Rudin/St Vincent’s Proposed Greenwich Village Development- First Proposals- Addendum

The following is an addendum to Noticing New York's written comment to the NYC Landmarks Preservation Commission delivered in connection with its April 15, 2008 hearing on the Rudin/St Vincent’s Proposed Greenwich Village Development.


April 15, 2008

Hon. Robert Tierney
Chair, NYC Landmarks Preservation Commission
One Centre Street, 9th floor
New York, NY 10007
e-mail: comments@lpc.nyc.gov
fax: 212/669-7960 or 669-7955


Re: Rudin/St Vincent’s Proposed Greenwich Village Development
Dear Chair Tierney:

This comment is a quick addendum to the more extensive comment (written and oral) offered in the name of Noticing New York, today.

There was testimony at the hearing today supporting the Rudin/St. Vincent’s application to the effect that of the proposed midblock townhouses would match in scale what is across the street from them. That is not so. A site visit will show the Commissioners that what is across the street (and otherwise on the same side of the street) is the same kind of variation of scale that is historically typical in the Historic District. The existing buildings proposed to be destroyed are quite consistent with and suitably a part of that variation in scale.

Rudin/St Vincent’s Proposed Greenwich Village Development- First Proposals

The following is Noticing New York's written comment to the NYC Landmarks Preservation Commission delivered in connection with its April 15, 2008 hearing on the Rudin/St Vincent’s Proposed Greenwich Village Development.

April 15, 2008

Hon. Robert Tierney
Chair, NYC Landmarks Preservation Commission
One Centre Street, 9th floor
New York, NY 10007
e-mail: comments@lpc.nyc.gov
fax: 212/669-7960 or 669-7955


Re: Rudin/St Vincent’s Proposed Greenwich Village Development
Dear Chair Tierney:

This comment is being offered in the name of Noticing New York, an independent entity dedicated to the proposition that developing New York and appreciating New York go hand in hand.

As an attorney experienced in real estate and urban planner, I am thankful to be able to offer this testimony with the benefit of having reflected upon the testimony that was offered at the portion of the hearing held on April 1, 2008.

Non-Starters:

Bringing up the rear with others having preceded me, the question now is where to begin. Or maybe the question is whether to begin at all since the Rudin/St. Vincent’s proposal has so many non-starters associated with it- (At the April 1st hearing it was astutely observed how appropriate it was that the hearing was April Fools Day.): To wit:

1. The application presents itself and is supported much as if it is a hardship proposal which it is not. Unless it is resubmitted as such it ought not to be considered at all except with respect to the Coleman and Link buildings (built 1984 and 1987 respectively).

2. Even if the application were a hardship proposal, the question would then not be whether all of the buildings in the Historic District proposed to be demolished should be (they should not be), but which buildings possibly should.

3. The whole proposal hinges upon St. Vincent’s intention to capitalize upon its special status to:
a. Demolish parts of the Historic District, while
b. Propagating the variances for extra density it could receive by selling to a private developer the benefit of density from a variance it has already received and simultaneously transporting across the street an ability to get increased density yet again.
The proposal does not acknowledge the extent to which St Vincent’s has already once before used its special status to demolish part of the Historic District and procure a density increase. This is something the LPC should be alert to; allowed to run rampant, the replication of such practices could be phenomenally destructive to historic districts. If available, there would be an inherent financial incentive for such a practice it to be rampantly replicated and abused.

These non-starters should make most of what is proposed in the application hypothetical so that it need not, and should not, be addressed. (Why design new buildings and present them for approvals before you know what might possibly be torn down and where new buildings could be built?) I therefore do not know whether the precaution of offering any comment on these questions in this testimony is good or bad.

Two Applicants:

The application ought properly to be divided into two parts. One part ought to be truly that of St. Vincent’s and the other ought to be that of Rudin as a developer prospectively purchasing property of which St. Vincent’s is divesting itself.

St. Vincent’s can propose modification or demolition of the Coleman and Link buildings pursuant to a certificate of appropriateness if its own use is to continue. That would not be a problem. For so long as the property is to be used by St. Vincent’s for its special purposes, variances (including variances for density) can continue to be appropriate. St. Vincent’s can also seek a hardship variance in connection with the use of its own property for its special purposes.

To the extent that St. Vincent’s is divesting itself of property and selling to another owner, that new owner should be complying with what is normally expected of owners within the Historic District and should not be looking to acquire any special status. Especially if buildings like Coleman and Link are acquired and demolished, the new owner should not expect to inherit a variance permitting greater-than-normal density.

The two applicants presenting together leads to certain confusions like the gap when the hospital testifies that a number of its older buildings are not well suited for hospital use but the developer does not explain why the same buildings are not suitable for reuse as apartment buildings.

Preservation of Historic District Buildings Which Won’t Be Owned or Used by St. Vincent’s:

Looked at as essentially two applications, and forgetting that the buildings are being acquired from St. Vincent’s, it seems preposterous that Rudin is proposing to demolish buildings in the district that have the feel of seasoned Park and Fifth Avenue apartment buildings in order to build- an apartment building.

As so many said at the hearing so far, those buildings work well within the district. They represent its actual history and that of the hospital and have a density and massing appropriate to the district and its historic feel and interactions. Accordingly, there is no question that the following buildings, all of which are quite susceptible to adaptive reuse (consistent with the apartment house use Rudin proposes) should be preserved:

∙ The Spellman Building (143-147 W. 11th Street), Built: 1940-41; Architect: Crow, Lewis & Wick.,
∙ The Student Nurses Residence Building (148-158 W. 12th Street): Built 1924; Architect: I.E.Ditmars,
∙ The Alfred E. Smith Building (168 W. 12th Street). Built: 1946; Architect: Eggers & Higgins,
∙ The Raskob Building (178 W. 12 Street) Built: 1950; Architect: Eggers & Higgins,
∙ The Jacob L. Reiss Building (134-136 W. 12th Street) Built:1953 - 1954; Architect: Eggers & Higgins.

