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A03111 Summary:

Add §14-a, Pub Hous L
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.
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A03111 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
  TITLE OF BILL: An act to amend the public housing law, in relation to low or moderate income housing developments   PURPOSE: To improve housing choice by making it less difficult to build afforda- ble housing across New York State.   SUMMARY OF PROVISIONS: This bill amends the public housing law by adding a new section 14-a that streamlines applications for permits for low- or moderate-income housing developments and establishes an appeals process for low or moderate income housing denied by zoning board of appeals Section one creates and establishes the appeal process. Subsection one establishes definitions for low or moderate-income hous- ing development, uneconomic, consistent with local need, local board, local board of zoning appeals, state zoning board of appeals, limited- dividend organization, public agency, nonprofit organization, division, specific, adverse impact, and housing unit Subsection two streamlines the process through which low or moderate-in- come housing developments seek permits to zoning board of appeals Subsection three establishes the right for low- or moderate-income hous- ing developments to appeal to a state board Subsection four establishes protocols for hearings for low- or moder- ate-income housing development appeals Subsection five establishes the state zoning board of appeals Subsections six authorizes the Division of Homes and Community Renewal to promulgate rules and/or regulations necessary for the implementation of the provisions of this section Section two directs the Division of Homes and Community Renewal to conduct a study regarding the Qualified Allocation Plan for Low Income Housing Tax Credits Section three sets the effective date.   JUSTIFICATION: The cost of housing has long been a major expense and challenge for working families across New York State, but many municipalities' land use regulations effectively prevent the construction of new affordable housing. In many cases, these land use regulations maintain patterns of economic racial segregation first established by redlining and explicit housing discrimination in the first half of the 20th century. As a result, what little affordable housing exists is largely concen- trated in a small number of neighborhoods in a limited number of munici- palities. The concentration of affordable housing into a few areas limits housing choice for low-income individuals and families. Insuffi- cient housing choice makes it harder for these families to access job opportunities, see friends and family, and keep children in their current school systems. By drawing on the experience of neighboring states like Massachusetts and New Jersey who have instituted policies to build more affordable housing in more neighborhoods, we can make a real difference in the lives of people by expanding their housing choice while working to change systems of segregation. This bill creates an appeals process for affordable housing projects that have been denied by zoning boards with- out adequate justification in municipalities where less than 15% of existing housing stock is affordable.   LEGISLATIVE HISTORY: 2022: A8883 Ref. Housing   FISCAL IMPLICATIONS: To be determined   EFFECTIVE DATE: 180 days after becoming law.
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A03111 Text:

                STATE OF NEW YORK
                               2023-2024 Regular Sessions
                   IN ASSEMBLY
                                    February 2, 2023
        Introduced by M. of A. KELLES -- read once and referred to the Committee
          on Housing
        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-
    25  tially unlikely for a public agency or nonprofit organization to proceed
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 3111                             2
     1  in  building  or  operating a low or moderate income housing development
     2  without financial loss, or for a limited-dividend organization or  other
     3  private organization to proceed and still realize a reasonable return in
     4  building  or  operating  such  housing within the limitations set by the
     5  subsidizing agency of government on the size or character of the  devel-
     6  opment  or  on  the  amount  or nature of the subsidy or on the tenants,
     7  rentals and income permissible, and without substantially  changing  the
     8  rent levels and units sizes proposed by the public agency, limited-divi-
     9  dend organization, or other private organization.
    10    (c)  "Consistent  with regional needs" means reasonable in view of the
    11  regional need for low  and  moderate  income  housing  developments  and
    12  necessary  to  protect  the  health  and safety of the occupants of such
    13  housing, or of the residents of a  city,  town,  or  village.    Impacts
    14  related  to aesthetics or community character, impacts related to school
    15  enrollment or the fiscal cost of providing public services, and ordinary
    16  impacts on traffic and parking shall not be considered to affect  health
    17  or  safety  in  assessing  consistency  with regional needs, except that
    18  impacts related to  school  enrollment  may  be  considered  for  school
    19  districts  designated  by  the comptroller as being under significant or
    20  moderate fiscal stress.
