The contracts underlying the rezonings suggest that both the affordable housing nonprofits and Brooklyn Councilmember Crystal Hudson could have acted earlier to ensure that the key information came out.

Adi Talwar

A new 17-story residential building is planned for the rezoned lots at 870-888 Atlantic Ave. in Brooklyn. A piece of 870 Atlantic is shown here.

Last December, City Limits reported on the difficulty in getting details on two controversial upzonings along Atlantic Avenue in Brooklyn, greenlit by Councilmember Crystal Hudson the previous April in exchange for a commitment from the developers that 35 percent of units would be affordable to low-income households.

The proclaimed triumph—a pledged 153 units, well beyond the city’s requirements, in exchange for approval to build 17 stories—came with little immediate transparency, though members of Community Board 8’s Land Use Committee have periodically asked for the underlying documents.

Only after months of queries did Hudson’s office release a summary of the agreement, which finally disclosed the role of the nonprofit housing groups Fifth Avenue Committee (FAC) and IMPACCT Brooklyn, as well as the timetable for the developers of 870-888 Atlantic Ave. and 1034-1042 Atlantic Ave. to pay those groups for anti-displacement services as part of the deal.

Last April, Hudson said she expected the formal documents outlining the agreement would soon be filed in the city’s property records database, known as ACRIS.

But key parts of the contracts, which were supposed to be filed by the developers within 30 days of their plans being approved, didn’t surface publicly until last month, nearly a year later. Details in the contracts suggest that, while the obligation was first on the developers, both the councilmember and the nonprofits involved in the cdeal could’ve done more to release the information.

The delays speak to common pitfalls in what are broadly referred to as community benefits agreements, or CBAs, typically inked between neighborhood stakeholders and developers to ensure projects include amenities—like additional affordable units or community space—in exchange for local support.

Sometimes lauded as a tactic to demand concessions from builders, such deals have also been criticized, at times, for failing to accurately reflect the interests of the community at large, and providing little recourse if a developer fails to hold up its end of the bargain.

The contracts signed last year were formally dubbed “Cooperation and Development Agreements,” while advisors on best practices say community benefits agreements are typically negotiated by a broad coalition before a project faces approval, and that the negotiators avoid perceived or actual conflicts of interest.

Brooklyn Community Board 8, where the Atlantic Avenue rezonings are located, will likely soon take up another spot rezoning proposed for nearby 962 Pacific St., and the developer has selected the Fifth Avenue Committee as its affordable housing partner.

Getting toward transparency

On Feb. 14, FAC Executive Director Michelle de la Uz, responding to a request by this journalist, provided the underlying contracts for 1034-1042 Atlantic and 870-888 Atlantic. They were signed by FAC and IMPACCT with the respective developers, EMP ATLANTIC LP and Y & T Development LLC.

While the contracts were not required to be made public in their entirety, sections were supposed to be filed in ACRIS by the developers last year. Those sections, referred to as a Restrictive Declaration and Recorded Memorandum of Agreement, commit the developers (and successors) to the affordability level and a measure of job-creating space.

The contracts separately commit the developers to fund the anti-displacement services and hire the respective nonprofits to provide administrative and marketing services for the affordable units. In case of default on the obligations, the parties first have a time to cure, but the nonprofits can go to court for enforcement, with the breaching party paying for attorney’s costs.

The Restrictive Declarations finally appeared in ACRIS on March 8, thanks to a submission, not by the developers, but by FAC’s attorney. The documents, which bind the developers to specific affordability levels—including that 15 percent of units be set aside for households earning 40 percent of the Area Median Income (AMI), equivalent to $53,360 for a family of four—were dated April 12, 2022 for 1034-1042 Atlantic and April 28, 2022 for 870-888 Atlantic.

The documents should have become public sooner, at least according to a clause in the underlying contracts: “If the Developer fails to record” the documents “within thirty (30) days of approval of the Rezoning Application by the City Council, then [IMPACCT/FAC] shall be entitled to proceed with recording” the documents “at the Developer’s cost and expense.”

