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Friday, August 30, 2013
A chance for Chinatown
There has been growing support for city council candidate Jennifer Rajkumar in Chinatown. Several local Chinatown leaders have explained to me their support for Jennifer and their loss of faith in Margaret Chin. Now Jan Lee, Chinatown's most outspoken activist, writes about his disappointment with councilmember Margaret Chin at the CCRC blog. It's a clear and thoughtful piece. Wednesday, Jan walked through Chinatown storefronts with Jennifer Rajkumar to discuss with the store-owners their issues and challenges.
Friday, August 23, 2013
Following up on the debate
Last night at the debate, candidate Jennifer Rajkumar cited this article at City and State. Chin responded by dismissing it as "just a blog."
The piece explains that the "affordable commercial space" that First American International Bank promised Chin in exchange for de-landmarking 135 Bowery is a fiction. There's no category of "affordable commercial space" in law or city zoning or land use or regulation or legislation.
But we already knew that. When FAIB and Chin presented to the City Council this promise of affordable commercial space they produced no contract, no written agreement, no letter, no email, no paper trail, no evidence, no document whatsoever. And, btw, the Council Committee, chaired by Brad Lander, didn't even ask about it. In other words, this was a favor to the councilmember that the council members all understood as a favor to the bank -- best not ask questions, just look away and nod assent.
And what contract could there be? How could it be enforced? What measure of affordability? How much under market-rate? How do you negotiate a give-back without getting an enforceable contract? Or even any contract?? The whole transaction was a fabric of malfeasance and cronyism.
Barron's article describes FAIB as a "Chinatown bank." But as I recall, when the bank demolished 135 Bowery, its headquarters were located in Queens, not in Manhattan's Chinatown. At a moment when Chinatown is threatened by outside capital, that's an important detail. The fact that FAIB is moving into Chinatown should not deceive anyone into thinking that they are now integral to the community. Having promoted and won the Chinatown BID and now begun developing in Chinatown, FAIB looks like the spearhead of Chinatown gentrification, an outsider preying upon the built neighborhood and its community.
It always annoys me to hear challenger-candidates mouth the empty promise formulas "If you elect me..." or "You need a councilmember who will...". I mean, after you explain how the incumbent has failed to negotiate effectively, mouthing these formulas are kind of an insult to the audience's intelligence. But in this case, it really is true that Margaret did such a poor job negotiating this deal, that you want to hear someone say, "I know how to negotiate, and I will negotiate for you."
The piece explains that the "affordable commercial space" that First American International Bank promised Chin in exchange for de-landmarking 135 Bowery is a fiction. There's no category of "affordable commercial space" in law or city zoning or land use or regulation or legislation.
But we already knew that. When FAIB and Chin presented to the City Council this promise of affordable commercial space they produced no contract, no written agreement, no letter, no email, no paper trail, no evidence, no document whatsoever. And, btw, the Council Committee, chaired by Brad Lander, didn't even ask about it. In other words, this was a favor to the councilmember that the council members all understood as a favor to the bank -- best not ask questions, just look away and nod assent.
And what contract could there be? How could it be enforced? What measure of affordability? How much under market-rate? How do you negotiate a give-back without getting an enforceable contract? Or even any contract?? The whole transaction was a fabric of malfeasance and cronyism.
Barron's article describes FAIB as a "Chinatown bank." But as I recall, when the bank demolished 135 Bowery, its headquarters were located in Queens, not in Manhattan's Chinatown. At a moment when Chinatown is threatened by outside capital, that's an important detail. The fact that FAIB is moving into Chinatown should not deceive anyone into thinking that they are now integral to the community. Having promoted and won the Chinatown BID and now begun developing in Chinatown, FAIB looks like the spearhead of Chinatown gentrification, an outsider preying upon the built neighborhood and its community.
It always annoys me to hear challenger-candidates mouth the empty promise formulas "If you elect me..." or "You need a councilmember who will...". I mean, after you explain how the incumbent has failed to negotiate effectively, mouthing these formulas are kind of an insult to the audience's intelligence. But in this case, it really is true that Margaret did such a poor job negotiating this deal, that you want to hear someone say, "I know how to negotiate, and I will negotiate for you."
