Brooklyn NIMBYs' Trumpian Tactics: How Insistence on In-Person Hearings Privileges Older, Wealthier Homeowners

This Wednesday, the New York state court will be confronted with an argument of breathtaking audacity, one that, if taken seriously, would bring all of NYC's government grinding to a halt during a pandemic. FROGG (“Friends & Residents of Greater Gowanus”) defend a TRO granted against the certification of the Gowanus rezoning proposal on the ground that NYC’s charter and DCP's administrative rules require an in-person rather than virtual Zoom hearing when getting public comment on a proposed zoning change. As a remedy, these opponents call for a halt to all such land-use hearings until some indefinite date when COVID is brought under control and social distancing is no longer necessary.

Following on the heels of Trump’s outlandish argument against mail-in ballots, FROGG’s argument against virtual hearings should sound eerily familiar and equally outlandish. In both cases, governments came up with an alternative to traditional public participation to cope with a pandemic. In both cases, one side of a political dispute denounced the new process and called for an indefinite suspension of ordinary government until the old process could be followed. In both cases, necessity was the mother of useful invention, because the new processes (mail-in ballots, virtual hearings) actually provided for a more fair, more equal form of public participation than the in-person methods they replaced. In-person voting imposes racially disparate wait times on black voters and disadvantages anyone who relies on public transportation or whose work schedules or disability make it difficult to travel to a specific and often distant polling station. As explained after the jump, in-person zoning hearings likewise disadvantages anyone who, because of family, work, or distance, cannot easily travel to a hearing room or afford a baby-sitter. Basically, FROGG champions a process that, copious research has shown, gives older, wealthier homeowners an edge over the poorer consumers of rental housing who live farther away from each other and the hearing room.

What does FROGG’s brief have to say about these discriminatory effects? Their brief insists that their members are somehow entitled to the privileged access that in-person hearings confer on incumbent residents: “the Coalition’s members are residents of the Gowanus area of Brooklyn and reside in close proximity to the Project Area,” their brief asserts, but “[v]irtual public hearings would hamper the Coalition’s ability to present in-person advocacy due to…the inability to caucus and make a showing of solidarity in support of a certain position.” That “showing of solidarity” is how incumbent residents in a community district with a median household income ($155k) double that of the City gain a procedural advantage over prospective new residents. Those newcomers who would occupy the 950 units of affordable housing that the rezoning would provide at Gowanus Green plus thousands more provided through Mandatory Inclusionary Housing are simply too physically scattered, poor, or distant from CB6 to show up in-person.

After the jump, I will discuss the relevant text and doctrine to show why I believe that the reading of legal text offered by FROGG is not persuasive. Coloring these legal details, however, is the chutzpah of NIMBY neighbors who want to transform their practical but unjust home-field advantage into some sort of law-given right that should shut down government even during a pandemic.

1. The Home-Field Advantage of Older, Wealthier Homeowners in Traditional In-Person Zoning Hearings and the Bias Against New Housing

Consider, first, the well-documented advantage enjoyed by the wealthy and well-housed over prospective renters in in-person hearings. As Katherine Einstein, David Glick, and Maxwell Palmer have shown in Neighborhood Defenders, their path-breaking book about zoning hearings in Boston’s suburbs, older and wealthier homeowners invariably hog the speaking slots at in-person hearings, crowding out poorer renters even in suburbs where renters outnumber the owners. To no one’s surprise, the retirees and wealthier homeowners who show up at those hearings almost universally oppose new affordable housing. The newcomers who would occupy those proposed units, scattered across the jurisdiction, often never show up. In this way, the hearing process creates a headwind against new housing, exacerbating an affordability crisis recognized by everyone except the NIMBY owners who profit from it.

Those among FROGG's members who own real estate in CB 6 are the gentry: As economist Matt Rognlie has shown, rapidly appreciating real estate wealth held by people like Brownstoners and condo dwellers in Brooklyn's relatively wealthy CB 6 are responsible for a giant share of the wealth inequality in the United States. Like any squire who benefits from landed wealth, this privileged real estate aristocracy "gentrifies" their neighborhood by excluding competing housing that could undercut their swelling real estate portfolio. Research consistently backs up the conclusion that building new housing reduces the rate at which housing prices appreciates 2019 paper by Xiaodi Li, for instance, found that, increasing housing stock by 10% decreased rents by 1% within a 500ft radius. Asquith, Mast, & Read found similar effects from the construction of new housing: Their 2019 paper found that new market-rate buildings decrease nearby rents from 5% to 7%. It should be no surprise, therefore, that incumbent owners who attend CB meetings oppose new housing: By doing so, they are simply protecting the value of their biggest investment.

