Industry City and the future of member deference

After years of planning and months of delays, the Industry City rezoning finally made its way to the New York City Council on Tuesday, as the fight over the contentious proposal played out in its first and only scheduled council hearing. Despite the opposition of City Council Member Carlos Menchaca, who represents the Sunset Park neighborhood where Industry City is located, the rezoning application is moving forward. For over ten hours, the council’s Zoning and Franchises Subcommittee heard testimony from Sunset Park residents, lawmakers, business owners and others.

Traditionally, Menchaca’s decision to oppose the Industry City rezoning would have been the kiss of death because of member deference, a practice in which City Council members effectively had veto power over land use decisions in their own districts.

While the proposal’s future remains uncertain, the developers behind it decided to push ahead despite Menchaca’s opposition. If the City Council approves the rezoning, it may not mean the complete end of member deference, but the confluence of circumstances surrounding Industry City may have a lasting impact by opening up land use decisions to other people besides the local City Council member.

Although the full 51-person council votes on every rezoning application, the speaker and other members generally defer to the lawmaker who represents that district. That means approving a project the member supports and voting down a proposal they oppose. It never comes to that, though, as the council generally won’t hold a vote on a proposal that won’t pass, and the developer who submitted the application will simply pull it.

The Industry City rezoning would expand the Sunset Park campus by nearly 1.5 million square feet, permitting the construction of three new buildings and allowing for additional retail, office and education space, while also creating a new manufacturing hub. The rezoning has a long and complicated history dating back to 2015, although right now, one of its more unusual features is that the complex’s owner is moving ahead with the application despite not having buy-in from Menchaca.

A day before Menchaca announced in late July that he would vote “no” on the proposal, Politico New York reported that the Industry City owners were considering pulling the rezoning application before the City Planning Commission voted on it. Such a move would be expected when the developers can’t win over the local council member, and Menchaca had been threatening to vote against the proposal for months.

But the Industry City owners did not. Soon after Menchaca made his decision, City Council Members Ritchie Torres from the Bronx and Donovan Richards from Queens published an op-ed saying that the council should still approve the Industry City rezoning because it would bring 15,000 to 20,000 jobs to the city and an additional $100 million in tax revenue per year at a time when the city is facing a dire fiscal crisis. (Currently, Industry City employs 8,000 people. Industry City CEO Andrew Kimball has said the rezoning would create 7,000 new jobs on-site plus 8,000 jobs outside the campus.) Torres and Richards argued that while they may not live in Sunset Park, the proposal had citywide implications, which they had a right to weigh in on. “‘Member deference’ has its place, to be sure,” they wrote. “But it becomes dangerous when it morphs into veto power over the growth of the city’s economy.”

Kimball said at a press conference on Monday that it was in part the public support from members like Torres and Richards, as well as Council Member Robert Cornegy Jr., that convinced the developers to move ahead with the proposal after Menchaca said he would vote “no.” “We always considered this project of citywide importance,” Kimball said. “So yes, it did refortify us, and that’s why we’re committed to taking this to a vote.”

Industry City could be the right project – a major rezoning with citywide implications during an economic downturn – for the council’s decision to potentially have lasting impacts on land use decisions. “The vote on Industry City’s rezoning application could be an indication that City Council members are recognizing that their constituents have a stake in land use decisions in other districts,” NYU Furman Center Executive Director Matthew Murphy said in a statement. The loss of Amazon from Queens and the company’s promise of 25,000 jobs also casts a long shadow over Industry City. But unlike that deal, which did not involve any city-level land use decisions, council members have the power to approve Industry City and the jobs it could bring to a struggling city.

In 2018, City Council Speaker Corey Johnson indicated that he would take a more active role in land use decisions than his predecessor Melissa Mark-Viverto. He said he would defer to local members without giving them veto power, opening the door to overruling them. The Industry City rezoning would be a true test of those promises, although so far he has remained silent on the proposal. Johnson has largely been keeping a low profile after a bruising fight over cutting police funding in June. He has been taking some of the blame from progressives, whom he hopes to court in his 2021 bid for mayor, for not making deeper cuts. His decision here will likely follow him into next year and potentially define his candidacy.

To have the City Council overrule the local member on a land use decision is rare, though not unprecedented. In 2009 under then-City Council Speaker Christine Quinn, the council approved a mixed-use development project in Dumbo, Brooklyn, over the objections of then-Council Member David Yassky. Kenneth Fisher, a real estate lawyer and former New York City Council member, said the stakes were not high enough then for that decision to have any sort of lasting impact. “The city was doing so well for so long, (there) didn’t seem to be any consequences to turning something down,” he said. But the consequences now seem stark. “I think that this should carry over to residential and mixed-use rezonings of scale,” Fisher said of having the entire council weigh in rather than adhering to the opinion of the local member.

Menchaca, unsurprisingly, strongly disagreed and has been trying to convince his fellow members to vote with him against the Industry City rezoning. “The dangerous precedent we must undo is not the Council’s tradition of member deference but our deference to developers,” Menchaca wrote in an op-ed last month with Council Member Jimmy Van Bramer. They argued that the Uniform Land Use Review Procedure – the process that rezonings must go through to be approved – is flawed, but “member deference creates accountability at the ballot box, where it belongs.”

Elizabeth Yeampierre, the executive director of the Brooklyn community group Uprose that has been fighting the rezoning, agreed. She found the input of members from outside the district and borough on the Industry City project incredibly troubling. “I think it’s stunning that elected officials from other communities undermined the leadership of a council member doing exactly what his community has been asking for,” Yeampierre said. “It isn’t as if Menchaca (made) this decision easily.” She added, though, that member deference was only preferable when the member actually listened to what the community wanted. While some parts of Sunset Park have supported the rezoning, the local community board partially rejected the application. “You’ve got the council member standing with the community, and people saying, ‘Hey, you know what, no, we know what’s better for your community than your community knows,’” Yeampierre said, questioning whether this would have happened if Sunset Park were not a community of color.

Yeampierre agreed that both the city and Sunset Park desperately need the jobs, but argued that the Industry City rezoning is not the only way to get them, despite the insistence of lawmakers from outside the district. She pointed to the community plan that her group helped develop last year as an alternative to Industry City to bring clean energy jobs to Sunset Park, which would provide thousands of high-wage manufacturing positions to residents without college degrees, while also helping address regional economic and climate concerns.

A member’s land use decision may not always align with the majority of the community, or even the will of the local community board. In those cases member deference benefits developers, which is why Menchaca argued in his op-ed that they favored it – although they do fight against it when the member opposes them. But so do community members when they feel that the member’s decision does not represent their interests, which was the case with the decision to build or upgrade four borough-based jails. All four council members of the affected districts supported the jails, but community members and anti-jail advocates urged the council not to adhere to member deference.

Progressives like Tiffany Cabán, who is running for a City Council seat in Astoria, Queens, next year, may upend member deference from the opposite direction by rejecting a rezoning that has the support of the local member. “I am going to consistently vote on the side of working people and low-income families,” Cabán said when she launched her campaign. Her campaign did not return a request for comment, but Fisher said that while it’s fairly unusual to have the City Council reject a land use decision that has the local member’s support, he thinks Industry City could open the door for progressives to launch campaigns to reject major private developments if community members oppose it.

A final decision by the council still looms, with a vote likely to be scheduled by early October in adherence to the 50-day window the body has to review and decide on the rezoning application. Although a lot can change in a month, Menchaca has made it clear that there is not enough time for conditions to change enough for him to support the rezoning. So if it goes to a full council vote, it’s all but guaranteed to do so without his support, putting to the test the tradition of member deference during one of the city’s most tumultuous years.