t worked in the past, why will it work when the city’s new plan is implemented? If it will work in the future, why can’t it be made to work now? Why does the city threaten that unless its plan to shrink the amassment area is passed now, this summer, that the amusement area is doomed and that no other salvation is possible?

The City Proposal Shrinks to Nothing New

In the end, we don’t see that anything new or unique will be implemented to save the Coney amusement area if the city’s plan to shrink the amusement area is passed. We see it only as a question of whether the city has a sincere commitment to use the tools it has to save the amusement area, something that could be done without shrinking that area.

Still Possible to Send Written Testimony to City Planning Commission

The City Planning Commission is still taking written testimony on its proposed Coney Island plan; testimony should be submitted soon. (Though yesterday, Monday, May 18, 2009 was the deadline for testimony relating to the Draft Environmental Impact Statement, but other important testimony can still be submitted.) See their hearing procedure notice for instructions.

The City Planning Commission needs to be told that there are certain minimum alterations that need to be made to their plan for the Coney Island we know and love to survive. For a list of the minimum revisions that should be made to the city’s proposed plan, reflecting what is recommended by the amusement community and its ally, the Municipal Art Society, see: Monday, April 20, 2009, All Eyes Are On. . . . Coney Island.

We suggest you write and demand a better plan for Coney Island, one that would be sincere and effective.

(Note: There is a brand new resource regularly posting new information about Coney Island issues which we suggest you check out: Amusing the Zillion (A former carny kid casts an insider’s eye on the amusement business, Coney Island, and fun spaces in between)

Is NYC Becoming Too Dense? Who’s to Say?

Is it possible that parts of the city are becoming too dense? If that were so, would anyone have told us? Or would we perhaps know it first, as Jane Jacobs would tell us, sensing this for ourselves? There might be no official announcements, no official recognition. The answer is partially subjective and people’s opinions will differ. But when Deputy Mayor for Economic Development Daniel Doctoroff announced his departure, it was noted that in six years he presided over 78 rezonings covering about 16 percent of the city’s non-parkland, so maybe now is a good time to ask the question. There is building all around us, with some terrifically large projects proposed like the Solow development on Manhattan’s East Side and the Hudson Yards proposal on the West Side.

Experiencing Density: Herald Square and Bryant Park

I found myself asking the question of whether perhaps we might have reached a density limit one warm afternoon the fall of 2007 as I stood on one foot on a corner of 34th Street and Sixth Avenue at about 4:30. I was waiting for a space in the crowd to clear so I could put my other foot down to proceed in the general direction I wanted to go. I had just passed by some buildings on 34th Street that looked as if they might be sold for redevelopment. They have been demolished now. There was talk in the air that Macy’s might be lured from its home, undoubtably paving the way for even more density. Earlier I’d walked by Bryant Park marveling at the commendably intricate recent adjustments to its design but also noting how little of the late afternoon sunlight was reaching the park. A new Durst building about which many good things can be said was in the finishing stages on one side of the park. The building is very large.

Density is Good . .

I consider myself a proponent of density. I love New York City for its density. There are many areas of the city where I stand and look at recently built buildings and ask, “Why couldn’t that building have been built taller?” But where do we stop?

. . . But We Reach a Limit Where We Want Protection

Last year I was at a Landmarks Preservation Commission meeting when it entertained an owner’s application to take down the back of his townhouse in order to get more light and air after a new multistory residential tower was built close to his property line. One of the commissioners wondered whether “this was a first.” More typically property owners want to maximize the density they are permitted. The solution of tearing down your own property to create space between you and your neighbors, akin to buying an extra seat on airline for elbow room, may not be something many of us can afford but it is interesting. There may be other signs that the public is reaching its limit when it comes to density. Creation of historic districts and changes to the zoning code in order to have “contextual zoning” have developed new-found popularity. Each technically pursues another purpose, but each tends to have the effect of also holding down density, which probably contributes to the new zeal we have seen in their pursuit.

Higher Permitted Density as an Accelerator Pedal for Development (A Spongy Unreliable One)

While other things have a practical effect, the main control over density in the city is the city’s zoning code. As (most would agree) the city ought to grow, most neighborhoods are zoned to permit additional building and growth. In fact, zoning to permit a higher than current level of density might actually be regarded as sort of an accelerator pedal for wanted development and to stimulate development generally for its desirable effect on the economy. Other things being equal, if a robust economy provides gas, development will follow. The harder the pedal is pressed with a raised level of density (in other words the more permitted density is raised), the more pronounced the response. But if the economy is slow or conditions in the neighborhood not primed, this economic vehicle isn’t always quickly responsive. With the economy in steep decline, we may see, in contradistinction to last year, no impetus toward development.

