Relates to low or moderate income housing developments; allows local zoning boards of appeals to approve affordable housing developments; provides for an appeals process to the division of housing and community renewal; creates a state zoning board of appeals within the division to hear such appeals; directs the division to conduct a study to integrate low income housing tax credit applications with the zoning application process under this act.
STATE OF NEW YORK
________________________________________________________________________
668
2023-2024 Regular Sessions
IN SENATE
January 5, 2023
___________
Introduced by Sens. MAY, HOYLMAN -- read twice and ordered printed, and
when printed to be committed to the Committee on Housing, Construction
and Community Development
AN ACT to amend the public housing law, in relation to low or moderate
income housing developments
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The public housing law is amended by adding a new section
2 14-a to read as follows:
3 § 14-a. Low or moderate income housing developments. 1. Definitions.
4 For the purposes of this section, the following terms shall have the
5 following meanings:
6 (a) "Low or moderate income housing development" means any housing,
7 including both housing intended for homeownership and rental, that is
8 subsidized by county, federal or state government under any program to
9 assist the construction of a low or moderate income housing development
10 as defined in the applicable federal or state statute, whether built or
11 operated by any public agency, limited-dividend organization, or other
12 private organization. For a housing development to qualify as a "low or
13 moderate income housing development", such housing development shall:
14 (i) have at least twenty-five percent of such housing development's
15 housing units be affordable, as determined by the division, to house-
16 holds who earn no more than eighty percent of the area median income;
17 (ii) for rental housing developments, have at least twenty percent of
18 such housing development's housing units be affordable, as determined by
19 the division, to households earning below sixty percent of the area
20 median income; or (iii) in the city of New York, be subject to an antic-
21 ipated regulatory agreement with a city, state, or federal government
22 entity.
23 (b) "Uneconomic" means any condition brought about by any single
24 factor or combination of factors to the extent that it makes it substan-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00515-01-3
S. 668 2
1 tially unlikely for a public agency or nonprofit organization to proceed
2 in building or operating a low or moderate income housing development
3 without financial loss, or for a limited-dividend organization or other
4 private organization to proceed and still realize a reasonable return in
5 building or operating such housing within the limitations set by the
6 subsidizing agency of government on the size or character of the devel-
7 opment or on the amount or nature of the subsidy or on the tenants,
8 rentals and income permissible, and without substantially changing the
9 rent levels and units sizes proposed by the public agency, limited-divi-
10 dend organization, or other private organization.
11 (c) "Consistent with regional needs" means reasonable in view of the
12 regional need for low and moderate income housing developments and
13 necessary to protect the health and safety of the occupants of such
14 housing, or of the residents of a city, town, or village. Impacts
15 related to aesthetics or community character, impacts related to school
16 enrollment or the fiscal cost of providing public services, and ordinary
17 impacts on traffic and parking shall not be considered to affect health
18 or safety in assessing consistency with regional needs, except that
19 impacts related to school enrollment may be considered for school
20 districts designated by the comptroller as being under significant or
21 moderate fiscal stress.
22 (d) "Local board" means any city, town, or village board, commission,
23 officer or other agency or office having supervision of the construction
24 of buildings or the power of enforcing municipal building laws.
25 (e) "Local zoning board of appeals" means a zoning board of appeals
26 for a city, town, or village operating pursuant to article five-A of the
27 general city law, section two hundred sixty-seven of the town law, or
28 section 7-712 of the village law, or the New York city board of stand-
29 ards and appeals.
30 (f) "State zoning board of appeals" or "state board" means the state
31 zoning board of appeals established pursuant to subdivision five of this
32 section.
33 (g) "Limited-dividend organization" means a limited-dividend housing
34 company established under article four of the private housing finance
35 law.
36 (h) "Public agency" shall mean any county, city, town, village or
37 state government body or subdivision thereof.
38 (i) "Nonprofit organization" shall mean a corporation having tax
39 exempt status under section 501 (c) (3) of the United States Internal
40 Revenue Code.
41 (j) "Division" shall mean the division of housing and community
42 renewal.
43 (k) "Specific, adverse impact" shall mean a significant, quantifiable,
44 direct, and unavoidable impact, based on objective, identified written
45 public health or safety standards, policies, or conditions, which shall
46 be further specified by the division of housing and community renewal
47 via rule and/or regulation, as such standards, policies, or conditions
48 existed on the date the application for a low or moderate income housing
49 development was deemed complete.
50 (l) "Housing unit" shall mean a dwelling, as such term is defined by
51 section four of the multiple dwelling law, or an individual unit in a
52 multiple dwelling, as such term is defined by section four of the multi-
53 ple dwelling law, that is maintained as a separate living quarters from
54 any other such units in such multiple dwelling.
