Case-By-Case Review for Other Enhanced Business Areas
The proposed project involves only one building, but central to the application for the planned Williamsburg office development project (which, incidentally, looks to have a pretty cool looking public space component)(1) currently making its way through the New York City Uniform Land Use Review Procedure (“ULURP”) process(2) is a city-wide amendment to the New York City zoning code allowing for the creation of “Enhanced Business Areas” (“EBAs”).(3) The EBA designation would allow qualifying projects to apply for special use permits for changes in use as well as modifications to the height, FAR, public plaza, bulk, parking and loading requirements.(4) Much has been made of the implications these EBAs may have throughout the city if and when mapped over existing Industrial Business Zones, including by the Pratt Center for Community Development (5) and the Association for Neighborhood and Housing Development (6). Overlooked thus far, however, is the way the environmental review process required by the New York City Environmental Quality Review Act (“CEQR”) will treat these EBAs.
The environmental review process under both New York State and New York City law requires state and city agencies to consider the environmental impacts of their discretionary actions. In the case of the 25 Kent Avenue project, the New York City Planning Commission (“CPC”) and the New York City Department of City Planning (“DCP”) were required to consider the environmental impacts associated with (a) the zoning text amendment that would create the EBA tool generally and the designate the 14-block area surrounding 25 Kent Avenue as an EBA and (b) the two special permits sought by the 25 Kent Avenue project which would allow for modifications in use, FAR, allowable height, public plaza requirements and off-street parking and loading berth requirements.
In connection with the 25 Kent Avenue environmental review, the CPC and DPC quickly issued a “negative declaration” determining that the actions to be taken by the agencies -- the zoning text amendment and the issuance of the special permits -- “will have no significant effect on the quality of the environment.”(7) In so doing, the agencies considered the many various factors listed in the city’s Environmental Assessment Form; however, they did not determine that the actions should be subject to the intensive environmental impact statement (“EIS”) process, which involves a more rigorous review of the categories of impacts specified under CEQR and more public participation. While the CEQR review associated with 25 Kent Avenue is quite substantial, a negative declaration means that the city agencies required to conduct environmental review for the project have determined that the project will not have any significant adverse environmental impacts on the environment, while going through the full EIS process would allow the agencies to determine that the project may lead to significant adverse environmental impacts so long as those impacts are mitigated to the extent practicable.
The applicant and agencies did take a deep dive into certain of the analysis categories as required by CEQR following their completion of the EAS form, including land use, zoning and public policy, socioeconomic conditions, urban design and visual resources, water and sewer infrastructure, air quality and others.(8) However, it is clear that the review looked at the area-specific factors and not at the implications the amendment to the ordinance may have on the city as a whole. The EAS notes explicitly that “any application seeking to establish a new Enhanced Business District would be a discretionary action subject to its own environmental review.”(9) Moreover, even changes within the proposed 14-block EBA in Williamsburg would be subject to further CEQR review: “at this time there are no specific proposals to redevelop other properties or lots within the proposed Enhanced Business Area. Any future modifications to the use restrictions and/or minimum parking requirements facilitated by the proposed Zoning Text Amendment would require a special permit (a discretionary action), which would also be subject to further CEQR review.”(10)
There are reasons why it may have been determined that the EBA surrounding 25 Kent Avenue is not expected to have a significant adverse impact on the environment; the area is zoned industrial, so a base level of environmental impact can be assumed even without the EBA designation. And it may be the case that it is at this point too speculative to assess whether and what other areas around the city might also be mapped as EBAs. Furthermore, based on the 25 Kent Avenue EAS, we can expect specific areas being considered for EBA designation to go through their own CEQR processes. But it is worth noting that the wording to the EBA zoning text amendment has been put forth for approval based on a site specific environmental review but will dictate the parameters for EBAs all over the five boroughs.
Of course, it’s important to note that the environmental review process is not the only review process a land use decision must endure. The 25 Kent Avenue project is making its way through the NYC ULURP process, and Brooklyn Community Board 1 has issued its nonbinding disapproval of the full 14-block EBA in Williamsburg, recommending instead that the designation be limited to the block of the 25 Kent Avenue project itself.(11) The next hearing in the ULURP process was held by Brooklyn Borough President Eric Adams' office on March 21, 2016.(12)
(1) The proposed zoning changes will allow buildings in Enhanced Business Zones to apply for permits allowing for increased building height in exchange for providing public plaza space. (Proposed Zoning Text provided on page 199 of the 25 Kent Avenue EAS) The proposed building at 25 Kent is to have two 7,200 square foot public plazas located on opposite corners of the site and a covered, publicly-accessible pedestrian walkway midway through the building. (25 Kent Avenue EAS p. A-16).
(2) See http://www.crainsnewyork.com/article/20160104/REAL_ESTATE/160109989/developer-of-williamsburg-project-seeks-change-that-could-pave-the.
(3) “The proposed Zoning Text Amendment has been drafted so that other Enhanced Business Areas may be mapped throughout the City pursuant to future zoning text amendments.” 25 Kent Avenue Environmental Assessment Statement, December 31, 2015, available at: https://www1.nyc.gov/html/dcp/pdf/env_review/eas/16dcp065k_eas.pdf, p. A-10.
(4) See 25 Kent Avenue EAS (with proposed zoning text amendment appended).
(5) Creating an Innovative Mix: What We Can Learn From San Francisco, Report, Pratt Center for Community Development, February 11, 2016, available at http://prattcenter.net/research/creating-innovative-mix-what-we-can-learn-san-francisco.
(6) Enhanced Business Areas and 25 Kent, White Paper, Armando Chapelliquen, Association for Neighborhood and Housing Development, March 2016, available at: http://www.anhd.org/wp-content/uploads/2016/03/ANHD-2016-Enhanced-Biz-25-Kent.pdf.
(7) 25 Kent Avenue Negative Declaration, January 4, 2016, available at: https://www1.nyc.gov/html/dcp/pdf/env_review/eas/16dcp065k_negative_declaration.pdf.
(8) See generally 25 Kent Avenue EAS.
(9) 25 Kent Avenue EAS, p. A-16.
(10) 25 Kent Avenue EAS, p. A-20.
(11) See http://therealdeal.com/2016/03/09/community-board-rejects-bid-for-special-zoning-to-allow-25-kent-project/.
(12) See http://brooklyn-usa.org/event/uniform-land-use-review-procedure-public-hearing-11/ and http://www.brooklyneagle.com/articles/2016/3/22/proposed-zoning-change-related-williamsburgs-25-kent-ave-office-project.