Interrelationship with Other Neighborhoods, Projects, Subsidies: the Syphoning Effect

Potentially, the fuel for movement can be syphoned off by other neighborhoods competing with better incentives. That was true when the 15,372 Co-op City was built was built with subsidies. Among other things it is credited with having drained the Grand Concourse of its population. A project like Atlantic Yards, with its disproportionate subsidies, also stands to siphon off development from other areas.

The Density Lurch Forward, Just When You Want to Ease up on the Accelerator Pedal

Ironically, you often get the phenomena of a lurch or more pronounced acceleration of actual development and building just when communities might be want to ease off on the density pedal, viewing the density permitted as too great. Communities cannot quickly ease off the density gas pedal. This is because down-zonings must go through the city’s Uniform Land Use Review and Procedures process, which involves public notice and takes time. And these days, because of demand, city staff for the process is in short supply. Until the process is complete there is a race to the finish line as land owners and developers rush to construct “grandfathered” properties with zoning that will thereafter not be allowed. An additional incentive for quick last-minute developments may even be stimulated by the realization that competition will be precluded. This is the kind of race to the finish line that occurred with the contextual down-zoning that went into effect for Fort Greene-Clinton Hill in July 2007.

Downtown Brooklyn: An Example of Too Little Development Followed by Too Much Permitted Density?

Downtown Brooklyn is an area that has been historically slow to develop. In 2004 the area was substantially upzoned in pursuit of hopes that the area won’t continue to be so overlooked, but there will be lag time before hoped-for development will be seen. Even before the 2004 upzoning, greater density had long been permitted without being taken advantage of. We are only at the beginning of what the new permitted higher density will bring. Would some argue that new zoning would now permit too great a density or that the vision of the old provisions was actually superior? Until the advent of actual development the question was academic. The new Downtown Brooklyn zoning is accompanied by height caps so some of the harm of initial new building may be limited, but with rapid change the preservation of historic buildings is in particular jeopardy (see: Sunday, November 30, 2008, Landmarks Preservation Commission: Will Times Special Series Have it All Covered?) and the are other effects about which people are complaining (see: Sunday, December 07, 2008, Some Place Like Home: FUREE's new film takes on Downtown Brooklyn rezoning).

Increasing Density Gradually

Jane Jacobs, who considered herself a proponent of high density, was of the opinion that while density should be high, increases in density should be brought about gradually. (See: Saturday, November 29, 2008, Jane Jacobs Atlantic Yards Report Card #4: Appropriate Density? NO.)

By inference, if we find that density is being created too rapidly, we should pull back by pressing on the accelerator pedal of significant density upzoning in areas either not as hard or not as long.

Empirical and Subjective Contextually Based Judgment

In the end, how much density is too much must be an empirical judgement that will be based in large part on how it is experienced. No matter the actual usage, New York’s poorly designed Penn Station will tend to feel too dense in comparison to the much better designed Grand Central Terminal. And some density just works better; for instance, if mixed uses lead to use of space at different times of the day. Density works better with short blocks and frequent streets.

Desirable Density and Respite

Manhattan, the most densely populated county in the United States, is very much a center, and should tend to be dense. But all of it? Probably we want different areas with a variety of densities, with neighborhoods cleverly intermingled so that one needn’t travel far to partake of density’s stimulation or respite from it.

Recognizing How High Permitted Density Often Is Already

Currently the Borough of Manhattan is about 147 residential units per acre in its densest areas. On average, there are about 37 residential units per acre in the entire borough (the borough is more than just the island) including all parks and unoccupied areas. The most direct zoning control of residential density is the zoning code’s limit of maximum “floor to area ratio” (“FAR”). It often isn’t practical or possible to build the maximum permitted FAR because of other limitations such as height or setback requirements, but what people may not appreciate is just how relatively high a density FAR requirements sometimes permit. Where a plaza, arcade or lower-income housing is involved, density can reach a permitted 700 dwelling units per acre, (the maximum residential density permitted by the State Multiple Dwelling Law), a substantial move up from the 147 figure for the current densest areas. (700 d/u/p/a is exclusive of streets, frequency of which can vary.)