Similarly, the Howard R. Cronin Research Building (133-141 West 11th Street) Built:1956; Architect: Eggers & Higgins, is quite consistent with the neighborhood feeling and its history and should be easy to adaptively reuse. It should be treated as other old buildings in a historic district would be.

These buildings cry out for reuse. The proposed destruction of these buildings is so highly inappropriate the question is why it is even proposed at all. The proposal is harder to comprehend given that, as later considered herein, the quality of the new non-historic buildings which are proposed to replace these buildings is comparably poor. It makes the proposal itself suspect. One wonders: “How could there be benefit from this kind of churning?” Alternatively, is the proposal simply a kind a ruse designed to propose much with much associated destruction only so that little may actually be done with less associated destruction?

St. Vincent’s and the O’Toole Building:

Perhaps the hardest building to comment on is the O’Toole Building about which much has been said and argued. Much of this difficulty comes out of my personal experience with the building. Community Board 2 has commented that they value the building and the precept that community boards should be listened to in these matters is worth adhering to. Is the end it should probably govern.

It is clear that much can be said that intellectually and from the standpoint of architectural art justifies preservation of the O’Toole building. There are convincing arguments that the O’Toole Building achieves and does well what it was intended to do. I have even more or less come to terms with the building as aesthetically aware New Yorker while not really “liking” it. I spent a lot of time in the neighborhood a generation ago. At the time I found the building oppressive, unfriendly and repetitive. Because of its lack of interaction with the street it is not the kind of building I would support building today. It may be that many such modern buildings, in doing a lot of things well also, more than other styles, fail to be good neighbors and fail to have good interaction with the street and pedestrians. And, for instance, though it doesn’t apply to the O’Toole building, I also wonder about how accommodating modern glass buildings are if they require their occupants all to use the same 1950s/60's style lighting in order to work their effect. Nevertheless, I have come to terms with the O’Toole Building as sort of a long term acquaintance that I don’t especially like but have accepted into my world as a definite reference. My personal reactions to the building not matter, however, since they are so personal.

Properly evaluating the O’Toole Building is perhaps complicated by its care. When building owners wish to tear down buildings they do not care for them the same way as those they would like to keep. St. Vincent’s has also not taken care of the nearby triangle that was supposed to be public space. I haven’t returned to the building recently to appraise the building’s condition but this may be part of the problem.

Quality of New Buildings Proposed to Replace Historic District Buildings:

Overall it should be commented that the proposed replacement buildings are generally inappropriate and inferior to the buildings they would replace. Generally, the buildings proposed to be replaced are to be replaced without need or necessity. The exception is that the design quality of the Coleman and Link buildings is not superior.

New Generic Midblock Townhouses. The proposed new generic townhouses, or faux “townhouses” are new and not up to the standard of the Historic District of which they would need to become a part. Not only do they lack history and feel for it, they do not feel like New York and look like much of what is being replicated cheaply around the country. They have an uninspired modernism and lack the value of detailing such as appropriate cornices normally seen in better neighborhoods with a wealth of history.

Much was made about how these buildings are an appropriate scale for the midblock. There is nothing wrong with their proposed scale, but there is also nothing wrong with the greater scale of the buildings they are proposed to replace representing as it does the kind of variation of scale that is historically typical in the Historic District. There is value in preserving that variation. By contrast it isn’t desirable to decrease scale along the midblock in order to introduce a new and unprecedented scale along the avenue with a giant new apartment building.

One also wonders whether the switched around scale scale and massing (with the resulting destruction of old buildings) is being proposed merely to introduce commercial frontage along the midblock. People testified that commercial frontage on the midblock is not typical of the district’s historic character. I don’t know that this is the reason to avoid it: mixed use is often underappreciated and use is perhaps not a specific Landmarks concern- Still the attraction of street level commercial space to a developer should not be a reason to tear down valuable old buildings contributing to the essential success of a historic district.

New St. Vincent’s Hospital Building. There is a temptation to note that the proposed new St. Vincent’s Hospital Building would, in most aspects be an improvement over the existing Coleman and Link Buildings, but the new building would not replace these buildings. The new hospital building would replace the O’Toole Building. Coleman and Link have already replaced other old buildings that were in the Historic District.

While the proposed new St. Vincent’s Hospital building might be better in design than the Coleman and Link the buildings, it could be better designed. It could be better designed even without reduction of its mass to help achieve this result.

The new Hospital building’s setbacks help the design. Above the setbacks, the building is curved. It has been described as the “prow of a ship.” Maybe this is a good description and this may have been done intentionally as an apology or some sort of maritime recompense for the elimination of the maritime O’Toole Building if it is, in fact, destroyed to make way for the new building. Maybe it was anticipated that someone would suggest, as someone did, that the O’Toole Building be kept as a base for this new skyscraper. Were that ever to be done, the prow of the ship would come complete with its own set of watery waves.

At the hearing the proposed building’s architects said that the curve that creates the ship’s prow effect was selected in order diminish the overall feeling of massiveness for what is an imposing mass of a building and to allow the side of the building to be oriented to all of the streets where the City’s street grids collide. Unfortunately, it doesn’t work. The curve that eliminates reference to any particular street, relates to all the streets and communicates the building’s massiveness to all the streets involved, seeming massive everywhere and, like the looming side of an elephant, insinuates that there is much more unseen in addition to what is seen. While we are told that the building works well functionally on the inside, breaking the surface up into different planes could allow a very similar interior without the unbroken expanse on the exterior. Complexity of planes would relate just as well or better to the complexity of the colliding street grid while celebrating it as well.

