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    May 30, 2024 Writing Competition Winner

    Fair Share Planning for Locally Undesirable Land Uses (LULUs)

    ABA Section of State & Local Government Law: Young Lawyers and Law Students Writing Competition Winner

    Sean Connolly, Elizabeth (Nikki) Miller & Julie Zhu

    I. Introduction

    To function, every city requires certain land uses that most people would rather avoid. Planners refer to these kinds of land uses as Locally Undesirable Land Uses (LULUs). We define a LULU as a land use that consistently generates local opposition in the community in which it is sited. Local communities almost always perceive LULUs as bringing negative externalities, but planners generally understand LULUs to be necessary for the proper functioning of the local municipality or the broader region. If somewhat tautological, this definition reflects the political reality of LULUs: unwanted yet necessary.

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    Part I of this paper provides an overview on how New York City (NYC) came to adopt the Fair Share Criteria (FSC), how the requirements under FSC are supposed to work within a broader system of allocating land use, and how the requirements have performed in reality over the past thirty years since FSC’s adoption. Part II of this paper dives deeper into how FSC has been used (or not used) to site three particular types of LULUs that are particularly difficult to site: homeless shelters, detention facilities, and waste-transfer stations. Part III provides several potential recommendations for improving the Fair Share system inspired, in part, by foundational features from generations of New York politics.

    A. History of Fair Share in NYC

    The city government controls the siting of city-owned or -operated LULUs. In NYC, the government has historically sited LULUs unevenly along geographical and social axes. To this day, low-income communities of color contain a disproportionate number of LULUs.

    Several key factors drive this uneven distribution. First, the city came to own many abandoned properties concentrated in the city’s poorest neighborhoods in the mid-1970s. The city used much of this land to site city facilities, including LULUs, which often resulted in a concentration of LULUs in those poor neighborhoods.

    Second, while most communities oppose LULUs being built in their “backyard,” not all communities have equal resources to back their opposition. Wealthier and predominantly white neighborhoods tend to have more financial resources and political connections in city government to fend off LULUs. Lower income and majority people-of-color neighborhoods tend to lack those resources, hindering their ability to mount effective protest. Over time, city government has come to view siting in these communities as the “path of least resistance.”

    Third, city agencies must pay for the land on which they plan to site city facilities. It tends to be cheaper to site facilities in low-income, minority neighborhoods with lower property costs. The governmental logic of cost-efficiency leads city agencies to site LULUs in those neighborhoods.

    In 1989, as NYC rewrote its charter of government, the city’s Charter Revision Commission took seriously the concern that undesirable city facilities were being concentrated in low-income neighborhoods of color. To help solve this problem, the Commission added “Fair Share” principles and processes to the charter. According to Professor Eric Lane, who was executive director and counsel to the Commission, Fair Share was intended largely as a tool to increase the transparency of the facility-siting process, giving city agencies better data to avoid overconcentration and giving local communities greater ability to resist such concentration.

    B. Description of Fair Share

    The “Fair Share” laws, in the context of NYC planning, refer to Sections 203 and 204 of the City Charter. Section 203 directs the City Planning Commission (CPC) to promulgate rules for the siting of new city facilities or for major changes to existing facilities (i.e., expansion, closing, reductions). Those rules are commonly known as the “Fair Share Criteria.”

    The Fair Share Criteria (FSC) consist of nine articles. Articles 4 through 6 provide the substantive criteria a city agency must consider when siting a new facility or expanding an existing facility. The criteria require a siting agency, also known as the “sponsoring agency,” to consider factors including the presence of already existing facilities, cost-effectiveness, and how the facility will satisfy the needs articulated in the annual Statement of Needs (expanded on below). Article 6 articulates specific additional criteria for consideration when siting residential facilities (including homeless shelters and detention facilities), transportation facilities, and waste-management facilities. For these kinds of facilities, Article 6 directs the sponsoring agency and CPC to consider whether there is an already-existing overconcentration of similar facilities. In certain circumstances, Article 6 directs the city agency to consider alternative sites to the one proposed. Article 9 details the criteria and processes required when an agency sites a facility through a city contract with a service provider (e.g., New York City contracts with a nonprofit to operate a homeless shelter). Article 9 siting actions are not subject to the Uniform Land Use Review Procedure (ULURP).

    Section 204 of the Charter requires the city to provide advance notice and certain information about city facility sitings, expansions, closings, and reductions. First, the mayor, in conjunction with several umbrella city agencies (the Department of City Planning (DCP), Department of Design and Construction (DDC), and Department of Citywide Administrative Services (DCAS)), must publish an annual Statement of Needs (SON) that compiles all sitings subject to the FSC, which are planned for the next two fiscal years. This SON is sourced from the submissions of each operational government agency (e.g., the Department of Homeless Services (DHS), the Department of Corrections (DOC), the Department of Sanitation (DOS), etc.), and each agency must consult similar statements prepared by each Community Board (CB) and coordinate with those CBs. The actual level of communication and consultation between city agencies and CBs varies. After the SON is published, CBs and Borough Presidents (BPs) have ninety days to comment. BPs may propose alternative locations for any of the proposed sitings within their borough, though such proposals are purely advisory.

    In addition to the annual SON, Section 204 requires city agencies to produce either a “Fair Share Statement” or Article 9 Statement whenever siting specific types of city facilities, regardless of whether that facility was proposed in the SON. The statement must explain how the proposed siting satisfies the FSC, how it fits into the broader needs stated in the SON, and how it takes into account any comments from community members (such as the relevant BPs and CBs).

    Lastly, Section 204 requires the city to publish a map containing the locations of all city facilities and their present or future planned uses. This map encapsulates city-owned property, as well as facilities operated by or on behalf of the state or federal governments. The Charter and the FSC define the specific kinds of city facilities that are subject to Fair Share, but, in simple terms, these facilities include “[j]ust about every physical space larger than a one-bedroom apartment that plays a role in delivering city services.” This includes both facilities on city-owned or -leased land and facilities on non-city land that are primarily used for programs that derive at least fifty percent of their budget and more than $50K from contracts with the City.

    C. What Is “Fair”?

    There is no clear consensus on what, exactly, is the “fairest” way to site city facilities, especially when each type of facility contributes different benefits and burdens. Nor is there an easy answer to the question: “Fair to whom?” The FSC arose out of a sense of unfairness from the perspective of those living in communities hosting LULUs, but many commentators and activists argue that the city government has a fundamental responsibility to the clients utilizing the services of these supposedly “undesirable” facilities.

    We argue that “fairness” must be considered from both the perspective of communities and of the clients who rely on city facilities. From the perspective of communities, we define “fairness” in siting as an equal geographical distribution of facilitiesand facility capacity. For the sake of definitional clarity, we consider a Community District (CD) to be overconcentrated whenever it has more than the number of facilities each CD would have if facilities were perfectly geographically distributed between each CD. We are particularly concerned by an overconcentrations of LULUs in low-income neighborhoods of color, given the history of concentration in these neighborhoods.

    But we also recognize that an equal geographic distribution of certain city facilities may not always best serve the needs of the clients of those facilities. “Fairness” from the perspective of a facility’s clientele means that services are accessible and delivered with dignity. To take an extreme example: siting a shelter in the southern tip of Staten Island, isolated from public transportation and other social services, may satisfy a dispersion goal but be a great disservice to the shelter’s clients. In these situations, it may be preferable to site a new facility in an “overconcentrated” district over an “under-concentrated” one. However, we think that the interests of clients, and those of the host community, are aligned more often than not; physically dispersed facilities are generally better able to serve clients throughout the city. Perhaps most obvious in the shelter context, physically dispersed facilities can help avoid the pitfalls of isolated concentrated poverty and provide greater choice to clients.

    D. Fair Share Procedures Governing the Siting of Facilities in NYC

    The FSC are implicated through two main procedures that city agencies must utilize to site, expand, reduce the capacity of, or close a city facility. First is the ULURP (Charter Section 197-c), which is triggered whenever the city “wishes to acquire real property.” As part of its ULURP application, the city must submit a Fair Share analysis of the site and its planned use, describing how the planned use satisfies the FSC, how comments procured from CBs or BPs during pre-ULURP consultations were incorporated, and how the application responds to the SON.