Whose Voice Is Heard When It Comes to Recognizing Appropriate Levels of Density

The institutionally well-represented real estate industry spurs city agencies and politicians who are alert about generating development revenue; this ensures that there is continual opportunity for growth. There isn’t a shortage of places to build, though developers complain about the price of land. But when it is a question of needing to ease up on accelerating density, that is mainly left for the public to sense though it lacks institutional support for the task.

A Modest Proposal: Time-Limited Upzonings

Sensing when maximum desirable density has been reached is a little like trying to drive while looking in your rearview mirror. First come the building permits, then the steel girders and shadows as walls fill in. But until buildings are occupied the experience you’re headed for isn’t there. Given the built-in lags involved, perhaps city upzonings should be implemented with “sunset” provisions, where permitted densities automatically fall back to lower levels unless communities revisiting the question affirmatively endorse keeping higher density possibilities in place. Such an approach might actually result in development activity that is more responsive to upzonings. If you think about it, it could also address developers’ complaints about high land costs. That is because developers’s age-old nemesis, speculative land owners who refuse to sell, would be faced with a ticking clock: sell now or be faced with a rollback of the upzoning there to be taken advantage of.

Looking Back at The Times and Back to Bryant Park

What is written above represents, with little modification, thoughts that a year ago we proposed the New York Times publish, most likely in the form of an op-ed piece. You may correctly infer from seeing our post here that the Times didn’t run with the suggestion. Mostly the Times has not considered the subject of what is an acceptable density in its home city even though areas of New York are poised to become rapidly more dense. At the beginning of this piece we observed that Bryant Park may be surpassing the level of density at which its amenities can be appropriately enjoyed. A few months after we submitted our proposal to the Times, it ran an article that picked up on our observation about Bryant Park. (See: Bryant Park Braces for a Tidal Wave of Traffic, by Glenn Collins, June 5, 2008.) The photo on the side ran with the Times article (click to enlarge).

For a large scale view of a photo that provides an even better representation of the astonishingly dense level of use that Bryant Park is now getting go to Flickr. There you will see the photo (spring lunch at Bryant Park, vol. 3) that was used in the Gothamist when it briefly commented on the Times’ Bryant Park story. (See: Bryant Park to Get Even More Mobbed, June 5, 2008.) (With appropriate permission we might insert that image into this post later.)

These pictures reflect the level of use Bryant Park is getting now, not what it will be getting when the nearby buildings are all fully rented. Because the economy is suddenly slow and office vacancies are climbing, we may not experience that day as soon as we were about to.

Remediation: Durst We Say We Have Reached a Limit?

The Times article began `cute’ with a Yogi Berra quote saying that one day Bryant Park “will be so crowded, nobody will go there anymore.” Remedial measures are being taken to accommodate larger crowds. The park is being altered with more hundreds more tables and chairs being added and ivy beds are ripped out to make room for them.

The new Durst Bank of America building* (with its spire, the 54-story building is the second tallest building in New York City, after the Empire State Building) did not legally have to become part of the Bryant Park Business Improvement District but it did and therefore, together with the Times Square BID, it will be voluntarily paying fees into one more business improvement district than it needs to. That is unusual and while it may be helpful in addressing the problem of the new density to which the building is contributing we may be well past the point where it could be a solution.

But before envisioning where we will be, we should look where we are. From the Gothamist’s follow-up to the Times article, (a quote from Daniel A. Biederman, president of the Bryant Park Corporation):

BPC chairman Daniel Biederman contends that “no other public park in the world is as densely populated,” with Bryant Park packing in over 1,000 bodies per acre – and that’s not even close to how mobbed it gets when HBO screens movies in the summer . . . – and your knees are in your chest.

The Times, ending full circle with a reference back to Yogi Berra’s quote, concluded with New York City Parks and Recreation Commissioner Adrian Benepe’s opinion that, in the end, Bryant Park may be protected by “a self-limiting factor . . .If it’s too crowded, people just won’t go in.” But maybe we should consider that we are simply building at too great a density when the only available open space in an area is space that people feel turned away from.

* (The Bank of America Building was able to be shoehorned into the neighborhood at the maximum possible density because eminent domain by the Empire State Development Corporation facilitated it. In this case the threat of it was sufficient. See Durst buy-back plan sparks controversy, Real Estate Weekly, Dec 3, 2003 and Developers Can't Imagine a World Without Eminent Domain, by Terry Pristin, January 18, 2006 and Demolition Man, Why can’t anyone fight developers anymore? Because builders have discovered that if the state likes their proposals, Pataki will tear down whatever is in the way, by Karrie Jacobs Published April 19, 2004 )

(Modified image below, uses photo from the Gothamist.)