Service Building. Given how massive and endlessly huge the new St. Vincent’s Hospital is proposed to be, it is a bad idea to propose that any necessary monotony associated with the hospital’s new vastness should be continued by having its Service Building match the hospital. The Service Building should be a different style that associates itself with the park and public space proposed for the triangle. Among other things that will help communicate that the park is a freely accessible open space and not merely a hospital planting area. Ideally, the Services Building should be made as small as possible with any portion of it underground that can be underground. Rooftop use of the Service Building should flow creatively to the ground level use of the other public space.

Whatever is done with the triangle space, the hospital should not continue to waste people’s time and test their patience with perpetually postponed park promises.

Rudin’s Avenue Apartment Building. One of the most amusing parts of the presentations at the hearing was the way that the proposed Rudin apartment building was repeatedly shown exactly and squarely from its side so that none of its front or back plane could be viewed. It was like someone worried about their weight trying on a bathing suit turning sideways to the looking glass and sucking in their gut.

The new building is unimpressive in terms of design. It doesn’t compare with what it would replace.

The new apartment building is large and unprecedented in the neigborhood, massive and aesthetically unappealing. We should all also as citizens of the City be concerned about the creation of too much extra parking whether or not this is a concern that the LPC is, per se, permitted.

Of course, the new building probably cannot be built at all since it is unlikely that permission would be granted to tear down all the buildings that would constitute its site. Probably permission will only be granted to tear down the Coleman and Link Buildings. Likely, the designers know this and have reserved their effort to design something better when the actual permitted building site is known. May we expect that the effort will come when the developer is seeking a variance or change in zoning to build on that actual reduced site at a greater density than now permitted?

Faustian Bargain of Overall plan:

Historic Districting, like zoning, is akin to a tax upon the community that pays itself back in kind. Everyone must make an effort and take extra steps in their lives to comply with Historic Districting to make it work but the overall value they get back makes it all worthwhile. One owner might be able to seize value by tearing down historic buildings and replacing them with something else but overall values increase if that is not done.

The community has spoken convincingly and eloquently about how they value the Greenwich Village Historic District, internationally known and one of the best preserved neighborhoods in our city and nation.

The first thing one notices when one looks at the Rudin/St. Vincent’s plan is the immense and incongruous increase in density. Then you notice the buildings missing from the historic fabric of the neighborhood and streets whereby this has been accomplished. In essence, St. Vincent’s proposes to step outside the shared community of respect to Historic Districting to procure a benefit that it would enjoy with the developer apart from the community.

Not taking the community into account, is there value for an individual owner in destroying and replacing some of the buildings comprising a historic district? Perhaps sometimes, but it is hard to believe that there is value even for the individual owner in tearing down many of the buildings proposed to be torn down by virtue of this proposal except for a potential resulting increase in density. With an increase in buildable square feet however, tearing down buildings at the expense of the community becomes very attractive. It becomes so attractive that our hospitals and religious institutions face a strong lure away from their core purposes to join in the craze of the real estate business.

We give special status to a religious hospital like St. Vincent’s. You can’t let special status institutions sell zoning changes or sell the right to destroy historic district properties. If we let an institution like St. Vincent’s use that special status as a magic wand to transmute the value of real estate property for developers by removing properties from the strictures of Historic Districting, then we set the precedent for major problems and a fundamental undermining of historic preservation.

We would turn our privileged and special-status institutions into traveling and fast-moving zones of demolition. There would be an unavoidable incentive for any hospital to abandon recently constructed buildings artificially early before they had played out their roles and run their useful lives. The practice would be environmentally unsound and not based on true underlying economics but it would be falsely incentivized. In fact, we must ask if it has already begun. The Hospital’s very sizable Coleman and Link Buildings were built only 24 and 21 years ago. Their building involved tearing down buildings that constituted part of the Greenwich Village Historic District and also involved building bigger buildings, using the hospital’s special status to get a variance.

Rudin/St Vincent’s Proposed Greenwich Village Development

The following is Noticing New York's oral testimony to the NYC Landmarks Preservation Commission delivered in connection with its July 15, 2008 hearing on the Rudin/St Vincent’s Proposed Greenwich Village Development.

• I’m Michael White offering this comment in the name of Noticing New York,- an independent entity dedicated to the proposition that developing New York and appreciating New York go hand in hand.

• As real estate attorney and urban planner, I am thankful to be able to offer this testimony in opposition with the benefit of having reflected upon excellent prior testimony.

• The current revised plans involve punching down from the north and shrinking the boundaries of the Greenwich Village Historic District with two piercing stabs whose significant increases in density will have considerable value to the property owners.

• In one case, a developer hopes to inherit, undiminished, an ability to build at greater density.

• And, St Vincent’s proposes to benefit by using its special status in an ad seriatim manner to achieve an increase in density for the other site as well. Its financial gain will be more pronounced because protection for the O’Toole Building in place when it bought the site would be set aside.

• Each of these two proposed spearheads of density represent subsidies to the extent that they would NOT be given in accordance with generally recognized principles. St. Vincent’s President and CEO Henry Amoroso (on the “Stoler Report”) said that St. Vincent’s was looking to “leverage” its real estate assets. What is proposed here is not “leverage.” Instead, St. Vincent’s special status is to be used to transmute the value of its real estate rights, not only for itself but for real estate developers purchasing from them. Creating real estate value (at community expense) so that it can be sold to a developer is the most obvious subsidy imaginable.

