The Real Estate Board of New York to The City Planning Commission Concerning N 210270 ZRY – Elevate Transit – Zoning for Accessibility

Basha Gerhards

Senior Vice President of Planning

June 22, 2021

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REBNY fully supports the goal of increasing ADA access to our subway stations. People of all abilities should be able to access mass transit. Positively, the proposal converts a little used existing special permit in certain high-density districts to an authorization and will regularize the transit improvement floor area bonus to incentivize use of these tools. REBNY fully supports this aspect of the proposed text.

However, we are of the firm view that the reach of the ZFA text, as drafted with respect to the easement requirement, is far broader than this well documented public purpose necessitates, that the ZFA text allows the MTA to make impermissibly unconstrained decisions as to the location and type of easements it will require, and that the administrative process established by the text will lead to excessive, wasteful, and potentially debilitating delays in the development of otherwise meritorious projects.

The MTA discretion with respect to the easement requirement is overreaching. Key concepts such “adjacency to station” and “enlargement” are not clearly defined. The MTA is given carte blanche for its easement. There is no limit on the relative size of the easement, how much street frontage it can cover, or even whether the development site is in a location where an easement is economically or physically feasible. The MTA can require a perpetual easement regardless of whether it will have the budget to build out the space or improvements. The MTA may take as long as it likes to issue an easement volume agreement, while not even plans can be submitted to the Department of Buildings for the start of construction. No application may be submitted, and no work may proceed until the MTA obtains an agreement it finds satisfactory.

The easement portions of the text are likely to create an unintended consequence to the housing market, chilling the viability of those locations where the city would want housing development to occur. At first read of the text amendment, the concern was about delayed housing starts for multifamily affordable housing adjacent to transit – but upon further reflection is believed that there will be no to little housing starts, and that any that do move forward may lose access to the term sheets, abatement programs and other avenues of financing necessary for the production of affordable housing by the time the owner may actually file at the Department of Buildings to begin work. Additionally, without any timeframe for actual use of the easement and with the MTA’s ability to call back the space at a moment’s notice (in commercial leasing terms), the text all but guarantees an underutilized void adjacent to a transit station.

The easement portion of the text, if significantly revised, could address these concerns and still play a useful role in providing the MTA with the space it needs to make its system more accessible. The text must be revised to improve the transparency of what the MTA, and the City at large needs as it pertains the easement request. There needs to be a clear nexus to the impact of development next to these stations and the required easement volume. A more limited scope, clearly defined parameters on the locations and character of the easements being sought, and expedited processes that do not interfere with the as-of-right construction permitting process for establishing whether an easement is or is not required will make both its substantive requirements and its procedures fairer and more tolerable for the private parties that will have to bear the limitations of having their properties burdened by an easement.

Additionally, the text requires a real ministerial relief valve for those properties that are ill-suited physically or financially for the provision of the easement volume, and robust vesting language for projects already approved through ULURP or BSA actions, for any project currently filed for discretionary action, and for projects that have already received a building permit from the department of buildings.

The deep flaws and unintended consequences of the portions of the proposal relating to the easement mean they should be approved IF AND ONLY IF the serious overreaching and impermissibly broad aspects are curtailed and all-time frames are limited. Therefore, REBNY strongly urges the City Planning Commission to approve the portions of the text amendment that simplify and expand the subway improvement bonus but not to approve the easement portions of the text amendment unless the Department of City Planning and MTA present modifications that address the concerns discussed herein.

Thank you for listening to these points today.