Affordable housing crisis through a legal lens: 𝘲𝘶𝘰 𝘷𝘢𝘥𝘪𝘴, New York?
As New York State’s population continues to decline, the affordable housing crisis has largely contributed to and continues to exacerbate the loss of its workforce, as many of its middle- and low-income residents in recent years have been facing a problem with finding affordable housing. Although the number of jobs available to New Yorkers between 2010 and 2018 increased by 22%, the housing market increased only by 4%. Understanding the need to tackle the affordable housing crisis, New York State officials have made several attempts to present a solution to the problem relying primarily on incentive policies. Earlier this year, Governor Hochul released her proposed plan to incentivize affordable housing production, entitled “The New York Housing Compact”. Hochul’s plan establishes certain requirements for transit-oriented development and provides state enforcement mechanisms that could override local zoning laws and fast track appeals of noncompliant localities. Despite opposition from suburban lawmakers, Hochul’s plan serves as a good foundation for developing further policies, alleviating the affordable housing crisis in New York and the potential to transform New York’s housing landscape creating a more equitable and thriving metropolis.
Historically, local governments have held significant control over land use decisions, determining where and how construction takes place with little state oversight. Such a decentralized system of decision-making has largely contributed to the current housing crisis in the United States. In recent years, however, several states have proposed or enacted legislation that challenges the traditional power dynamics in land use decisions. These laws seek to override restrictive local zoning regulations in favor of more flexible regulations that promote the development of denser housing options. As New York grapples with its affordable housing crisis, other states, such as California, Utah, and Massachusetts have implemented various strategies to address their respective affordable housing crises, offering potential lessons and insights for New York to consider.
In recent years, California has dedicated significant funding to affordable housing initiatives, including the allocation of state funds (nearly $5 billion in 2021‑22 for housing‑related programs), voter-approved bond measures (approximately $785 million between 2018 and 2020), and leveraging private investment through tax incentives. With the enactment of the Housing Accountability Act, California has streamlined the approval process for affordable housing projects. The Housing Accountability Act limits the local government’s ability to deny or significantly reduce the density of housing developments that meet zoning requirements and are consistent with the general plan. Under this Act, counties and towns are required to approve the projects unless they can demonstrate an adverse effect that cannot be mitigated. The Act incentivizes developers to pursue affordable housing projects with greater confidence in their success. Similarly, Senate Bill 35 (SB 35), passed in 2017, streamlines the review and permitting procedures for certain affordable housing projects. SB 35 applies to municipalities that have failed to meet their regional housing needs and simplifies the approval process for developments that meet specified affordability and labor standards. SB 35 requires eligible projects to be approved “ministerially,” meaning that they are subject to objective planning and zoning standards without discretionary review. Another Act, Senate Bill 9 (SB 9), effective as of January 1, 2022, allows property owners to build more than one unit (up to four housing units) on lots previously reserved for single-family homes. SB 9 aims to preserve neighborhood character by encouraging smaller-scale infill development and avoiding the need for large-scale projects that may alter the existing character of communities.
Utah is another state that has effectively addressed the affordable housing issue in recent years with proactive measures aimed at reducing regulatory barriers and expediting the development of affordable housing units. These efforts created a more efficient and supportive environment for affordable housing construction, fostering increased housing opportunities for low- and moderate-income residents across Utah. Most recently, in 2022 and 2023, the Legislature passed several significant land use and housing bills, including HB 364, SB 174 and HB 462. HB 364 establishes the process for reporting on moderate-income housing plans (MIHP) and enhances low-income housing funding programs. SB 174 focuses on streamlining a city’s subdivision process, including a requirement to hold only one initial public hearing and a final review for an application to subdivide land. If the application complies with existing zoning requirements city officials need to complete a review of applications within 20 days. Municipalities may perform up to four review cycles on a given application. If after the fourth review is exhausted and 20 days have passed and the project has not been approved, the municipality shall either assemble a three-person panel or refer the question to the designated appeal authority at the applicant’s request. The Bill imposes penalties on cities and counties that haven’t submitted their moderate-income plans or if such plans have been rejected. HB 462 encourages the construction of affordable housing near public transportation hubs (enhancing the so-called “transit-oriented development”). The Bill requires municipalities to adopt a station area plan for existing public transit stations and adopt any appropriate land use regulations no later than December 31, 2025. This approach represents a meaningful solution to tackle housing affordability, as it promotes walkability, reduces reliance on cars, maximizes land use efficiency and most importantly gives the localities the chance to create their own community-based plans.
The adoption of Chapter 40B in the state of Massachusetts is notable for allowing the state to override decisions made by local Zoning Boards of Appeal under certain conditions, including if less than 10% of a municipality’s total housing units are not low- or moderate-income. Despite limited state intervention in local decisions, Chapter 40B continues to be the primary means of establishing affordable housing in Massachusetts. According to statistics, between 1997 and 2010, 78% of all new affordable housing units in rural and suburban communities (excluding group home beds and homeowner rehab loans) were the direct result of 40B.
It is important for New York to study the experiences and successes of other states, considering their unique circumstances, policy frameworks, and local contexts. By analyzing the strategies employed in these states and tailoring them to suit New York’s needs, the state can develop a multifaceted approach that combines zoning reforms, financial incentives, and targeted legislation to effectively address the affordable housing crisis. Many within New York State believe that a significant influx of financial support could incentivize localities to make long-term planning and investment in affordable housing. New York State can establish statewide mandates or targets for affordable housing while empowering local municipalities to create diverse strategies to meet certain quotas or percentages of affordable units within their jurisdiction. This approach compels local governments to prioritize affordable housing and encourages them to revise their zoning regulations accordingly. Like Utah, New York can prioritize transit-oriented development by identifying areas near public transportation hubs as suitable locations for increased density and affordable housing. New York may enact laws that preempt local zoning regulations, if they are too restrictive and, therefore, impede the development of affordable housing. However, it is crucial to maintain a balance between state intervention and local autonomy to address the unique needs and characteristics of different communities. By employing a combination of these approaches, New York can assert its authority to override or modify local zoning regulations strategically, aiming to increase the supply of affordable housing and address the pressing housing crisis across the state which ultimately ensures a diverse workforce and a strong economic development environment.