• This is not a hardship application- This is a subsidy application!

• Should subsidy be furnished by bending the community’s landmarks laws? If so, there are a lot of venerable nonprofit institutions in Greenwich Village that can be subsidized by the creative carving up and selling of the district. In the end we will have no Greenwich Village and no historic district left. We will also have no operational principles with which to protect other districts.

• I suggest that the Commission be on guard against getting involved in the hospital subsidization business. It is a frightening morass except to experienced insiders. Regulations and highly complex reimbursement formulae force hospitals to dance operating with the thinnest margins in the country.

• Subsidies if not properly designed can turn out to provide odd inducements. For instance, a subsidy that operates by rewarding a hospital to move and use its special status to create density and wipe out historic district protections will likely result in hospitals moving repeatedly and too often, as each move will generate a payday. Coleman and Link buildings were built in 1984 and 1987: Why are they being decommissioned now? The way to avoid the question is to avoid the artificial creation of a subsidy.

• The current revised proposals are clearly better than the original proposals the Commission rejected but anyone who thinks that relative benchmarks can be set by the seriously flawed proposals that preceded these revisions is in error.

• The proposals are commendable efforts if the goal is to shrink the Greenwich Village Historic District, but they are not acceptable if the goal is to protect the district.

Rudin/St Vincent’s Proposed Greenwich Village Development

The following is Noticing New York's written comment to the NYC Landmarks Preservation Commission delivered in connection with its July 15, 2008 hearing on the Rudin/St Vincent’s Proposed Greenwich Village Development.



July 15, 2008

Hon. Robert Tierney
Chair, NYC Landmarks Preservation Commission
One Centre Street, 9th floor
New York, NY 10007
e-mail: comments@lpc.nyc.gov
fax: 212/669-7960 or 669-7955


Re: Rudin/St Vincent’s Proposed Greenwich Village Development
Dear Chair Tierney:

This comment is being offered in the name of Noticing New York, an independent entity dedicated to the proposition that developing New York and appreciating New York go hand in hand.

As an attorney experienced in real estate and an urban planner, I am thankful to be able to offer this testimony with the benefit of having reflected upon the testimony that was offered at the portion of the hearing held on June 3, 2008.

The proposed St. Vincent’s plans, as most recently revised, will punch down from the north and shrink the boundaries of the Greenwich Village Historic District with two piercing stabs. Each of the two spearheads into the district for new buildings proposed to be built represent significant increases in district density which will have considerable value to the property owners.

In one case, the ultimate proposed owner benefitting is a consultant real estate developer that will be buying property from St. Vincent’s Hospital. Presumably, a higher price will be paid for the property because the developer hopes to inherit, undiminished, an ability to build at greater density in the district that was conferred upon the hospital when occupying the site. The hospital was able to build at greater density and to build at all on the site to be acquired because of its special status. Buildings that were previously part of the historic district are no longer there as a result. The density that was granted was partly to allow the hospital greater density it was believed necessary for it to function. Extra density beyond the minimum was probably allowed by variance not because the density per se was needed but because the configuration of buildings and mismatched floor heights required extra passageways and backyard extensions to permit all the necessary connections. The same hospital use will require a smaller FAR with a better configuration. The hospital now proposes to abandon the premises with the special accommodations that were afforded it in the past.

St Vincent’s itself is the owner proposed to benefit from the second spearhead of density into the district. It proposes to benefit by using its special status in an ad seriatim manner to achieve an increase in density going far beyond what is typical in the district. St Vincent’s financial gain will be more pronounced than it would be if another site were involved because the much smaller building it will be demolishing was bought by it at a low price that assumed the protections already in place. St. Vincent’s would now have those projections be set aside.

Each of these two proposed spearheads of density into the district represent subsidies to St Vincent’s to the extent that they would not be given in accordance with generally recognized principles. St. Vincent’s President and Chief Executive Officer Henry J. Amoroso as a guest on the edition of the “Stoler Report” real estate program whose broadcast coincided with the Commission’s June 3, 2008 hearing, said that St. Vincent’s was looking to “leverage” its real estate assets. What is proposed here is not “leverage.” It goes beyond using the package of rights St. Vincent’s or any property owner could normally expect to have. It looks instead for St. Vincent’s to use its special status to transmute the value of its real estate, not only for itself but for real estate developers who may buy from them. Creating real estate value (at community expense) so that it can be sold to a developer is the most obvious subsidy imaginable.

No doubt there is an understandable urge to subsidize a worthwhile hospital which we desire to see continue to operate, especially when that hospital has had a brush with bankruptcy. But should subsidy be furnished by bending the community’s landmarks laws to create subsidies not previously known? If so, there are a lot of venerable nonprofit institutions in the Greenwich Village Historic District that can be subsidized by the creative carving up and selling of the district. When all is said and done we will have no Greenwich Village and no historic district left. We will also have no operational principles with which to protect other districts.

Hospitals in New York State are subsidized by the government by other means. I suggest that the LPC be on guard against getting involved in the hospital subsidization business. To outsiders it will be a frightening morass. Hospital accounting in New York State is far from easy, counterintuitive and, at best, can only be understood by experienced insiders. Regulations involving highly complex reimbursement formulae force hospitals to operate constantly on the brink of artificially narrow and rather manipulable profit margins. In New York the dance is done with the thinnest margins in the country. Hospitals are regularly forced to internally subsidize patients for which they receive only 25% reimbursement. Meanwhile, heavy reliance on philanthropy complicates the picture. (I am sure that LPC is also aware that instincts toward philanthropy in the resolution of these matters would be inappropriate, while presenting separation of church and state problems.)