Chin-Rajkumar debate
I attended the Chin-Rajkumar (Council District 1) debate last night. Although the audience, mostly white, seemed to be evenly divided between the two candidates, I was struck by the aggressiveness of the Chin supporters, who heckled, yelling insults, sometimes gratuitous insults. Don't get me wrong, the Rajkumar crowd booed Margaret a couple of times too, but no verbal abuse that I heard.
A friend tells me that Christine Quinn's crowd behaved with similar aggressiveness at a mayoral debate the night before, more aggressive than the other candidates' people. Quinn and Chin are both incumbents, both carrying a lot of baggage and a lot of negatives. They are both supported by big real estate money, viewed by the public as its enemy. I wonder if those negatives have put their supporters on the defensive. The worse the candidate looks, the more her supporters will lash out? People are never more vicious than when they sense they are wrong.
Chin has a lot to answer for in public: promoting the Chinatown BID that serves big businesses and big developers, despite widespread local Chinatown opposition; supporting the NYU plan (albeit with a 25% reduction) despite pretty much universal opposition from her constituency except NYU's president; de-landmarking 135 Bowery to let First American International Bank demolish it -- the very same Queens bank that promoted the BID and contributes to her campaign; supporting a SoHo BID that is also widely opposed by the local constituency; initiating a bunch of absurdly draconian bills that luckily have gone nowhere -- steep, punitive fines on street food vendors, for example, that benefit established businesses and harm the immigrant little guy getting a first start. It's been a record of one slap in the face of her constituency after another. You'd think her opponents would be the ones heckling, yelling and threatening.
Rajkumar has one negative that I can see: she doesn't have a legislative track record. Chin makes a big deal of her lack of legislative experience, but really now, City Council is a first job -- there's no legislative job below it where you can acquire experience. Chin didn't have legislative experience before she was elected either. I have not seen Chin address Rajkumar's work as a civil rights public interest lawyer. That's her record. Chin ignores Rajkumar's civil rights record entirely. Attacking her for not having experience in the job that she's seeking to get experience in is the kind of comical cheap shot you use when you have nothing substantive to say.
Chin also points out that Rajkumar never attended SPURA meetings. But did Chin attend the meetings prior to becoming Councilmember? I never saw her there when I went to the meetings before she was elected. I'm told she attended five meetings in a three-year monthly process. I'm guessing all of them were after she was elected as councilmember.
The loudest commotion occurred when Rajkumar criticised Chin for initiating a bill to jail tourists who buy knock-off goods. The audience seemed to go wild with anger. I can see the virtue of burdening the demand, though jailing tourists seems extreme. But why did the audience respond to this issue? Do they resent tourists for encouraging a blackmarket? Gang violence has subsided in Chinatown. Is there more trouble under the surface?
With all the predictabilities in a debate, that response to the knock-off bill was the most alarming moment of the evening. The blackmarket, its potential for violence, its human smuggling and the desperation it brings, its secrecy and dangers, its exploitation, are still feared and hated in Chinatown.
A friend tells me that Christine Quinn's crowd behaved with similar aggressiveness at a mayoral debate the night before, more aggressive than the other candidates' people. Quinn and Chin are both incumbents, both carrying a lot of baggage and a lot of negatives. They are both supported by big real estate money, viewed by the public as its enemy. I wonder if those negatives have put their supporters on the defensive. The worse the candidate looks, the more her supporters will lash out? People are never more vicious than when they sense they are wrong.
Chin has a lot to answer for in public: promoting the Chinatown BID that serves big businesses and big developers, despite widespread local Chinatown opposition; supporting the NYU plan (albeit with a 25% reduction) despite pretty much universal opposition from her constituency except NYU's president; de-landmarking 135 Bowery to let First American International Bank demolish it -- the very same Queens bank that promoted the BID and contributes to her campaign; supporting a SoHo BID that is also widely opposed by the local constituency; initiating a bunch of absurdly draconian bills that luckily have gone nowhere -- steep, punitive fines on street food vendors, for example, that benefit established businesses and harm the immigrant little guy getting a first start. It's been a record of one slap in the face of her constituency after another. You'd think her opponents would be the ones heckling, yelling and threatening.
