Bill Text: NY A08883 | 2021-2022 | General Assembly | Introduced
Bill Title: Relates to low or moderate income housing projects; 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.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2022-01-19 - referred to housing [A08883 Detail]
Download: New_York-2021-A08883-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 8883 IN ASSEMBLY January 19, 2022 ___________ 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 projects 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 projects. 1. Definitions. For 4 the purposes of this section, the following terms shall have the follow- 5 ing meanings: 6 (a) "Low or moderate income housing" means any housing subsidized by 7 the federal or state government under any program to assist the 8 construction of low or moderate income housing as defined in the appli- 9 cable federal or state statute, whether built or operated by any public 10 agency or any nonprofit organization or limited dividend organization. 11 For a housing project to qualify as "low or moderate income housing", 12 such housing project shall: (i) have at least twenty-five percent of 13 such housing project's units be affordable to households who earn no 14 more than eighty percent of the area median income; or (ii) for rental 15 housing projects, have at least twenty percent of such housing project's 16 units affordable to households earning below fifty percent of the area 17 median income. 18 (b) "Uneconomic" means any condition brought about by any single 19 factor or combination of factors to the extent that it makes it substan- 20 tially unlikely for a public agency or nonprofit organization to proceed 21 in building or operating low or moderate income housing without finan- 22 cial loss, or for a limited dividend organization to proceed and still 23 realize a reasonable return in building or operating such housing within 24 the limitations set by the subsidizing agency of government on the size 25 or character of the development or on the amount or nature of the subsi- 26 dy or on the tenants, rentals and income permissible, and without 27 substantially changing the rent levels and units sizes proposed by the 28 public agency, nonprofit organization, or limited dividend organization. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD13667-03-1A. 8883 2 1 (c) "Consistent with local needs" means requirements and/or regu- 2 lations that are reasonable in view of the regional need for low and 3 moderate income housing and the need to protect the health or safety of 4 the occupants of the proposed housing or of the residents of the city, 5 town, or village to promote better site and building design in relation 6 to the surroundings, or to preserve environmentally protected wetlands, 7 and if such requirements and/or regulations are applied as equally as 8 possible to both subsidized and unsubsidized housing. Requirements 9 and/or regulations shall be "consistent with local needs" when imposed 10 by a local zoning board of appeals after comprehensive hearing in a 11 city, town, or village where low or moderate income housing exists which 12 is in excess of ten percent of the housing units reported in the latest 13 federal decennial census of the city, town, or village, or in the case 14 of the city of New York, which is in excess of ten percent of the hous- 15 ing units in the area covered by the applicable community board. 16 (d) "Local board" means any city, town, or village board, commission, 17 officer or other agency or office having supervision of the construction 18 of buildings or the power of enforcing municipal building laws. 19 (e) "Local zoning board of appeals" means a zoning board of appeals 20 for a city, town, or village operating pursuant to article five-A of the 21 general city law, section two hundred sixty-seven of the town law, or 22 section 7-712 of the village law, or the New York city board of stand- 23 ards and appeals. 24 (f) "State zoning board of appeals" or "state board" means the state 25 zoning board of appeals established pursuant to subdivision five of this 26 section. 27 (g) "Limited-dividend organization" means a limited-dividend housing 28 company established under article four of the private housing finance 29 law. 30 (h) "Public agency" shall mean any city, town, village or state 31 government body or subdivision thereof. 32 (i) "Nonprofit organization" shall mean a corporation having tax 33 exempt status under section 501 (c) (3) of the United States Internal 34 Revenue Code. 35 (j) "Division" shall mean the division of housing and community 36 renewal. 37 2. Applying to local zoning boards of appeals. Any public agency, 38 limited-dividend organization, or nonprofit organization proposing to 39 build low or moderate income housing may submit to the applicable local 40 zoning board of appeals, a single application to build such housing in 41 lieu of separate applications to the applicable local boards. The local 42 zoning board of appeals shall forthwith notify each such local board, as 43 applicable, of the filing of such application by sending a copy of such 44 application to such local boards for their recommendations and shall, 45 within thirty days of the receipt of such application, hold a public 46 hearing on the same. The local zoning board of appeals shall request the 47 appearance at such hearing of such representatives of such local boards 48 as it shall deem necessary or helpful in making its decision upon such 49 application and shall have the same power to issue permits or approvals 50 as any local board or official who would otherwise act with respect to 51 such application, including but not limited to the power to attach to 52 such permit or approval conditions and requirements with respect to 53 height, site plan, size or shape, or building materials as are consist- 54 ent with the terms of this section. The local zoning board of appeals, 55 in making its decision on such application, shall take into consider- 56 ation the recommendations of the local boards and shall have the author-A. 8883 3 1 ity to use the testimony of consultants. The local zoning board of 2 appeals shall adopt rules, not inconsistent with the purposes of this 3 section, for the conduct of its business pursuant to this section and 4 shall file a copy of such rules with the city, town, or village clerk. 5 The local zoning board of appeals shall render a decision, based upon a 6 majority vote of such board, within forty days after the termination of 7 the public hearing held pursuant to this subdivision and, if favorable 8 to the applicant, shall forthwith issue a comprehensive permit or 9 approval. If such hearing is not convened or a decision is not rendered 10 within the time allowed, unless the time has been extended by mutual 11 agreement between the local zoning board of appeals and the applicant, 12 the application shall be deemed to have been allowed and the comprehen- 13 sive permit or approval shall be issued. Any person aggrieved by the 14 issuance of a comprehensive permit or approval may appeal to the court 15 as provided in article seventy-eight of the civil practice law and 16 rules. 