One should be wary of designing new subsidies for industries that are beyond one’s ken. Subsidies if not properly designed can turn out to provide odd inducements. They typically encourage the thing that generates the payment. For instance, a subsidy that operates by rewarding a hospital to move and using its special status to create density and wipe out historic district protections will likely result in hospitals moving repeatedly and too often, as each move will generate a payday. And whenever a hospital moves people will be left guessing whether the investment in the old premises has been sensibly amortized by a long enough stay. As the Coleman and Link buildings were built in 1984 and 1987, respectively, this is probably a question people should be asking now. The way to avoid the question is to avoid the artificial creation of a subsidy.

The current revised proposals are clearly better than the original proposals the LPC rejected. While that has allowed some politicians to applaud the improvement and thereby endorse what is now before the Commission, anyone who thinks that relative benchmarks can be set by the seriously flawed proposals that preceded these revisions is in error. The benchmark is, was and always should be the Greenwich Village Historic District itself and both these spearheads of density would alter its boundaries and shrink the district. The previous proposals were significantly more dense. Not only were they were out of character with the district, they were out of character with the development to the north of the district. It is doubtful that their purpose was anything other than a ploy proposing the worst. The new proposals are more consistent with simply moving the line which separates the district from the greater density to the north. The proposals are commendable efforts if the goal is to shrink the Greenwich Village Historic District by moving density inward, but they are not acceptable if the goal is to protect the district.

The two spearheads of density have an interesting relationship to each other. Clearly the spearhead proposed to be the new St. Vincent’s Hospital will have the greatest bulk but retaining bulked-up size for the new Rudin residential buildings on the Coleman and Link building sites serves (in the models and drawings) to make less clear to the public how large the new hospital building will be. Viewed standing alone, it would be much more clear how large the moved and consolidated hospital is. Conversely, because the hospital is so very large people looking at the models are much less likely to appreciate how much atypical bulk the Rudin Organization hopes to incorporate into the new residential buildings they want to build. Two wrongs, however they may jade us, do not make a right.

Whatever the alternatives might be, St. Vincent’s proposes to demolish the O’Toole Building to build a new hospital building. The deeply flawed previous proposal spuriously also sought to tear down many more buildings, most of which are now proposed to be more appropriately reused. It is still proposed to tear down the Reiss and Cronin buildings. The Reiss building is valuable to its streets and the neighborhood and should be preserved, while it is harder to argue significance for the Cronin building. They are both proposed to be demolished for in order to create underground parking. Since the parking is underground it is an opportunity to create density and real estate value that is not as obvious as above ground floors, but should the creation of underground parking in Greenwich Village trump the goal of preserving buildings like Reiss in the district? If so, the overall district could change a lot more because there are many more buildings suitable for leveling on the same grounds. Or is this proposed to be done specially to subsidize St. Vincent’s?

There has been repeated mention that Rudin, the developer involved with these proposals, is going to be building a school on another site. When mentioning this people point out that it is separate and ought not to be considered in conjunction with these proposals. That is disingenuous because the mention is almost certainly intended to have political effect whereas the mention that it is a separate matter avoids scrutiny. We can’t but help that there is a current fashion of behavior for developers who want consequential favors from the populace to engage simultaneously in multiple endeavors. While being paid by the public to build a school at a profit might in itself never be considered a favor, doing it in conjunction with pursuing another project somehow lets overall discourse get confused as to whether it might be a favor.

One quick note to end. I believe that the plans mentioned with respect to the brass doors of the Nursing Residence were intended to generate a more suitable counterproposal from the LPC.

Mayor Bloomberg’s Loose Change?

The New York Times has reported today that Mayor Michael Bloomberg’s wealth has nearly doubled to perhaps as much as $20 billion. The Times story today calculates Bloomberg’s current wealth at between $16-20 billion. It points out that this means “The mayor can finance one-quarter of New York City’s budget all by himself or the entirety of what the United States spends each year on foreign aid or space exploration.” It also means that maybe he doesn’t fully appreciate all the public subsidy dollars we are putting into the pocket of wealthy Mr. Ratner for Atlantic Yards. If we ballpark/lowball the still not completely known Atlantic Yards subsides at $2.4 billion and figure the mayor’s wealth at the low $16 billion end, then the tax-payer funded Atlantic Yards subsidies come out to 15% of the mayor’s wealth.

See the New York Times: “For Bloomberg, Another $10 Billion or So Doesn’t Count for Much” By SAM ROBERTS Published: July 18, 2008
http://www.nytimes.com/2008/07/18/nyregion/18mayor.html?_r=1&ref=nyregion&oref=slogin

SELLING OUT THE COMMUNITY FOR BEANS (A GIANT WRONG)

Re: As groups lobby against tax-exempt bonds for sports facilities, is WFP hamstrung by ACORN's AY deal?

SELLING OUT THE COMMUNITY FOR BEANS (A GIANT WRONG)
____________________________________

MAY 17, 2005: WHAT HAS BEEN SINCE THAT DAY

Bertha Lewis and her ACORN organization signed themselves out as responsible or credible community participants on May 17, 2005 when they signed the Memorandum of Understanding (“MOU”) with Bruce Ratner. That was early on in the whole Atlantic Yards saga and I am surprised that since then it hasn’t been routinely pointed out in all coverage of Ms. Lewis’s “support” for the project. “Staunch” support? Replace that adjective with “contractual” support. That contractual support was given away by Ms. Lewis and ACORN for virtually nothing. When Ms. Lewis speaks in favor of the project it means virtually nothing- it might as well be Bruce Ratner himself speaking.