55 2. Applying to local zoning boards of appeals. (a) Subject to the
56 provisions of this section, a public agency, limited-dividend organiza-
S. 668 3
1 tion, or other private organization proposing to build a low or moderate
2 income housing development may submit to the applicable local zoning
3 board of appeals, a single application to build such housing development
4 in lieu of separate applications to the applicable local boards. The
5 local zoning board of appeals shall without delay notify each such local
6 board, as applicable, of the filing of such application by sending a
7 copy of such application to such local boards for their recommendations
8 and shall, within thirty days of the receipt of such application, hold a
9 public hearing on the same. The local zoning board of appeals shall
10 request the appearance at such hearing of such representatives of such
11 local boards as it shall deem necessary or helpful in making its deci-
12 sion upon such application and shall have the same power to issue
13 permits or approvals as any local board or official who would otherwise
14 act with respect to such application, including but not limited to the
15 power to attach to such permit or approval conditions and requirements
16 with respect to height, site plan, size or shape, or building materials
17 as are consistent with the terms of this section. The local zoning board
18 of appeals, in making its decision on such application, shall take into
19 consideration the recommendations of the local boards and shall have the
20 authority to use the testimony of consultants. The local zoning board of
21 appeals shall approve such application unless:
22 (i) written findings supported by a preponderance of the evidence on
23 the record demonstrate that both of the following conditions exist:
24 (A) the proposed low or moderate income housing development would have
25 a specific, adverse impact upon public health and/or safety; and
26 (B) there is no feasible method to satisfactorily mitigate or avoid
27 the adverse impact identified pursuant to clause (A) of this subpara-
28 graph, other than denial of the application for such proposed low or
29 moderate income housing development or the imposition of the conditions
30 imposed by the local zoning board of appeals; or
31 (ii) an application is not permitted under paragraph (b) of this
32 subdivision.
33 (b) An application shall not be eligible for submission to a local
34 zoning board of appeals under paragraph (a) of this subdivision where
35 such application is for a low or moderate income housing development to
36 be built:
37 (i) in a city, town, or village having a total number of housing units
38 that are determined by the division to be income-restricted at eighty
39 percent of the area median income, or lower, regardless of the type of
40 housing program or subsidy involved, not including market rate housing
41 units existing in the same building as any such income-restricted hous-
42 ing units:
43 (A) exceeding fifteen percent of the housing units reported in the
44 latest federal decennial census of such city, town, or village; or
45 (B) in the case of the city of New York, exceeding fifteen percent of
46 the housing units in the area covered by the applicable community board;
47 or
48 (ii) in the city of New York, where the area covered by the applicable
49 community board has a median income that is equal to or below one
50 hundred percent the area median income, as determined by the division.
51 (c) The local zoning board of appeals shall render a decision, based
52 upon a majority vote of such board, within forty days after the termi-
53 nation of the public hearing held pursuant to this subdivision and, if
54 favorable to the applicant, shall without delay issue a comprehensive
55 permit or approval. If such decision results in a denial of the appli-
56 cation for a low or moderate income housing development, or results in
S. 668 4
1 the attachment of conditions and/or requirements to a permit or
2 approval, a written decision including specific findings based in
3 evidence shall be delivered to the applicant. If a public hearing is not
4 convened or a decision is not rendered within the time allowed, unless
5 the time has been extended by mutual agreement between the local zoning
6 board of appeals and the applicant, the application shall be deemed to
7 have been allowed and the comprehensive permit or approval shall be
8 issued. Any person aggrieved by the issuance of a comprehensive permit
9 or approval may appeal to the court as provided in article seventy-eight
10 of the civil practice law and rules.
11 (d) A local zoning board of appeals shall not require any traffic
12 studies to be conducted in its consideration of an applicant's applica-
13 tion under this section, and shall not delay its consideration of such
14 application due to any traffic study conducted by any other state or
15 local entity.
16 (e) The local zoning board of appeals shall adopt rules, not
17 inconsistent with the purposes of this section, for the conduct of its
18 business pursuant to this section and shall file a copy of such
19 rules with the city, town, or village clerk.
20 3. Right to appeal to the state board. Whenever an application filed
21 under subdivision two of this section is denied, or is granted with such
22 conditions and requirements as to make the building or operation of such
23 housing uneconomic, the applicant shall have the right to appeal to the
24 state board for a review of the same. Such appeal shall be taken within
25 twenty days after the date of the notice of the decision by the local
26 zoning board of appeals by filing with the state board a statement of
27 the prior proceedings and the reasons upon which such appeal is based.
28 The state board shall notify the appropriate local zoning board of
29 appeals of the filing of such petition for review and such local zoning
30 board of appeals shall, within ten days of the receipt of such notice,
31 transmit a copy of its decision and the reasons therefor to the state
32 board. Such appeal shall be heard by the state board within twenty days
33 after receipt of the applicant's statement. A stenographic record of the
34 proceedings shall be kept and the state board shall render a written
35 decision, based upon a majority vote, stating its findings of fact, its
36 conclusions and the reasons therefor within thirty days after the termi-
37 nation of the hearing, unless such time shall have been extended by
38 mutual agreement between the state board and the applicant. Such deci-
39 sion may be reviewed by the supreme court in accordance with the
40 provisions of the state administrative procedure act. The state board
41 shall deny an appeal of an application to build a low or moderate income
42 housing development under this subdivision if the city, town, or village
43 where such low or moderate income housing development would be built has
44 otherwise increased its proportion of overall housing that is affordable
45 to households earning below fifty percent of the area's median income by
46 two percent or more in the previous year.