    The second procedure is Article 9 of the FSC, which covers sitings, expansions, reductions, and closings of facilities “that result from City contracts with service providers.” This method involves a request for proposal (RFP) to private organizations. Most homeless shelters and private waste transfer stations are sited through this contracted siting process. Under Article 9, the city agency must complete a Fair Share Statement explaining how the FSC were applied and must send that statement to the mayor, the Director of DCP, and the relevant CB and BP.

    E. Agency Application of Fair Share

    The procedural requirements under Fair Share are clear, but the substantive requirements are much more nebulous. Several former and current employees of city government claimed that the city thoughtfully considers the FSC when siting a facility but also acknowledged that the FSC are just one of a wide range of important considerations. Given these competing considerations, city agencies do not necessarily prioritize the equitable distribution of LULUs when siting facilities, but several of our interviewees thought the FSC did help push the needle in a more equitable direction. Others argued that the city simply goes through the motions of Fair Share as an afterthought to provide political cover and that Fair Share is an empty promise that lacks “teeth.” Yet another perspective is that Fair Share makes it harder for the city to site needed facilities because all communities are empowered to push back: needed facilities remain unbuilt, and inequitable distribution remains static because the city has as much difficulty siting new facilities in under-concentrated neighborhoods as in overconcentrated neighborhoods. Last, some argued the city is currently intentionally circumventing Fair Share through certain “loopholes.” We proceed to explore the veracity of these opinions as applied to the past sitings of three kinds of LULUs.

    II. The Siting of Problematic LULUs

    This section explores how FSC has been used (or not used) to site LULUs. We focus our analysis on three types of LULUs that appear the most politically contentious to site: homeless shelters, detention facilities, and waste transfer stations.

    For each category of LULUs, our research methodology was multifaceted: we researched the current siting processes, mapped out the existing distribution of the LULUs using NYC data, interviewed various stakeholders and experts, and looked at any relevant case law. Putting all the pieces together, we looked at a particular case study for each LULU in the context of the rest of our research. Through these different lenses, we sought to understand what was working well and what was not in the current procedures, and to find solutions that would enable the City to site needed facilities while also siting them more fairly.

    A. Homeless Shelters (Temporary Housing/Transitional Housing)

    How Homeless Shelters Are Sited in NYC

    Today, homeless shelters are primarily sited through the FSC Article 9 process or an “emergency variation” of this process, rarely through ULURP. Pursuant to the standard Article 9 processes, DHS must file a Fair Share Statement as described earlier. Since at least 2000, DHS has contracted with private service providers to operate city shelters and chooses these providers through an Open-Ended RFP process (OERFP), in which contracts are awarded on a rolling basis. In 2009, DHS revised OERFP application procedures, requiring applicants to submit written notification to affected CBs prior to submitting an application to DHS. Soon after, in 2010, DHS, in conjunction with the NYC Comptroller’s Office and Corporation Counsel, declared the dramatic rise of homelessness to be an emergency, necessitating the use of emergency procurement methods. Under this emergency declaration, the siting process for shelters “effectively does not need to follow the [c]ity’s standard public involvement process and a Fair Share analysis.” Shelters sited under this emergency declaration are technically temporary and, in theory, must undergo the standard review processes to become permanent, but in practice these “temporary” shelters have remained open indefinitely as the homeless population continues to grow.

    Current Distribution of Homeless Shelters

    Maps in Appendix A show the geographic distribution of homeless shelters in 2022. In line with general LULU trends, CDs with above average poverty rates and higher proportions of minorities also tend to host the most shelters. The five Community Districts with the highest number of shelters are Brooklyn 16 (with 22 shelters, this CD has a 29% poverty rate, and 96.5% of its residents are non-white), Bronx 6 (with 21 shelters, this CD has a 30% poverty rate, and 93.6% of its residents are non-white), Manhattan 10 (with 19 shelters, this CD has a 20% poverty rate, and 84.8% of its residents are non-white), Bronx 4 (with 16 shelters, this CD has a 32% poverty rate, and 97.8% of its residents are non-white), and Manhattan 11 (with 16 shelters, this CD has a 22% poverty rate, and 92.0% of its residents are nonwhite). The most overconcentrated CDs house between four and six percent of NYC’s total shelters. As there are 59 total CDs in NYC, if shelters were dispersed evenly between CDs, each CD would house about 1.8% of the city’s shelters. Right now, the five most shelter-concentrated communities are each housing over double or triple that average. The evidence shows that most communities are not bearing their fair share.

    The factors contributing to this trend mirror those that lead to the broader trend in all LULUs. Notably, the fact that most shelters undergo an expedited emergency siting process also means that the affected community has less opportunity to participate in the official government siting process, though nonprofit organizations and elected officials carry out varying levels of community outreach around new shelters outside the official processes.

    Legal Analysis: Courts have limited power to uphold Fair Share requirements

    When community organizations and neighborhood residents’ coalitions file suit to prevent the siting of homeless shelters in their communities, they tend to assert two basic legal claims under the FSC: they argue that the city has failed to follow the procedures required by the FSC, or they argue that their neighborhood is already oversaturated with shelters or other similar facilities. Most typically, they advance both arguments. Courts have sometimes upheld the procedural requirements of Fair Share. In Silver v. Dinkins, a decision from 1993,the court held that the city was required to make a meaningful analysis of alternative sites, which meant that their reasoning for rejecting other sites had to rely on more than just cost-effectiveness. In Ocean Hill Residents Ass’n, the court held that DHS could not skirt the responsibility of considering alternative sites even if the agency received a site-specific proposal from an organization through its open-ended RFP.

    Despite these examples, the majority of cases show courts deferring to agency action. As long as DHS or the city shows general compliance with the FSC procedures (e.g., the city considered alternative sites and the city did not “flagrantly” ignore the FSC), the court will uphold DHS’s siting plan.

    In Gjonaj v. City of New York, the court held that the FSC are only guidelines and do not dictate mandatory procedures. The case involved the residential beds-to-population ratio that DCP is directed to issue annually under the FSC, but that the agency has failed to issue since 2003. The FSC requires agencies to apply a stricter standard for sitings of certain residential facilities, including homeless shelters and detention facilities, when the city plans to site a facility in a community with a high bed-to-population ratio. The stricter standard requires the agency to explain “whether alternative sites were considered and, for alternative sites in community districts with lower beds-to-population ratios, if those sites would be considerably more expensive to build or operate or would impair service delivery.” But because DCP has failed to publish these statistics, agencies are not required to follow these stricter standards. The court in Gjonaj found that “since the rule provides for no consequences if an annual index is not issued, it creates a discretionary rather than a mandatory act compliance.” In other words, this part of the FSC has been effectively gutted.

    Case Study: Crown Heights Homeless Shelters

    In 2017, residents of Crown Heights protested the placement of two new homeless shelters in their neighborhood—one north of Eastern Parkway and one south. Both were part of then Mayor de Blasio’s plan to “turn the tide” on homelessness in NYC through his comprehensive homeless shelter plan. Though the Mayor’s plan involved opening ninety new shelters around the city, the first five announced included two shelters in Crown Heights, a neighborhood with nineteen shelters already open at the time.

    Both shelters—the Bergen House Shelter and Rachel’s House Family Residence—were introduced to the community at the end of February 2017 and slated to open in March 2017. City representatives held community meetings where many local residents voiced their opposition. Following these contentious community meetings, some community members filed lawsuits to enjoin the City from further progressing towards opening the shelters.

    Regarding the Bergen House Shelter, petitioners alleged several claims, including that their neighborhood was already overburdened and oversaturated with shelters and that DHS failed to conduct a Fair Share Review as required by City Charter Section 203. In March 2017, the Kings County Supreme Court issued a temporary restraining order (TRO), preventing the shelter from opening. Right before oral arguments for the preliminary injunction hearing, the city submitted a “voluminous” answer containing their Fair Share Analysis of the shelter. Following oral argument, the court issued a preliminary injunction sustaining the pause on opening, but, on May 22, 2017, the court dismissed the suit and the shelter did open. In December 2021, the shelter closed, and its residents relocated due to the non-profit operator’s chief executive officer being investigated for fraud.

