Imagine some era of future prosperity when the city is no longer shutting down libraries but can afford to endow a new branch or two. As usual, neighborhoods cry out for attention like baby robins in the nest. You, the responsible official, narrow it down to what seem the worthiest of the gaping mouths. A Queens community is too far to walk from existing libraries. Brooklynites want to replace a leaky, cramped facility. A Staten Island development has a big crop of toddlers approaching school age. A Bronx site across from an experimental school offers an empty city-owned building ready to hand. Finally you give the nod to the Queens and Bronx sites.
The others are disappointed. In fact, they sue. So do people from two Manhattan neighborhoods that did not even make the cut. You spend the next four years in court, and finally agree in a vast consent decree to go back to square one and pay everyone’s lawyer bills. Of course, that leaves no money for new librarians.
This is the way New York could do business someday under what are known as the “fair-share” provisions of the new City Charter.
Ah, fairness. Everyone wants more of it. And everyone argues that his own locality is getting the short end of the stick. West Harlem recently got stuck with a sewage and a garbage plant in quick succession. Staten Island endures the Fresh Kills dump and a lack of subways, and is a favorite locale for halfway houses trying to keep clients away from urban temptations. Downtown Brooklyn, with its low office rents and good subway connections, winds up hosting welfare, probation, and drug treatment offices.
Posh precincts feel picked-on too. Downtown Manhattan? Short on parkland. Uptown? Try squeezing into a decrepit Lexington Avenue IRT every day. The logic of location, of course, accounts for many of these differences. But politics being what it is, plenty of unevenness results from the skill of influential or vocal neighborhoods in dodging bad facilities or snagging good ones.
What to do about this age-old problem? New York seems to be the first city to attempt to pass a law against it. The Charter revision approved by voters on November 7, 1989, endorsed a “fair distribution among communities of the burdens and benefits associated with city facilities.” The Dinkins administration last summer published proposed rules to implement the principle.
The fair-share idea, it seemed, had lots of applications. To begin with, the rules were not just going to govern the doling out of “bad” facilities like bus garages; “Good” things like museums and playgrounds were to be covered too, as were the sizable category of city facilities that do not rouse strong or predictable feelings in either direction.
Nor were fair-share advocates content with having the rules cover only the opening of new units. They would have to extend as well to the closing of old ones. Otherwise elected officials might craftily achieve unfairness by attrition, opening blights everywhere and then closing all but a few. The next inevitable step was for the rules to be applied to lesser expansions or contractions of existing facilities, which after all can achieve much the same effect as openings and closures. To top everything, the regulations obligated the city to make new projects as small as possible. This provision could work at cross-purposes with the supposed aim of minimizing bad effects on neighbors, since spreading misery sometimes increases its amount. Most important, it provided another handle to litigate projects.
For what lent practical urgency to all these provisions was the kicker: The city could be sued whenever it failed to achieve a vaguely defined geographic “fairness” along any of these dimensions. As the office of Manhattan Borough President (and leading fair-share advocate) Ruth Messinger put it with delicate euphemism, the goal was to give the objectors “the tools necessary for testing the agencies’ good faith before [the City Planning] Commission and other appropriate forums [emphasis added].”
The ever-ramifying “fairness” logic (or sentiment) combined with the provisions for universal litigability to make a dream come true for those many urban activists who specialize in objecting to things. Under the proposal, they could tie up in court any significant expansion or shrinkage of any city facility by claiming to represent, as the case may be, either local residents or people from some other neighborhood. Entrepreneurs of racial and other grievances would gain a spectacular new organizing tool and bargaining lever. So would groups whose real beef was with the opening or closing of some type of unit, no matter where it was located: Foes of garbage incinerators, for example, could rush to organize objections to any site the city chose, and so could the unions that do not want any firehouse closed, period.