Rajkumar has one negative that I can see: she doesn't have a legislative track record. Chin makes a big deal of her lack of legislative experience, but really now, City Council is a first job -- there's no legislative job below it where you can acquire experience. Chin didn't have legislative experience before she was elected either. I have not seen Chin address Rajkumar's work as a civil rights public interest lawyer. That's her record. Chin ignores Rajkumar's civil rights record entirely. Attacking her for not having experience in the job that she's seeking to get experience in is the kind of comical cheap shot you use when you have nothing substantive to say.
Chin also points out that Rajkumar never attended SPURA meetings. But did Chin attend the meetings prior to becoming Councilmember? I never saw her there when I went to the meetings before she was elected. I'm told she attended five meetings in a three-year monthly process. I'm guessing all of them were after she was elected as councilmember.
The loudest commotion occurred when Rajkumar criticised Chin for initiating a bill to jail tourists who buy knock-off goods. The audience seemed to go wild with anger. I can see the virtue of burdening the demand, though jailing tourists seems extreme. But why did the audience respond to this issue? Do they resent tourists for encouraging a blackmarket? Gang violence has subsided in Chinatown. Is there more trouble under the surface?
With all the predictabilities in a debate, that response to the knock-off bill was the most alarming moment of the evening. The blackmarket, its potential for violence, its human smuggling and the desperation it brings, its secrecy and dangers, its exploitation, are still feared and hated in Chinatown.
Wednesday, August 21, 2013
Division
[Cross-posted at http://chinatownforchinatown.wordpress.com/]
There are two sides debating in the Chinatown Working Group. Some want to see more tourists in Chinatown to support business. Developers, financiers, some business owners, the Business Improvement District, for example, sit on this side and arts purveyors as well. On the other side stand the labor and tenant adovocates who want business to serve the local residents. You might ask, why not have both, local services and toursim?
If only the sustainable market forces were balanced. But they’re not. Gentrification is an opportunistic tide that, once it gains an entry, will flood the locality resistlessly. To use urban planning to help the juggernaut of monopolistic market forces is unnecessary. The empowered need no help.
In any economy, there are vulnerable sectors even among the most sustainable. Local services are actually highly sustainable since local residents have consistent, reliable purchasing needs. You see those needs reflected in the streets of Chinatown. As long as the community remains, the local services will be sustainable.
Although they are highly sustainable, local services are also highly vulnerable to attack from giant outside capital which has more resources, government connections and mobility. Ironically, the least vulnerable — giant capital, developers, big businesses, chain stores — are also the least reliable because they are mobile and least tied to the locality. Like a corporation that protects itself in bad times by laying off labor, giant corporations are most capable of protecting themselves at the expense of the locality, whereas small local servers depend on the locals.
Tourism is closely tied to development and big capital — high prices and upscale values that can be marketed to upscale spending. Local services, especially in Chinatown, depend on low prices and high volume. If giant capital gains a foothold, commercial rents will rise, replacing local services, and gentrification will displace the community, killing the viability of any remaining local services. It’s a snowball effect.
This is not to say there shouldn’t be tourism in Chinatown. There’s always been tourism in Chinatown back all the way to the 19th century. But here’s the paradox of tourism: people come to Chinatown not to see a spectacle staged for them but to experience Chinatown as it is, a lively working community, culturally distinct from the rest of New York because it serves its own. Cater too much to the tourist, and you lose the Chinatown that tourists come for. You’d then have to market Chinatown as a brand, constantly hoping that that brand doesn’t go out of fashion. Chinatown business becomes the slave of an outside community that it has no control over, and it turns a community with businesses in it into a business with no community in it.
