In many regards, the 2022-23 Executive Budget proposal has been a breath of fresh air for local governments across the State of New York. I am appreciative of the renewed spirit of cooperation and collaboration between state and local governments after a decade of confrontation with the previous Governor. For instance, this year’s Executive Budget Proposal reestablishes the AIM program, which provides unrestricted aid to our local governments, as a state responsibility and increases capital funding to maintain and improve local roads and bridges. The Legislature hopes to build even further on this auspicious beginning.
However, I must call attention to an ill-considered executive proposal that the State Legislature must reject: one that would mandate every local government enact a local law authorizing accessory dwelling units (ADUs) for properties in “all areas zoned for single-family or multi-family residential use and all lots with an existing residential use.” Permit applications for ADUs would furthermore “be considered ministerial without discretionary review or hearing.”
In summary, this proposal would usurp local zoning authority delegated to our towns, villages, and cities by Article 9 of the State Constitution, the Municipal Home Rule Law, and the Statute of Local Governments. As outlined in the Executive Budget, the proposal would use a “one size fits all” approach that would apply equally in Montauk, New York City, Plattsburgh, or Buffalo, regardless of local conditions. It would legally permit the doubling of residential density in all cities, towns, and villages.
We cannot ignore the reality that local land use laws should be and already are based on well-balanced comprehensive planning that considers all community needs, not just one. Housing is important, but so is water quality, natural resources, and infrastructure in equal measure. For example, what would be the impact of such density increases on the efforts of Suffolk County to reverse the trend of declining water quality? How would it affect traffic congestion on the South Fork? These are the types of questions being raised in my district and undoubtedly across the rest of the State.
Furthermore, this proposal overtly excludes the public from land use decision-making by eliminating local discretion. Community input should be held in the highest regard in these circumstances, not discarded or circumvented. This component of the proposal flies in the face of the established relationship between state government, local governments, and the people we are duly elected to represent.
Finally, the legislation ignores what has been the greatest impediment to creating accessory dwelling units: It has not been the absence of a law making ADUs legal. In many of the towns I represent on the East End, ADUs have already been legalized. However, the benefits of ADUs have not reached its full potential. To effectively realize the benefits of creating ADUs that align with local planning, it is crucial to develop a willingness and understanding in homeowners to make such an investment. This begs an important question: Why, even when accessory dwellings are permitted, do property owners not legally create them?
In actuality, the process can be confusing, time-consuming, and costly. Permitting costs, the land use process, capital costs of construction, real property tax consequences, and the responsibilities of being a landlord can all be daunting and financially prohibitive. In short, there is little incentive to do it legally. This top-down mandate will not change that.
Yet, there can be no denying that our State faces an unprecedented housing crisis exacerbated by the ongoing pandemic. We need to act.
I have shown my commitment to affordable housing in my district by passing the Peconic Bay Community Housing Fund Act in 2021. This new law will permit the five East End Towns in the Peconic Bay Region of Suffolk County to impose a 1/2% real estate transfer tax, with the proceeds going to a dedicated fund to create affordable housing, including ADUs. This legislation will generate at least $25 million per year for affordable housing in the region and at least $650 million over the life of the program. Towns in my district have enthusiastically embraced this new law and have proven a willingness to tax themselves to generate affordable housing. That is far from the exclusionary or NIMBY intent often ascribed by many to local government.
I share the goal of creating more affordable housing. I also agree that the ADUs should be part of that strategy. However, the Executive’s proposal is not the answer.
I view my role as Chair of the Assembly Local Governments Committee and as a state legislator to not just say “no” when confronted with a proposal with which I do not agree. Instead, I have a duty to be constructive and put forth alternatives to a problem we all agree must be resolved. That alternative must respect the home rule authority of local governments, uphold the public’s right to participate in land use decisions, and ensure that any ADU law can be locally enacted consistent with a community’s comprehensive plan.
The State has an important role to play, not as a dictator, but as a partner with local government and local communities. I envision a program whereby the State would work with local government by providing resources such as technical assistance, model local laws, best practices, and funding to local government to implement a workable accessory dwelling unit program. The State would provide incentives to property owners that encourage them to build accessory dwelling units, just as we have with rooftop solar panels and innovative septic systems.
Such a program could include:
- capital grants/rebates/no interest forgivable loans for construction,
- income tax credits to defray the cost of construction,
- sales tax exemptions on materials needed to construct an accessory dwelling unit,
- property tax exemptions for the added value of the new ADU, and
- rent subsidies to keep the ADU affordable.
There should also be permit fee waivers and an accelerated permit process from local governments. This alternative would respect home rule, local control, community involvement, and comprehensive planning.
The State role would bring both expertise and financial resources to assist local government and property owners to create new housing opportunities.However, land use decisions would still be made locally. This will do more than pass a law; it will result in the actual construction of new housing.
As the Chair of the Assembly Committee on Local Governments, I will be working with my colleagues during the current budget process to reject state mandates in favor of a state and local partnership. I look forward to putting forth a new proposal to support the creation of ADUs without sacrificing the authority of local government.