OPINION: Delay Gowanus Rezoning ULURP Process Till In Person Meetings Can Be Held

By Penn Rhodeen and Glenn Kelly, area residents. Kelly has lived in Carroll Gardens for over 40 years and is a member of Community Board 6. Rhodeen is a member of Voice of Gowanus.

The City Charter itself is the biggest obstacle to the city’s push to get their Gowanus rezoning colossus underway in January, despite all the dislocation and distractions wrought by the pandemic, as well as widespread community sentiment that it is unacceptably pro-developer and anti-neighborhood. The Charter’s mandates for meaningful and effective in-person citizen participation in the rezoning process cannot be evaded by giving us Zoom instead.

Those mandates appear in the Charter provision known as the Uniform Land Use Review Procedure, ULURP for short. Because rezonings are a very big deal that will affect the neighborhoods involved for good or for ill for decades to come—the Gowanus proposal is one of the largest rezonings ever, encompassing 80 blocks– the Charter specifically provides that the process for Community Board consideration must include a public hearing at “a convenient place of public assembly” within the district. It further provides that, “All persons appearing and wishing to speak shall be given the opportunity to speak.”

This means that the Community Board has to see and hear all of the members of the public who want to be heard and are willing to wait for their turn. Those speaking under the Charter provision stand right there, life-size, seen and heard not only by the board members but by the others present. It’s a dynamic, synergistic process that can generate unexpected insight and understanding as it moves forward. Difficult issues can be sharpened and clarified through engaged speaking and listening. But nothing like this happens when Zoom’s talking heads, isolated images not everyone can see, try to tackle important issues.

Obviously convening the large public gathering the ULURP requires would be dangerously irresponsible in our terrible-and-getting-worse Covid-19 time. Even those pushing the rezoning so urgently recognize that. But instead of looking ahead to a time when the Charter’s concrete ULURP provisions can be complied with, they are attempting a clever sidestep to a thing they call a Virtual ULURP.

It’s essentially a massive Zoom meeting—just pixels, nobody in the flesh–with all of the inevitable limitations and glitches that Zoom entails. The idea that it’s substantially the same as the in-person encounters the Charter prescribes is absurd—as absurd as the idea that looking at a small black and white picture of Van Gogh’s “Starry Night” in an art book is pretty much the same as seeing the great painting itself at the Museum of Modern Art.

Obviously, a so-called Virtual ULURP wouldn’t be anything close to the equivalent of what the Charter demands but that’s not the only problem with it. Even bigger is this: there’s just no such thing as a Virtual ULURP. No provision of the Charter—essentially the city’s constitution—authorizes this jerry-rigged, watered-down substitute for the one and only ULURP set out in its text. And if the Charter’s provisions can’t be safely followed, the process can’t move forward until such time as compliance is possible.

Advocates of pressing the rezoning ahead in this turbulent and dangerous time argue that their virtual contraption is sufficient compliance with the Charter. They cite the Supreme Court’s shift to virtual oral argument. But that example ignores a critical distinction: the Supreme Court can make and change its own rules. Similarly, the argument that the Governor’s order modifying the Open Meetings law to allow compliance by Zoom has no bearing on the issue: ULURP isn’t a creature of Open Meetings—which, unlike ULURP, allows observation only, not actual participation as provided by the Charter. Substitution of a Virtual ULURP for the Charter’s real thing can’t be done by executive order. The only way is by formal revision of the Charter.

What to do now? Easy: if we can’t do what the Charter says, wait until we can. There’s wisdom in that. Pressing ahead in Covid time is foolish and unfair.

Alarming indications of serious environmental dangers are increasing in Gowanus and they need to be better understood. No one really knows what the city’s post-Covid housing landscape—what’s available and what’s needed–will look like. Approving such a big plan in crazy times is a recipe for mistakes that will be felt for years to come. The pause that the Charter requires will give us a better chance to get our future right.

Penn Rhodeen wrote Peacerunner: The True Story of How an Ex-Congressman Helped End the Centuries of War in Ireland and, more recently, “The Crucifixion of George Floyd” in America Magazine. He is a lawyer, lives in Carroll Gardens, and is a member of Voice of Gowanus.

Glenn Kelly has lived in Carroll Gardens for over 40 years. He is a member of Community Board 6.