Since May 17, 2005 Ms. Lewis and ACORN have not been free to criticize the project in any respect. No matter that Lewis/ACORN might have a criticism of the project, they must instead support the project. If they think the project is getting too much subsidy they must instead support the project no matter how bloated the proposed subsidy is. If they think that ACORN has better projects in its own pipeline that can make better use of substantial subsidies that are being diverted into Atlantic Yards, Lewis/ACORN have contractually precluded themselves from saying so. If they think the developer has prioritized his arena over "affordable" housing, they must remain silent and support the project. They must support the megaproject no matter what. And, since May 17, 2005, if Ms. Lewis or ACORN possess negative information about the project that none of the rest of us have or information about the project that would be valuable for the community, Ms. Lewis and ACORN must keep that information to themselves. They must not share it because the agreement that they signed contains a confidentiality provision to prevent such sharing. It looks like Ratner’s lawyers took pains to make that confidentially provision the singular most enforceable provision of the agreement drafting it so that a mute Ms. Lewis/ACORN is the only thing “specifically enforceable” under the MOU terms.

And yet, how often Ms. Lewis’ lack of freedom goes by without mention. When Ms. Lewis speaks and her remarks are reported upon there is the inference of an informed individual who would be forthcoming with information beneficial to the community and who should be ready to offer a balanced perspective in assessing all the multiplistic evolving issues and iterations of this megadevelopment we have seen since May 17, 2005. Maybe we infer that she could likewise be of service in interpreting the community input, expert reviews and technical data with respect to the project (nearly all which is of value- environmental analysis- superior better leveraged alternatives including Extel’s- has only been available since May 17, 2005). But no one mentions that Ms. Lewis and ACORN when they speak and interact with us are contractually precluded from being an aid to the community as they might be inferred to be. They cannot criticize the project. They must obey Ratner’s dictates and hew to his contractually imposed secrecy. Ratner issues bullying threats to the community saying that the neighborhood scorched by his unnecessary demolitions (buildings like the Ward Bakery) will have decades of parking lots unless the public opens its checkbook for more and more subsidy demands- - And when he demands subsidy, how much might that subsidy be?- - Is there a ceiling to it?- - Do Lewis and ACORN know?- - If they do, they are precluded from telling us. They are contractually obligated to support all of this whether it is reasonable or not.

The MOU is incorporated into the Community Benefits Agreements (“CBA”) which includes and extends essentially the same objectionable provisions, structure and concepts. Among other things, the CBA sets up a “Governing Council” with respect to which ACORN has responsibilities associated with the seeming exercise of some influence. But how can ACORN or Lewis have influence if they have relinquished the most effective potential tool for influence? How can one exercise influence without being able to freely and publicly criticize and speak one’s mind while marshaling available facts to make a cogent argument? Long ago, on May 17, 2005 Lewis and ACORN relinquished these things. As per the MOU, they are conscripted: “ACORN will . . . appear with the Project Developer before government agencies, community organizations and the media as part of a coordinated effort to realize and advance the Project.”

I suggest again that the press should routinely mention that they are so conscripted. - In essence this form of indentured servitude- this contractual silencing and total lack of freedom to act conscientiously is indefensible and it is interesting that Crains’ could have concluded that Ms. Lewis, so locked in as she is, is one the 100 most influential women in NYC business because, as stated in their analysis she ‘assisted’ Atlantic Yards while conscripted by that agreement to do so. Perhaps this schizoid exercise where Ms. Lewis is now opposing inflated IRS-loophole subsidies for Yankee Stadium while obviously constrained from making parallels about the use of the same subsidies for Ratner’s sports arena will now call attention to Ms. Lewis’ constricted and limited status for all future occasions.

NOTHING BEEN ASKED FOR, NOTHING BEEN GAINED- THE LEWIS/ACORN MOU WITH RATNER

Perhaps Ms. Lewis’ contractual obligation would make sense if back in May of 2005 she had contracted for something actual from Ratner or defined true and ascertainable benefits the community was to receive. The Bertha Lewis/ACORN agreement with Ratner contractually obligates Lewis and ACORN to support Ratner as the monopoly developer of Atlantic Yards. It obligates them to support the specific humongous density of 7.799 million square zoning feet for the project- (what business is it of Lewis’ or ACORN’s to circumvent the community and contract for the city’s density to be set without the standard procedures and public participation of ULURP?)- That MOU mentions that Ratner is to receive an unspecified amount of subsidy with the clear implication that Lewis/ACORN are obligated to support it! Was there any ceiling to the amount of subsidy for the project they would have to support? No! Could they object if the massive misdirection of subsidy was depriving ACORN’s own projects of subsidy? As noted above, “No!” The MOU was virtually a blank check for Ratner and the fealty Lewis and ACORN must keep paying him.

By contrast, Ratner committed to give the community virtually nothing under the ACORN MOU Lewis signed with Ratner.

∙ The agreement has some very silly provisions- For instance, there are programs in New York City like the New York City Housing Partnership program for the production of owner-occupied housing in which all sorts of developers happily participate because they make a profit. (City and State subsidies are involved.) In the so-called community benefits agreement the Forest City Ratner organizations represent that they might join all the other firms electively participating in this program if they get subsidy (unspecified) to deliver the kind of profit they want to get. That is not a commitment but is an excuse to try to get first in line for subsidized profit. Would they jump the line ahead of other firms with a more legitimate interest in the program?