Will It Come? What the Bloomberg Administration Wills at Willets Point (Part III)

(Continued from Part II)

Should a Slow Moving, Poorly Defined Project Still Be a Priority? Yes, Says the Mayor

With the project so poorly defined or flexible and its benefits so slow in coming perhaps Mayor Bloomberg would consider that a period of economic downturn is not a good time to make the wiping out the 250 businesses and thousands of jobs in Willets Point a priority. Not so. It is recently reported that he believes the opposite:

The mayor added that projects like the redevelopment of Willets Point should not be avoided during tough economic times, pointing out that the ambitious undertaking is expected to generate 18,000 construction jobs and more than 5,000 permanent jobs if approved.

“Just because we’re in an economic downturn doesn’t mean we’re going to walk away from our long-term responsibilities,” Bloomberg said. “The city did that in the 70s and it was a near disaster.”

(See: The Iron Triangle Tracker: Monserrate, Katz push for Willets approval, housing deal announced, Tully close, by Stephen Stirling, November 12, 2008)

Battle of the Job Figures: Why the Administration’s Should be Discounted

Of course, future job figures such as those issued when the administration is pushing for projects are untrustworthy. Though most recently the city has said the development will create 5,000 permanent jobs, not too long ago it was asserted that 22% more permanent jobs, 6,100, would be created. (See: Bloomberg Unveils Plan to Redevelop Willets Point, By Anahad O’connor and Terry Pristin, May 1, 2007.) Very likely the 3,000 figure given by the Willets Point Industry and Realty Association as the number of current jobs is high and that the actual number of current jobs is between 1,300 and 1,800, but those jobs, however disputed their count, are bird-in-the-hand. One needs to suspect the 5,000 permanent jobs predicted by the city is still too high and needs to be lowered again. That 5,000 figure also needs to be further discounted because those future jobs that will fully materialize only upon the project’s completion. As reviewed above, the indicators are that the full completion will be a number of years out perhaps as many as 30 or more. With the downturn in the economy, the present value of existing jobs gains comparative weight because the replacement jobs will take longer to materialize.

Obviously, whatever job figures one assumes, job creation figures should net out the number of jobs lost.

Why the Administration May Want to Proceed, at Least to a Point, Despite Economic Downturn

Given that the first steps toward the elimination of the Iron Triangle were undertaken a long time ago, it may understandable if the Mayor thinks that it is important to follow through. A process such as this can take so much time that when begun there is no telling when it can assuredly be completed or at what point in an economic cycle that might fall. Conceivably, the Mayor thinks it was important to get the approval from the City Council while he could. It may be unlikely, but it is possible that he envisions that the approval now obtained will not actually be utilized until the economic climate swings again. There is also the possibility that, having been resisted up to a point, the mayor is now interested in proving that the Iron Triangle can be eliminated for the sake of proving that he is able to do so. Eliminating it may say something about his administration and what it can accomplish where others have failed. Willets Point, after all, is famous for the its past successful survival despite effort of the powerful to put it out of existence.

Willets Point History; Stories of Visits by the Powerful and Wealthy

Depending on whose math you pay attention to, the neighborhood is 65- or 75-years-old, having been settled by some of the businesses now occupying it in the 30s or 40s. The first infrastructure was built in the 30s. The Willets Point area was not paved over when Robert Moses paved over adjoining property for the 1939 Wold’s Fair. The paved property was the ash heap or “valley of ashes” watched over by the eyes of the “Dr. T. J. Eckleburg” billboard in F. Scott Fitzgerald’s The Great Gatsby. (The triangle includes or abuts the location of George Wilson's gas station where, in Fitzgerald’s book, Myrtle Wilson was run over by Daisy Buchanan. The incident is pivotal for one of the book’s themes, that separated by their wealth, the characters of Tom and Daisy Buchanan are carelessly and insensitively destructive of other people’s lives: “They were careless people, Tom and Daisy–they smashed up things and creatures and then retreated back into their money or their vast carelessness or whatever it was that kept them together, and let other people clean up the mess they had made…”)

New York’s next World’s Fair in 1964 with Robert Moses again in charge was on the same site during Mayor Wagner’s administration. Moses wanted to clear the Willets Point land for a parking lot in time for the fair. Successfully resisting Moses is credited with starting the career of a young lawyer named Mario Cuomo. After that, Mayors Koch and Giuliani both tried and failed to pout stadiums on the triangle site. (See: Willets Point, A Development Waterloo? Moses, Wagner, Koch, Giuliani—all have tried to redevelop the scrappy yard next to Shea. Now, it’s Bloomberg’s turn and it’s tough already, by Eliot Brown, February 19, 2008.)

