REIMAGINING COMMUNITY INPUT: PAST, PRESENT AND FUTURE OF NEW YORK CITY COMMUNITY BOARDS.

• Date: 01 March 2023
• Author: Shakhnovskiy, Egor

Introduction 558 I. History of New York City Community Boards & New York City Community Boards Today 560 A. Sub-local Control in New York City 561 B. History of New York City Community Boards 562 1. 1961 Charter Revision: Community Planning Districts 563 2. 1975 Charter Revision: The Birth of Modern Community Boards 564 3. 1989 Charter Revision and Board of Estimate of New York v. Morris 568 4. 2005 and 2010 Charter Revision Reports 571 5. 2018-19 Charter Revisions 573 C. Current Legal and Practical Function 574 D. The Predominance of Land Use Review and Frequent Problems Faced By Community Boards 576 II. The Dispute Around NYC Community Boards and Community Input 577 A. The Theory of Sub-local Control 578 1. Economic Efficiency, Democratic Participation, and the Tiebout Model 578 2. Assumptions and Problems in the Tiebout Model 580 3. Non-sovereign and Micro-local Powers 582 B. Proponents of Community Boards and Community Input 583 1. "Federalism All The Way Down" 584 2. Community Control in New York City 585 C. Opponents of Excessive Community Input and Community Boards 588 1. Opposition to Community Input's Impact on Government Capacity 588 2. Opposition to the Undemocratic Nature of Community Input 591 3. Opposition To Community Input Through the Lens of the Tiebout Model 591 III. Proposal For Proactive Community Boards 592 A. Problems with Community Boards 592 1. Productive and Allocative Efficiency 593 2. Representation and Diversity 594 B. A Proposal For Collaborative and Proactive Community Boards 595 1. Aligning Community Boards with the Executive Branch 595 2. Increased Funding to Make 197-(a) Proposals and Other Functions 598 3. Removing Their Advisory Power 600 4. Improve Diversity and Accessibility 601 Conclusion 602 INTRODUCTION

New York City ("NYC" or the "City") community boards represent a somewhat unique urban institution. Created nearly 50 years ago, their formation marked the beginning of a new era in New York City politics, and urban politics around the country. Namely, community boards ushered in an era where centralized urban governments lead to decentralized community power. As New York City public officials were forced to reckon with the effects of mid-century policies--such as highway construction and urban renewal--people lost trust in their governments. These community boards were the response. The boards, staffed by residents of neighborhoods they represent, were granted advisory powers over NYC government functions that impacted their neighborhoods, such as decisions regarding land use. They would exercise these powers by holding public hearings on such functions. (1) No longer would community voices be ignored in city government. Instead, those voices could be channeled to oppose destructive policies and avoid the mistakes of the past.

Fifty years later, the problems faced by New York City have shifted. Debates over where and how many highways to build through dense urban environments have given way to debates over how to efficiently utilize existing roads. (2) Because previous urban renewal projects violently destroyed homes and neighborhoods, today every zoning decision faces challenges related to gentrification and development. (3) In the past, neighborhoods were leveled and raised at the whim of one person; (4) today, no building is altered without ensuring that many voices are heard. (5) In the new decentralized and democratic New York City, the predominant challenge is how to build neighborhood consensus when making decisions, and not how to oppose the decisions of bureaucrats. (6)

While the City has adapted, community boards have not kept pace with that change. Instead of becoming engines of consensus, their form and function inherently pushed community boards to continue playing the role of an opponent to citywide decisions. (7) As funding has stagnated, community boards have increasingly doubled down on their legal power to hold public hearings on issues such as land use, so that these hearings can serve as a forum for concentrated opposition. (8) Yet this opposition hides the fact that community boards are just as much a part of the structure of New York City government as any other municipal branch or agency. (9) The legal structure of community boards prioritizes certain community voices, as opposed to the voices of a broader local government; but a different structure can equally prioritize all community voices, including those that wish to work with, rather than against, the local government. (10) A new type of community board can help New York City meet the challenges of the twenty-first century. These new challenges require broad cooperation rather than opposition between the City government and its communities.

