City Council Escalates Fight Over Land Use Ballot Questions

14 minutes read

The City Council is doing everything it can to hold onto its power over rezonings.

Council leaders are calling on the Board of Elections to remove three of five questions that are expected to be posed to voters in November. The trio of ballot questions threatens to weaken the Council’s authority over land use decisions by, among other things, shifting final approval of certain projects away from the body.

If passed, the questions would be a major blow to the Council’s longstanding tradition of member deference. And it is no secret that City Council members are loath to relinquish their leverage over rezonings — or any leverage.

But with two months until the general election, the Council is escalating its fight against the proposals approved by the mayor’s Charter Revision Commission. Leaders argue that the phrasing of three of the questions conceals the ramifications of the proposed changes from voters, quietly transferring power away from local Council members.

And absent action by the board, the City Council appears ready to sue the Adams administration over the questions.

In a letter to the Board of Elections, City Council Speaker Adrienne Adams, Deputy Speaker Diana Ayala, Majority Leader Amanda Farías and Minority Leader Joann Ariola asked the board’s commissioners to exclude the three questions from the November ballot. The letter describes the questions as a “cynical political ploy to mislead voters” and transfer power from their elected City Council members to mayoral appointees (in this case, the Board of Standards and Appeals and the City Planning Commission, which already have the ability to sign off on certain actions).

During a Board of Elections meeting on Tuesday, President Frederic Umane questioned whether the board has the authority to reject the Charter Revision Commission’s ballot questions, given that the board typically serves a ministerial role.

“If we have the power, as far as I know, we haven’t used it,” he said, later asking, “Isn’t this better suited for the courts?”

Jason Otaño, general counsel for the City Council, said he believes the board has the ability to reject the questions, but acknowledged that the City Council wants to exhaust all avenues before taking the issue to court.

“I don’t know if you’ve seen lately, but we’re not shy about suing our partners in government across the hall,” he said, alluding to previous lawsuits filed by the Council against the Adams administration.

Three questions under the microscope

One of the questions the Council wants eliminated asks whether the city should replace the mayoral veto in the Uniform Land Use Review Procedure, or Ulurp, with a three-member appeals board for certain projects. The proposed board, made up of the mayor, City Council speaker and applicable borough president, could reverse City Council decisions on land use applications on certain projects. The board could only act on projects that would result in affordable housing in one borough, not citywide land use actions.

Another asks voters if a shorter version of Ulurp should be created. Such a process, dubbed the Expedited Land Use Review Procedure, or Elurp, would be applied to “modest” housing and infrastructure projects, and would either avoid review by the City Council or City Planning Commission, depending on the project type.

The third would allow the Board of Standards and Appeals to waive zoning requirements for publicly funded affordable housing projects. A separate fast-track process would be available for affordable housing projects proposed in the 12 community districts with the lowest rates of affordable housing construction over a five-year period. Such projects would go through a condensed version of Ulurp that skips City Council review, ending instead with a City Planning Commission vote.

The Council claims that, as written, these questions “fail to inform voters that the ballot proposals will completely eliminate the City Council’s existing authority on behalf of the public to approve or modify a wide range of land use proposals—including many projects made up almost entirely of luxury housing.”

A source familiar with the thinking of the Charter Revision Commission’s members called the City Council’s argument “borderline absurd.” The source pointed out that state law sets word count limits for ballot questions: 15 words for a title, 30 words for a summary of the proposal and another 30 to describe in “plain language” the outcomes of a yes or no vote.

The ballot questions clearly describe how authority over certain land use actions would shift with a “yes” vote compared to a “no” vote, a spokesperson for the Charter Revision Commission said.

“We are confident in the rigor and legal basis for the Commission’s important work to address the city’s housing crisis,” the spokesperson said in a statement.

Fight over leverage

The ballot questions have become a flashpoint in the troubled relationship between the mayor and City Council.

The proposals take aim at the Council’s tradition of voting according to the wishes of the local member, known as member deference. Speaker Adrienne Adams has criticized the ballot questions as an unfair attempt to pin the city’s housing crisis on the City Council, citing that the body has approved more than 120,000 housing units since 2022. She has also pointed to the mayor’s reversal on housing planned for the Elizabeth Street Garden as evidence of the administration getting in the way of housing production.

At the same time, developers tend to pull their zoning applications if the local Council member signals their disapproval. In the past decade, at least 45 applications that began public review were abandoned. It’s unclear how many more developers refrained from filing in the first place, not willing to risk pouring time and money into a doomed project.

Other cities, including Chicago, Philadelphia and Los Angeles, have versions of deferring to local elected officials on land use actions. Some of those programs are similarly being interrogated. For example, Chicago’s “aldermanic prerogative” came under federal scrutiny following allegations that the veto power fueled racial segregation by blocking affordable housing in predominantly white neighborhoods. This month, the Trump administration dropped two investigations into the practice.