These suits would have serious obstruction value. Everyone from City Planning Commission Chairman Richard L. Schaffer on down seemed to agree that the burden would fall on the city agencies, rather than the objectors, to justify their position. Nor would the city necessarily get off the hook by producing studies backing a choice as cost-effective on seemingly neutral grounds such as the cost of space acquisition, the convenience of the chosen location to service clients or the labor force, or the optimal maintenance of the city’s tax base. Fair-share advocates stressed that such objective considerations were precisely what they were seeking to downgrade, since they led too often to the unequal distribution of facilities. The elimination of conscious favoritism between neighborhoods was not the point at all: They wanted equality of result.
The most effective criticism of the proposal came from the Citizens Housing and Planning Commission, a long-established private group. The commission pointed out that “fairness” would be endlessly argued in the courts if made a legally binding obligation: “In the hands of a shrewd manipulator, statistical data can be used to entangle even the most benign facilities.” The result is “apt to provoke conflicts more bitter” than those of the past, the commission said.
In the library example, which the Citizens Housing and Planning Commission worked out in some detail, the determination of which districts are “overserved” with branches and which “underserved” depends entirely on the assumptions a court can be prevailed upon to embrace. Checking the number of branches per capita in a district is hardly enough, since some branches are much bigger and better than others. The size of the combined local book collection per capita? A feeble proxy. Other advocates will point to the number of books circulated per capita, but it is not clear whether a very high circulation rate (strain on facilities?) or a very low rate (outmoded facilities no one wants to use?) signifies that a new facility is deserved. And should variations in demand, such as a concentration of school-age children, be factored in?
It is also impossible to agree on what constitutes fairness in the distribution of “unwanted” structures. Is Queens pulling a fast one because it has fewer homeless-shelter beds per capita than the city as a whole? Or is it pulling its weight because its share of beds matches the share of homeless families that come from Queens?
Arrayed on the other side, complaining that the regulations should have gone even further, were various activists led by poverty-law groups that derive considerable political power from their skill at suing the city. Manhattan Borough President Ruth Messinger emerged as spokesman for this group. Messinger said the rules should cover not only city facilities but many private facilities as well. They should kick in, in her view, “any time [her emphasis] the city plays a significant role in the ability of a facility to operate”—including, she specified, by granting a zoning variance or even a license.
The implications are dizzying. A private hospital or social service center trying to open in an “overserved” neighborhood could presumably have its license or license renewal locked by someone claiming to speak for neighbors or for an “underserved” neighborhood where perhaps it should have opened instead.
Luckily, clearer heads have prevailed, at least for the moment. In a sharp reversal of policy, City Hall rewrote the proposal to remove most, if not all, of the automatic litigability, leaving guidelines that appear mostly to be indicative and aspirational. Joseph Rose of the Citizens Housing and Planning Commission praises the Dinkins administration for its turnaround, but warns that not every pitfall was avoided: Activists can still file legal challenges to exploit confusion over which city agencies are covered, for example.
The rules also serve as a camel’s nose for the fair-share idea to expand further toward full legally binding status. “By creating the language itself, you seriously advance the cause,” Eric Lane, counsel to the commission that drew up the new Charter and the original guidelines, enthusiastically pointed out. “Once you get the lingo there, people start to pay attention to it, people start to believe it.”
Before “fair share” becomes an unquestionable shibboleth in Gotham politics, it might be well to ask a couple of questions. One is: Does New York City really want to wind up as what writer David Frum has called a Brownstone Venice, where not much is ever demolished but less and less is built, while economic dynamism and leadership gradually migrate elsewhere? And why, exactly, is this clinging-to-the-past vision of urban life so often seen as the “progressive” position in city politics?
It might also be time to reexamine the curious notion that the way to get more civic harmony is to create wide-open opportunities for people to file lawsuits. “When unpopular facilities are proposed,” Mayor Dinkins said in an official statement, “tensions rise, picket lines form, legal challenges are filed, projects are delayed, and thus, essential services are denied. Logjams of this sort do not serve our purposes.” Precisely.