Although Einstein et al have not yet studied NYC community board meetings, more anecdotal evidence suggests that CBs tend to be dominated by older, whiter, richer people who own equity in real estate. Such dominance should hardly be a surprise: As William Fischel famously argued almost two decades ago, "homevoters" -- people who live in owner-occupied real estate -- have especially intense incentives to fight to defend their home values against neighborhood change, because those values cannot easily be otherwise insured. As Professor Fischel has acknowledged, homevoters' powerful incentives to dominate zoning proceedings can exacerbate a housing crisis, because homevoters have a tendency to go BANANAs: Build Absolutely Nothing Anywhere Near Anyone. Predictably, a community-based planning proposal calls for a neighborhood park at the Gowanus site. One wonders how many low-income people seeking units at Gowanus Green are represented in the "community" that created this "community-based" plan.

In my course in land-use regulation, I require my students to attend and write a summary description of a land-use hearing, and most naturally choose some sort of NYC hearing to attend. This Fall, attendance was much easier than usual precisely because it was virtual. In past semesters, my land-use students have noted the sparse turnout at these venues dominated by people like retirees who are whiter than the people who live in the CB and have the leisure to spend time hanging out in the hearing room to voice their complains about newcomers that new housing will bring. The consumers of the new housing that these attendees almost uniformly oppose almost never show up. The notion that the virtual hearings are somehow less accessible to the public than these in-person events, therefore, strikes anyone who has spent any time at such hearings as patently unpersuasive. Sure, some people might be flustered by Zoom or conceivably not have a cell phone with which to log in. But how many more people who benefit from new housing simply cannot afford to trek across the City in unreliable subways or expensive Lyfts to attend in person? Requiring a meeting in a physical location, therefore, insures that those people physically closest to the hearing location with the most leisure will have the loudest voice. Predictably, in a relatively wealthy area like CB 6, those people are equity owners who are most vociferously opposed to new housing.

2. Does the NYC Charter or Rules Prohibit Virtual Hearings?

Of course, if the letter of the law prohibits virtual hearings, then FROGG should win despite in-person hearings' bias towards incumbent owners and renters. The textual case for such a prohibition, however, is pretty thin. Section §197-c(e)(1) of the NYC charter provides that "each affected community board shall, not later than sixty days after receipt of [a certified application] (a) notify the public of the application in a manner specified by the [City Planning Commission]…and (b)…conduct a public hearing." Section 2-03(d) of the Planning Commission's rules further provide that (emphasis added)

A community board public hearing shall be held at a convenient place of public assembly chosen by the board and located within its community district. If in the community board’s judgment there is no suitable and convenient place within the community district, the hearing shall be held at a centrally located place of public assembly within the borough.

There is no plausible linguistic argument against a virtual hearing's being a "public hearing." No one doubts, for instance, that the virtual oral arguments being conducted by the U.S. Supreme Court since June count as "hearings" within the ordinary meaning of the English word, given that the participants' arguments can be "heard." At the U.S. Supreme Court, such hearings are actually more "public" than they have ever been before precisely because they are available to the public via livestream, enabling people to attend who never could find a physical seat in 1 First Street in D.C.

The legal argument against virtual hearings, therefore, must rest on the Planning Commission's rule requiring that community board hearings be held at "a convenient place of public assembly" or a "centrally located place of public assembly."

Is a Zoom uniform resource locator -- the "URL" -- a "place" where the "public" can "assemble"? Why not? A URL is colloquially known as an "web address," and it functions precisely in the same way as a location ("locator") where people meet. If everyone who attends the virtual hearing can gain access to this "address" while they are located in the community district or borough, then presumably, this "place" is also located in in these same areas: Where else, after all, would it be? Such a "place" is actually more "convenient" or "centrally located" than any physical place, because this "place" is easier for participants to attend: Every potential participant within the community district is, in fact, equidistant from the URL, making it obviously "central" in the literal meaning of the word.

To the extent that there is any ambiguity in the scope of the term "place," "centrally located," or "convenient," however, there are three reasons to resolve such ambiguity in favor of the City and against FROGG.

First, New York courts "do not by implication read into a clause of a rule or statute a limitation for which [they] find no sound reason and which would render the clause futile." Lederer v Wise Shoe Co. at 465. There is no "sound reason" to limit these terms to exclude a proceeding that makes it easier by far for more people to attend: The purpose of a "convenient" or "central[]" location is obviously to facilitate attendance. Moreover, FROGG's reading would also render futile the the requirement that a hearing "shall be held": In times of pandemic, it is virtual hearings or nothing.

Second, the Planning Commission is owed some substantial deference in construing the rule that the Commission itself wrote. As the N.Y. Court of Appeals noted in Gaines v. New York State Div. of Housing and Community Renewal, "[w]e have repeatedly held that the interpretation given to a regulation by the agency which promulgated it and is responsible for its administration is entitled to deference if that interpretation is not irrational or unreasonable." The question, therefore, is not whether or not the City chose the interpretation of the rule that the courts think is best: The question is instead whether the court believes that the city's interpretation is irrational. That question answers itself: Even if one believes that a "convenient" or "centrally located" place of public assembly could be reasonably construed to require a physical rather than virtual location, the broader reading is hardly unreasonable, for the reasons given above.