    21    (d) "Local board" means any city, town, or village board,  commission,
    22  officer or other agency or office having supervision of the construction
    23  of buildings or the power of enforcing municipal building laws.
    24    (e)  "Local  zoning  board of appeals" means a zoning board of appeals
    25  for a city, town, or village operating pursuant to article five-A of the
    26  general city law, section two hundred sixty-seven of the  town  law,  or
    27  section  7-712  of the village law, or the New York city board of stand-
    28  ards and appeals.
    29    (f) "State zoning board of appeals" or "state board" means  the  state
    30  zoning board of appeals established pursuant to subdivision five of this
    31  section.
    32    (g)  "Limited-dividend  organization" means a limited-dividend housing
    33  company established under article four of the  private  housing  finance
    34  law.
    35    (h)  "Public  agency"  shall  mean  any county, city, town, village or
    36  state government body or subdivision thereof.
    37    (i) "Nonprofit organization"  shall  mean  a  corporation  having  tax
    38  exempt  status  under  section 501 (c) (3) of the United States Internal
    39  Revenue Code.
    40    (j) "Division" shall  mean  the  division  of  housing  and  community
    41  renewal.
    42    (k) "Specific, adverse impact" shall mean a significant, quantifiable,
    43  direct,  and  unavoidable impact, based on objective, identified written
    44  public health or safety standards, policies, or conditions, which  shall
    45  be  further  specified  by the division of housing and community renewal
    46  via rule and/or regulation, as such standards, policies,  or  conditions
    47  existed on the date the application for a low or moderate income housing
    48  development was deemed complete.
    49    (l)  "Housing  unit" shall mean a dwelling, as such term is defined by
    50  section four of the multiple dwelling law, or an individual  unit  in  a
    51  multiple dwelling, as such term is defined by section four of the multi-
    52  ple  dwelling law, that is maintained as a separate living quarters from
    53  any other such units in such multiple dwelling.
    54    2. Applying to local zoning boards of appeals.   (a)  Subject  to  the
    55  provisions  of this section, a public agency, limited-dividend organiza-
    56  tion, or other private organization proposing to build a low or moderate

        A. 3111                             3
     1  income housing development may submit to  the  applicable  local  zoning
     2  board of appeals, a single application to build such housing development
     3  in  lieu  of  separate  applications to the applicable local boards. The
     4  local zoning board of appeals shall without delay notify each such local
     5  board,  as  applicable,  of  the filing of such application by sending a
     6  copy of such application to such local boards for their  recommendations
     7  and shall, within thirty days of the receipt of such application, hold a
     8  public  hearing  on  the  same.  The local zoning board of appeals shall
     9  request the appearance at such hearing of such representatives  of  such
    10  local  boards  as it shall deem necessary or helpful in making its deci-
    11  sion upon such application and  shall  have  the  same  power  to  issue
    12  permits  or approvals as any local board or official who would otherwise
    13  act with respect to such application, including but not limited  to  the
    14  power  to  attach to such permit or approval conditions and requirements
    15  with respect to height, site plan, size or shape, or building  materials
    16  as are consistent with the terms of this section. The local zoning board
    17  of  appeals, in making its decision on such application, shall take into
    18  consideration the recommendations of the local boards and shall have the
    19  authority to use the testimony of consultants. The local zoning board of
    20  appeals shall approve such application unless:
    21    (i) written findings supported by a preponderance of the  evidence  on
    22  the record demonstrate that both of the following conditions exist:
    23    (A) the proposed low or moderate income housing development would have
    24  a specific, adverse impact upon public health and/or safety; and
    25    (B)  there  is  no feasible method to satisfactorily mitigate or avoid
    26  the adverse impact identified pursuant to clause (A)  of  this  subpara-
    27  graph,  other  than  denial  of the application for such proposed low or
    28  moderate income housing development or the imposition of the  conditions
    29  imposed by the local zoning board of appeals; or
    30    (ii)  an  application  is  not  permitted  under paragraph (b) of this
    31  subdivision.
