Zoning legislation could face legal challenge

'What the legal options are is something we’re going to have to sit down and explore. i don’t think we’re going to go away quietly. There’s too much to lose.'”

Activist Martin Zelnik

Local activists say they may sue the city now that the council has passed the mayor’s controversial zoning plans, which raise height limits for buildings in some areas and require affordable housing to be part of new developments in others. 

Groups including the grassroots Riverdale Community Coalition were particularly concerned about the legislation’s creation of a category called continuing care retirement communities, or CCRCs, which would let senior residences build large facilities in R1- and R2-zoned neighborhoods. The final version of the Zoning for Quality and Affordability (ZQA) text included a stricter review process for CCRCs than initially proposed, but activists said it could still enable the Hebrew Home at Riverdale to build a mini-city of high-rise apartments along the Hudson River.

“The big thing to me is they plopped in this whole thing which is clearly meant for one user, the Hebrew Home, in the middle of the ZQA under the guise of affordable housing and it is such contrived wording just to suit the Hebrew Home,” said architect and Riverdale Community Coalition member Martin Zelnik.

Supporters say ZQA and the Mandatory Inclusionary Housing (MIH) proposal, which the City Council approved on Tuesday, will pave the way for the mayor’s goal of creating 80,000 affordable housing units over the next decade.

Mr. Zelnik said CCRCs fly in the face of Community Board (CB) 8’s efforts more than a decade ago to have the area around the Hebrew Home zoned for single-family homes. That was part of the comprehensive zoning vision known as the 197-a plan, which covers CB 8’s boundaries. Mr. Zelnik said conflict between that plan and ZQA could provide grounds for a legal challenge to the latter.

“What the legal options are is something we’re going to have to sit down and explore,” he said, adding that the Riverdale Community Coalition has held discussions with land use lawyer Al Butzel. “I don’t think we’re going to go away quietly. There’s too much to lose.”

He said ZQA could pave the way for new senior apartment buildings gradually to replace the single-family homes in neighborhoods near the Hudson River that are currently zoned R1.

Damian McShane, a leader for the Broadway Community Alliance, said the zoning plans threaten the character of Riverdale east of the Major Deegan Expressway, too. Last year, the alliance joined grassroots groups around the city in calling on elected officials to fight the zoning proposals. 

Last week, the City Council struck a deal with the mayor including some modifications to his original versions of MIH and ZQA. The first drafts allowed affordable housing buildings in R5- and R6-zoned areas — such as north Broadway — among others, to be about a story taller than previously allowed. 

While last week’s deal reportedly included smaller height increases than originally proposed in some areas, activists believed that the northwest Bronx remained subjected to the original plans.

Another part of ZQA eased requirements for developers to include parking spots for new affordable units for seniors, depending on how far they would be from public transportation. Areas with the eased restrictions were referred to as “transit zones.” While the City Council eliminated some of those zones in the recent deal, nearly all of the northwest Bronx’s zones remained intact.

“I think it’s been a flawed plan from day one and from what I’ve read, the deal that’s been struck doesn’t change that in any way,” said Mr. McShane. “My complaint has always been that the plan does not address the inequality in the distribution of special-needs and senior affordable housing, and this doesn’t change that, at least not in our community.”

“Chances are, you’re going to continue to see more affordable housing or senior residential facilities along Broadway,” he added.

Northwest Bronx Councilman Andrew Cohen voted against the ZQA portion of Tuesday’s legislation but in favor of the MIH part, saying the latter stands to affect this district less. A neighborhood must be “up-zoned” before it is subject to the new MIH law, which requires about a quarter of the units in new residential buildings to be priced at affordable levels. Under the City Council’s deal, individual members determine those levels on a case-by-case basis.

‘Terribly troubled’

Mr. McShane and CB 8’s Charles Moerdler, another opponent of the zoning measures, did not discuss any possible legal action. But MIH’s measure mandating how developers should build in some zones could be another target for a lawsuit.

“I cannot tell you my reaction to the specific changes because I haven’t seen those, but I can tell you I am terribly troubled by the fact the administration seems to have totally disregarded the views of the community boards, and I think that’s going to come back to haunt them next year,” Mr. Moerdler said last week.

Most of the city’s community boards voted against the zoning measures last year. 

Bronx Borough President Ruben Diaz Jr., who came out strongly against the zoning proposals last year, welcomed some of the modifications the City Council made last week, saying affordable housing in MIH areas will be more accessible. But he said in a Tuesday statement that the “upper end” of pricing for affordable units should have been changed to accommodate young professionals.

“The process that has led us to this point has been flawed. These changes are substantial, and the people of this city — who have been incredibly critical, if not outright hostile to MIH and ZQA to this point — should have been given another chance to voice their opinions prior to any vote,” concluded Mr. Diaz, who is viewed as a likely contender in the 2017 mayoral race.

News reports have noted that the mayor’s plan hinges on the state’s 421-a program, gave developers subsidies in exchange for building affordable units until it expired last year. However, the program has not emerged in ongoing state budget talks (see Political arena), leaving a major question as to how new units in MIH areas will be built.

The Department of City Planning did not immediately answer an inquiry about possible lawsuits from activists. But Councilman Ydanis Rodriguez, whose district includes part of Marble Hill, sounded a triumphant note on Tuesday, calling the legislation “the most comprehensive affordable housing plan in the country.”