As lawsuit looms, debate on L.E.S. rezoning goes on


By Casey Samulski

As the East Village/Lower East Side rezoning — the third largest rezoning in New York City’s history — works its way through its final rounds of review, a new report offers grounds that opponents may use to try to file a lawsuit against the plan.

The massive, 111-block rezoning is currently under review by the City Planning Commission, after which it will pass on to the City Council for a public hearing and vote. The review period ends Nov. 29, at which point, it is expected the rezoning — which is being pushed by the Department of City Planning — will become law.

But a report by Hunter College’s Center for Community Planning and Development finds fault with the methodology behind the rezoning. Specifically, the report critiques the job done by City Planning on the rezoning’s draft environmental impact statement, or D.E.I.S., a document required before a rezoning can be made into law.

According to the Hunter report, by limiting the secondary study area (the area surrounding the rezoning’s perimeter), the D.E.I.S. drew “inaccurate conclusions” about development pressures on neighboring residents. The report suggested an increased secondary study area of a half-mile — a doubling of the current distance. The impacts on this larger, surrounding zone should be studied, the report says, since districts neighboring the rezoning would see an acceleration in the construction of luxury towers, as a result of “shifting the burden” of out-of-scale development away from the East Village and Lower East Side.

Tom Angotti, an author of the study and director for the Center for Community Planning and Development, said the problems identified in the D.E.I.S. occurred because city agencies “overlook serious breaches of the guidelines and fail to probe beyond the most superficial level.”

Among many issues, Hunter’s report raised questions about how the D.E.I.S. measures affordability in the plan’s inclusionary zoning bonuses. The report showed that “over 45% of CD3 [Community Board 3] households” were too poor to meet the affordable housing rent levels, leaving only 25 percent who earn enough by federal Department of Housing and Urban Development standards to pay these rents.

The report’s findings support criticism first leveled at the rezoning a year ago when opponents charged that the rezoning was a “racist” tool, created to divide the communities of the Lower East Side.

Josephine Lee, coordinator for the Coalition to Protect Chinatown and the Lower East Side, called the rezoning divisive, aimed at “pitting communities against one another.” She said a new, better plan should include the whole community board district, including parts of Chinatown and large swaths of public housing complexes that were left out.

Former C.B. 3 Chairperson David McWater, who steered the several-years-long discussion at C.B. 3, balks at that notion.

“The facts are that never happens,” he said. “Nobody rezones an entire 400-block community board.” Citing cost and logistics, McWater said the idea was unfeasible. “If I could wave a magic wand, sure, I would have included all of us.”

As it stands, the rezoning is aimed at limiting development in the East Village and Lower East Side through imposing building-height restrictions, preventing the sort of high-rise development that has been possible up to this point. With buildings limited to eight stories — or 12 stories along wider streets, and possibly as high as 14½ stories on Chrystie St., in return for making 20 percent of the units permanently affordable — McWater said the plan forged a careful compromise between economic development, preservation and housing.

Rob Hollander, a member of L.E.S. Residents for Responsible Development, thinks meeting the housing needs of low-income residents with inclusionary zoning bonuses is self-defeating.

“At the end of the day, 10 percent affordable housing isn’t worth 44 percent market rate,” he said, calculating the potential unit ratios of the whole plan.

Phillip Dipaolo, a member of the New York Community Council, went further, saying current inclusionary zoning bonuses are a divisive tactic by the city to pit affordable-housing organizers against residents nervous at the thought of more market-rate housing. Dipaolo added that with the new 421a tax-abatement rules, such bonuses might prove to be irrelevant anyway. Under the new rules, the city no longer allows the low-income portion of a so-called “80/20” project to be built separately from the luxury portion, removing more of the developers’ incentive to participate.

(However, in a key point Dipaolo failed to mention in his comparison, the inclusionary zoning units remain affordable in perpetuity, whereas the 421a affordable units only are guaranteed to remain so for the life of the mortgage.)

Dipaolo said the changes he’s seen in his native Williamsburg, Brooklyn, were a haunting parallel to what he saw happening on the Lower East Side. He described Williamsburg as a model for how the city attempts to gentrify: By excluding the low-income or immigrant neighborhoods adjacent to the rezoning, further pressure is indirectly put on these residents.

But McWater blasted the Williamsburg analogy, noting that while the rezoning there allowed drastic height increases along the East River waterfront, the East Village/Lower East Side proposes doing precisely the opposite — capping building heights to prevent tall towers.