In planning, as everywhere, there are empowered sectors that need no help, and disempowered groups that need support. Were it not for the 1% predators, the 99% disempowered would be fully sustainable. That’s why planning should always keep as its goal protecting the disempowered and avoiding giving ground to giant capital.
Thursday, August 15, 2013
The rent gap: a logical gap
Neil Smith attempted a predictive theory of gentrification within a Marxist frame with a close examination of the phenomena in the US, particularly in NYC during the period since the word "gentrification" was coined around 1964 by Ruth Glass. Smith observes that when property values decline to its bottom, investors see an opportunity to buy low in the expectation of revalorizing the property to reach its potential. The rent gap -- the gap between the low rent of a devalued property and its potential -- opens an opportunity for capital to fill in.
The notion is at best post hoc predictive, which is to say, not predictive at all. Consider Detroit. Property values have declined, but the properties are not ipso facto an opportunity for capital to invest at the bottom under the assumption that the values can't go anywhere but up. A property's potential is not a determinable quantity.
Property potential depends on many factors: cultural or economic interest in the location; government subsidies or incentives; a housing crunch in upscale neighborhoods driving money to seek options in less upscale locations. Speculation is not one of those. Real estate has speculated on neighborhoods before without raising values. The construction of Harlem around 1900 is the most obvious case in point. Built for the wealthy, it didn't take hold and declined.
Gentrification might not be so much a reflex of capital as of policy, including zoning (creating a housing crunch, e.g.), incentives and subsidies. A too abstract economic view of gentrification will miss the role of government policies that reflect conflicting interests, especially where the owners of capital live.
One might say that as long as population grows, just about every location has a rent gap. But this does not imply that properties must decline before they achieve the gap. Neighborhoods can gentrify even if they have never declined. Glass coined the word to describe the spread of gentry, displacing and transforming working class neighborhoods. Working class neighborhoods are not all the result of decline. Some working class neighborhoods are built for the working class, and appreciate as the neighborhood grows more dense. That was certainly true of the LES in the 19th century.
The urban decline that Smith observes is more an effect of transportation than the age-decline that he attributes it to. The automobile and mass transit allowed the opening up of suburbia and the downward spiral of white flight in the 1950's and 60's.
Though it isn't stated explicitly, Smith's analysis predicts that Park Avenue should turn into the next slum. I think that's possible, but not because the buildings will age-out. Age does not entail decline. There are older buildings in Greenwich Village which attract even wealthier owners. If Park Avenue declines, it'll be because wealthy owners have been attracted to the single-family tenement. Park Avenue can't keep up with the scale of income inequality. The new New York will be full of these repurposed, culturally valued mansions that we are beginning to see in the EV. Three years ago, 47 E. 3rd was an aberration. Today there are four such single-family tenements here. Trends take a while and appear at first as insignificant. Give it time...
The notion is at best post hoc predictive, which is to say, not predictive at all. Consider Detroit. Property values have declined, but the properties are not ipso facto an opportunity for capital to invest at the bottom under the assumption that the values can't go anywhere but up. A property's potential is not a determinable quantity.
Property potential depends on many factors: cultural or economic interest in the location; government subsidies or incentives; a housing crunch in upscale neighborhoods driving money to seek options in less upscale locations. Speculation is not one of those. Real estate has speculated on neighborhoods before without raising values. The construction of Harlem around 1900 is the most obvious case in point. Built for the wealthy, it didn't take hold and declined.
Gentrification might not be so much a reflex of capital as of policy, including zoning (creating a housing crunch, e.g.), incentives and subsidies. A too abstract economic view of gentrification will miss the role of government policies that reflect conflicting interests, especially where the owners of capital live.
One might say that as long as population grows, just about every location has a rent gap. But this does not imply that properties must decline before they achieve the gap. Neighborhoods can gentrify even if they have never declined. Glass coined the word to describe the spread of gentry, displacing and transforming working class neighborhoods. Working class neighborhoods are not all the result of decline. Some working class neighborhoods are built for the working class, and appreciate as the neighborhood grows more dense. That was certainly true of the LES in the 19th century.