    Rachel’s House Family Residence opened on May 15, 2017, while the case of the Bergen House Shelter was still pending, but after just one day in operation (and ten families moving in), the same court issued another TRO preventing any more families from moving in. This suit also eventually was dismissed, and Rachel’s House reopened and is still in operation.

    Competing Perspectives

    Perspective of Residents. According to the claims alleged in the lawsuit and our conversation with Jacqueline McMickens, the attorney who represented the community members in their lawsuit, residents were immediately wary and resistant towards these shelters. To many residents, the city’s siting process reinforced their underlying distrust of city government: it seemed that DHS and the nonprofits were swooping in with little regard for the wellbeing of this predominantly Black and Brown neighborhood, as well as little regard for the existing residents’ input. This distrust was heightened because of past experiences with poorly run and poorly resourced shelters in this area, which have led to a hesitancy about new shelters for many Crown Heights residents.

    In this instance, these residents appeared to be opposing new shelters based on a genuinely felt impression that past shelters had led to concrete harms in their community.

    It is critical to understand the community’s underlying concerns in all cases of pushback against siting shelters.

    Perspective of Elected Representatives. Elected representatives had more varied perspectives on the new shelters. CB leaders, appointed by the BP in consultation with City Council members of overlapping districts, have the smallest constituency. Their perspective in this case typically aligned with the residents: opposition to the shelters and frustration with the short notice given before they were sited.

    Around the same time these shelters were proposed, City Council was advocating for strengthened FSC that would have allowed greater community input for a wide range of LULUs, including shelters (though not necessarily referring to the shelters proposed in De Blasio’s Comprehensive “Turning the Tide” Plan). A City Council report states that, since 2010, DHS can initially circumvent FSC by utilizing emergency processes to site an emergency shelter and then submit a Fair Share Statement when the shelter contract becomes permanent. Arguably, this option takes the power out of the FSC. However, the Director and Deputy Director of Land Use for the Brooklyn Borough President’s Office argued that the expedited process and limited, purely advisory community input could be positive because of the great need to site shelters quickly.

    Perspective of City Agencies. The city and DHS face a unique dilemma: because they must care for the wellbeing of all individuals in NYC—both the unhoused and housed—their responsibilities are twofold. They must provide shelter for an overwhelmingly large population of homeless individuals and families as quickly as possible, and they must do so responsibly, fairly, and democratically (which often means with a certain slowness). Sometimes these responsibilities contradict one another, and one gives way to the other. Regarding the two Crown Heights shelters in particular, DHS acknowledged that, “in the short term, shelters may be placed in communities that already have a significant number of shelters.” The priority for DHS here was to site facilities to address the overwhelming need for housing. Furthermore, the city also has a fiduciary duty to its taxpayers to site with relative cost-efficiency, and land owners in rich neighborhoods often do not want to lease their land to developers and operators of homeless shelters, particularly not at prices affordable to the city or nonprofits. Agencies also must consider client needs, which could mean providing more beds in those few CBs where more homeless families want to keep their children in the same school or neighborhood.

    Perspective of Nonprofit Organizations.Since the mission of a nonprofit organization is to best serve as many clients and potential clients as possible, the primary concern is typically operational efficiency and feasibility. For the Bowery Residents’ Committee, an organization that operates several shelters in NYC, this means siting shelters in locations accessible by public transit, in buildings with elevators, on land that has as-of-right zoning for a shelter, and at a space that they can afford.

    In sum, what makes siting homeless shelters complicated is the competing perspectives of the many stakeholders, which necessitates compromise. Fair Share seeks to strengthen the balance of that compromise, but people of good faith continue to disagree on what exactly the balance should look like.

    B. Detention Facilities

    The Process of Siting of Detention Facilities and Their Current Distribution

    City detention facilities are sited through ULURP and subject to the FSC. Excluding facilities on Rikers Island, there were thirteen physically distinct detention facilities within NYC as of June 2022, including city, state, and federal facilities.

    These thirteen facilities are spread across twelve CDs. While a handful of these CDs are significantly whiter and have significantly lower poverty rates than the city as a whole, a majority of these CDs have above-average poverty rates and above-average populations of people of color.

    Case Study: Borough-Based Jails

    In 2018, Mayor de Blasio announced a “borough-based jail system” meant to replace the detention facilities on Rikers Island. New detention facilities were announced in Mott Haven, Bronx; Boerum Hill, Brooklyn; Civic Center, Manhattan; and Kew Gardens, Queens.

    In Manhattan, the new borough-based jail was originally proposed for 80 Centre Street, which currently houses city government offices. After considerable pushback—from community groups, Community Board One (CB1), the Manhattan borough president, and the local City Councilor—the city halted its plans and instead decided that the new jail would replace the pre-existing Manhattan Detention Complex at 125 White Street, which is also within CB1. The city claimed that the change was not made because of political pressures but simply because of the difficulties involved in moving the current tenants at 80 Centre Street. Because of this change, three of the four borough-based jails are now slated to replace pre-existing detention facilities; the fourth, in the Bronx, is planned to be built on the site of a tow pound.

    “I think the city is lucky to have . . . four sites . . . that had city uses,” said Kenneth Knuckles, Vice Chair of the CPC. Knuckles argued that if the city could not build the jails on sites already occupied by undesirable city uses, “you could never close Rikers. . . . I dare say it would never get through ULURP because nobody wants [the jails].”

    All four proposed jail sites were combined into a single ULURP site selection application, filed in March 2019. As part of ULURP, the CBs and BPs with jurisdiction over each proposed site submitted recommendations of approval or disapproval of the ULURP application to the CPC. All four CBs recommended disapproval; out of the BPs, three recommended disapproval, and only the Manhattan BP recommended approval.

    However, recommendations on ULURP applications by CBs and BPs are simply advisory. Ultimately, the borough-based jail ULURP application needed simply to be approved by the CPC and the City Council. Because the four proposed jails had been combined into a single application, the CPC and Council voted on the project as a whole, not on each jail individually. Several commentators argued that the decision to combine the jails into a single approval process was made at least in part to diffuse opposition from any one borough and to give political cover to local city councilors. When locals protested, the city—or an individual councilor in a district slated to receive a new jail—could point to the three other jails to argue that no specific community was being singled out. “Unless every borough felt that every other borough was going to take a jail, nobody was going to take a jail,” said Professor Vicki Been.

    The CPC approved the ULURP site selection application on September 3, 2019, with few changes, but in October 2019 the City Council announced height reductions to all four proposed jails. Once this change was incorporated, the Council then approved the borough-based jail site selections on October 17, 2019. City Council leaders claimed the height reductions were initiated because the city’s estimates of the future detainee population had significantly decreased and less space would be needed to house detainees. Yet one of the most consistent complaints among community groups, CBs, and BPs alike was the massive height of the proposed jails. Some city councilors for the districts slated to receive the new jails—who possibly had the power to torpedo the whole project through member deference—indicated that the height of the jails was one of their main concerns; indeed, one even implied that she was somehow responsible for the height reductions.

    Political Opposition: Manhattan Borough-Based Jail

    The only CB outside of Riker’s Island to contain more than a single detention facility is CB1, which covers Battery Park City, the Financial District, Seaport/Civic Center, and Tribeca. This is the same CB slated to receive the new borough-based jail for Manhattan.

    On a cursory analysis, CB1 appears relatively wealthy and white, but CBs are imprecise tools. The two current detention facilities in CB1 border Chinatown, as will the new borough-based jail, which will replace the already standing Manhattan Detention Complex. If this new jail brings any negative externalities, they will likely be felt by the residents of Chinatown living just blocks away, not by the far-removed residents of the Financial District. Defining the demographics and income levels of those directly surrounding the proposed site is difficult because the site borders multiple CDs, but these residents are much more likely to be people of color and to be below the poverty line than CB1 residents as a whole.

    Indeed, much local opposition to the new jail has been rooted in Chinatown, and this opposition has been fierce and consistent. Opposition comes from at least three areas: abolitionists who argue that any new jail will simply exacerbate the problems of mass incarceration; local residents and community groups who are concerned about perceived externalities associated with the jail; and local residents and community groups who believe the city is dumping unwanted land uses on their community.

    The abolitionist argument against all of the borough-based jails has been consistent and has been a key source of political pressure on the city. However, as these arguments are less about specific community concerns tied to LULUs and more about a general opposition to incarceration, this paper will not explore these arguments in depth.