McWater also answered Hollander’s charges that the rezoning was offering lowered building heights in exchange for higher floor-area ratios, or F.A.R., something Hollander said would result in a denser, higher-income character for the neighborhood. (F.A.R. is a formula governing how many floors can be built in relation to a building’s footprint: One F.A.R. equals one floor plate equal to the size of the property’s footprint.) Under the rezoning, residential F.A.R. will go from 3.44 to 4.0 on most streets, a relatively small increase.

“If I can choose between that and the luxury towers, I’ll take all the little buildings with more people in them,” McWater said in response to Hollander.

No matter the quibbles, McWater described the rezoning as a clear success when compared to the area’s current situation.

“In the current plan, it is unfettered development,” he stated of the existing zoning.

The former C.B. 3 chairperson said the new height caps would “change the entire nature of the real estate industry” for the Lower East Side and East Village and that scrapping the plan, leaving things as they stand, would be leaving the neighborhood with essentially no rules.

“When there’s no rules, the rich win,” McWater stated.

But none of these reassurances have stopped critics. Many agree with Dipaolo’s thinking that gentrification is the rezoning’s real, stealth goal.

Stanley Mark, senior staff attorney for the Asian American Legal Defense and Education Fund, said those who support doing a seperate rezoning for Chinatown should be disappointed with this current plan because it would make Chinatown’s own rezoning “separate and very unequal.”

AALDEF paid for Hunter College’s critique of the D.E.I.S. and filed claims based on the report’s findings with the City Planning Commission in late August, detailing how the environmental statement did not live up to the city’s own standards.

Mark described the situation as familiar territory for AALDEF. In 1986, in what he called a “landmark case” regarding Chinatown development, AALDEF, along with several other organizations, won a ruling in the New York State Court of Appeals that forced a developer to adhere to the City Environmental Quality Review Act, instead of just the state’s act. Under the ruling, the impact on residents living around the development — called Henry Street Tower — had to be taken into consideration as part of the project’s approval. This type of impact is exactly what the Hunter College report says the rezoning D.E.I.S. failed to assess sufficiently.

Attorney Mark seemed to think there was little likelihood the final environmental impact statement would address these concerns adequately, forcing AALDEF’s hand on a legal challenge. Suspicion of the motives of the city and C.B. 3 was a constant in Mark’s analysis of the rezoning. As for why other local organizations, such as Asian Americans for Equality, are supporting the rezoning, Mark charged that real estate interests were trumping their commitment to fight for their constituencies.

However, David Chen, executive director of the Chinese-American Planning Council, said this sort of suspicion is nothing new for Chinatown when dealing with changes. Chen described the rezoning’s opponents as “activists who react from the margins,” and said that while their claims of being left out were fair contentions, fixing their perception of being excluded was the “real problem.”

Chen argued that calling into question AAFE’s support of the affordable housing provisions was ultimately counterproductive.

“If you don’t compromise, nothing can be done and the market forces take over anyway,” he said.

He added that the important thing is to perceive these changes not as an “inevitable snowball” that will roll over communities, but rather a chance to carve new footholds for residents’ interests, “chipping away,” piece by piece, at the ability of unscrupulous developers to transform communities.

The C.P.C. executive director, however, acknowledged that conspiratorial attitudes were getting in the way of needed development and that this was a “cultural issue for Chinatown.”

While calling for more transparency among all organizations, Chen asserted that even if a nonprofit organization like AAFE does have “an agenda,” it is ultimately one for the public good.

“The constraints of a N.P.O. are all structured now,” he said. “Only when you work on it, do you realize there are no freebies.”

With Chinatown’s current, archaic zoning, Chen said the neighborhood’s residents had “legitimate fears,” but that combating proposals as a whole, rather than dealing with contradictions case by case, would prove ineffective. He called on those with expertise to be anchors for creating a neighborhood-specific rezoning for Chinatown, saying it “has to be folks like AAFE,” because of their long-standing experience in affordable housing.

Chen admitted that fostering future collaboration on Chinatown’s rezoning is going to be tough. Many of those opposing the East Village/Lower East Side rezoning are angry at AAFE’s support for it, some going so far as to accuse AAFE of “selling out” the community. But Chen dismissed the likelihood of conflicts of interest existing in such rezonings: Regulations employed by the city, he said, “are too complex and interlocking” for housing organizations or anyone to try and “flip” affordable housing into something else.

“I haven’t run into any sweetheart deals,” Chen said.