NYCBOE does the right thing

Some excellent news today out of New York City:

New Yorkers will get a chance to vote on three housing-related ballot measures that would shift more power over new development to the mayor despite a late push by the City Council to keep the initiatives off the November ballot.

The New York City Board of Elections unanimously voted on Tuesday to put the measures on the ballot, rejecting a late-August plea from the City Council that the ballot language was not clear enough to put before voters because it did not explain that a “yes” vote would diminish the Council’s influence.

Individual council members have an unofficial veto over many new development projects. They have long used the threat of that power, known as “member deference,” to negotiate with developers for better amenities, higher compensation for workers or lower rents…..

One measure would create a “fast track” by giving the City Planning Commission, instead of the City Council, the authority to approve or reject affordable housing projects in the 12 community districts that have allowed the least housing to be built. A majority of the planning commission’s members are appointed by the mayor.

Another measure would make it easier to build “modest” developments, such as those that are up to 30 percent bigger than current rules allow. These changes would also need approval from the commission, and not the Council.

A third measure would create an appeals board that could overrule a decision by the Council to reject or modify an affordable housing development. The board would need agreement from two of its three members: the mayor, the Council speaker and the president of the borough where the development was proposed.

I don’t know how optimistic we should be about these measures passing, but people closer to NYC politics than I seem pretty optimistic. Over the weekend housing politics people I knew were pretty despondent about today’s vote, fearing the City Council member’s transparently pretextual and legally unserious challenge of these ballot measures was likely to be successful. The pro-housing movement mobilized hard, orchestrating an all-out blitz to push back against this play and it appears to have worked. (A 4th charter amendment on the ballot isn’t about housing, but is another opportunity for New Yorkers to enact another important pro-democracy reform: it would move NYC’s mayoral and council elections to even-year presidential races, starting in 2028).

The practice of “member deference” in New York City, “aldermanic prerogative” in Chicago, and the same basic practice in plenty of other cities is, of course, terrible process and produces terrible outcomes, and I suspect it also attracts and retains much worse people to the city council–people who’d rather be petty tyrants over any development in their district/fiefdom rather than, you know, legislating. Some of you may have seen a striking, viral moment on a podcast with one of the members of the Los Angeles City Council, who came on the podcast to defend her city’s decision to denounce SB 79 (a pending bill in California that would mandate that cities upzone land within the walkshed of significant transit stations). This is obviously a pretty important bill for California given the ongoing housing crisis, and some major figures on the progressive side of California politics (Former congresswoman and current Oakland mayor Barbara Lee, as well as early frontrunner for Governor in 2026, Katie Porter) recognize the urgency of the crisis and the need to let more people have meaningful access to public transit, and have endorsed it. But in the city where SB 79 it is most badly needed, Los Angeles–a city that invested in mass transit infrastructure to a far greater degree than anywhere else in the country, but insists on keeping major metro stations surrounded by nothing but a handful of single family homes, and has somehow managed to engineer a housing affordability crisis arguable worse than San Francisco’s, despite so many obvious advantages–the mayor and a majority of the city council have come out against the bill. In an effort to attempt to defend the indefensible, one member of the city council, Imelda Padilla, went on podcast with a pro-SB 79 host and the bill’s author, Scott Weiner, to defend her opposition. Her attempted defense pretty badly backfired, and she revealed some deeply unfortunate things about the status quo, In the context of defending the status quo of councilmember control over land use in their district as a superior way to ensure adequate housing is built, she started bragging about how she bullied an affordable housing developer into reducing the size of of an affordable housing development near a major transit station in half, and adding a bunch of new parking (with EV chargers, so it ‘s progressive) in place of home. But even more disturbing is a line she delivered with conviction and without hesitation. “Padilla said the “No. 1” job for a council member is to make land use decisions, which includes trying to “keep their neighborhood looking and growing the way that they want it to be.” and stated that if she allowed a seven story building to be built in her district in a neighborhood that does not presently have buildings that tall, even if building seven stories there is legal under existing zoning and land use laws, she’d be a failure in her job. She repeatedly invoked hypotheticals along the lines of “what if a developer tries to do X” to which Wiener replied “SB 79 does not override local standards regarding X.” But what became very clear, if you listen to the podcast, is that Padilla had no interest in laws that create local standards about design issues or anything else for LA, and does not see governing through legislation as a particularly important or noteworthy part of her job. As she presents herself in the interview, she doesn’t really seem to see herself as a legislator. She also routinely calls the bill an “unfunded mandate” even though it doesn’t require the city to spend any money at all, and would be revenue positive, something a council member of a city with a massive budget shortfall should probably care about, or at least be aware of.

That people on city councils in major cities understand their job in this way is, obviously, a disaster for anyone who cares about the housing shortage or, for that matter, the rule of law. For Padilla, explicitly, the truism that “things that are legal should be allowed” would, if applied consistently, render her job is utterly meaningless and pointless on her understanding. Whether these councils are reined in by the voters in the city themselves via referenda, as New York will now have an opportunity to do, or by State law preemption, as California may be posed to do (SB 79 has passed the senate and all the house committees; it should be up on the house floor any day now. My sense is cautious optimism is warranted), turning city councils back into legislative bodies, and away from being a loose collective of fiefdom rulers, should lead to better outcomes in the sort/medium term and better city councils in the medium/long term.

Jake Anbinder has a great column today on the NYC charter amendments and the ugly, anti-democratic effort to block them by the city council in some historical context. Well worth a read. A taste:

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 council’s demand was the latest example of an underrecognized yet persistent lack of democratic accountability that has shaped restrictive policies on housing development, in New York and elsewhere, for decades. This current of illiberalism is all the more ironic given that the movement to limit urban growth originated as part of a sweeping citizen revolt against the very sort of concentrated power the city council is now trying to preserve….

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.”

Two years away still, but I’m looking forward to Jake’s book.