Regulation and Planning

Practices, Institutions, Agency

Yvonne Rydin, Robert Beauregard, Marco Cremaschi, Laura Lieto

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000450620
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: City Planning & Urban Development
• Index: Politics & International Relations

In Regulation and Planning, planning scholars from the United Kingdom, France, Italy, Sweden, Canada, Australia, and the United States explore how planning regulations are negotiated amid layers of normative considerations. It treats regulation not simply as a set of legal guidelines to be compared against proposed actions, but as a social practice in which issues of governmental legitimacy, cultural understandings, materiality, and power are contested.

Each chapter addresses an actual instance of planning regulation including, among others, a dispute about a proposed Apple store in a public park in Stockholm, the procedures by which building codes are managed by planners in Napoli, the role that design plays in regulating the use of public space in a new Paris neighbourhood, and the influence of plans on the regulation of development in Malmö and Cambridge. Collectively, the volume probes the institutions and practices that give meaning and consequence to planning regulations.

For planning students learning about what it means to plan, planning researchers striving to understand the influence of planners on urban development, and planning practitioners interested in reflecting on practices that occupy a great deal of their time, this is an indispensable book.

Part 1

Varieties of Regulation

1

The Documents of Re-Zoning

Planning Aspirations in New York City

Robert Beauregard

DOI: 10.4324/9781003095828-3

We live entangled in webs of regulations. Governments enforce highway speed limits, local ordinances stipulate when bars have to close, and passports are required to travel from one country to the next. Property owners post “No Trespassing” signs, banks have rules for when deposits will be available for use, private schools institute dress codes, and colleges prohibit plagiarism. Regulations are ubiquitous. And, to a great extent, they are restrictive. Yet, a little reflection reveals them also to be protective, meant to prevent harm. Consider, as illustration, governmental guidelines that certify meat and produce as safe to eat. In their ideal form, government regulations signal the society in which people want to live, one where, for example, all people have a basic education. Here, regulations are aspirational. Of course, the performative qualities of regulations are often intertwined: few are solely restrictive, protective, or aspirational.

These distinctions also apply to the regulations of urban planning. In the United States, zoning codes restrict the heights and bulk of buildings, prohibit noxious land uses in residential areas, and aspire to make downtowns liveable by encouraging animated public spaces. The issue for planners is how to negotiate among these qualities as they manage the development and redevelopment of cities and suburbs. When do regulations have to be primarily restrictive, when is protection most important, when can regulations be aspirational?

Within the United States, the management of development and redevelopment occurs less in the crafting of comprehensive plans than in the constant engagement with proposals that challenge existing zoning regulations (Fischler, 2020; McClendon, 1984). For these proposals to become legal, the property owner has to obtain a variance, waiver, or a re-zoning that changes the zoning text and/or categorisation. Re-zonings thereby reveal another quality of regulations – their ability to create additional value. Re-zonings, moreover, are never-ending and occupy much of the work of municipal planning commissions, the appointed bodies that mediate between the planning regulations and development proposals. As the Law Professor Jerold Kayden (2020, p. xxi) has observed about planning in the United States: “One of the biggest changes over the past 50 years has been expanded resort to discretionary approvals to land use zoning’s original as-of-right, uniform, district-based approach.” In the United States, planners rely heavily on re-zonings to regulate development.¹

This chapter explores re-zoning as a process that brings to the surface the different qualities of regulation. In doing so, I focus on how local governmental planners use written texts – “the artifacts of modern knowledge production” (Riles, 2006, p. 7) and the materiality of bureaucratic discourse (Hull, 2012b, p. 257) – to navigate among the performative qualities of restriction, protection, and aspiration. Re-zoning involves not just private meetings and public hearings, but also the production and consideration of reports submitted by petitioners and their consultants, community groups, and governmental planners. Sociologist Max Weber famously pointed out the importance of files to bureaucracies. More recently, James Scott (1998) has highlighted the centrality of legibility and schematic knowledge to statecraft, and social theorists from Matthew Hull (2012a) to Bruno Latour (2010) and Ben Kafka (2012) have reflected upon the critical role that written documents play in enabling planning to be done, bureaucracies to function, laws to be implemented, scientific discoveries to be made, and democracies to be accountable. And although such material objects are only imperfect representations of the interpersonal relations and deliberations that preceded them, once written and officially adopted, they become “part of the shifting consciousness sustaining everyday life in complex organizations” (Geisler, 2001, p. 298).

Documents, though, do not simply mirror what has been independently decided; they are neither wholly evidentiary nor simply repositories of facts (Pigg et al., 2018). Rather, and not just within government, they are performative tools for crafting decisions and ensuring democratic accountability (Callon, 2002; Dory, 1998; Guillory, 2004; Riles, 2006). They constitute facts, perspectives, and meanings and thus enable administrative control (Hull, 2012b, p. 257). To this extent, as Kafka (2012, p. 117) has written, paperwork is a “refractive medium in that power and knowledge inevitably change their speed and shape when they enter it.” Even more evocatively, Kafka continues, paperwork “accelerate[s] and decelerate[s] power, it syncopates its rhythms, disrupts its cycles” (p. 117) and is itself often uncooperative and unpredictable.

My specific concern is the extent to which documents, as a major tool in planners’ socio-material practice (Beauregard, 2015, pp. 57–75), are used to leverage the aspirational qualities of regulatory processes so as to produce public benefits. The multilevel, multi-institutional nature of regulatory environments, particularly in democratic settings, creates numerous openings for planners and engaged residents to shape outcomes beyond what is literally there in the written regulations. Planners can mobilise this discretionary potential along with their expertise to exercise reformist inclinations for sustainable development, equitable outcomes, and social justice (Beauregard, 2020a, pp. 77–84). In this fashion, they transcend the restrictive and protectionist qualities of regulations to pursue aspirational possibilities. That planners in the United States do so within a regulatory framework heavily biased towards economic growth in no way diminishes their resolve.

