S T A T E   O F   N E W   Y O R K
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                                   8883
 
                           I N  A S S E M B L Y
 
                             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:
 
   Section  1.  The public housing law is amended by adding a new section
 14-a to read as follows:
   § 14-A. LOW OR MODERATE INCOME HOUSING PROJECTS. 1.  DEFINITIONS.  FOR
 THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOW-
 ING MEANINGS:
   (A)  "LOW  OR MODERATE INCOME HOUSING" MEANS ANY HOUSING SUBSIDIZED BY
 THE FEDERAL  OR  STATE  GOVERNMENT  UNDER  ANY  PROGRAM  TO  ASSIST  THE
 CONSTRUCTION  OF LOW OR MODERATE INCOME HOUSING AS DEFINED IN THE APPLI-
 CABLE FEDERAL OR STATE STATUTE, WHETHER BUILT OR OPERATED BY ANY  PUBLIC
 AGENCY  OR  ANY NONPROFIT ORGANIZATION OR LIMITED DIVIDEND ORGANIZATION.
 FOR A HOUSING PROJECT TO QUALIFY AS "LOW OR  MODERATE  INCOME  HOUSING",
 SUCH  HOUSING  PROJECT  SHALL:  (I) HAVE AT LEAST TWENTY-FIVE PERCENT OF
 SUCH HOUSING PROJECT'S UNITS BE AFFORDABLE TO  HOUSEHOLDS  WHO  EARN  NO
 MORE  THAN  EIGHTY PERCENT OF THE AREA MEDIAN INCOME; OR (II) FOR RENTAL
 HOUSING PROJECTS, HAVE AT LEAST TWENTY PERCENT OF SUCH HOUSING PROJECT'S
 UNITS AFFORDABLE TO HOUSEHOLDS EARNING BELOW FIFTY PERCENT OF  THE  AREA
 MEDIAN INCOME.
   (B)  "UNECONOMIC"  MEANS  ANY  CONDITION  BROUGHT  ABOUT BY ANY SINGLE
 FACTOR OR COMBINATION OF FACTORS TO THE EXTENT THAT IT MAKES IT SUBSTAN-
 TIALLY UNLIKELY FOR A PUBLIC AGENCY OR NONPROFIT ORGANIZATION TO PROCEED
 IN BUILDING OR OPERATING LOW OR MODERATE INCOME HOUSING  WITHOUT  FINAN-
 CIAL  LOSS,  OR FOR A LIMITED DIVIDEND ORGANIZATION TO PROCEED AND STILL
 REALIZE A REASONABLE RETURN IN BUILDING OR OPERATING SUCH HOUSING WITHIN
 THE LIMITATIONS SET BY THE SUBSIDIZING AGENCY OF GOVERNMENT ON THE  SIZE
 OR CHARACTER OF THE DEVELOPMENT OR ON THE AMOUNT OR NATURE OF THE SUBSI-
 DY  OR  ON  THE  TENANTS,  RENTALS  AND  INCOME PERMISSIBLE, AND WITHOUT
 SUBSTANTIALLY CHANGING THE RENT LEVELS AND UNITS SIZES PROPOSED  BY  THE
 PUBLIC AGENCY, NONPROFIT ORGANIZATION, OR LIMITED DIVIDEND ORGANIZATION.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD13667-03-1
 A. 8883                             2
 
   (C)  "CONSISTENT  WITH  LOCAL  NEEDS"  MEANS REQUIREMENTS AND/OR REGU-
 LATIONS THAT ARE REASONABLE IN VIEW OF THE REGIONAL  NEED  FOR  LOW  AND
 MODERATE  INCOME HOUSING AND THE NEED TO PROTECT THE HEALTH OR SAFETY OF
 THE OCCUPANTS OF THE PROPOSED HOUSING OR OF THE RESIDENTS OF  THE  CITY,
 TOWN,  OR VILLAGE TO PROMOTE BETTER SITE AND BUILDING DESIGN IN RELATION
 TO THE SURROUNDINGS, OR TO PRESERVE ENVIRONMENTALLY PROTECTED  WETLANDS,
 AND  IF  SUCH  REQUIREMENTS AND/OR REGULATIONS ARE APPLIED AS EQUALLY AS
 POSSIBLE TO  BOTH  SUBSIDIZED  AND  UNSUBSIDIZED  HOUSING.  REQUIREMENTS
 AND/OR  REGULATIONS  SHALL BE "CONSISTENT WITH LOCAL NEEDS" WHEN IMPOSED
 BY A LOCAL ZONING BOARD OF APPEALS  AFTER  COMPREHENSIVE  HEARING  IN  A
 CITY, TOWN, OR VILLAGE WHERE LOW OR MODERATE INCOME HOUSING EXISTS WHICH
 IS  IN EXCESS OF TEN PERCENT OF THE HOUSING UNITS REPORTED IN THE LATEST
 FEDERAL DECENNIAL CENSUS OF THE CITY, TOWN, OR VILLAGE, OR IN  THE  CASE
 OF  THE CITY OF NEW YORK, WHICH IS IN EXCESS OF TEN PERCENT OF THE HOUS-
 ING UNITS IN THE AREA COVERED BY THE APPLICABLE COMMUNITY BOARD.