The urban decline that Smith observes is more an effect of transportation than the age-decline that he attributes it to. The automobile and mass transit allowed the opening up of suburbia and the downward spiral of white flight in the 1950's and 60's.
Though it isn't stated explicitly, Smith's analysis predicts that Park Avenue should turn into the next slum. I think that's possible, but not because the buildings will age-out. Age does not entail decline. There are older buildings in Greenwich Village which attract even wealthier owners. If Park Avenue declines, it'll be because wealthy owners have been attracted to the single-family tenement. Park Avenue can't keep up with the scale of income inequality. The new New York will be full of these repurposed, culturally valued mansions that we are beginning to see in the EV. Three years ago, 47 E. 3rd was an aberration. Today there are four such single-family tenements here. Trends take a while and appear at first as insignificant. Give it time...
Saturday, August 03, 2013
AND NOW, due to popular demand, NO 7-ELEVEN! -- the Margaret Chabris skit
NO711 performed the skit again at the Tompkins Square Memorial Riot Concert today and again got requests to post the script, so here it is in all its glory:
NO 7-Eleven!!
[the unexpurgated version]
by Sugar Di Abetes with Tess LaCardboard
Characters:
"Local" a Bodega owner;
"Lady from Texas" 7-Eleven spokesperson Margaret Chabris;
"A customer."
Local: You own this 7-Eleven?
Lady from Texas: [Heavy out-of-town accent, very polite] Why no, sir, I am the corporate spokesperson for 7-Eleven.
Local: Oh yeah? Where you from, lady?
Lady: I'm from the Great State of Texas, thank you. Visiting here to check up on one of our target locations.
Local: "Target locations." Look, I own this bodega right here next door -- no not over there, RIGHT HERE NEXT DOOR. What the fuck?
Lady: Well, our corporate headquarters -- in the great state of Texas -- feels that your neighborhood is underserved.
Local: Underserved. I serve them right here. I already gotta compete with the deli down the block and the bagels store across the street and the yuppie cafe on the corner. And the yuppie cafe on the other corner. Yeah, and the yuppie cafe on that corner too. No the other corner over there is a pet store. They don't compete with me -- they serve coffee only to cats and dogs.
Lady: Well sir, [a little testy in her genteel Texas manner] the corporate strategy of the great state of Texas is to target your lovely neighborhood.
Local: Do you have a clue where you are?
Lady: Well it says here on our corporate app-map app that this is the [pronouncing firmly stressing each word with a nod] "East Village." Now that does sound charming doesn't it? Is there a North Village? I'd love to visit there while I'm here, you know. Love to see your charming and beautiful city.
Local: "East Village" [annoyed now]. Lady, this is no "village." This is Loisaida. Alphabet City.
Lady: Loisiada... Now I don't see that in our map app. I mean app map.
Local: [Disgusted] APP MAP APP. [Restraining himself, nicely] Look, you seem like a nice lady. You have a nice app map app. You wear some fancy ropa and I can see you gotta lotta dough. You speak very nice. [Lets loose waving his arms wide] Why the fuck are you trying to drive me out of business?
Lady: Well, [cautiously] sir, [sweetly] you might could convert to a 7-11.
Local: A 7-11. Right next door to a 7-11? What the fuck sense does that make?
Lady: [Explaining as if it makes perfect sense] Well, that's all part of our target strategy, sir. If there's a [consulting her iphone and pronouncing carefully] bo-dee-ga nearby, then there'd be competition. We can't have competition, you know. We won't succeed with competition. Oh no, no, no. Competition, oh competition's very bad. No, no, no. That wouldn't make our corporate headquarters in the great state of Texas very happy. And you know we mustn't make them unhappy in Texas.
Local: Jeez. Why the fuck should I fucking care about...
Customer: Mahmud! Washappenin? How you been brother? What's this?
Local: It's the new store. Believe it?
Customer: [To Chabris] This your new store?
Lady: Yes, sir, young man.
Customer: [Pause, looking up and down judiciously, then finally] Your store is fuckin ugly. My advice: turn the fucking lights down. [Walks into the bodega.]