    32    (b) An application shall not be eligible for  submission  to  a  local
    33  zoning  board  of  appeals under paragraph (a) of this subdivision where
    34  such application is for a low or moderate income housing development  to
    35  be built:
    36    (i) in a city, town, or village having a total number of housing units
    37  that  are  determined  by the division to be income-restricted at eighty
    38  percent of the area median income, or lower, regardless of the  type  of
    39  housing  program  or subsidy involved, not including market rate housing
    40  units existing in the same building as any such income-restricted  hous-
    41  ing units:
    42    (A)  exceeding  fifteen  percent  of the housing units reported in the
    43  latest federal decennial census of such city, town, or village; or
    44    (B) in the case of the city of New York, exceeding fifteen percent  of
    45  the housing units in the area covered by the applicable community board;
    46  or
    47    (ii) in the city of New York, where the area covered by the applicable
    48  community  board  has  a  median  income  that  is equal to or below one
    49  hundred percent the area median income, as determined by the division.
    50    (c) The local zoning board of appeals shall render a  decision,  based
    51  upon  a  majority vote of such board, within forty days after the termi-
    52  nation of the public hearing held pursuant to this subdivision  and,  if
    53  favorable  to  the  applicant, shall without delay issue a comprehensive
    54  permit or approval.  If such decision results in a denial of the  appli-
    55  cation  for  a low or moderate income housing development, or results in
    56  the  attachment  of  conditions  and/or  requirements  to  a  permit  or

        A. 3111                             4
     1  approval,  a  written  decision  including  specific  findings  based in
     2  evidence shall be delivered to the applicant. If a public hearing is not
     3  convened or a decision is not rendered within the time  allowed,  unless
     4  the  time has been extended by mutual agreement between the local zoning
     5  board of appeals and the applicant, the application shall be  deemed  to
     6  have  been  allowed  and  the  comprehensive permit or approval shall be
     7  issued. Any person aggrieved by the issuance of a  comprehensive  permit
     8  or approval may appeal to the court as provided in article seventy-eight
     9  of the civil practice law and rules.
    10    (d)  A  local  zoning  board  of appeals shall not require any traffic
    11  studies to be conducted in its consideration of an applicant's  applica-
    12  tion  under  this section, and shall not delay its consideration of such
    13  application due to any traffic study conducted by  any  other  state  or
    14  local entity.
    15    (e)  The   local   zoning  board  of appeals  shall  adopt  rules, not
    16  inconsistent with the purposes of this section, for the conduct  of  its
    17  business  pursuant to   this   section   and shall  file  a copy of such
    18  rules with the city, town, or village clerk.
    19    3. Right to appeal to the state board.  Whenever an application  filed
    20  under subdivision two of this section is denied, or is granted with such
    21  conditions and requirements as to make the building or operation of such
    22  housing  uneconomic, the applicant shall have the right to appeal to the
    23  state board for a review of the same. Such appeal shall be taken  within
    24  twenty  days  after  the date of the notice of the decision by the local
    25  zoning board of appeals by filing with the state board  a  statement  of
    26  the  prior  proceedings and the reasons upon which such appeal is based.
    27  The state board shall notify  the  appropriate  local  zoning  board  of
    28  appeals  of the filing of such petition for review and such local zoning
    29  board of appeals shall, within ten days of the receipt of  such  notice,
    30  transmit  a  copy  of its decision and the reasons therefor to the state
    31  board. Such appeal shall be heard by the state board within twenty  days
    32  after receipt of the applicant's statement. A stenographic record of the
    33  proceedings  shall  be  kept  and the state board shall render a written
    34  decision, based upon a majority vote, stating its findings of fact,  its
    35  conclusions and the reasons therefor within thirty days after the termi-
    36  nation  of  the  hearing,  unless  such time shall have been extended by
    37  mutual agreement between the state board and the applicant.  Such  deci-
    38  sion  may  be  reviewed  by  the  supreme  court  in accordance with the
    39  provisions of the state administrative procedure act.   The state  board
    40  shall deny an appeal of an application to build a low or moderate income
    41  housing development under this subdivision if the city, town, or village
    42  where such low or moderate income housing development would be built has
    43  otherwise increased its proportion of overall housing that is affordable
    44  to households earning below fifty percent of the area's median income by
    45  two percent or more in the previous year.