   (D) "LOCAL BOARD" MEANS ANY CITY, TOWN, OR VILLAGE BOARD,  COMMISSION,
 OFFICER OR OTHER AGENCY OR OFFICE HAVING SUPERVISION OF THE CONSTRUCTION
 OF BUILDINGS OR THE POWER OF ENFORCING MUNICIPAL BUILDING LAWS.
   (E)  "LOCAL  ZONING  BOARD OF APPEALS" MEANS A ZONING BOARD OF APPEALS
 FOR A CITY, TOWN, OR VILLAGE OPERATING PURSUANT TO ARTICLE FIVE-A OF THE
 GENERAL CITY LAW, SECTION TWO HUNDRED SIXTY-SEVEN OF THE  TOWN  LAW,  OR
 SECTION  7-712  OF THE VILLAGE LAW, OR THE NEW YORK CITY BOARD OF STAND-
 ARDS AND APPEALS.
   (F) "STATE ZONING BOARD OF APPEALS" OR "STATE BOARD" MEANS  THE  STATE
 ZONING BOARD OF APPEALS ESTABLISHED PURSUANT TO SUBDIVISION FIVE OF THIS
 SECTION.
   (G)  "LIMITED-DIVIDEND  ORGANIZATION" MEANS A LIMITED-DIVIDEND HOUSING
 COMPANY ESTABLISHED UNDER ARTICLE FOUR OF THE  PRIVATE  HOUSING  FINANCE
 LAW.
   (H)  "PUBLIC  AGENCY"  SHALL  MEAN  ANY  CITY,  TOWN, VILLAGE OR STATE
 GOVERNMENT BODY OR SUBDIVISION THEREOF.
   (I) "NONPROFIT ORGANIZATION"  SHALL  MEAN  A  CORPORATION  HAVING  TAX
 EXEMPT  STATUS  UNDER  SECTION 501 (C) (3) OF THE UNITED STATES INTERNAL
 REVENUE CODE.
   (J) "DIVISION" SHALL  MEAN  THE  DIVISION  OF  HOUSING  AND  COMMUNITY
 RENEWAL.
   2.  APPLYING  TO  LOCAL  ZONING BOARDS OF APPEALS.  ANY PUBLIC AGENCY,
 LIMITED-DIVIDEND ORGANIZATION, OR NONPROFIT  ORGANIZATION  PROPOSING  TO
 BUILD  LOW OR MODERATE INCOME HOUSING MAY SUBMIT TO THE APPLICABLE LOCAL
 ZONING BOARD OF APPEALS, A SINGLE APPLICATION TO BUILD SUCH  HOUSING  IN
 LIEU  OF SEPARATE APPLICATIONS TO THE APPLICABLE LOCAL BOARDS. THE LOCAL
 ZONING BOARD OF APPEALS SHALL FORTHWITH NOTIFY EACH SUCH LOCAL BOARD, AS
 APPLICABLE, OF THE FILING OF SUCH APPLICATION BY SENDING A COPY OF  SUCH
 APPLICATION  TO  SUCH  LOCAL BOARDS FOR THEIR RECOMMENDATIONS AND SHALL,
 WITHIN THIRTY DAYS OF THE RECEIPT OF SUCH  APPLICATION,  HOLD  A  PUBLIC
 HEARING ON THE SAME. THE LOCAL ZONING BOARD OF APPEALS SHALL REQUEST THE
 APPEARANCE  AT SUCH HEARING OF SUCH REPRESENTATIVES OF SUCH LOCAL BOARDS
 AS IT SHALL DEEM NECESSARY OR HELPFUL IN MAKING ITS DECISION  UPON  SUCH
 APPLICATION  AND SHALL HAVE THE SAME POWER TO ISSUE PERMITS OR APPROVALS
 AS ANY LOCAL BOARD OR OFFICIAL WHO WOULD OTHERWISE ACT WITH  RESPECT  TO
 SUCH  APPLICATION,  INCLUDING  BUT NOT LIMITED TO THE POWER TO ATTACH TO
 SUCH PERMIT OR APPROVAL CONDITIONS  AND  REQUIREMENTS  WITH  RESPECT  TO
 HEIGHT,  SITE PLAN, SIZE OR SHAPE, OR BUILDING MATERIALS AS ARE CONSIST-
 ENT WITH THE TERMS OF THIS SECTION. THE LOCAL ZONING BOARD  OF  APPEALS,
 IN  MAKING  ITS  DECISION ON SUCH APPLICATION, SHALL TAKE INTO CONSIDER-
 ATION THE RECOMMENDATIONS OF THE LOCAL BOARDS AND SHALL HAVE THE AUTHOR-
 A. 8883                             3
 
 ITY TO USE THE TESTIMONY OF  CONSULTANTS.  THE  LOCAL  ZONING  BOARD  OF
 APPEALS  SHALL  ADOPT  RULES, NOT INCONSISTENT WITH THE PURPOSES OF THIS
 SECTION, FOR THE CONDUCT OF ITS BUSINESS PURSUANT TO  THIS  SECTION  AND
 SHALL  FILE  A COPY OF SUCH RULES WITH THE CITY, TOWN, OR VILLAGE CLERK.
