Gov. Hochul pitches her housing plan (photo: Governor's Office)
You can’t talk seriously about Governor Kathy Hochul’s proposed New York Housing Compact without acknowledging with respect that she is the first Governor in decades to try to get localities in the state to take on at least some of their fair share of housing need.
It is also clear from examining one set of her proposed “preferred actions” that she understands the exclusionary effect of lot-size minimums, height limits, lot coverage restrictions, and parking minimums on the ability to construct multi-family housing. More transit-oriented housing, more accessory dwelling units (ADUs), every locality (and every community district) having to pitch in: all solid goals.
Unfortunately, the Governor wanted to believe that “buy-in” could be achieved with an approach that, by any sober calculation, does not actually require heavy lifting from localities; that bends over backwards to give localities enormous lead-time for compliance; and that features more carrots than sticks. As they release their one-house budget resolutions this week, the Assembly and Senate are apparently pretending in their initial negotiating positions that an all-carrots approach will, magically, be sufficient.
It never works that way. I know from seeing the federal government eschew enforcement of the central, end-exclusionary-zoning provision of the historic 2009 Westchester housing desegregation consent decree won by the Anti-Discrimination Center in favor of the buy-in approach. The result? Local politicians of both parties unrelentingly resisted change anyway, and the promise of the decree was lost.
So don’t be looking for localities to be welcoming affordable housing because they can reduce the overall volume of housing to be built by doing so. There must be a required minimum component of affordable units in each development so that each is mixed-income and can contribute to easing the affordable-housing crisis. That’s true both in transit-oriented-development (TOD) areas, where under Hochul’s plan development appears to not have any affordability requirement to be a “qualifying project,” and in the equally important non-TOD areas. Failure to build affordable housing in non-TOD areas will leave vast areas of the suburbs as grotesquely racially-segregated as they are now.
And to the extent that we ultimately get to the point that certain projects can be “fast-tracked” in non-compliant localities (not before 2027, and not before 2030 for those localities who come to permit ADUs and split-lots), a choice of requiring 20% of units at or below 50% of area median income (AMI) or 25% of units at or below 80% of AMI will have an entirely predictable, segregation-perpetuating result. Most everywhere, the 80% AMI threshold will be chosen, with the only exception being those community districts in New York City that already have high concentrations of low-income housing.
To adequately deal with the municipal resistance that is sure to come, the Housing Compact’s new legal mechanisms to shorten the process between proposal and resolution are welcome — but insufficient. History tells us that resistance will continue because municipalities know that, in the end, the ‘worst’ that can generally happen is that they will be ordered to do only what they should have done years earlier.
There are two simple mechanisms to create disincentives to the standard practice of delay, appeal, and delay some more. First, the proposal does not allow costs against the locality or its officers in proceedings before the planned “Housing Review Board” unless there is a finding of gross negligence, bad faith, or malice. In fact, localities and their officers should be made to think twice before rejecting development projects (or keeping them stalled) by the prospect of costs and attorney fees being awarded whenever it is determined that the project should have been allowed to move forward.
Second, the result of a rejection that is ultimately overturned should not only be the requirement that the project be approved. A ‘penalty’ that is a multiple of the units that had been delayed should be added to the locality’s obligation, with the penalty increasing with the delay that the locality has imposed.
In a similar vein – and knowing that resistance will come whenever requirements kick in – there is no reason for there to be an initial three-year safe-harbor extended to localities. Developers should be given an incentive to proceed now – at least in respect to localities that have regularly not been meeting what are the new targets – and desperately needed affordable housing will come into the pipeline more quickly.
To help facilitate that, the state itself needs to play a more active role in developing and facilitating specific projects in specific exclusionary areas. That includes working with for-profit and not-for-profit development partners to meet the state’s interest in creating affordable, segregation-reducing housing.
This can already be done independent of the Housing Compact under an existing state-law doctrine named after a case called County of Monroe. This doctrine allows for the setting aside of local zoning restrictions because of the state’s more substantial interest in this sort of housing development. (Committing to the deployment of County of Monroe for state-assisted and coordinated construction of affordable housing in localities where it is not wanted is far more critical than anyone has yet appreciated. The Governor needs to be clear to state legislators and to municipal officials that the status quo is no longer an option and that all a failure of cooperation in passing or implementing a real Housing Compact will yield is less municipal influence over the shape and location of projects that will be built anyway.)
Part of the state’s role – and here, again, both carrots and sticks are needed – will be taking on localities who deliberately fail to invest in water and sewer infrastructure precisely to avoid the creation of new housing.
The proposed Housing Compact doesn’t need to be watered-down as the “never-build” forces of the status quo maintain; rather, it needs to be strengthened.
Craig Gurian is executive director of the Anti-Discrimination Center. On Twitter @pursuethefacts.