    Local pushback around perceived externalities has been similarly consistent. Community members have particularly expressed concerns about the height of the jail and anticipated construction-related disruptions. As noted earlier, the height concerns were echoed by the local city councilor, who claimed a political victory when City Council voted to decrease the heights of all the borough-based jails, but many local residents argue that, even at the reduced height, the Manhattan jail will be out of scale with the neighborhood. There is also considerable concern that the demolition of the currently existing jail will have negative health impacts on residents, especially on seniors who live in a neighboring elderly-housing complex.

    Fundamental concerns around being heard and treated fairly stand out as perhaps the most important source of pushback, and are the most relevant to the principles of Fair Share. Many local residents feel that the city much more readily invests in things the community does not want than in things the community actually needs. “What does this symbolize to people in the community about where the city and state chooses to invest its social services?” asked Victoria Lee from the community organization Welcome to Chinatown. The sense is that the city is willing to unfairly “dump” unwanted facilities on the neighborhood and that the city is unwilling to take seriously the community’s concerns about these facilities.

    Detention facilities have existed in and around Chinatown for generations, and some residents have conflated these jails with the presence of homeless shelters and drug treatment centers in the area. To some, all of these facilities reflect the city’s fundamental lack of respect for the neighborhood. CB1 explicitly referenced an overconcentration of detention facilities in the neighborhood as a reason for their opposition to the jail, noting that CB1 has the second highest bed-to-population ratio for detention facilities in the city. At the same time, many residents believe the city does not meaningfully invest in their community; the area surrounding the jail lacks greenspace in particular. The proposed height of the jail only reinforces this sense of the city’s disdain. Both the scale and cost of the project seem to reflect the city’s priorities—priorities which are fundamentally out of line with those of many community members.

    Political Support: Manhattan Borough-Based Jail

    Supporters of the Manhattan borough-based jail do not justify the project by citing benefits that the jail will bring to the neighborhood. Instead, prisoners’ advocates and the city government emphasize the need for more humane prisons to replace Rikers and argue that the site chosen for the new jail is rational because of its proximity to the courts and because its central location will facilitate family visits. Advocates emphasize that, so long as prisons still exist, more modern facilities are desperately needed to improve conditions for the incarcerated. The city has also tied a package of local investments to the jail; these include upgrades to nearby Columbus Park and neighboring senior housing.

    The Impact of Fair Share

    Several current or former government officials argued that the city’s sense of fair distribution influenced the siting of the borough-based jails. Principles of fairness—or at least, what the city expected that city residents would consider “fair”—specifically motivated the decision to place one jail in each borough.

    The procedural and transparency requirements imposed by the FSC, in addition to key requirements imposed by ULURP, also had an impact on the siting process. The CB recommendations, the BP recommendations, the CPC vote, and the City Council vote all became sites of political conflict. The visibility of the whole process gave local residents time to organize their response to the city’s plans. Though fierce local opposition did not stop the siting of the jails, local community activists arguably did score a political victory by decreasing the heights of all four jails. While it is unclear what, exactly, led the City Council to make this decision, the strength of local opposition most likely had an impact—and that political opposition was able to coalesce in no small part by organizing to oppose the sitings at each procedural stage during the approval process.

    It is far from clear that the substance of the FSC had any real impact on the city’s decision process. The FSC explicitly references residential bed-to-population ratio as a key consideration in the siting of residential facilities, and yet the city still decided to site a new jail in the CB with the second highest bed-to-population ratio for detention facilities in the city. Other than CB1, no one in the city government seemed bothered by the concentration of beds.

    Even if some vague sense of fairness motivated the city in its siting decisions, and even if procedural and transparency requirements made it somewhat easier for local residents to organize partially successful political resistance to the project, a stark reality remains: many local residents simply do not feel that their concerns were heard, do not feel that the city has seriously considered their community’s needs, and do not feel, fundamentally, that the siting process has been legitimate. “The city is not seriously taking feedback from the community,” said Lee. “There’s no transparency. It seems like we’re doing our part in community engagement, in fair share—they’re just hitting the checkboxes.” Perhaps the biggest question for the city, then—a question we will attempt to address in our recommendations—is if changes to the siting process could help to ensure that stakeholders in local communities feel truly included and heard as part of siting decisions.

    C. Waste Transfer Stations

    How Public Waste Transfer Stations Are Sited in NYC

    Waste Transfer Stations (WTSs) play an integral role in NYC’s waste management process, which manages almost fourteen million tons of waste annually. Trucks transport the city’s waste to WTSs where workers load the waste onto larger vehicles, including long-haul trucks, trains, and barges for export. The New York State (NYS) Department of Environmental Conservation (DEC) enforces standards for WTS operation.

    The NYC Department of Sanitation (DSNY) contracts with private services to construct putrescible and non-putrescible solid waste transfer stations and then registers each new, modified, or renewed transfer station. In general, registered transfer stations must adhere to Title 6 NYCRR 362-3.3 regulations that specify maximum waste limits, waste removal schedules, and waste acceptance standards for city-owned, operated, or contracted transfer stations. Each WTS also must submit an annual report specifying the amount of waste received, service area, and the final destination of the waste. A WTS sited on city-owned or leased land requires a ULURP application, along with a Fair Share analysis. In contrast, private operators may site private WTSs in light manufacturing M1 zoning districts as of right. Consequently, private WTSs do not require FSC compliance.

    Logistical considerations heavily influence where DSNY and private entities site WTSs. Key considerations include the WTS’s proximity to collection routes; its proximity to major highways, rail, and barges; and whether adequate space exists for waste collection trucks and truck trailers to queue and park. Zoning ordinances restrict private WTSs from being located outside of M1 zones, leading to the concentration of WTSs within zones where communities tend to be low income and majority people of color. Siting WTSs in M1 zones ultimately presents a path of least resistance. The nature of these private WTSs and zoning ordinances has limited the fair distribution of private WTSs, perpetuating an overconcentration in a few overburdened communities.

    Current Distribution of Waste Transfer Stations

    Community opposition to the Fresh Kills landfill in Staten Island—once the world’s largest landfill—motivated its closure in 2001. In the early 1990s, the Staten Island landfill had operated as the only landfill receiving residential waste from other boroughs. In 1996, both Mayor Rudolph Giuliani and Governor George Pataki advocated closing the landfill. In response, the city sought to accomplish two goals: short term waste diversion from Fresh Kills and a long-term solution to the city’s waste management. Short-term waste diversion consisted of costly three-year interim export contracts with private waste haulers, while the long-term solution involved six twenty-year contracts. These contracts specified no cap on permitted waste capacity at WTSs. Additionally, the WTSs sited under these contracts did not undergo ULURP and were not subject to the FSC because they were not sited on city land or by a city agency. This produced a concentration of private WTSs in predominantly M1 zones, impacting neighborhoods that had higher shares of poor and minority residents.

    In this context of overconcentration, fair distribution became a key issue. This scenario is not only related to fair distribution geographically but also to fair distribution on the basis of waste capacity. Consequences of lackluster fair distribution and capacity guidelines after the closure of Fresh Kills still reverberate today. Most recently in 2018 City Council adopted the Waste Equity Law to address this waste capacity issue in overburdened communities, including North Brooklyn, South Bronx, and Southeast Queens. A press release following its passage dubbed the local law “the final chapter of the City’s Solid Waste Management Plan.”

    Due to the shortcomings of the city’s initial long term plan for waste management following the closure of Fresh Kills, former Mayor Bloomberg tasked DSNY to develop a comprehensive plan that would guide the city’s waste management process from 2006 to 2026. DSNY’s 2006 Comprehensive Solid Waste Management Plan (SWMP) sought to (1) continue exporting city waste; (2) enter into four long-term (twenty-year) export contracts with private companies; (3) develop four City-Owned Converted Marine Transfer Stations (MTS) on former waste transfer sites; (4) decrease the city’s reliance on trucks for transferring waste for environmental and cost concerns; and (5) promote equity to “the greatest extent possible. , The City Council approved the four designated MTSs through ULURP in 2005 while DEC authorized the SWMP in 2006. The SWMP, though not perfect and subject to delays, has produced innovative retrofit designs to quell common concerns with WTSs and has played a critical role in alleviating disproportionate burdens of WTSs.