 THE LOCAL ZONING BOARD OF APPEALS SHALL RENDER A DECISION, BASED UPON  A
 MAJORITY  VOTE OF SUCH BOARD, WITHIN FORTY DAYS AFTER THE TERMINATION OF
 THE PUBLIC HEARING HELD PURSUANT TO THIS SUBDIVISION AND,  IF  FAVORABLE
 TO  THE  APPLICANT,  SHALL  FORTHWITH  ISSUE  A  COMPREHENSIVE PERMIT OR
 APPROVAL. IF SUCH HEARING IS NOT CONVENED OR A DECISION IS NOT  RENDERED
 WITHIN  THE  TIME  ALLOWED,  UNLESS THE TIME HAS BEEN EXTENDED BY MUTUAL
 AGREEMENT BETWEEN THE LOCAL ZONING BOARD OF APPEALS AND  THE  APPLICANT,
 THE  APPLICATION SHALL BE DEEMED TO HAVE BEEN ALLOWED AND THE COMPREHEN-
 SIVE PERMIT OR APPROVAL SHALL BE ISSUED. ANY  PERSON  AGGRIEVED  BY  THE
 ISSUANCE  OF  A COMPREHENSIVE PERMIT OR APPROVAL MAY APPEAL TO THE COURT
 AS PROVIDED IN ARTICLE SEVENTY-EIGHT  OF  THE  CIVIL  PRACTICE  LAW  AND
 RULES.
   3.  RIGHT TO APPEAL TO THE STATE BOARD.  WHENEVER AN APPLICATION FILED
 UNDER SUBDIVISION TWO OF THIS SECTION IS DENIED, OR IS GRANTED WITH SUCH
 CONDITIONS AND REQUIREMENTS AS TO MAKE THE BUILDING OR OPERATION OF SUCH
 HOUSING UNECONOMIC, THE APPLICANT SHALL HAVE THE RIGHT TO APPEAL TO  THE
 STATE  BOARD FOR A REVIEW OF THE SAME. SUCH APPEAL SHALL BE TAKEN WITHIN
 TWENTY DAYS AFTER THE DATE OF THE NOTICE OF THE DECISION  BY  THE  LOCAL
 ZONING  BOARD  OF  APPEALS BY FILING WITH THE STATE BOARD A STATEMENT OF
 THE PRIOR PROCEEDINGS AND THE REASONS UPON WHICH SUCH APPEAL  IS  BASED.