Viewing Willets Point Demolition as Just Another Cost of New Citifield Stadium

Is the new Citifield stadium the reason the Mayor now wants to banish the Willets Point community into history? The Citifield replacement for Shea Stadium is closer to Willets Point than Shea was (by about the distance of a stadium). While we may think that the Willets Point is a perfectly acceptable neighbor for the spanking new stadium, Mayor Bloomberg appears to have other ideas. Willets Point property owners pay city taxes and the stadium owners do not, and yet the construction of the stadium may be bringing about the demise of Willets Point. If so, it will be an extra indirect cost of the stadium. Field of Schemes has used figures from public sources, including Good Jobs New York, NYC Independent Budget Office, and NYC Parks to calculate the total public cost of Citifield stadium as $484.99 million. Perhaps a cost for removing the Willets Point businesses should be added to that total.

It could be that Mayor Bloomberg doesn’t like the aesthetics of “junk yards” car parts or scrap businesses next to a new stadium. In terms of an economic argument, the Mayor has expressed a desire to build retail and entertainment space across from Citifield to lure visitors to the stadium. Years previously, the plan had been to build a “a massive entertainment complex” on top of Willets Point when the new stadium was built. (There are about 80 home games a year.)

Another Example of Bloomberg Administration’s Strange Non-Community Focus When it Comes to Stadiums and Parking Spaces?

It could just be that this is another example of the strangely misplaced focus the Bloomberg administration can have when it comes to stadiums (and their parking lots). Recent news stories mined newly unearthed e-mails concerning the administration’s negotiations concerning Yankee Stadium. They show that in lieu of those things that might be of most concern to the public and local community like restoration of seized parks and saving money, the Bloomberg administration was preoccupied with giving the Yankees an inordinate and undeserved amount of parking so that the administration could procure a theoretically “free” twelve-person luxury suite for its own use (together with “free” food). For more on this see: Mayor’s Focus on City Planning Matters: Some Quantified Analysis, Wednesday, December 3, 2008.

Predicting the Future of Willets Point (All Things Being Equal)

If one were to predict, one would probably say that one day, one way or another, the businesses at Willets Point will probably be replaced by other development representing higher and better uses. All things being equal this would probably naturally come to pass in due time without the use of eminent domain. But, when it comes to eminent domain, all things are not equal. Eminent domain is a tipping of the playing field that makes the unnatural happen. You are putting your faith in planners or government officials to know why the course of events should be taken away from Adam Smith’s guiding invisible hand. It therefore becomes incumbent upon those involved to ask whether eminent domain condemnations make sense given the alternatives or what would more naturally happen without the use of eminent domain. Eminent domain takings are done in the name of the public, so it is incumbent on the public (all of us) to ask these questions.

If eminent domain were not being used, the existing uses in Willets Point would assert their value economically. The existing uses would not be displaced unless other uses could out-compete them. Other uses would not bother to try to out-compete them if they could more economically go elsewhere.

Achieving Highest and Best Use: The Upzoning Alternative of Eminent Domain

For most people, upzoning is what probably first comes to mind as an alternative to eminent domain to stimulate an upgrade of property to a higher and better use. Upzoning without eminent domain allows change to proceed when it makes economic sense for property to change hands or use. It tends to naturally compensate departing businesses in much the same way that the divide- and-conquer deal the city’s EDC negotiated allows the three large individual land owners in the eastern part of Willets Point to benefit from the upzoned value when they sell their land. With upzoning, individual parcels would change hands or use in the sequence that made sense; the first parcels to upgrade being the ones where there was the greatest profit to be made. The speed with which a changeover would happen would depend on the economic climate, but land would not be likely to lie fallow because a change of use was artificially forced before the time was ripe. Change would be less controlled: If the economics were more attractive in Downtown Flushing or on land where businesses did not need to be displaced, change might occur there first instead of at Willets Point. Therefore, we might see the development there spearheaded by the local Chinese and Korean developers who are currently so active, rather than by through “big- developer” style development by the larger firms.