17 3. Right to appeal to the state board. Whenever an application filed 18 under subdivision two of this section is denied, or is granted with such 19 conditions and requirements as to make the building or operation of such 20 housing uneconomic, the applicant shall have the right to appeal to the 21 state board for a review of the same. Such appeal shall be taken within 22 twenty days after the date of the notice of the decision by the local 23 zoning board of appeals by filing with the state board a statement of 24 the prior proceedings and the reasons upon which such appeal is based. 25 The state board shall notify the appropriate local zoning board of 26 appeals of the filing of such petition for review and such local zoning 27 board of appeals shall, within ten days of the receipt of such notice, 28 transmit a copy of its decision and the reasons therefor to the state 29 board. Such appeal shall be heard by the state board within twenty days 30 after receipt of the applicant's statement. A stenographic record of the 31 proceedings shall be kept and the state board shall render a written 32 decision, based upon a majority vote, stating its findings of fact, its 33 conclusions and the reasons therefor within thirty days after the termi- 34 nation of the hearing, unless such time shall have been extended by 35 mutual agreement between the state board and the applicant. Such deci- 36 sion may be reviewed by the supreme court in accordance with the 37 provisions of the state administrative procedure act. The state board 38 shall deny an appeal of an application to build low or moderate income 39 housing under this subdivision if the city, town, or village where such 40 low or moderate income housing would be built has otherwise increased 41 its proportion of overall housing that is affordable to households earn- 42 ing below fifty percent of the area's median income by two percent or 43 more in the previous year. 44 4. State board hearings. (a) A hearing by the state board under 45 subdivision three of this section shall be limited to the issue of 46 whether, in the case of the denial of an application, the decision of 47 the local zoning board of appeals was reasonable and consistent with 48 local needs and, in the case of an approval of an application with 49 conditions and requirements imposed, whether such conditions and 50 requirements make the construction or operation of such housing uneco- 51 nomic and whether they are consistent with local needs. If the state 52 board finds, in the case of a denial, that the decision of the local 53 zoning board of appeals was unreasonable and not consistent with local 54 needs, it shall vacate such decision and shall direct such local zoning 55 board of appeals to issue a comprehensive permit or approval to the 56 applicant. If the state board finds, in the case of an approval withA. 8883 4 1 conditions and requirements imposed, that the decision of the local 2 zoning board of appeals makes the building or operation of such housing 3 uneconomic and is not consistent with local needs, it shall order such 4 local zoning board of appeals to modify or remove any such condition or 5 requirement so as to make the proposal no longer uneconomic and to issue 6 any necessary permit or approval; provided, however, that the state 7 board shall not issue any order that would permit the building or opera- 8 tion of such housing in accordance with standards less safe than the 9 applicable building and site plan requirements of the federal housing 10 administration or any applicable state requirements, whichever agency is 11 financially assisting such housing. Decisions or conditions and require- 12 ments imposed by a local zoning board of appeals that are consistent 13 with local needs shall not be vacated, modified or removed by the state 14 board notwithstanding that such decisions or conditions and requirements 15 have the effect of making the applicant's proposal uneconomic. 16 (b) The state board or the petitioner shall have the power to enforce 17 the orders of the state board at law or in equity in court. The local 18 zoning board of appeals shall carry out the order of the state board 19 within thirty days of its entry and, upon failure to do so, the order of 20 the state board shall, for all purposes, be deemed to be the action of 21 such local zoning board of appeals, unless the petitioner consents to a 22 different decision or order by such local zoning board of appeals. 23 5. State zoning board of appeals established. (a) There is hereby 24 established, within the division, a state zoning board of appeals, to 25 effectuate the provisions of this section. 26 (b) The state board shall consist of three members, one of whom shall 27 be the commissioner of the division or such commissioner's designee, one 28 of whom shall be appointed by the governor and who shall have experience 29 in affordable housing development, and one of whom shall be appointed by 30 the governor and who shall have experience in local government. 31 (c) The state board shall have the power and duties to conduct hear- 32 ings, issue orders, and otherwise perform any function necessary to 33 operate in conformity with the provisions of this section. In addition 34 to the functions or duties specifically directed or authorized pursuant 35 to this section, the state board shall have any powers or duties 36 directed or authorized by the division. 37 6. Rules and regulations. The division shall be authorized to promul- 38 gate any rules and/or regulations necessary for the implementation of 39 the provisions of this section. 40 § 2. The division shall conduct a study regarding the qualified allo- 41 cation plan for low income housing tax credits developed pursuant to 42 section 42 of the Internal Revenue Code. Such study shall include, but 43 not be limited to, the development of a new qualified action plan pursu- 44 ant to section 42 of the Internal Revenue Code, under which a public 45 agency, limited dividend organization, or nonprofit organization submit- 46 ting an application to build low or moderate income housing under subdi- 47 vision 2 of section 14-a of the public housing law that would otherwise 48 qualify for a low income housing tax credit under section 42 of the 49 Internal Revenue Code, may include with such application, an application 50 for such low income housing tax credit. Such qualified action plan shall 51 grant local zoning boards of appeals the authority to approve or deny 52 such an application for low income housing tax credits. Under such qual- 53 ified action plan, a denial of an application for low income housing tax 54 credits shall be appealable to the state board in the same manner as an 55 application to build low or moderate income housing under section 14-a 56 of the public housing law. Such study shall include a review of theA. 8883 5 1 potential benefits and effects of such new qualified action plan. The 2 commissioner shall submit a report of the division's findings of such 3 study and any recommendations to the governor, the speaker of the assem- 4 bly and the temporary president of the senate on or before one year 5 after the effective date of this act. 6 § 3. This act shall take effect on the one hundred eightieth day after 7 it shall have become a law. Effective immediately, the addition, amend- 8 ment and/or repeal of any rule or regulation necessary for the implemen- 9 tation of this act on its effective date are authorized to be made and 10 completed on or before such date.