 THE  STATE  BOARD  SHALL  NOTIFY  THE  APPROPRIATE LOCAL ZONING BOARD OF
 APPEALS OF THE FILING OF SUCH PETITION FOR REVIEW AND SUCH LOCAL  ZONING
 BOARD  OF  APPEALS SHALL, WITHIN TEN DAYS OF THE RECEIPT OF SUCH NOTICE,
 TRANSMIT A COPY OF ITS DECISION AND THE REASONS THEREFOR  TO  THE  STATE
 BOARD.  SUCH APPEAL SHALL BE HEARD BY THE STATE BOARD WITHIN TWENTY DAYS
 AFTER RECEIPT OF THE APPLICANT'S STATEMENT. A STENOGRAPHIC RECORD OF THE
 PROCEEDINGS SHALL BE KEPT AND THE STATE BOARD  SHALL  RENDER  A  WRITTEN
 DECISION,  BASED UPON A MAJORITY VOTE, STATING ITS FINDINGS OF FACT, ITS
 CONCLUSIONS AND THE REASONS THEREFOR WITHIN THIRTY DAYS AFTER THE TERMI-
 NATION OF THE HEARING, UNLESS SUCH TIME  SHALL  HAVE  BEEN  EXTENDED  BY
 MUTUAL  AGREEMENT BETWEEN THE STATE BOARD AND THE APPLICANT.  SUCH DECI-
 SION MAY BE REVIEWED  BY  THE  SUPREME  COURT  IN  ACCORDANCE  WITH  THE
 PROVISIONS  OF  THE STATE ADMINISTRATIVE PROCEDURE ACT.  THE STATE BOARD
 SHALL DENY AN APPEAL OF AN APPLICATION TO BUILD LOW OR  MODERATE  INCOME
 HOUSING  UNDER THIS SUBDIVISION IF THE CITY, TOWN, OR VILLAGE WHERE SUCH
 LOW OR MODERATE INCOME HOUSING WOULD BE BUILT  HAS  OTHERWISE  INCREASED
 ITS PROPORTION OF OVERALL HOUSING THAT IS AFFORDABLE TO HOUSEHOLDS EARN-
 ING  BELOW  FIFTY  PERCENT OF THE AREA'S MEDIAN INCOME BY TWO PERCENT OR
 MORE IN THE PREVIOUS YEAR.
   4. STATE BOARD HEARINGS.   (A) A HEARING  BY  THE  STATE  BOARD  UNDER
 SUBDIVISION  THREE  OF  THIS  SECTION  SHALL  BE LIMITED TO THE ISSUE OF
 WHETHER, IN THE CASE OF THE DENIAL OF AN APPLICATION,  THE  DECISION  OF
 THE  LOCAL  ZONING  BOARD  OF APPEALS WAS REASONABLE AND CONSISTENT WITH
 LOCAL NEEDS AND, IN THE CASE OF  AN  APPROVAL  OF  AN  APPLICATION  WITH
 CONDITIONS   AND  REQUIREMENTS  IMPOSED,  WHETHER  SUCH  CONDITIONS  AND
 REQUIREMENTS MAKE THE CONSTRUCTION OR OPERATION OF SUCH  HOUSING  UNECO-
 NOMIC  AND  WHETHER  THEY  ARE CONSISTENT WITH LOCAL NEEDS. IF THE STATE
 BOARD FINDS, IN THE CASE OF A DENIAL, THAT THE  DECISION  OF  THE  LOCAL
 ZONING  BOARD  OF APPEALS WAS UNREASONABLE AND NOT CONSISTENT WITH LOCAL
 NEEDS, IT SHALL VACATE SUCH DECISION AND SHALL DIRECT SUCH LOCAL  ZONING
 BOARD  OF  APPEALS  TO  ISSUE  A COMPREHENSIVE PERMIT OR APPROVAL TO THE
 APPLICANT. IF THE STATE BOARD FINDS, IN THE CASE  OF  AN  APPROVAL  WITH
 A. 8883                             4
 
 CONDITIONS  AND  REQUIREMENTS  IMPOSED,  THAT  THE DECISION OF THE LOCAL
 ZONING BOARD OF APPEALS MAKES THE BUILDING OR OPERATION OF SUCH  HOUSING
 UNECONOMIC  AND  IS NOT CONSISTENT WITH LOCAL NEEDS, IT SHALL ORDER SUCH
 LOCAL  ZONING BOARD OF APPEALS TO MODIFY OR REMOVE ANY SUCH CONDITION OR
 REQUIREMENT SO AS TO MAKE THE PROPOSAL NO LONGER UNECONOMIC AND TO ISSUE
 ANY NECESSARY PERMIT OR APPROVAL;  PROVIDED,  HOWEVER,  THAT  THE  STATE
 BOARD SHALL NOT ISSUE ANY ORDER THAT WOULD PERMIT THE BUILDING OR OPERA-
 TION  OF  SUCH  HOUSING  IN ACCORDANCE WITH STANDARDS LESS SAFE THAN THE
 APPLICABLE BUILDING AND SITE PLAN REQUIREMENTS OF  THE  FEDERAL  HOUSING
 ADMINISTRATION OR ANY APPLICABLE STATE REQUIREMENTS, WHICHEVER AGENCY IS
 FINANCIALLY ASSISTING SUCH HOUSING. DECISIONS OR CONDITIONS AND REQUIRE-
 MENTS  IMPOSED  BY  A  LOCAL ZONING BOARD OF APPEALS THAT ARE CONSISTENT
 WITH LOCAL NEEDS SHALL NOT BE VACATED, MODIFIED OR REMOVED BY THE  STATE
 BOARD NOTWITHSTANDING THAT SUCH DECISIONS OR CONDITIONS AND REQUIREMENTS
 HAVE THE EFFECT OF MAKING THE APPLICANT'S PROPOSAL UNECONOMIC.