Lady: Oh dear.
Local: So how is my store going to survive if I convert it to a 7-11?
Lady: Well our corporate head quarters in the [both say it together] great state of Texas will subsidize your store until aaaaaallllllll the competition is dead.
Local: And then?
Lady: Well then you know....
Local: You know what?
Lady: Well it's like Starbucks, you know...
Local: Like Starbucks what? We're gonna serve yuppie coffee all day?
Lady: Well you know Starbucks opened oh so many-many stores in their corporate-headquarters-
Local: Of course what?
Lady: You know...closed the excess.
Local: The excess. That's me.
Lady: We close your store.
Local: That's your strategy.
Lady: From the great state of Texas!
Local: [mutters to himself] (Fuckin outta towners.) How about you wanna buy a bridge, lady...
Lady: Oh, like the Brooklyn Bridge? We bought that and we're very happy about it. Oh yes very happy. Such a pretty bridge. We're planning to put our logo there, so pretty.
Local: [Wipes his hand over his face in exasperation, leaving.] Holy Jesus Mother of God!
Lady: [Plays with her app map app. Occasionally glancing over the audience to her pretty bridge.] Such a pretty bridge, and such a lovely neighborhood. And won’t 711 be a welcome neighborhood friend...?
Friday, August 02, 2013
Margaret Chin, the developer's candidate
Margaret Chin is taking money from the Real Estate Board of New York's Political Action Committee. You'd want to ask, why would the founder of Asian Americans for Equality welcome large campaign support from real estate?
Affordable housing is built in NYC through incentives given to developers. So if you want to get any affordable housing here, you've got to welcome a market-rate developer, otherwise you get nothing.
Does that explain why Margaret voted for the NYU development (albeit curtailed)? Maybe. Does it explain why she voted for the Chinatown BID against widespread opposition within Chinatown? Maybe. Why she voted to help First American International Bank, the promoter of the BID, demolish and redevelop 135 Bowery?
The BID benefits larger property owners, larger businesses and developers and banks. But the small property owners and the small businesses are the anchor of Chinatown. At what point does a commitment to building new affordable housing sacrifice community entirely?
The city has shoved a wedge between affordable housing and community, turning affordable housing into a tool of gentrification and displacement. Look at Williamsburg. Chinatown next? The BID is a step towards the new Downtown Hotel District (DoHo?) formerly known as Chinatown.
From Crain's http://www.
Affordable housing is built in NYC through incentives given to developers. So if you want to get any affordable housing here, you've got to welcome a market-rate developer, otherwise you get nothing.
Does that explain why Margaret voted for the NYU development (albeit curtailed)? Maybe. Does it explain why she voted for the Chinatown BID against widespread opposition within Chinatown? Maybe. Why she voted to help First American International Bank, the promoter of the BID, demolish and redevelop 135 Bowery?
The BID benefits larger property owners, larger businesses and developers and banks. But the small property owners and the small businesses are the anchor of Chinatown. At what point does a commitment to building new affordable housing sacrifice community entirely?
The city has shoved a wedge between affordable housing and community, turning affordable housing into a tool of gentrification and displacement. Look at Williamsburg. Chinatown next? The BID is a step towards the new Downtown Hotel District (DoHo?) formerly known as Chinatown.
From Crain's http://www.
From City Council Watch, Seth Barron (writer for City & State) "Margaret Chin Progressively Awful"
Sean Sweeney in The Villager "The billionaires back Margaret Chin for City Council"
Thursday, August 01, 2013
Bloomberg smoking gun, media fails to report on it
Remember how we were all told that the Bloomberg sugar "portion cap" exempted the Big Gulp because the Health Department had no jurisdiction over FSE's (gorcieries, bodegas, 7-Elevens, convenience stores)? All lies.