Upgrade of Infrastructure and Services if You Want Highest and Best Use: Lawsuit on the Subject

Another way to encourage a higher and better use of property is to upgrade the services and infrastructure in the area. The current situation at Willets Point is essentially the opposite. The city now provides minimal services to Willets Point. The area lacks sewers. There are no sidewalks. It has been so long since roads were paved that to say the area is spectacularly potholed would be a severe understatement. The potholes are lakebeds. The owners there have brought a lawsuit claiming that the level of services is discriminatorily low. The Daily News summarizes the allegation of neglect in the suit as follows:

The suit says the city has withheld services such as trash and snow removal and police surveillance; refused to maintain drainage, roadways and sanitary sewerage lines, and allowed curbs, gutters and fire hydrants to deteriorate beyond repair.

(See: Willets Point property owners sue city, by Jess Wisloski, April 10, 2008.)

Withholding services can be a strategy to, among other things, foster blight and pay a low price for land upon condemnation.

The Having-it-All-Plus-More Alternative to Today’s Proposed Willets Point Destruction

There is a way of having all the benefits of the Willets Point redevelopment plan plus more. There are alternative areas to build, even in the immediate vicinity of Willets Point. The parking lot for the new Citifield stadium involves an expanse almost as large as the Willets Point triangle. The world is quite familiar with ways that parking can be incorporated in other city structures. Building could begin in the areas immediately next to the subway and train station stops. In addition, also immediately next to the subway and train station stop there are rail yards that could be built over. There are obviously other areas in the city where our current priority is to build over train yards, Hudson Yards and Atlantic Yards providing examples.


Multiple Advantages

There would be significant advantages to building in these alternative areas, in addition to the fact that it would not involve the elimination of the existing private-sector-created Willets Point jobs and businesses. Initially, these areas would have a clearly defined and unique marketing appeal that would be comfortably consistent with developing the area at whatever speed unfolding economic conditions turn out to dictate. The buildings would attract people who wanted the pronounced convenience of being close to the subway. (The #7 train is actually one of the few subway lines whose capacity is recognized to be currently underutilized.) They would also be right next to Flushing Corona Park which apartments in the complex would overlook.

The problem of living in an emerging neighborhood not yet large enough to sustain supporting services would be greatly obviated by the immediate proximity to mass transit, which for commuters would make the neighborhood a near equivalent to an extension of the city they were commuting from. It would also mean that people moving in would be as little as one stop away from other neighborhoods like Downtown Flushing.

Rather than being hemmed in by problematic infrastructure like highways, the new development complex would make a substantial amount of problem infrastructure go away by building over it.

The retail that is supposed to be built to attract stadium patrons wouldn’t have to try to lure them in an unfamiliar direction away from the subways: It could instead present itself to patrons as they were walking to and from the subways and trains.

The housing could, and probably would, have all the same affordability components now talked about as being part of the administration’s Willets Point redevelopment plan. It might even be possible to do more affordable units. Buildings in this area are far enough west that they are not in the LaGuardia flight path; they could be built taller and, if otherwise appropriate, there could be greater density in this park side area.

Preparation of a Site and Proceeding in Parcels

The first phases of development could proceed immediately, far faster than the current Willets Point plan, because the impediments of an existing population, litigation included, would be avoided. In all likelihood, site preparation would be easier.

There would be site preparation costs, particularly for building over the rail yards, but there are also site preparation costs associated with building in the Willets Point triangle area. In the case of building over the parking lots and train yards, all of site preparation costs would constitute positive addictions to the city’s social capital whereas the cost of removing Willets Point businesses involves a partial subtraction of social capital. Rather than being out of pocket on the transaction, the city and the MTA might actually make money when the property to be built upon is put out to bid.

The development could be built in multiple chunks bid out over time to multiple developers following the model used in Battery Park City. Unlike building in the Iron Triangle, it would be relatively easy to phase development here.


Escalating Jobs

Presumably, development would grow out from the public transportation stops. It would grow out toward the Willets Point triangle. Jobs it created would be in addition to rather than sacrificing the private-sector-created Willets Point jobs. If the city’s figures are not inflated, when construction in the alternative area is half complete in perhaps 10 or 15 years, there would be 2,500 permanent jobs associated with the new development plus the 2,000 or so jobs at Willets Point would exist alongside those jobs. There is every reason to suspect that there would be more and better jobs in the Iron Triangle by that time.