   (B)  THE STATE BOARD OR THE PETITIONER SHALL HAVE THE POWER TO ENFORCE
 THE ORDERS OF THE STATE BOARD AT LAW OR IN EQUITY IN  COURT.  THE  LOCAL
 ZONING  BOARD  OF  APPEALS  SHALL CARRY OUT THE ORDER OF THE STATE BOARD
 WITHIN THIRTY DAYS OF ITS ENTRY AND, UPON FAILURE TO DO SO, THE ORDER OF
 THE STATE BOARD SHALL, FOR ALL PURPOSES, BE DEEMED TO BE THE  ACTION  OF
 SUCH  LOCAL ZONING BOARD OF APPEALS, UNLESS THE PETITIONER CONSENTS TO A
 DIFFERENT DECISION OR ORDER BY SUCH LOCAL ZONING BOARD OF APPEALS.
   5. STATE ZONING BOARD OF APPEALS  ESTABLISHED.  (A)  THERE  IS  HEREBY
 ESTABLISHED,  WITHIN  THE  DIVISION, A STATE ZONING BOARD OF APPEALS, TO
 EFFECTUATE THE PROVISIONS OF THIS SECTION.
   (B) THE STATE BOARD SHALL CONSIST OF THREE MEMBERS, ONE OF WHOM  SHALL
 BE THE COMMISSIONER OF THE DIVISION OR SUCH COMMISSIONER'S DESIGNEE, ONE
 OF WHOM SHALL BE APPOINTED BY THE GOVERNOR AND WHO SHALL HAVE EXPERIENCE
 IN AFFORDABLE HOUSING DEVELOPMENT, AND ONE OF WHOM SHALL BE APPOINTED BY
 THE GOVERNOR AND WHO SHALL HAVE EXPERIENCE IN LOCAL GOVERNMENT.
   (C)  THE  STATE BOARD SHALL HAVE THE POWER AND DUTIES TO CONDUCT HEAR-
 INGS, ISSUE ORDERS, AND OTHERWISE  PERFORM  ANY  FUNCTION  NECESSARY  TO
 OPERATE  IN  CONFORMITY WITH THE PROVISIONS OF THIS SECTION. IN ADDITION
 TO THE FUNCTIONS OR DUTIES SPECIFICALLY DIRECTED OR AUTHORIZED  PURSUANT
 TO  THIS  SECTION,  THE  STATE  BOARD  SHALL  HAVE  ANY POWERS OR DUTIES
 DIRECTED OR AUTHORIZED BY THE DIVISION.
   6. RULES AND REGULATIONS. THE DIVISION SHALL BE AUTHORIZED TO  PROMUL-
 GATE  ANY  RULES  AND/OR REGULATIONS NECESSARY FOR THE IMPLEMENTATION OF
 THE PROVISIONS OF THIS SECTION.
   § 2. The division shall conduct a study regarding the qualified  allo-
 cation  plan  for  low  income housing tax credits developed pursuant to
 section 42 of the Internal Revenue Code. Such study shall  include,  but
 not be limited to, the development of a new qualified action plan pursu-
 ant  to  section  42  of the Internal Revenue Code, under which a public
 agency, limited dividend organization, or nonprofit organization submit-
 ting an application to build low or moderate income housing under subdi-
 vision 2 of section 14-a of the public housing law that would  otherwise
 qualify  for  a  low  income  housing tax credit under section 42 of the
 Internal Revenue Code, may include with such application, an application
 for such low income housing tax credit. Such qualified action plan shall
 grant local zoning boards of appeals the authority to  approve  or  deny
 such an application for low income housing tax credits. Under such qual-
 ified action plan, a denial of an application for low income housing tax
 credits  shall be appealable to the state board in the same manner as an
 application to build low or moderate income housing under  section  14-a
 of  the  public  housing  law.  Such study shall include a review of the
 A. 8883                             5

 potential benefits and effects of such new qualified action plan.    The
 commissioner  shall  submit  a report of the division's findings of such
 study and any recommendations to the governor, the speaker of the assem-
 bly  and  the  temporary  president  of the senate on or before one year
 after the effective date of this act.
   § 3. This act shall take effect on the one hundred eightieth day after
 it shall have become a law. Effective immediately, the addition,  amend-
 ment and/or repeal of any rule or regulation necessary for the implemen-
 tation  of  this act on its effective date are authorized to be made and
 completed on or before such date.