    46    4.  State  board  hearings.    (a)  A hearing by the state board under
    47  subdivision three of this section shall  be  limited  to  the  issue  of
    48  whether,  in  the  case of the denial of an application, the decision of
    49  the local zoning board of appeals was consistent with regional needs, or
    50  whether such application was improperly  denied  by  such  local  zoning
    51  board  of  appeals  pursuant to paragraph (b) of subdivision two of this
    52  section; and, in the case of an approval of an application  with  condi-
    53  tions and requirements imposed, whether such conditions and requirements
    54  make the construction or operation of such housing uneconomic and wheth-
    55  er they are consistent with regional needs.  The burden of proof in such
    56  state  board  hearings  shall be upon the respondent to demonstrate that

        A. 3111                             5
     1  the decision of the local zoning board of appeals was permissible pursu-
     2  ant to this section.  If the state board finds, in the case of a denial,
     3  that the decision of the local zoning board of appeals was not  consist-
     4  ent  with regional needs, it shall vacate such decision and shall direct
     5  such local zoning board of appeals to issue a  comprehensive  permit  or
     6  approval  to  the applicant. If the state board finds, in the case of an
     7  approval with conditions and requirements imposed, that the decision  of
     8  the  local  zoning  board  of appeals makes the building or operation of
     9  such housing uneconomic and is not consistent with  regional  needs,  it
    10  shall  order  such local zoning board of appeals to modify or remove any
    11  such condition or requirement so as  to  make  the  proposal  no  longer
    12  uneconomic  and  to  issue  any  necessary permit or approval; provided,
    13  however, that the state board shall  not  issue  any  order  that  would
    14  permit  the  building  or  operation  of such housing in accordance with
    15  standards less safe than the applicable building and site plan  require-
    16  ments  of  the  federal  housing  administration or any applicable state
    17  requirements, whichever agency is financially  assisting  such  housing.
    18  Decisions or conditions and requirements imposed by a local zoning board
    19  of appeals that are consistent with regional needs shall not be vacated,
    20  modified  or  removed by the state board notwithstanding that such deci-
    21  sions or conditions and requirements  have  the  effect  of  making  the
    22  applicant's proposal uneconomic.
    23    (b)  The state board or the petitioner shall have the power to enforce
    24  the orders of the state board at law or in equity in  court.  The  local
    25  zoning  board  of  appeals  shall carry out the order of the state board
    26  within thirty days of its entry and, upon failure to do so, the order of
    27  the state board shall, for all purposes, be deemed to be the  action  of
    28  such  local zoning board of appeals, unless the petitioner consents to a
    29  different decision or order by such local zoning board of appeals.
    30    (c) If a municipality appeals a decision of the  state  board  to  the
    31  court  under  article seventy-eight of the civil practice law and rules,
    32  and the court rules in favor of the applicant  for  a  low  or  moderate
    33  income  housing  development in such proceeding, such municipality shall
    34  be required to pay for any legal costs incurred by such applicant  as  a
    35  result of such appeal.
    36    5.  State  zoning  board  of  appeals established. (a) There is hereby
    37  established, within the division, a state zoning board  of  appeals,  to
    38  effectuate the provisions of this section.
    39    (b)  The state board shall consist of three members, one of whom shall
    40  be the commissioner of the division or such commissioner's designee, one
    41  of whom shall be appointed by the governor and who shall have  expertise
    42  in  fair housing, and one of whom shall be appointed by the governor and
    43  who shall have experience in local government with demonstrated  success
    44  in developing affordable housing.
    45    (c)  The  state board shall have the power and duties to conduct hear-
    46  ings, issue orders, and otherwise  perform  any  function  necessary  to
    47  operate  in  conformity with the provisions of this section. In addition
    48  to the functions or duties specifically directed or authorized  pursuant
    49  to  this  section,  the  state  board  shall  have  any powers or duties
    50  directed or authorized by the division.
    51    6. Rules, regulations, and administration.  (a) The division shall  be
    52  authorized  to promulgate any rules and/or regulations necessary for the
    53  implementation of the provisions of this section.
    54    (b) Notwithstanding any other provision  of  law,  the  department  of
    55  environmental conservation shall promulgate regulations deeming develop-

        A. 3111                             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.
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