∙ How about the affordable low income rental units themselves which are the crux of the agreement? There are State and City programs for 80/20 housing under which Ratner is surely going to proceed to provide any housing that might eventually happen. The MOU negotiated by Lewis and ACORN doesn’t obligate Ratner to provide any more than would conventionally be provided under such programs. In fact, it apparently obligates far less.

∙ Does the agreement obligate Ratner to devote a minium amount of square footage to the low income units? Nope, not at all. In fact, the information available is that the size of the affordable units will be rather small, with 400 square feet as the minimum size for studios. (See: “AY snug or stingy? 575 sf for 1BR, 775 sf for 2BR”.) There isn’t anything in the agreement that prevents these units from being this small and there isn’t even anything in the agreement that prevents them from being smaller.

∙ Is there anything in the MOU that requires proportional distribution of the units or otherwise ensures that the obligation to provide low income units won’t be satisfied by only the very smallest units aggregating a small overall percentage of the megadevelopment? Nope, not at all! (See: Would half of the affordable apartments be 2br & 3br? No way (read the fine print) ) By my calculations, Ratner can meet the terms of what Lewis/ACORN obligated him to under the MOU by providing the 900 units he is obligated to provide for conventional low income units by providing 900 400 square foot studios. The square footage associated with that (900x400=360,000) is 5.66% of the approximately 6.36 square million feet of residential space in the project. Those government agencies paying out subsidies might insist on something more but the ACORN agreement doesn’t require anything more and might be used as a basis for Ratner to try to deliver less than he would otherwise have to.

∙ The residential space in the project includes condominium units (which would not receive 80/20 tax exempt financing). Excluding all the square footage going to the condominium units would make the square footage associated with the low income units greater than 5.66%, but since the MOU fails to limit how much space can be siphoned off for luxury condominium space, it doesn’t allow calculations of the projects’s rental space or any percentages in favor of ACORN.

∙ Likewise, a requirement (separate and apart from which units should be low income) that half the units provided as ACORN identified benefit be studios and one-bedrooms and half of the units be two and three bedrooms - not all of which need be such low income units- can be met by Ratner’s provision of 1483 studios, 1 one bedroom, 765 two bedrooms and 1 three bedroom. Of course, if Ratner wanted to deliver smaller units than have currently surfaced as probabilities, the ACORN agreement doesn’t prevent him from doing so and the numbers could be more abysmal than this.

∙ What about rents? Does the ACORN MOU serve to limit the rents to a reasonable amount per square foot? No, it doesn’t do this either. In fact, it appears that Ratner may proceed to rent the “affordable apartments” at higher per square foot rents than the market rate apartments. (See: “Affordable” studio would cost more (per square foot) than market-rate studio)

∙ In fact, the Lewis/ACORN agreement seems to have gone out of its way to accommodate Ratner’s unwillingness to make any commitment to public benefit that would actually exact from him a commitment to charge lower rents. ACORN negotiated for only 900 units of what are classically considered low income units for those with incomes at or below 50% AMI. Most of these will be occupied by people within a thin $7,680 range income band which is generally what developers prefer when they comply with the basic requirements of the Federal Tax Code for subsidy ($30,725.80 to $38,406.00 for a family of 4)- There may be nothing to prevent Ratner from taking most of his applicants from near the top of this $7,680 range (It’s not prevented by the agreement.) After that, there is a telltale jump or skip of income bands which the ACORN MOU specifies shall be served. One would think that the next group of home renters most deserving of subsidy would be in the immediately adjacent 51-59% AMI income range, but they are skipped. Why? Because by jumping up to 60% AMI as the next qualifying band of incomes (with a ceiling income for the band of $76,812.00) Ratner jumps up to a group where the rents he can procure will be much closer to market. In fact, one thing that has yet to be determined is whether, given the size of units and the incomes and rents permitted under the agreement these units will not be veritable market rate units. In today’s terms families of 4 will qualify if they earn annual incomes at or below $76,812.00, $107,536.80 or $122,899.20 and their monthly rents may respectively be $1,536.24, $2,304.36 and $2,880.45. There is nothing in the MOU to prevent Ratner from taking only the highest income families in these higher income bands (and there may also be some self-selection to this end). Those monthly rents may not do badly in the neighborhood toward procuring market rate one bedroom, two bedroom or three bedroom apartments. Don’t know about this? Go ahead and check with a broker or the New York Times.

∙ Did ACORN negotiate any terms by which Ratner and his companies must put aside or segregate any funds anywhere so that it is assured that somehow, someway there are extra moneys undeniably committed to public benefit? The Columbia University West Harlem community benefits agreement is not very good, but it does have such a provision that millions of dollars will be so set aside. Not so, the Lewis/ACORN agreement.

∙ Does the ACORN/Lewis MOU say that if Ratner’s project grows or if Ratner produces more residential units than what the agreement defines as the “Residential Project”(4,500 units) that Ratner must provide more “public benefit?” No, not at all, even though it actually happened just days after ACORN/Lewis MOU was signed. But the agreement is being interpreted to say that if the project is ever down-sized then Ratner owes nothing to Lewis, ACORN or the community. It is being interpreted to say he owes nothing but the scorched earth he has threatened to leave. But until that day of reckoning, he will have bought the contractual support (and enforced secret-keeping) of Ms. Lewis and ACORN. He will have had it from May 17, 2005, through today (June 20, 2008) until that day of reckoning.

What does this all add up to? Nothing. Nothing in the middle and nothing on either side of it. In the middle there is the telltale missing income eligibility band. On one side of the telltale missing income eligibility band are the classic low income units, a thin band representing just the minimum of what would otherwise be required from Ratner by the federal tax code requirements of the 80/20 programs. These are “ice-in-the-winter” units which would be required without any ACORN MOU. On the other side of the telltale disappeared band are the “middle income” qua veritable market rate units, with rents and qualifying incomes so high the market could provide them anyway. (It is possible Ratner may apply for additional subsidy in connection with them- Would he ask for an additional hundred million?) So on each side of the nothingness of the telltale spectrally missing band, there is essentially nothing!