47 4. State board hearings. (a) A hearing by the state board under
48 subdivision three of this section shall be limited to the issue of
49 whether, in the case of the denial of an application, the decision of
50 the local zoning board of appeals was consistent with regional needs, or
51 whether such application was improperly denied by such local zoning
52 board of appeals pursuant to paragraph (b) of subdivision two of this
53 section; and, in the case of an approval of an application with condi-
54 tions and requirements imposed, whether such conditions and requirements
55 make the construction or operation of such housing uneconomic and wheth-
56 er they are consistent with regional needs. The burden of proof in such
S. 668 5
1 state board hearings shall be upon the respondent to demonstrate that
2 the decision of the local zoning board of appeals was permissible pursu-
3 ant to this section. If the state board finds, in the case of a denial,
4 that the decision of the local zoning board of appeals was not consist-
5 ent with regional needs, it shall vacate such decision and shall direct
6 such local zoning board of appeals to issue a comprehensive permit or
7 approval to the applicant. If the state board finds, in the case of an
8 approval with conditions and requirements imposed, that the decision of
9 the local zoning board of appeals makes the building or operation of
10 such housing uneconomic and is not consistent with regional needs, it
11 shall order such local zoning board of appeals to modify or remove any
12 such condition or requirement so as to make the proposal no longer
13 uneconomic and to issue any necessary permit or approval; provided,
14 however, that the state board shall not issue any order that would
15 permit the building or operation of such housing in accordance with
16 standards less safe than the applicable building and site plan require-
17 ments of the federal housing administration or any applicable state
18 requirements, whichever agency is financially assisting such housing.
19 Decisions or conditions and requirements imposed by a local zoning board
20 of appeals that are consistent with regional needs shall not be vacated,
21 modified or removed by the state board notwithstanding that such deci-
22 sions or conditions and requirements have the effect of making the
23 applicant's proposal uneconomic.
24 (b) The state board or the petitioner shall have the power to enforce
25 the orders of the state board at law or in equity in court. The local
26 zoning board of appeals shall carry out the order of the state board
27 within thirty days of its entry and, upon failure to do so, the order of
28 the state board shall, for all purposes, be deemed to be the action of
29 such local zoning board of appeals, unless the petitioner consents to a
30 different decision or order by such local zoning board of appeals.
31 (c) If a municipality appeals a decision of the state board to the
32 court under article seventy-eight of the civil practice law and rules,
33 and the court rules in favor of the applicant for a low or moderate
34 income housing development in such proceeding, such municipality shall
35 be required to pay for any legal costs incurred by such applicant as a
36 result of such appeal.
37 5. State zoning board of appeals established. (a) There is hereby
38 established, within the division, a state zoning board of appeals, to
39 effectuate the provisions of this section.
40 (b) The state board shall consist of three members, one of whom shall
41 be the commissioner of the division or such commissioner's designee, one
42 of whom shall be appointed by the governor and who shall have expertise
43 in fair housing, and one of whom shall be appointed by the governor and
44 who shall have experience in local government with demonstrated success
45 in developing affordable housing.
46 (c) The state board shall have the power and duties to conduct hear-
47 ings, issue orders, and otherwise perform any function necessary to
48 operate in conformity with the provisions of this section. In addition
49 to the functions or duties specifically directed or authorized pursuant
50 to this section, the state board shall have any powers or duties
51 directed or authorized by the division.
52 6. Rules, regulations, and administration. (a) The division shall be
53 authorized to promulgate any rules and/or regulations necessary for the
54 implementation of the provisions of this section.
55 (b) Notwithstanding any other provision of law, the department of
56 environmental conservation shall promulgate regulations deeming develop-
S. 668 6
1 ment pursuant to this section to be an action under article eight of the
2 environmental conservation law.
3 (c) The division shall provide any administrative support to the state
4 board necessary for the effective implementation of the provisions of
5 this section.
6 § 2. The division shall conduct a study regarding the qualified allo-
7 cation plan for low income housing tax credits developed pursuant to
8 section 42 of the Internal Revenue Code. Such study shall consider
9 whether and how to revise the qualified allocation plan in light of the
10 processes for building low or moderate income housing under section 14-a
11 of the public housing law, such that the state's policies for funding
12 and permitting low and moderate income housing can best be aligned to
13 most effectively produce affordable housing. Such study shall also
14 consider whether such an alignment can support the state's fair housing
15 goals. The commissioner shall submit a report of the division's find-
16 ings of such study and any recommendations to the governor, the speaker
17 of the assembly and the temporary president of the senate on or before
18 one year after the effective date of this act.
19 § 3. This act shall take effect on the one hundred eightieth day after
20 it shall have become a law. Effective immediately, the addition, amend-
21 ment and/or repeal of any rule or regulation necessary for the implemen-
22 tation of this act on its effective date are authorized to be made and
23 completed on or before such date.