    Legal Analysis

    Though WTSs have a crucial role in the city’s waste management process, communities seldom want WTSs in their backyard due to concerns about their associated externalities, as evidenced in a lawsuit contesting the siting of the East 91st MTS (one of the key stations within DSNY’s SWMP). Among other claims that DSNY failed to follow proper procedures, petitioners in the case (local community members) argued that DSNY’s efforts did not comply with FSC because they failed to evaluate the “compatibility” of this facility with other facilities in the area, the potential adverse effects on “neighborhood character,” and the “suitability of the site to provide cost-effective delivery of the intended services.” The court, however, found that the petitioners could not allege their neighborhood was overburdened by referencing these three nebulous FSC requirements. The court held that DSNY did substantially comply with the FSC because the Fair Share Analysis that DSNY submitted with their ULURP application considered other sites (twenty others) and found strategic advantages as to the chosen location.

    Case Study: East 91st Street Marine WasteTransfer Station (MWTS)

    Perspectives of Residents.Playing a key role in the SWMP, the East 91st MTS officially opened in 2019. At a legislative public hearing for the siting of the East 91st MTS in 2007, several hundred community members and local officials attended in protest, claiming that DSNY’s Final Environmental Impact Statement (FEIS) failed to take account of negative impacts from increased traffic, air pollution, noise, vermin, odors, and adverse effects on everyday activities within the community and that the city should have sought state legislative approval under the public trust doctrine. While litigation brought by community members and local businesses failed to prevent the project, their claims illuminate their key concerns. In Gracie Point Community Council v. NYS DEC, petitioners asserted that the DEC’s decision to issue the permits required to site the MTS equated to a “declaration of regulatory impotence when it comes to protecting public, health, safety, and welfare.” In Powell v. City of New York, petitioners expressed concern that project construction would alienate parkland use, specifically the Asphalt Green Sports Center and Bobby Wagner Walk, and argued that the NYS Legislature needed to authorize the project.

    Perspective of City Agencies—DSNY.According to an Environmental Compliance and Contracts representative at DSNY, “[F]airness drives the siting in the SWMP.” Though private WTSs can escape the auspices of the FSC, DSNY-managed facilities under this plan cannot. The SWMP prioritizes “shifting the burden” of the interim contracts away from neighborhoods where operators historically sited private transfer stations as of right—the South Bronx, North Brooklyn, and Jamaica, Queens. With DSNY centering fairness, the East 91st MTS siting represents a success for the agency because it successfully sited the transfer station in a relatively high-income and predominantly white neighborhood of Manhattan, which has historically not hosted waste transfer stations. DSNY appears to see this as a positive movement towards Manhattan taking accountability to process, treat, and transfer the waste that it generates, instead of shipping waste to overburdened communities.

    Perspective of Nonprofit Organizations.Environmental organizations, including the Natural Resources Defense Council (NRDC), Sustainable South Bronx (SSB), and Organization of Waterfront Neighborhoods (OWN), all promoted the East 91st MTS project because it would reduce the usage of trucks to transport waste to its final disposal, thus mitigating air pollution. These organizations also promoted the project from an environmental justice perspective, stating that the project would contribute to the wider effort of alleviating the concentration of WTSs in communities of color and ensuring that impacts are fairly shared. The Environmental Defense Fund (EDF) and CIVITAS (based in the Upper East Side and East Harlem) also both promoted the project with the caveat that adequate safety measures should be put in place to protect the surrounding community.

    III. Recommendations

    A. Summary

    The substantive criteria of Fair Share, in and of themselves, do almost nothing to restrain the discretion of city agencies when siting facilities. So long as a siting agency engages in some kind of Fair Share analysis, courts almost always grant deference to the agency’s findings. But the procedural requirements of Fair Share—procedures usually supplemented by the requirements of ULURP—arguably provide political safeguards against the clustering of LULUs. For some commentators, this is the main point of Fair Share: by increasing transparency throughout the siting process and by explicitly referencing, in the charter itself, a standard of fairness to which city agencies are supposed to adhere, the FSC give greater opportunities to local communities to identify and protest the overconcentration of LULUs in their neighborhoods. This means LULU siting decisions can be decided, more or less democratically, in the political process.

    According to Professor Eric Lane, executive director and counsel to the 1989 Charter Commission,

    We tried to create a dialogue where, if the community said something wasn’t fair, the city would have to do something about it. So, we put the word ‘fair’ in the charter. We were trying to arm the community, to provide the community with Charter standards to meet the arguments of the city . . . . I think the map [in the yearly statement of needs] is a great improvement when communities can pay attention to it and actually fight [against overconcentration of LULUs] as an issue. The city is more aware of this now, and when they make the map they should be trying to avoid dumping more. ,  

    For other commentators, allowing local political pressures to determine the siting of LULUs creates a kind of prisoner’s dilemma: if every community opposes the facility, but the facility is nonetheless necessary for the city as a whole, then the facility will never be built even though everyone would benefit from it. And it may sometimes be infeasible to site certain facilities “fairly” where “fairness” is defined as an even distribution of facilities throughout the city. Waste treatment facilities may need to be sited near pre-existing physical infrastructure; prisoners may benefit from close proximity to courthouses; and homeless shelters may be best placed nearby to supportive or charitable institutions.

    But the reality remains that, even with the FSC, LULUs remain overconcentrated in low-income and minority communities. Whether or not these siting decisions are practical from the city’s perspective, many communities find this concentration of LULUs to be deeply unfair and to reflect a fundamental lack of democratic legitimacy in city government.

    At the core of these debates are two fundamental, and occasionally conflicting, interests: the interests of those who are served by a specific city facility and the interests of those who live near that facility. The question—the same question that faced the City Charter drafters in 1989—is how to balance these interests.

    We argue that city facilities that promote public purposes need to be built, and clients need to be well-served by these facilities. At the same time, these facilities should not be overconcentrated, and local communities need to feel respected and listened to, not disregarded by an uncaring city bureaucracy. A successful system for siting city facilities should meet both goals; to many, the current system meets neither. Following are three suggested solutions that we believe will better balance these goals.

    B. The Padavan Law as a Model for Siting Facilities

    To craft suggestions on how to improve the siting of LULUs in NYC, it helps to look at successful attempts to regulate sitings of other politically contentious facilities. The Padavan Law governs the siting of residential facilities for individuals with disabilities and residential treatment facilities for youth in NYS. Passed in 1978, a key goal of the law was to make it easier to site group homes for individuals with disabilities by bypassing local zoning regulations and local political opposition. The law succeeded. In the decade after its passage, the number of beds in residential facilities for individuals with disabilities increased from 308 to 6,354. As the law limits each individual facility to a maximum of fourteen residents, this indicates that over four hundred facilities were opened in ten years.

    The Padavan Law takes siting decisions out of the hands of local authorities. Under the law, an individual or group—be it a government agency or a charitable organization—must notify the municipality’s executive of the group’s intention to site a residential facility within that municipality (within NYC, the relevant “municipality” is the community board with jurisdiction over the proposed site). If the municipality opposes the siting or if the municipality and the entity proposing the facility (the “sponsoring agency”) cannot agree on a specific site for the facility, either the sponsoring agency or the municipality can request an immediate hearing before the Commissioner of the NYS Office of Mental Health (OMH). In reviewing the sponsoring agency’s proposed location, the law directs the Commissioner to consider the need for the facility and the concentration of similar facilities in the area, and to reject the facility if it is determined that “the nature and character of the area in which the facility is to be based would be substantially altered as a result of establishment of the facility.” If the Commissioner approves the facility, the municipality’s only recourse is an Article 78 proceeding challenging the department’s decision.

    By effectively removing any local veto power and mandating an expedited decision process, the Padavan Law makes the siting of facilities much quicker and easier than ULURP processes for siting city facilities in NYC. This process solves one key issue—actually siting facilities.