Third, FROG's reasoning, if taken seriously and followed consistently, would shut down the City's government for the duration of the pandemic crisis. Every city agency and the City Council itself has been holding virtual hearings since April as a way to discharge their obligation to facilitate public participation. Many of these agencies are legally required to hold "public hearings" to which due process norms apply because those hearings are, unlike community board proceedings, adjudicative rather than legislative. The rights of the parties to participate in those adjudicative hearings have, therefore, a higher constitutional status than the rights of the general public to offer unsworn opinions in their minute at the mic before a merely advisory board. If a virtual hearing is sufficient participation for a party seeking a variance from, say, the Board of Standards & Appeals, then how can it not be sufficient for a neighbor who wants to sound off about how a nearby lot is being used?

3. Bad-Faith Stalling Tactics: How NIMBY Neighbors Win the War Despite Losing Litigation Battles

As a legal argument, therefore, FROGG's position on virtual hearings is pretty weak: It runs afoul of the deference due to agencies, the ordinary meaning of "public hearing," and the common sense necessary for the City to function in a crisis.

So how did FROGG win a TRO from Justice Donald Kurtz last week? That question cannot be answered by reading the court's judicial reasoning, because Justice Kurtz provided none: His three-page opinion simply recited FROGG's arguments and then granted the TRO.

One suspects, however, that Justice Kurtz's willingness to grant a "temporary" restraining order sprung from a judicial willingness to buy an absurdly false legal fiction routinely peddled by lawyers in zoning litigation -- the fiction that delay is harmless and does not ultimately destroy the proposals thus stalled. FROGG's brief predictably offers this fantasy of cost-free delay, stating that "[the rezoning's proponents] will be able to withstand additional delay to avoid irreparable harm to the Coalition." It takes chutzpah to assert with such insouciance a statement that every land-use lawyer knows to be, at best, a legal fiction. The legal reality is that stalling zoning change with tactics like meritless TROs is a standard method for defeating such change altogether.

The Gowanus rezoning has been drowning in process for at least four years. There have been multiple public hearings on rezoning since 2016. Such stalling eventually wears down proponents of zoning change, by eroding political support and drying up financing. Jonathan Rose Companies has committed to 950 affordable units at Gowanus Green, 475 of which are affordable by people making 50% or less of the median area income. If they walk, then the City will have to put up a new RFP, and the odds that they will get an equally good deal are, at best, uncertain. The cash-strapped City's capital budget is likewise a moving target: Stall long enough, and the public financing for the rezoning plan may disappear. Political backing for rezoning changes also does not last forever: Politicians who back such change eventually move on to new jobs. This Gowanus rezoning is Council member Brad Lander's project, so, if FROGG can simply stall until Lander is term-limited off the Council (after 2020), then the Gowanus rezoning will lose its champion.

FROGG knows all of this. Judges, however, are prone to accept disingenuous arguments about the harmlessness of yet more delay, because such fictions absolve them from the need to justify the substantive costs of the red tape that they impose through casual grants of TROs. New York City faces a housing crisis brought by a combination of high demand and low supply. That low supply, in turn, is the product of excessive zoning restrictions. Judges who go along with NIMBY associations' soothing assurances that delay is somehow harmless practically defeat the City's efforts to reduce those restrictions. By framing the objections to those efforts as "merely" a matter of procedural delay, however, such judges fail to take responsibility for the serious harms that their under-reasoned rulings produce.

Ironically, FROGG's demand for more procedure actually short-circuits the hearing process that FROGG claims to defend. After all, if the TRO is overturned and the Gowanus proposal is certified, then the only consequence is that virtual hearings will be held. FROGG remains free to challenge the adequacy of those hearings in an Article 78 administrative appeal, and, if courts deem those hearings to be inadequate, then those courts can always vacate and remand the case for the allegedly essential in-person hearings demanded by FROGG. By allowing the virtual process to move forward, the courts would also obtain evidence about the quality of participation and the numbers of people who can participate in virtual as opposed to in-person hearings -- surely, a piece of information relevant to FROGG's theory that the virtual process somehow excludes people from an adequate opportunity to be heard. By contrast, FROGG's TRO could end up causing the City to abandon the rezoning altogether, eliminating any hearing whatsoever at which attendees, virtual or in-person, could voice their support.

For land-use junkies like myself who follow closely New York state courts' adjudications of zoning disputes, this TRO is an especially dispiriting reminder of how judges carelessly accept sloppy arguments from NIMBY neighbors that create enough delay to undermine rezonings even though such arguments ultimately are losers on appeal. New housing is pecked to death by a thousand ducks of meritless procedural stalling tactics. The result that housing supply is strangled and housing costs soar.

So let's hope that, after Wednesday's hearing, the "T" in "TRO" really means what it says and the order is promptly lifted.