By the time the development was all built out and reached the borders of Willets Point, there would be 7,000 or more jobs, a net increase of 5,000 or so versus the only 3,000 net increase in jobs in the area under the city’s current plan.

Probable Eventual Changeover for the Triangle

One would still expect that Willets Point would change. It is still predictable that the area will eventually graduate to higher and better uses. Some change might come gradually over time, but the complete changeover in uses might not happen until much later. Changes would happen through the private sector rather than being dependent upon subsidy. Presumably Willets Point development would respond, over time, to upzoning and an upgrade in services and infrastructure.

In time one might still predict a complete changeover in use that would probably come when the new development reached the borders of the triangle. But by the time the new development reached those borders the situation would be different. When the borders of the newly developed neighborhood reached and began to blend into the area of the Iron Triangle, be it 15, 20, 30 or 35 years out, the new complex spreading out from the transit stops would be a full-fledged neighborhood. Erecting residential buildings in the triangle thereafter would not involve the risky building of an isolated outpost. Anything built there at this later point would immediately have the services available because of the complex that had already been built, a neighborhood that the triangle could then become a part of.

Building in this alternative fashion would mean there would be no chance of the city being saddled with an unwanted mistake created by a public-sector, private-sector partnership. When ill-considered partnerships fail, the public faces clamorous lobbying for remedial corrections in the form of after-the-fact piling on of additional public subsidies.

We could be wrong about an eventual changeover of Willets Point from industrial use. Admittedly, there is a certain amount of crystal ball work involved in looking so far out into the future. The Municipal Art Society has submitted that:

Given its adjacency to other industrial sites, its relative proximity to the College Point industrial park, and its accessibility to major transportation routes as well as the airport, the site may be more appropriate for strategic investment in industrial uses.

MAS also suggested that the site has another rare characteristic making it a good candidate for continued industrial use; the site could be easily accessed by barge; such water transportation is especially energy-efficient. The advantage of proceeding in the fashion we are advocating is that the future need not be irrevocably dictated until future economic conditions have begun to better assert themselves.

A Win-Win? For Whom Could this Be Bad?

It seems like a win-win proposal that makes sense for the city. Shouldn’t the City Council, if it exercised leadership, be leading the city in this direction?

If this is not the direction in which the city is headed, one should ask why. For whom would such a proposal not be good? For whom is the Bloomberg administration’s proposal better?

The Bloomberg proposal is better for the one big developer that would get to have monopolistic sway over a multi-decade development project. The Bloomberg single big-developer proposal stands to be good for that single big developer for all the reasons such a proposal stands to be bad for the public.

Among other things, the alternative of building on the parking lots or over the train yards would mean that bidding developers would have to bid maximum value for the land to be built upon. The use of eminent domain to acquire land in the triangle pushes down the amount that developers might have to pay. According to one city document (the implementation strategy), the price would not be bad given the number of acres involved: “The total site acquisition estimate is $131.5 million.” According to the Municipal Art Society’s August testimony, “The city has already set aside close to 389 million dollars to support the redevelopment of Willets Point; and as part of this plan the city will be using public monies to either buy out the owners or to pay fair market value via eminent domain.” The problem that MAS points out is that since so much of the investment is public money for which the city, not the developer, is at risk, the private sector’s incentive to proceed on schedule is drastically minimized.

It is possible to speculate that the single developer chosen might be Muss. It is possible that Muss Development might prefer that the city develop the Willets Point triangle area first over other areas because it is closer to the development they have already begun on the other side of Flushing Creek. Arguably, it might have a potentially greater synergistic effect. (For more on the perspective of Muss see the next section.)

Returning for a moment to the recent Yankee Stadium stories and what we noted about the Bloomberg administration’s misplaced focus when it comes to stadiums and their parking; it is quite possible that the administration can be somewhat oblivious to community goals when it focuses on delivering a substantial quantity of parking to meet the demands of stadium owners.

Some Relevant Perspective on the Alternatives

The subject of the Willets Point redevelopment came up just recently in a December 2, 2008 panel discussion, On the Waterfront: Finding the Balance for Development and Communities, sponsored by the Center for New York City Affairs and Milano The New School for Management and Urban Policy.