It is astonishing that Assembly Speaker Sheldon Silver, Mayor Michael Bloomberg, Governor George Pataki, Borough President Marty Markowitz, and Speaker of the City Council Christine Quinn all used Lewis’ and ACORN’s sloppy and abject capitulations to Ratner’s pursuit of profit as political cover to give Ratner’s megadevelopment approvals.

Not only is the Lewis/ACORN agreement the most scant nothing possible while obligating Lewis and ACORN to support that nothing or anything that is a scintilla more, we must also now be on guard that Ratner and his contractually conscripted Lewis will follow provisions of the MOU/CBA to override even the basic requirements of the existing available housing programs by pursuing “necessary modifications”to them- (To wit: “Project Developer and ACORN will work together to secure NECESSARY MODIFICATIONS TO EXISTING AFFORDABLE HOUSING PROGRAMS AND POLICIES in order to accomplish the” Ratner/ACORN program and “ACORN (with the participation of other Coalition members as appropriate) will appear with the Project Developer before government agencies, community organizations and the media as part of a coordinated effort to realize and advance” . . the Ratner/ACORN program.) For instance, we must be on guard that subsidizing housing agencies will not be gravely misguided by the cover of the MOU’s minimized standards or the eyewash of the higher income, higher rent “middle income units” to excuse the future Ratner-built housing from even the typical minimum requirements for 80/20 housing programs in New York.

REALLY BEAN COUNTING?

In the documentary about Atlantic Yards, “Brooklyn Matters,” Bertha Lewis extols her acumen in negotiating the community benefits agreement, saying, “They had their bean counters and we had our bean counters”- but Bertha Lewis obviously doesn’t know beans about counting beans. She negotiated nothing. There is virtually no standard by which the developer is obligated to give the public anything. Conversely, there are no checks on what he is entitled to under the agreement.

The Bible tells the story of the selling of a birthright (for lentil bean soup) in a moment of weakness and selling with it the right to lead. Should the right to responsibly and credibly participate in community affairs be sold for so little? It is vital and important, as many are pointing out, that New York City prioritize its resources by investing in crucial infrastructure. Too bad that Ms. Lewis isn’t at liberty to impart this wisdom and argue with full and convincing logic that resources should not be diverted to unproductively bloat Ratner’s clearly undeserved subsidies.

Michael D. D. White
Noticing New York

Kelo case drew the line in the wrong place

Re: Pols Remain Masters of Domain

The Kelo case drew the line in the wrong place. The use of eminent domain to take private property and use it for new economic development is not smart economics. The Kelo case did not actually say that it is. The Kelo case only said that public officials using eminent domain had the right to be wrong if they `believe’ “that the seizures would "provide appreciable benefits to the community.” Had the justices understood the strength of the underlying economics that make such beliefs routinely ill founded and predictably wrong they should not have drawn the line to uphold the practice where they did. They should have realized that fundamental property rights deserve more protection from specious suppositions.

Kelo said that public officials have the right to be wrong, that’s true, but Kelo did not say that public officials have the right to bad faith when using eminent domain. Even if not everyone recognizes that it crosses the line into bad faith, Kelo did not say that pretextual public purpose can be pursued or that developers can commandeer the process. Kelo does not permit development plans that are“of primary benefit to ... the developer” and at best “only of incidental benefit to the city." It does not permit the highly discernable evidence of “impermissible favoritism”that we have in the case of Atlantic Yards which, proving the point, involves the concurrent award of $2-3 billion in subsidies to a single developer on a no-bid basis. Justice Kennedy, (essential to the Supreme Court’s majority) stated a test- He said that “(b)enefitting” the developer should not be "the primary motivation or effect of” a “development plan.”

Kelo does not bless the faking of blight studies and findings.

Certainly our public officials have rushed to exercise the Kelo-granted right to behave stupidly, but in New York they have gone far beyond that. If it isn’t bad faith, the abdication to Ratner in Atlantic Yards sure looks just like it.

The brilliance of Jane Jacobs was to direct people’s attention to the vibrancy of natural economics at work in the way cities shape themselves. She not only offered a vision of the superiority of what was but also the superiority of a better future. Opposition to eminent domain is not about opposition to change. Change is inevitable, but the kind of change that comes without eminent domain is superior. With eminent domain what we forfeit is the better future that natural untampered-with economic activity would bring.

Developers wielding eminent domain are disposed to interfere exactly where they shouldn’t.

When profit-minded developers expropriate eminent domain to their own ends they are not attracted to tamper with `blight.’ What tempts them most are meddling seizures in upcoming neighborhoods, those that are gentrifying or, in the words of Jane Jacobs, “unslumming.” Ratner wants to seize property in the thriving areas of Fort Green and Prospect Heights. About the only thing likely to derail real estate success here is Ratner’s own mega-project.

By the way, the 22-acre figure given for the massive Atlantic Yards mega-project in Brooklyn, N.Y., is correct but here are addenda. Eminent domain would be operative with respect to 60% of that acreage. 40% of the land would be acquired at a substantial discount from the Metropolitan Transportation Authority. While the mega-project is 22 acres, adjacent parcels owned by the developer would bring the swath of contiguous Brooklyn acres owned by him to approximately 30. That is a lot of government fostered monopolistic monoculture. Jane Jacobs would not be happy.