To gain greater insight into how the aspirational knowledge claims of planners are abetted (or not) by the regulatory process (Rydin, 2019), I consider the texts of a single re-zoning application placed before the New York City Planning Commission (CPC). These texts were written by professional planners and technical consultants and, in a few instances to be noted, advised by city residents. The chosen case is a formal request by a developer in 2018 to increase the density on a site in downtown Brooklyn, the city’s third largest business district. One of five boroughs in New York City, Brooklyn by this time had become a highly desirable area for residential real estate developers, a status achieved as a consequence of a rejuvenation of the downtown office market in the 1980s and significant and ongoing gentrification that had begun prior to that time. The developer proposed a 40-storey mixed-use building that was incompatible with the site’s zoning. For the project to go forward, then, the site needed to be re-zoned. The case draws wholly on the final report of the CPC, documents attached to the report, and commentary that appeared in the local media. Befitting the attention to texts, my research was document-based.²

The Re-Zoning of 570 Fulton Street

In 2015, the Slate Property Group, a developer as well as an owner and operator of residential and commercial real estate in the New York City metropolitan area, purchased two properties for US$22.9 million in downtown Brooklyn. It joined numerous other developers who anticipated that the demand for luxury residential units would continue to expand. Since 2009, more than 14,000 apartments had been built in the area, 82% of which were rentals (Downtown Brooklyn Partnership, n.d.). With the economy performing well and occupancy rates high in multifamily rental buildings, it seemed that the market would quickly absorb any newly built luxury units.

On one of the properties, Slate Property Group erected a 19-storey mixed-use building consisting of 157 rental apartments. On the other property, 570 Fulton Street, it planned an even larger project. In September of 2018, Slate Property Group announced that a 40-storey mixed-use building designed by Hill West Architects was planned for the remaining parcel of land. Of the building’s over 210,000 square feet of interior space, approximately 12,000 square feet would be retail, 89,000 square feet would be office, and 111,000 square feet would be residential. The residential space would be comprised of 139 market-rate apartments and additional subsidised apartments for low-income households. The building would top off at 550 feet. Neither the bulk nor the configuration of the proposed building or its proposed footprint, however, conformed to the zoning regulations governing the site. To realise its plans, the Slate Property Group would have to demolish an existing three-storey building and be granted changes to the zoning categorisation as described in the zoning text for the site as well as receive a special permit to increase the allowable density. This meant proceeding through the city’s Uniform Land Use Review Process (ULURP), the primary regulatory mechanism for evaluating a requested re-zoning and for enabling resident participation in the decision.

ULURP requires all new development that is not as-of-right (i.e. conforming to existing zoning regulations) to proceed through a multilevel review process. The process begins with the developer/property owner consulting with the staff of the Department of City Planning (DCP) before submitting an application to the CPC, the city’s regulatory body responsible for land use and zoning issues. Before the CPC considers the re-zoning request, the application along with environmental reports are reviewed by the local advisory board (i.e. Community Board) for the area in which the project is located, followed by a second review by the planning staff of the Borough President’s Office. (Each of the five boroughs in New York City has an elected president and each Borough President’s Office includes planning staff seconded from New York City’s central planning office.) With the reports from these two reviews attached, the application then goes before the CPC which holds hearings and makes a decision. The CPC’s decision and all supporting documents are then forwarded to the City Council which votes for or against the proposal. The final decision is made by the Office of the Mayor, though approval by the CPC and the City Council virtually ensures approval at the mayoral level.³

Slate Property Group submitted three applications to the CPC.⁴ The requests were for modifications to regulations governing the set-back requirements, lot coverage, rear yard, and inner court recesses along with a zoning map amendment to consolidate the site’s three tax lots. The granting of these requests would change the site’s development designation within the Special Downtown Brooklyn District resulting in a higher floor-area ratio (FAR), i.e. a greater density of development for the site.⁵ The Slate Property Group also petitioned for another zoning text amendment that would reflect the zoning map changes and enable the special permit to be granted. Prior to submitting these requests to the CPC, the Slate Property Group (as required) met with the staff of the DCP for preliminary discussions. No records from this meeting appear in the public files, however. Given what we know of such meetings (Forester, 1996; Healey, 1992), we can assume that the planners and the developer’s representatives discussed concerns that might arise during the regulatory review process.

The second step in ULURP entails review of the application by the Community Board where the project is to be located. New York City is divided into 59 Community Districts. Each district has a Community Board of appointed members who are concerned with changes to their neighbourhood and the needs of their community along with a small support staff (often with planning expertise) that includes a District Manager. As well as addressing community complaints and granting certain types of permits (e.g. for block parties), the Community Boards have a voice in official discussions of private and public development projects. To meet their obligations, Community Boards establish subcommittees to handle such issues as transportation and public safety, land use, youth, education, and cultural affairs. As regards ULURP, Community Boards are allowed to comment and submit a non-binding opinion for or against each development proposal moving through the regulatory process in their district.

The Slate Property Group’s application went before Brooklyn’s Community Board 2 (CB2). At a public hearing in September of 2018, the Board listened to the developer’s presentation and discussed the proposal. Subsequently, its ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Illustrations
• Acknowledgements
• Introduction
• Part 1 Varieties of Regulation
• Part 2 Practices of Regulation
• Part 3 Beyond Regulation
• On Practices, Institutions, Agency
• Contributor Biographies
• Index