Why did it take so long? “Our attorney asked the developer to record the CBA and related documents after they were signed,” Jay Marcus, FAC director of real estate, stated in an email response to City Limits’ questions.

“The developer indicated they considered the CBA and related documents to be legal requirements and fully intended to fulfill them. For that reason, they did not feel filing was a priority,” Marcus continued. “After making the request several times we informed them (with our attorney’s time being at their expense) that we would file the documents, which was done last month.”

He attributed additional delays on the part of the nonprofits to his being on leave in late 2022, and the fact that “signature pages from the various signers were not fully coordinated.”

The Recorded Memoranda of Agreement, which unlike the Restrictive Declarations mention the roles of FAC and IMPACCT, have yet to be filed in ACRIS, but Marcus said that is in process.

Though the agreements were supposed to remain confidential before the Council approved and the mayor signed off on the plans, the contracts contained a clause allowing the Memoranda of Agreement and Restrictive Declarations to be provided to the Council in advance, including entering them into the City Council’s hearing record, which would have made them publicly available.

But that didn’t happen.

Marcus said Hudson and her office “understood the preference to keep the documents confidential” before approval. Hudson spokesman Andrew Wright told City Limits that, after the project’s passage, their office asked signatories and city agencies for final copies of the key documents but didn’t get anywhere.

“No entity was able to provide the fully executed agreement to our office,” he said, “and we were told the agreement needed to remain confidential until the Mayor approved it.”

“We defer to City Council committee staff about the practice of adding agreements such as this one to the hearing record,” Wright added.

Exit clause?

Hudson, when announcing these agreements last April, also got the city to commit to a rezoning of the blocks along and near Atlantic Avenue between Vanderbilt Avenue—the border of the Atlantic Yards/Pacific Park site—and Nostrand Avenue.

The Atlantic Avenue Mixed-Use Plan (AAMUP) is proceeding, though it should take a few years to result in a City Council-approved rezoning that would not only increase density and affordability, but also deliver new public infrastructure investments, open space, and a safer streetscape. It’s unclear if it can deliver the same percentage of affordability as the rezonings Hudson announced.

Meanwhile, the Restrictive Declaration for the two spot rezonings leaves a potential exit clause if the “zoning district affecting the Development Site is amended by a Department of City Planning initiated rezoning” and the proposed building has not vested, or started construction according to the announced agreement.

That scenario is “unlikely,” Marcus said, since the developers behind the project purposely sought to install footings–the minimum to start construction–last June to take advantage of the state’s controversial 421-a tax break before it expired. The current deadline to complete construction under 421-a is June 2026,* though Gov. Kathy Hochul has proposed extending it.

“That being said, if there was a risk of the building not being vested by the time that the AAMUP rezoning formally moves forward and these sites are included in the rezoning, FAC would advocate for a carve-out to ensure that the CBA/declaration would not be canceled,” he added.

Hudson has also launched a survey and series of public meetings, in a Council-funded effort to assess District 35’s overall priorities regarding land use, beyond the boundaries of the AAMUP study. “Think of it like #ParticipatoryBudgeting, but for #LandUse,” she tweeted.

Still missing

There’s another gap in ACRIS regarding the rezonings last year. The developer behind the 870-888 Atlantic Ave. parcel, Yoel Teitelbaum, told Hudson at a March 8, 2022 City Council subcommittee hearing that his purchase of the property had to close by Jan. 7, 2023 and was not contingent on the rezoning.

“You will assume ownership of the property January of next year?” Hudson asked.

“Correct,” Teitelbaum responded. “I mean, it might be even earlier, but that’s the latest day that we can close on the property.” (The then-current property owner, Odyssey Realty, also signed the 870-888 Atlantic documents last April.)

No sale document has yet surfaced in ACRIS, four months after that stated sale deadline. That information should suggest Teitelbaum’s cost basis for the buildable square footage gained in the rezoning. Then again, other documents have taken longer to be filed.

Teitelbaum, fellow developer Elie Pariente, and attorney Richard Lobel, who represented both, didn’t respond to queries.

*This story was updated to correct the project’s deadline date. It is 2026, not 2025.

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