    One might assume that a siting process which overrides local decision-making would lead to less equitable outcomes. But, arguably, when every local community has political input in the siting of undesired facilities, low-income communities suffer; expecting opposition wherever they go, city agencies end up placing facilities in communities that are the least politically organized—and that have less money to hire lawyers and lobbyists to oppose the facilities. “I don’t think [the Fair Share Criteria are] an elixir because two things do remain true: poorer communities have cheaper property and don’t have millions of dollars to invest in lobbyists and lawyers,” said Professor Lane. As noted above, the Padavan Law also directs the OMH to reject sites that would lead to an overconcentration of facilities, though it is hard to say if these requirements meaningfully prevent overconcentration, as courts almost always bow to agency discretion.

    A similar structure could be implemented to site certain kinds of NYC facilities. Homeless shelters, which are already sited under an emergency procedure that avoids many of the procedural requirements of ULURP and Fair Share, may benefit from such a structure. Shelters are desperately needed but are consistently opposed by local communities. This context weighs in favor of an expedited process that overrides local vetoes. However, we believe any such law should also be paired with stronger substantive requirements to prevent overconcentration, which would explicitly prevent the siting of new shelters in CBs that have exceeded a threshold of overconcentration.

    A major drawback of this approach would be a lack of local input. Even if the law could be structured substantively to prevent severe overconcentration as defined by an empirical metric—no simple task—it would be next to impossible, and likely undesirable, to ensure completely equal distribution of facilities. The result would be that some communities would have a disproportionate number of shelters, and if those communities have no meaningful say in where those shelters are sited, they may well feel that the entire process is illegitimate.

    If the primary policy concern is to ensure effective services for the homeless population of NYC, then perhaps these local sentiments are unimportant. But even if the feelings of local communities can be overlooked as a normative matter, it is far from clear that they can be overlooked as a political matter. Given the intensity of political opposition to many LULUs, a system that grants the New York State government power to site LULUs over the heads of local communities would be politically contentious. Still, the core insight of the Padavan Law—that the power to override local vetoes can vastly accelerate the pace of siting for necessary facilities—remains relevant.

    C. Comprehensive Citywide Plan

    The De Blasio era’s Turning the Tide on Homelessness and Borough-Based Jail System Plans and the Bloomberg era’s SWMP provide examples of how the city could use a comprehensive citywide plan (CCP) to promote equitable distribution of facilities. The DCP, along with relevant city agencies, should use the shortcomings of past plans to create an enhanced CCP for the equitable siting of LULUs. A CCP should define an overarching strategy for siting LULUs during a four-year period (one plan for each mayoral administration).

    Necessary Components of CCP

    An effective CCP will require four mandatory components. First, coordination among all agencies siting LULUs will be necessary to prevent different agencies from siting LULUs in close proximity. Coordination also should ensure that agencies are given access to land most feasible for a specific facility. Second, DCP, along with the relevant agencies, must ensure that the CCP centers equity. Third, the DCP and relevant agencies should conduct a cost-benefits analysis for the CCP as a whole and establish a timeline for procurement and construction of the facilities in the plan. Fourth, the CCP must establish a robust method for overruling local opposition so that the CCP can actually be implemented. One method, used in the 2006 SWMP and in De Blasio’s Borough-Based Jails plan, involves requiring one ULURP application for all facilities. Given the frequency of litigation, strategies to mitigate lawsuits aiming to prevent the opening of a facility may also be key.

    Advantages of CCPs

    CCPs offer three advantages. First, an effective CCP would facilitate siting LULUs in the face of local opposition, ensuring that the city sites these facilities equitably. Second, because facilities sited under a CCP would undergo the same hearings, a CCP would minimize the time that it takes for the CPC and City Council to approve ULURP applications. Third, rules governing CCPs would promote fairness by requiring that the CCP consider the current distribution of LULUs throughout the city and mandate fair geographical distribution based on that current distribution.

    Disadvantages of CCPs

    The feasibility of a quadrennial CCP conjures concerns. The timeline itself is one problem; the city may not be able to accurately predict its needs four years in advance, and some facilities may take more than four years to site and construct. The mayor, DCP, and relevant agencies would likely need a certain amount of flexibility to plan outside of this four-year timeframe. A CCP also may be unsuitable for certain types of facilities, particularly those that must be sited quickly in cases of emergency. The ongoing migrant crisis in NYC offers a prime example: a seemingly impossible crisis to predict, requiring an immediate increase in the capacity of NYC’s shelter system. For this reason, certain facilities may need to be excluded from the CCP, or at the very least, emergency procedures allowing the city to circumvent the CCP for temporary placement would be necessary so that the city could respond to crises in a timely manner.

    D. Incorporation of Progressive Siting Principles

    Proposed Solution

    Incorporating progressive siting principles into a reformed system of approval provides another potential method to achieve a more even distribution of LULUs. Progressive siting dictates that under-concentrated (usually wealthier) neighborhoods receive a greater number of LULUs than overconcentrated (usually poor) neighborhoods. Because it is generally understood that relocating currently operational facilities is inefficient, NYC is starting with an uneven distribution. Therefore, progressive siting of new facilities is necessary to achieve equal dispersion. Progressive siting and equal dispersion is achieved in four parts.

    First, we recommend mandatory City Council review and approval for all LULU facilities that are sited or expanded. For site-selection applications that undergo ULURP review, this means requiring City Council review and approval to move forward, as opposed to the current system that requires only discretionary City Council review for ULURP site selection applications. For actions not subject to ULURP (i.e., siting a city-contracted facility per FSC Article 9), the Fair Share Statement must be sent to City Council, which must review and approve the action. The current Article 9 process does not require any approval by the City Council.

    Second, we propose a bifurcated process for City Council approval that would give greater veto power to overconcentrated districts than under-concentrated districts. This system could work in two different ways. One option would give City Council members representing “overconcentrated” districts an official veto on site selection for certain undesirable facilities in their districts. City Council members representing “under-concentrated” districts would receive no veto, and the current system of member deference would be eliminated. Alternatively, any proposed LULU in an “overconcentrated” district could require a supermajority vote of the City Council, while a proposed siting in an “under-concentrated” district would require a simple majority (again, without member deference). The exact majority requirements could be fine-tuned, but the key principle is that siting a LULU in an overconcentrated district would require a greater number of votes. Both potential frameworks would make it comparably easier for agencies to site LULUs in under-concentrated community districts than in overconcentrated districts.

    Third, we define “over-concentration” and “under-concentration” as having more or fewer facilities, respectively, than a calculated numerical benchmark average. We believe each kind of facility would require its own benchmark average based on facility-specific considerations, and there are several ways to calculate these benchmarks. One option is to divide the total number of facilities—or number of residential beds, metric ton of waste processed per year, or some other measure of total capacity across all facilities—by the number of CDs (or another geographic subdivision) to calculate the number of facilities per district that would make for a “perfectly” dispersed distribution. However, we recognize that for some kinds of facilities, such a “perfect” distribution may be infeasible or even undesirable and alternate benchmarks may be needed. At core, however, these benchmarks should be calculated in such a way as to motivate against a geographical overconcentration of LULUs.

    Lastly, these benchmark averages should be recalculated every two years (during Year One and Three of each mayoral term), during which time community districts would be re-evaluated for categorization as “overconcentrated” or “under-concentrated.”

    Potential Issues

    One issue with this proposal is that it increases City Council review, which would likely slow down the process of siting facilities. In our interviews, many current and former city agency employees noted their concerns with the slowness of the current siting process. For example, given the current homelessness crisis in NYC, the city and those who are currently unsheltered need homeless shelters. To close Rikers Island and end its humanitarian crisis, the city needs to site other detention facilities. To have a functioning sewage system and clean-ish city, the city needs waste transfer stations.

    The critical need for these city facilities and the concurrent need to solicit community input, which delays the process, create difficult points of tension. But solving one issue by creating another is not a solution; the city may benefit from processes that more quickly site these facilities, but it should not site them in a way that exacerbates current unequal and unjust patterns of distribution.

    Benchmark averages create another issue, as the calculation of benchmark averages for different facilities would likely be contentious. People will have different views about what is fair generally and what is fair in the context of each individual facility. Each specific kind of facility would require a unique and carefully considered benchmark.

    Lastly, an issue arises whenever boundary lines are drawn; even if facilities are evenly dispersed among districts, they may still be clustered in other ways. But a line must be drawn somewhere, and a system that would enforce greater dispersion between districts would still make it significantly harder to cluster facilities.

