New York NIMBYs turn against democracy | Local lawmakers want to preserve their power to block housing. Does what voters think matter at all?

> # Member deference

> In New York City, voters will soon go to the polls to consider a series of ballot questions aimed at relieving their dire housing shortage—despite their City Council’s best efforts to deny them a voice. Last week, news broke that the New York City Council had taken the extraordinary step of asking the city’s bipartisan Board of Elections to hold back the three measures from the November ballot, ostensibly because they might confuse voters. The real issue lies in what the measures have in common: They would all work around the city council, the place where home-building often goes to die.

> Today, amid growing public pressure, the board allowed the ballot measures to go forward. But NIMBY forces will not give up their power lightly.

> The initiatives, proposed by a special commission convened by Mayor Eric Adams last year to revise the city’s charter, aim to simplify the permitting process and put more homes in the city’s development pipeline. A key obstacle is a discretionary power known as member deference, which allows legislators to kill housing proposals in their district.

> Member deference has no basis in law. It is simply a tradition among legislators who pledge to table any development proposal unless it has the backing of the council member whose district the project is in. This custom is not unique to New York; versions exist in Chicago, Los Angeles, and Philadelphia as well, sometimes under the name “aldermanic privilege” or “councilmanic prerogative.” But in every city where it is practiced, it yields the same result: a single point of failure in the development-approval pipeline that can negate broad public support for sorely needed new homes.

> # The ballot measures

> Given the choice, many New Yorkers might reasonably prefer to take away council members’ veto power. The city council’s unprecedented move to block the ballot measures brought a new question to the fore of the housing debate: Does it matter at all what voters think?

> One of the measures would “fast track” affordable-housing projects in the parts of the city that currently build the fewest affordable homes. Another would create an expedited review process for certain “modest” projects and zoning changes. And the third would introduce a new appeals board with the power to push through affordable-housing proposals otherwise at risk of being watered down or blocked entirely. The council claims that voters might not understand the amount of power they are taking away from their legislature. Given the short span of time before the election, however, any delay by the board of elections likely would have prevented the referendum from happening entirely. As one of its members told The New York Times, there was no precedent for the board moving to block an already-certified ballot question from being put to a public vote. It is not even clear that the board has the authority to do so. Litigation would have almost surely ensued.

> # The anti-growth machine

> The [1970s] reaction against high-rises, tract housing, and downtown highways became part of broader movement to revive democratic practice and reestablish local autonomy in the face of a pervasive feeling of detachment and powerlessness. Planners began to speak of their work not as dispassionate decision making through the application of specialized expertise but as a “process” of interpreting neighborhood priorities and needs. Terms such as community control and citizen participation began to appear in planning students’ theses, in government documents, and on bulletin boards in school cafeterias and church basements that hosted public meetings. Existing residents received more say in decisions over land use and zoning that had previously been the domain of planning departments, regional bodies, and Moses-style master builders.

> This era is often described as the moment Americans began to turn against “big government.” But the elaborate system of development restrictions that emerged in the ’60s and ’70s was, if anything, an enormous expansion of the public’s ability to control private property. What changed was who held the power to make those decisions: Rather than being concentrated in the hands of a Moses, a mayor, or the city-planning commission, it was now spread across a constellation of public and private groups. The passage of a major historic-preservation law in 1965 gave New York’s Landmarks Preservation Commission the power to block redevelopment of any lot in a historic district, a designation that now includes more than 30,000 properties citywide. In 1975, voters endowed New York’s five dozen community boards with influence over any construction that required changes to the zoning code. (Although the appointed boards, which were intended to function as neighborhood mini-governments, could not block projects on their own, subsequent research found that their decisions were usually upheld.) Homeowner associations, neighborhood clubs, and nonprofits also came to wield considerable informal influence. For many years, the final arbiter of land-use decisions was the city’s Board of Estimate—a powerful entity that included the mayor, the five borough presidents, the city comptroller, and the head of the city council. The end of that system came in 1989, when the U.S. Supreme Court ruled that the board was an unconstitutional form of government. In a referendum that same year, voters transferred the board’s oversight powers to the city council, giving New York’s land-use politics its modern form.

> # Anti-democratic paralysis

> On paper, the result of this long sweep of history might appear to be substantially more democratic supervision of development. Yet the post-Moses structure of decision making started exhibiting its own illiberal tendencies nearly from the moment it was created. Just one in four voters turned out for the 1975 referendum, held in an odd-numbered year without even a mayoral election. Although supporters of the community boards likened them to New England’s beloved town meetings, a survey in the early ’80s found that only 36 percent of New Yorkers had heard of the unelected boards at all, only 6 percent could name which one was theirs, and just 3 percent could accurately describe what they did. An official at the city’s Department of Housing Preservation & Development noticed that the members of one Queens community board habitually asked residents testifying at its meetings how long they had lived in the neighborhood, especially if they appeared to be of a different race or social standing. As a result, newcomers were implicitly discouraged from attending any meetings at all.

> Turnout improved for the 1989 referendum, helped by a close mayoral election between David Dinkins and Rudy Giuliani atop the ballot that year and attention surrounding the dissolution of the Board of Estimate. But voters’ decision to transfer ultimate say over development projects to the city council, thus subjecting them to member deference, ironically made the process no more democratic—and arguably less so. Mayor Ed Koch presciently warned at the time that the reform gave “legislative legitimacy to the NIMBY reaction” and risked “land use paralysis.”

> Between the community boards, the city council, outside organizations, and a host of other bureaucracies and interest groups, a widely sought-after government privilege—control of land use—is now meted out in exchange for public alliances and private favors. New York’s growth machine has been replaced by an anti-growth machine—one that thrives on what the charter commission has called “chronic voter disengagement.” Turnout in a general election for municipal offices in New York City last exceeded 40 percent in 2001 and has not surpassed 30 percent since 2005. In one competitive city-council race two years ago, only about one in eight registered voters cast a ballot. As the Yale law professor David Schleicher put it recently, “The housing crisis is downstream from the failures of New York City’s democracy.”

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