Administered by the city's Department of Housing, Preservation and Development (HPD), 421-a is a tax incentive program begun in the 1970s to spur housing development at a time when developers needed encouragement to build in New York City. Over the past two years the city began a move to reform the program, acknowledging today's radically changed housing market in which it's affordable housing development in particular that can use the incentive.
The bills passed in Albany on Thursday, sponsored by Assemblyman Vito Lopez, a Brooklyn Democrat, and Senator Martin Golden, a Brooklyn Republican, include a number of new mechanisms to promote housing affordability while retaining tax benefits for developers. The measures have the support of the Real Estate Board of New York (REBNY) and building services workers' union SEIU Local 32BJ, but garnered mixed reviews at best from NYC officials and affordable housing advocates.
One major change in the new legislation is the expansion of the so-called "exclusionary zones," or areas in which developers must include affordable housing in their plans to qualify for the tax breaks. Originally, there had been just one exclusionary zone, covering a large swath of central Manhattan, but now there will be 12 more geographic areas, in addition to eight added by the city in December. Almost all of Manhattan is now covered, plus exclusionary zones in each borough.
The new areas covered include considerable sections roughly of Crown Heights/Prospect Heights and East New York in Brooklyn; Elmhurst/Jackson Heights and the Astoria/Long Island City waterfronts in Queens; a portion of the north shore of Staten Island (the only area in the entire borough); and East Tremont/West Farms and Grand Concourse/Crotona Park West in the Bronx.
Some healthy real estate markets around the city are notably absent: Riverdale in the Bronx, and downtown Flushing and Forest Hills in Queens. Affordable housing activists say that's significant because those are precisely the areas that need the mandatory affordable housing requirements so that existing lower-income residents don’t get pushed out.
One attention-getting feature of the legislation gives the already controversial Atlantic Yards project in Brooklyn additional tax breaks. It also allows potential tenants who earn up to 70 percent of the Area Median Income (AMI) of $70,900 to apply for "affordable" units there (up from a proposed 60 percent); setting that rate also raises the rent amount that qualifies as “affordable." But Lopez said Monday that the Senate has yet to vote on this aspect.
Other aspects of the legislation include:
• A reduction in the AMI income threshold to 60 percent from the city’s 80 percent to qualify for affordable units (for every place other than Atlantic Yards);
• Reserving 50 percent of affordable units for "community preference," meaning for existing residents within the community board district;
• Building all affordable housing on the actual site where a building is being developed, thus eliminating the "certificates" granted to developers allowing them to build their required affordable component offsite;
• An extension of the certificate program for six months before ending;
• Rent stabilization of such units for 40 years; and
• Bolstering the city and state’s monitoring and enforcement practices.
There was much confusion in both chambers leading up to the votes. Lopez in February sponsored a broader bill than the one passed by the City Council, then introduced a modified version last month. He introduced an amendment just before the deal was reached last week, leaving many legislators to wonder exactly what it was they would end up voting upon until the last minute. Lopez introduced still another amendment following the unanimous Assembly vote Thursday afternoon.
There were also four different versions carried in the state Senate since the beginning of the year, and because of the seemingly constant changes in the Assembly, it was unclear which bill would come up to vote and which one Lopez would champion.
The Senate vote – with 59 in favor, two against, and one absence – was taken late Thursday night, before the legislative session ended for recess (apart from special sessions) until next January. The bill that passed was the same as the Assembly’s: a modified version of Lopez’s first bill.
Ultimately, according to several sources, Lopez and REBNY were the two key players in negotiations. REBNY Senior Vice President Mike Slattery said his organization was “pleased” because of the inclusion of a provision to protect “projects already in the pipeline,” REBNY’s primary concern. It was REBNY’s persistent lobbying that had officials extending the certificate program to allow offsite affordable development for another six months.
That extension almost guarantees there will be a development and construction surge as developers rush to take advantage of the six-month extension before the certificate program ends.
Slattery also said REBNY proposed a "modest" offsite provision, akin to the one in place for Greenpoint, Brooklyn, but that it didn’t pass. “We understand [the concern] of using tax money wisely,” he explained. He cautioned that “time will tell if it was the right decision” to create more exclusionary areas.
On the other hand, 32BJ’s fundamental interest focused on wages. Spokesperson Matt Nerzig said the union considers the state bill better than City Council's version because required payment of the "prevailing wage" to 32BJ's constituency of janitors, supers, guards and housekeepers begins with buildings of 50 units or more rather than 150 (or 75 in Manhattan), "thereby extending the prevailing wage provision to more workers, and putting this new condition into effect six months earlier than initially anticipated.”
Although most parties – outside of REBNY – consider the elimination of the certificates that allow for offsite affordable housing an improvement, the compromise bill still has important detractors, including HPD and City Council Speaker Christine Quinn. HPD spokesperson Neill Coleman said, “We’re not happy with it. We have concerns with the way it was written and … we’re not necessarily sure it will create affordable housing.”