This Note explores the history of New York City community boards and how their legal and practical roles have evolved over the last 50 years. Further, it proposes shifting community boards away from their primary role of channeling community opposition, and towards channeling all forms of community input to achieve democratic consensus and economic efficiency. Part I tells the story of community boards through the New York City Charter revisions that defined them. (11) Part II provides the theoretical background of local and sub-local government structures and highlights the present-day fight over their role in City government. (12) This includes analyzing how there are some who seek to give a greater voice to community input, and others who seek to weaken them and improve citywide efficiency. Part III proposes a novel and politically feasible improvement to New York City community boards, namely, a charter revision that removes their reactive advisory power on many local planning decisions and replaces that authority with greater funding and power for proactive inputs on citywide decisions. (13)

1. HISTORY OF NEW YORK CITY COMMUNITY BOARDS & NEW YORK CITY COMMUNITY BOARDS TODAY

   Community boards in New York City are a formal part of city government and are defined in the City's Charter. (14) However, on the surface, community boards do not cleanly fit into the traditional tripartite division of government that exists at the federal level and is taught in civics class. Rather, they were created to use community input as a "check" on the power of the City's government.

   First, this Part provides the background on the local law of New York City, including the City Charter and how it is changed. Then, this Part delves into the history and function of community boards, including: how they came about, how they changed, and what they do today.

   1. Sub-local Control in New York City

      New York City is the largest city in the United States, (15) and one of the most diverse cities in the world. (16) As such, there is a long history of local forms of control in New York City, from the informal power of Tammany Hall in the nineteenth century to the formal power of the City Council today. (17) However, the scope of this control and procedures New York City must follow to adapt are set by New York State law. (18) To understand the history of New York City community boards, it is important to understand the foundation of New York City law: the City Charter.

      Much like the relationship between the U.S. government and the states, the relationship between New York State and its local governments is defined by the state's constitution and statutes. (19) Relevant to this Note are two specific aspects of this relationship in the New York's Municipal Home Rule Law: the power of a municipality to adopt a city charter, (20) and the referendum requirement in amending the charter. (21)

      City charters are an optional form of local constitutions designed to outline the general structure of local governments. (22) For example, the New York City Charter outlines the broad powers of the Mayor (23) and City Council. (24) City charters can be amended through local laws passed by legislative bodies of municipalities, (25) or, more commonly, through city charter revision commissions entrusted with conducting research on and forming proposal for amendments to a city charter. (26) City charter revision commissions may be appointed by either the executive or legislative body of a municipality. (27) Their findings and proposals must then be submitted to voters in a referendum in order to be adopted. (28) The Commission produces these submissions after both internal research by commissions and public hearings conducted by the Commission, where New York City residents voice concerns about the current City Charter or amendments they wish to see in the new one. (29)

      Additionally, certain local laws, whether they are amending the city charter or not, are subject to a referendum by the electors of the municipality before being adopted. (30) Most notably, any law that "curtails the power of an elective officer" is subject to a mandatory referendum. (31) New York Courts have read this language to apply only to laws that transfer or modify powers of elective officers as part of the framework of local government, as opposed to laws that limit, expand or provide clarity on existing powers of elective officers. (32)

      Combined, this means any attempt to modify the framework of New York City government, either via a local law or a Charter revision, requires a referendum. Further, all these modifications must be added to the City Charter. As a result, any attempt to divest portions of New York City's local government power to any other new units is a modification of the framework of the City government because it will require the creation of new offices and the transfer of some local officer's power to the new officers. Such a modification would require a referendum, usually preceded by a formation of a City Charter revision commission.

   2. History of New York City Community Boards

      The legal history of New York City can, on some level, be characterized as a battle between centralized, citywide control...