It turns out that the cap was much more than an administrative remedy for an ineffective legislature. The big news in the decision -- which has not been adequately reported in the media -- lies in the cap's favoritism. The mayor and the Board of Health claims that they have no jurisdiction over FSE's (groceries, 7-Eleven's, bodegas). But the decision explains that this is simply not true:
With regard to the exemption of certain FSE’s (i.e., grocerymarkets, 7-11s, bodegas, etc.), the DOHMH does not deny that the exemption has no relationship to health-related concerns. Still, the agency argues that it was not based on impermissible reasons, but on the agency’s allegedly reasonable view that such FSEs cannot be regulated by the Agency under the MOU signed with the state’s Department of Agriculture. However, the Board’s claim that the MOU tied its hands is belied by the fact that the agency [the Board of Health] has previously used its regulatory authority to promulgate city-wide health rules that regulate all FSEs (see e.g. 24 RCNY HealthCode 181.07) [city-wide regulation of common eating and drinking utensils]; 24 RCNY Health Code 71.05) [city-wide prohibition on the sale of “any food . . . which is adulterated or misbranded”]). Moreover, the MOU envisions “cooperative efforts between the two agencies [to] assure comprehensive food protection” and to avoid gaps in food surveillance.” Yet, the agency offers no evidence of any prior attempt to coordinate witht he Department of Agriculture on the Portion Cap Rule. The failure to obtain such expansion resulted in a ban that includes exceptions which necessarily favor some businesses and products at the expenses of others. Accordingly, the selective restrictions enacted by the Board of Health reveal that the health of the residents of New YorkCity was not its sole concern. If it were, the “Soda Ban” would apply to all public and private enterprises in New York City. By enacting a compromise measure — one that tempered its strong health concerns with its unstated but real worries about commercial well-being, as well as political considerations — the Board necessarily took into account its own non-health policy considerations. Judged by its deeds rather than by its explanations, the Board of Health's jurisdictional rationale evaporates.
Judge Renwick writing for a unanimous decision of all four Appellate judges, my emphasesWhat's important here is not just that the mayor could have extended the cap to delis, bodegas, groceries and 7-Elevens. It's that the mayor and the Board of Health lied about it to the public.
The mayor purposely exempted FSE's exactly at the moment when 7-Eleven began its entry into New York. No wonder he lied.
There's further evidence of malfeasance. The court found that the Department of Health didn't bother to include research in its cap policy, instead accepting a policy draft from the mayor's office itself without any research background. The research is easily available and pursuasive, but the Board didn't bother with it. The policy was a ukase from on high, handed from one office and accepted by another without demur or even window dressing. It shows excesive administrative control and a lack of agency independence, responsibility and accountability. Agencies are supposed to have and use specific expertise, not just hand over orders from above. Otherwise the agency has no justification for its existence or its expenses.
Legislative bodies respond to constituencies as well as research, so popularity might be an obstacle to writing sound law. That's a justification for an administration, or certainly for a regulatory agency, to step in, where its expertise is wiser than popular opinion. But to step in without providing the evidence of the greater wisdom is hubris. You'd think Bloomberg would have been more careful.
The answer to the questions at the top -- when can an administration overreach for the benefit of the public? -- has its answer. Checks and balances of government serve a purpose. Overreaching allows abuse of authority and cronyism.
The court found that the Health Department overreached as a regulative agency on other grounds as well. One ground seems ambiguous: They found that sugar is not inherently dangerous, but only in large quantities, so regulating it depends on behavior, not flat out substance banning. That seems to argue on both sides: how else can the regulatory agency control the substance without overreaching into behavioral social policies that belong to the legislature? If the legislature is ineffectual, why not overreach? Is the slippery slope there too steep?
This seems to me to trade on a false dichotomy. Behavior is not the only means of controlling sugar. The soft drink industry can be burdened with the regulation, not the consumer. Problem is, the city has no jurisdiction over corn syrup production or use.
In all organizations ruled by law, there are sectors that are protected from change, others that are easily pushed. By definition, those are the disempowered. Here it is the low-income consumer. Monsanto and Pepsi et al. should be burdened, not the consumer. In our society labor and consumers are mere pawns. Corporations and their products control our politics, our imagery, our information, our visibility. The bigger they are, the more control.
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