New York Needs Industrial Waterfront: Rethink Willets Point

Carl Biers, Education Director for International Longshoremen’s Association Local 1588, noted that some of the available wisdom being offered asserts the that the current national economic crisis has some of it roots in policies that subsidize housing and residential real estate at the expense of the “productive” sectors of the economy. Not disputing this, the panel discussed with general agreement the related theme that a balance is needed between industrial and other uses of the waterfront such as housing and recreation. Joshua Muss, President, Muss Development Company, which, as noted, is developing the project on the other side of the Flushing River and is a candidate developer for Willets Point, said that as a New York City housing developer he might prefer that all the New York harbor’s industrial uses be in New Jersey, but that he realized that couldn’t be the case and that some of the New York waterfront needed to be industrial.

When the panelists were asked for specific suggestions for what should be done differently on the waterfront Mr. Biers said he thought the Willets Point redevelopment should be rethought.

Relevant Thoughts from a Relevant Developer, Muss

Mr. Muss offered a number of other thoughts during the course of the evening that we found relevant to the Willets Point redevelopment. Early on he was asked about the effect of the financial crisis on ambitious waterfront development. “Ambitious has a way of being redefined,” he said. He said that the downturn in the economic cycle would have an effect on overall development, but that the effect would be more pronounced for waterfront development in part because environmental factors and things like ground water level and water tables came into play as well as the fact that properties were zoned for industrial use. He said that no developers were going to be putting projects into the ground in the near future. He said this was true unless they “had all the money in the world” because financing was not available. He said that developers would not be proceeding because they “are not dumb.” He pointed out, however, that development takes a very long time: 3 - 10 - 25 - 33 years and that this was a good time to “seek approvals.” He explained it was a good time to get the government officials’ attention. He said it was also a good time to take a “slow look” at development “without actually building.” He noted that the project on the Flushing River had taken him 28 years to get to it current point and that he had been working on another project for 33 years.

Mr. Muss also offered the following observation relative to convention centers. He said that 25 years ago he had worked up a plan that proposed to put a convention center in Sunnyside Yards in Queens “rather than at the edge of the city.” Earlier we noted the consideration that had been given to moving the Javits Center convention center in toto to Willets Point. From time to time consideration has been given to moving the Javits Center to the Sunnyside Yards location. If Javits is torn down, its Hudson River waterfront can be put to a higher and better use. Manhattan (See: Expansion of Javits Center May Shrink to a Renovation, by Charles V. Bagli, December 10, 2007.) While the suggestion of moving Javits to Sunnyside is not currently in fashion, such a new location would be about the same distance from LaGuardia as Willets Point. The location is also probably a more central-city location, while Willets Point is more “at the edge of the city.” Sunnyside is, however, father away from Kennedy International Airport.

From Mr. Muss’s remarks you might assume that he would agree with Mr. Biers that the Willets Point redevelopment should be rethought. Not so. Before the evening was out he gave his opinion, saying he thinks “Willets Point is so warranted” and observing that it could not have been done without government involvement.

EDC Official, Lannon: the City Needs Time If Wants To Avoid Making Mistakes

Whose perspective, Mr. Biers or Mr. Muss’s, should win the day? Should Willets Point be rethought? Another member of the panel, Venetia Lannon, a Senior V.P., Maritime Division, NYC Economic Development Corporation, offered some general guidance that could easily apply. Ms. Lannon said that the good news about development slowing was that there was an opportunity to “reexamine where we are.” She stated that there are problems when things are rushed, when there are questions about what the right answer is. In this regard she cited the IKEA built on the shores of Brooklyn. We previously wrote about the IKEA mistake to which Ms. Lannon was almost certainly referring:

Industrial Assets Decommissioned and Carelessly Sacrificed

We don’t want to sidetrack into the question of whether so much land associated with the industrial sector of the city’s economy should have been decommissioned. Certainly it was important to make a shift, but it is important to do these things intelligently and not reflexively. The elimination of a sorely needed graving dock (dry dock) in Red Hook to create an IKEA parking lot was a mistake. It eliminated high-paying jobs while replacing them with a similar number of much lower-paying jobs. If it was essential to have IKEA (with its parking lot), we could have had both IKEA and the graving dock. The city is now looking at spending a billion dollars to replace the sacrificed dry dock.

(For this and links to the background articles see: Saturday, October 25, 2008, More Discredit of Bloomberg as Qualified Financial Crisis Leader)

Several times when Ms. Lennon was speaking about setting a proper balance in waterfront usage, she was feistily interrupted the moderator, Greg David, Editorial Director, of Crain’s New York Business who told her with debatable jocularity that he did not think she was properly representing the Bloomberg administration’s point of view.

(Continue to Part IV)