    IV. Conclusion

    Over thirty years since the advent of Fair Share in NYC, overconcentration of LULUs in low-income communities of color remains a perennial problem and a pointed political issue. Fair Share likely has had an impact for the better, but it simply has not solved the problem that it set out to solve. And at the same time, the city struggles to site desperately needed facilities in the face of overwhelming local opposition.

    The city needs a system that allows it to site needed facilities but that also provides meaningful safeguards against the overconcentration of undesirable facilities. The FSC, as they stand, are not up to these tasks. Serious changes are needed. We have provided a few (ambitious) options, but the first step towards any change is to acknowledge that the current system is not working as it should. Because this system is not working, we hope that policymakers will take a hard look and that the city government will be open to changes that promote efficiency without sacrificing equity.

    Appendices

    METHODOLOGY

    Appendices A–D

    Our data analysis is mainly descriptive, with the intent of showing how our LULUs of interest are currently distributed. Using facility data from the Department of City Planning Capital Planning Explorer, we created choropleth maps (Figures 1–3) mapping nonresidential housing and homeless services facilities, detention facilities, and solid waste transfer facilities over indicators of poverty and race. Blue and red circles on the maps represent the locations of these facilities. It should be noted that the DCP Capital Planning Explorer does not include comprehensive data on shelter locations. For the purposes of Figures 1a and 1b, we use data from DHS, and the circle radiuses correspond to the number of shelters in the CD/Community District Tabulation Area (CDTA). The poverty level and race data come from the five-year ACS Data Tables (demographic and economic profiles) and is provided at the CDTA level.

    CDTAs approximate CDs and are essentially interchangeable for analysis purposes. Therefore, we map demographic and facility data at the CDTA level because the siting process for city facilities incorporates participation from the CBs representing each CD (i.e., fifty-nine CBs represent fifty-nine CDs). (Note: we use CD and CDTA interchangeably throughout and so consider that BX03 CDTA is equivalent to Bronx CD 3. The CDTAs were designed to be matched in this way and offer the best available data for CDs.) We also include tables that show the top five CDTAs with the highest count and share of a certain kind of facility (Tables 1 and 6).

    We compiled data from DCP’s Community District Profiles and Population Factfinder to create other basic summary tables displaying CD demographics (see Tables 2 through 5) for areas with the highest number and share of this paper’s problematic LULUs. Note that the data for tables that reference “NYCgov Poverty Rate” come from Community District Profiles–Summary Community District Profile for each CD in the Resources Tab.

    APPENDIX A: Shelters

    Figure 1a: Distribution of Shelters and Poverty (2020)

    Figure 1a displays the share of people in poverty along with information on the number of shelters in each CD/CDTA. Shelter information comes from DHS. The size of each circle’s radius on the map corresponds directly to the number of shelters in a given CD/CDTA in which the circle is located.

    Source: Capital Planning Explorer, DCP-Population American Community Survey (ACS) Data Tables; NYC DHS, Department of Social Services (DSS), A Map of NYC DHS Shelter Locations as of July 2022 (2022). Please note that the NYC DCP Capital Planning Explorer does not include comprehensive data on shelter locations. The Capital Planning Explorer does include Non-Residential Housing and Homeless Services Facilities.

    Figure 1b: Distribution of Shelters and Race (2020)

    Figure 1b displays racial characteristics along with information on the number of shelters in each CD/CDTA. Shelter information comes from DHS. The size of each circle’s radius on the map corresponds directly to the number of shelters in a given CD/CDTA in which the circle is located.

    Source: Capital Planning Explorer, DCP-Population ACS Data Tables;NYC DHS, DSS (2022). Please note that the NYC DCP Capital Planning Explorer does not include comprehensive data on shelter locations. The Capital Planning Explorer does include Non-Residential Housing and Homeless Services Facilities.

    Table 1: Distribution of Shelters Across CDTAs

    Table 1 displays the top five CDTAs based on the number and share of shelters within their boundaries. Facility information comes from the NYC Department of Homeless Services.

    Table 2: Demographics of the Top Five CDs/CDTAs with Shelters

    Table 2 displays sociodemographic information for the top five CDTAs with shelters. Sociodemographic information comes from DCP’s CD Profiles and Population Factfinder.Sources: NYC Planning | CD Profiles, 2013–2017 NYCgov Poverty Measure by PUMA1; NYC Planning | Population Factfinder, Mutually Exclusive Race / Hispanic Origin (2020)

    Notes on Tables 1 and 2

    Both Table 1 and 2 describe Figures 1a and 1b. In Table 1, the CDTA with the greatest number of shelters is in Brooklyn, specifically in the neighborhoods of Broadway Junction, Brownsville, and Ocean Hill. Almost a third of residents in CDTA BK16 are below the NYCgov poverty threshold. Two of the top five CDTAs with shelters are in the Bronx (BX06 and BX04), which contains a combined thirty-seven shelters. More than a quarter of the residents in these CDTAs have incomes below the NYCgov poverty threshold, and these CDTAs tend to have higher populations of people of color. Note that CDTA MN10 (representative of Manhattan CD 10)—consisting of Central Harlem—contains nineteen shelters. Twenty percent of residents in this CD have incomes below the NYCgov poverty threshold, and a larger share of the population is white. Finally, CDTA MN11 (representative of Manhattan CD 11)—consisting of East Harlem, Harlem, Randall’s Island Park, Wards Island Park—contains sixteen shelters. Twenty-two percent of the residents in this CDTA have incomes below the NYCgov poverty threshold. More than two-thirds of the residents in this CDTA are Hispanic and Black/African American.

    APPENDIX B: Prisons

    Figure 2a: The Distribution of Jails and Poverty (2020)

    Figure 2a displays the share of people in poverty along with information on the number of jails in each CD/CDTA. Jail facility information comes from DCP. The number of circles on the map corresponds directly to the number of jails in a given CD/CDTA.

    Source: Capital Planning Explorer; DCP-Population American Community Survey (ACS) Data Tables

    Figure 2b: The Distribution of Jails and Race (2020)

    Figure 2b displays racial characteristics along with information on the number of jails in each CD/CDTA. Jail facility information comes from DCP. The number of circles on the map corresponds directly to the number of jails in a given CD/CDTA.

    Source: Capital Planning Explorer; DCP-Population American Community Survey (ACS) Data Tables

    Table 3: Current Detention Facilities in NYC Outside of Rikers Island

    Table 3 displays detention facility information and sociodemographic information. Facility information comes from NYC Facilities Database, and demographic information comes from DCP CD profiles and Population Factfinder.

    –

    Notes on Table 3

    The NYC Facilities Database lists “New Fulton Fish Market” at 800 Food Center Drive, Bronx, NY 10474 as a “jail,” but we have not verified that a jail exists at this location or this name. We assume that this is an error in the database, perhaps a double-count of the neighboring Vernon C, Bain Center, and did not include this facility in the total count.

    The Facilities Database also lists the “Brooklyn House of Detention” and the “Brooklyn Detention Complex” as two distinct facilities, but both facilities share the same address. This appears to be a single facility, and the names are used interchangeably in news articles. We have treated this location as a single facility.

    Similarly, the Facilities Database lists the Metropolitan Detention Center (MDC), Brooklyn and the Residential Reentry Management Program (RPM), New York as two separate facilities, but these supposedly distinct facilities share the same address. RPM New York appears to be simply a reentry program run within the MDC facility. We have again treated this location as a single facility.

    More complicated is the Manhattan Detention Complex (MDC) at 125 White Street and the Criminal Courthouse Detention Complex at 100 Center Street. While these buildings have separate addresses, the jail and the court are physically connected by an overhang.

    The city is in the process of tearing down and replacing the MDC, but plans for the new Manhattan jail show that it will remain physically connected to the courthouse. To the extent that the courthouse holds prisoners, it appears to do so only temporarily as these prisoners are transported to and from court appearances. And perhaps most importantly, from conversations with community members, the courthouse does not appear to be perceived by locals as a distinct detention facility. For all these reasons, we have not counted the courthouse as a distinct detention facility.

    Table 4: Socio-demographics of Areas Surrounding Borough-Based Jails

    Table 4 displays socio-demographic information for areas surrounding borough-based jails and the corresponding citywide information. Sociodemographic information comes from DCP’s CD Profiles and Population Factfinder.Sources: NYC Planning | Population Factfinder, Mutually Exclusive Race / Hispanic Origin (2020), NYC Planning | CD Profiles, 2013–2017 NYCgov Poverty Measure by PUMA

    APPENDIX C: Waste Transfer Stations

    Table 5: Intro-157-C: Overburdened Communities

    Table 5 displays the CDs with the highest shares of waste capacity throughout the city along with socio-demographic information. These communities were defined as overburdened in the Intro-157 legislation.

    Source: Mayor de Blasio and Speaker Johnson Celebrate Signing of Waste Equity Legislation | City of New York (nyc.gov)NYC Planning | Population Factfinder, Mutually Exclusive Race / Hispanic Origin (2020) NYC Planning | CD Profiles, 2013–2017 NYCgov Poverty Measure by PUMA.

    In 2018, Intro-157 legislation, which was sponsored by former City Council members Antonio Reynoso and Stephen Levin, passed, becoming the city’s Waste Equity Law. This law sought to “reduce the permitted capacity at putrescible and non-putrescible solid waste transfer stations in overburdened community districts.” The Waste Equity Law also restricts these communities from receiving new waste transfer stations and/or additional permitted capacity. A 2018 report on the bill highlighted that twenty-six out of the thirty-eight private WTSs were located in three primary neighborhoods: North Brooklyn, South Bronx, and Southeast Queens. These communities (comprised mostly of people of color with the exception of Brooklyn CD 1, which has experienced rapid gentrification within the past twenty years) not only had a greater share of the city’s WTSs but also bore a greater burden of having to receive waste from other boroughs as a result of siting considerations and zoning ordinances following the closing of NYC landfills.

    North Brooklyn, specifically Brooklyn CD 1, retains a large share of the city’s waste capacity. Over half of this district’s population is white (non-Hispanic), and the district has a poverty level below the citywide average (twenty percent). South Bronx CDs 1 and 2 also retain a substantial portion of the city’s waste capacity. These areas are composed of mainly Hispanic and Black residents, and both of these CDs have poverty levels well above the city average. Finally, Southeast Queens, specifically CD 12, also retains a notable portion of the city’s waste capacity. Over half of the population of CD 12 is Black, and the district has a poverty level below the citywide average.

    Figure 3a. The Distribution of Public and Non-Public Waste Transfer Facilities and Poverty (2020)

    Figure 3a displays the share of people in poverty along with information on the number of waste transfer facilities in each CD/CDTA. Waste Transfer Facility information comes from DCP. The number of circles on the map corresponds directly to the number of waste transfer stations in a given CD/CDTA.

    Source: Capital Planning Explorer; DCP-Population American Community Survey (ACS) Data Tables

    Figure 3b. The Distribution of Public and Non-Public Waste Transfer Facilities and Race (2020)

    Figure 3b displays racial characteristics along with information on the number of waste transfer facilities in each CD/CDTA. Waste Transfer Facility information comes from DCP. The number of circles on the map corresponds directly to the number of waste transfer stations in a given CD/CDTA.

    Source: Capital Planning Explorer; DCP-Population American Community Survey (ACS) Data Tables

    Table 6: The Distribution of Waste Transfer Stations Across CDTAs

    Table 6 displays the top five CDTAs based on the number and share of public and non-public waste transfer stations within their boundaries. Facility information comes from NYC Facilities Capital Planning Explorer.

    Note on Table 6

    Table 6 helps describe both Figures 3a and 3b. Based on the data from Capital Explorer (DCP), BX02 and BX01 (Bronx CD 1 and 2) contain eight WTSs. These areas encapsulate the South Bronx. BK01 (Brooklyn CD 1) contains four WTSs and encapsulates North Brooklyn. QN12 (Queens CD 12) contains three WTSs and encapsulates Southeast Queens. All of these CDTAs correspond to the four neighborhoods previously mentioned in Table 5 that retain the largest share of the city’s waste according to the 2018 report for the Waste Equity Law. (Note: BK07 contains the Hamilton Avenue Marine Transfer Station, which Capital Explorer has listed multiple times under different street addresses.)

    Figure 4. Locations of SWMP Long-Term Export Facilitiesand Watersheds

    Figure 4 comes from the DSNY 2006 About SWMP (page 4) and displays the distribution of the SWMP Long Term Export Facilities and Wastesheds Served across boroughs and CDs.

    Table 7. Proposed SWMP Long Term Export Facilities and Potential Contractors

    Table 7 comes from the DSNY 2006 About SWMP (page 5) and displays long term export facilities designated in the long term program in place of interim export contracts.

    APPENDIX D: Interview List

    1. Roderick Hills. Professor of Law, New York University School of Law (Oct. 6, 2022).

    2. Eric Lane. Professor of Law, Maurice A. Deane School of Law at Hofstra University; Former Counsel and Executive Director of New York City Charter Revision Commission 1989 (Oct. 7, 2022).

    3. Manohar Patole. Professor of Urban Planning, New York University Wagner Graduate School of Public Service; Co-City Fellow and Project Manager for Co-City Baton Rouge (CCBR) (Oct. 7, 2022).

    4. Brandon Jordan. Legislative and Budget Director, Council Member Julia Menin’s office (District 5) (Oct. 14, 2022).

    5. John Mangin. Director of Housing Division, NYC Department of City Planning; Adjunct Assistant Professor of Urban Planning, New York University Wagner Graduate School of Public Service (Oct. 28, 2022).

    6. Susan Amron (General Counsel) and Sarah Whitham (Senior Manager, City Facilities Planning), Department of City Planning (Oct. 31, 2022).

    7. John Douglas (Director of Land Use and Topography) and Erin Buchanan (Deputy Director of Land Use), Brooklyn Borough President Staff (Nov. 3, 2022).

    8. Ken Knuckles. Vice Chair, NYC City Planning Commission; Former Deputy Bronx Borough President (Nov. 3, 2022).

    9. Michael Freedman-Schanpp. Managing Director, Financial Advisory. Forsyth Street (Nov. 3, 2022).

    10. Vicki Been. Associated Professor of Public Policy, New York University Wagner Graduate School of Public Service; Professor of Law, New York University School of Law (Nov. 4, 2022).

    11. Muzzy Rosenblatt. CEO and President, Bowery Residents’ Committee (Nov. 8, 2022).

    12. Jacqueline McMickens. Founder of Jacqueline McMickens & Associates PLLC; Lawyer for Community in Rebirth of Bergen Street (Nov. 9, 2022).

    13. Carl Weisbrod. Former Chairman, NYC Planning Commission; Former Director, DCP Senior Advisor, HR&A Advisors (Nov. 11, 2022).

    14. Arvind Sindhwani. Director of Land Use & Community Advocate at Council Member Lincoln Restler’s Office (D-33) (Nov. 11, 2022).

    15. Victoria Lee. Cofounder, Welcome to Chinatown (Nov. 18, 2022).

    APPENDIX E: Miscellaneous Recommendation

    Additional recommendations for improving the Fair Share process include:

    1) Incorporate Value-Adding Component in Siting LULUs. If agencies cannot find alternative places to site LULUs, CPC can update FSC to require these agencies to make projects more “palatable.” For example, agencies can introduce a project that a community does not want along with another project the community does want (i.e., green space, a park, a new library) (Manohar Patole). Though this process would not satisfy the criteria for geographical fairness, it would satisfy the criteria on the basis of “neighborhood compensation to host communities.” (Vicki Been).

    2) Require Consistent (Accessible) Report on FSC. CPC could require DCP to release an annual or bi-annual report to stakeholders that tracks how the city is/is not successfully implementing FSC (Section 204).

    3) Make Data More Accessible and Easy to Use: DCP can include more data/maps to show the distribution of LULUs and/or how that distribution changes over time. DCP also can improve the accessibility of Fair Share Analysis Documents (Section 203, 204).

    APPENDIX F: ULURP Process

      Entity:
      Topic:
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      Sean Connolly

      New York University

      New York University, School of Law, JD candidate 2024.

      Elizabeth (Nikki) Miller

      New York University

      New York University, Wagner School of Public Service, MPA 2023.

      Julie Zhu

      New York University

      New York University, School of Law, JD 2023.