Editor: David Reiss
Brooklyn Law School

October 7, 2015

Wednesday’s Academic Roundup

By Shea Cunningham

October 7, 2015 | Permalink | No Comments

October 6, 2015

The Next Urban Renaissance

By David Reiss

"Stacked parking New York 2010" by Jérôme

The Manhattan Institute has released an electronic book, The Next Urban Renaissance: How Public-Policy Innovation and Evaluation Can Improve Life in America’s Cities. Ingrid Gould Ellen, the Faculty Director of NYU’s Furman Center for Real Estate and Urban Policy, has a chapter on Housing America’s Cities: Promising Policy Ideas for Affordable Housing. She suggests three reforms:

First, cities could incentivize construction and development—and thereby increase the supply of housing—by more heavily taxing land than property. Such a “split-rate” tax would encourage development of underutilized land by reducing the added tax burden that standard property taxes impose on improving buildings.

Second, cities could reduce (or even eliminate) minimum parking requirements that significantly increase the cost of housing.

Finally, cities could shift some of the public funds currently spent on homeless shelters to time-limited rental subsidies for those at risk of homelessness. None of these ideas is new, but each deserves serious reconsideration as housing affordability problems mount around the country, especially in high-demand, coastal cities. (1-2)

I think the split-rate tax is worth exploring, although it may not be political feasible at this time. The property tax system in NYC is incredibly screwed up, so any proposal that involves scrapping it and replacing it with one that is more equitable is a step in the right direction.

The elimination of minimum parking requirements is a no-brainer. This is not only because they increase the cost of new housing (by increasing construction costs and by reducing square footage that would be available to other building uses). It is also because we should be trying to disincentivize people from owning cars in NYC, not incentivizing them with subsidizing parking.

The last proposal — time-limited rental subsidies — is also worth exploring although it sounds a little too good to be true. Early research indicates that program beneficiaries are unlikely to end up in shelters. If these findings are confirmed by more rigorous studies, then time-limited rental subsidies would be a brilliant policy innovation.

While none of these proposals are going to solve NYC’s affordable housing crisis, they will all have a positive impact at the margins. They are worth further study.

October 6, 2015 | Permalink | No Comments

Tuesday’s Regulatory & Legislative Round-Up

By Serenna McCloud

  • The Consumer Financial Protection Bureau’s (CFPB) new Know Before you Owe mortgage disclosure rule went into effect this week.  The new rule was implemented as a reform under Dodd-Frank.  Borrowers now have to be allowed three days to consider a mortgage loan, under certain circumstances, and Lenders are required to make a number of disclosures via forms mandated under the Truth in Lending Act. The CFPB has released this video to explain the new rule.
  • The U.S. Department of Housing and Urban Development (HUD) continues its recent flurry of grant making activity by awarding $138 Million to over 100 groups to fight housing discrimination. The grants were made under the auspices of the Fair Housing Initiatives Program (FHIP).  The awardees will use the funds to support education, outreach, investigations and capacity building.

October 6, 2015 | Permalink | No Comments

October 5, 2015

Reiss on the Right to Complain

By David Reiss

Crane in NYC

Super Lawyers quoted me in Development’s Back, Baby!  But Do Neighborhoods Rights Extend Beyond the Right to Complain? It reads, in part,

The list of what can go wrong during construction is longer than Long Island, and some of the items on it are very bad indeed. Reading Chapter 33 of the New York City Construction Code, “Safeguards during Construction or Demolition,” is like Googling skin diseases: You encounter possibilities that, in your previous blissful ignorance, you’d never worried about.

*     *     *

So how can citizens stand up for their rights?

“City residents do not have tons of rights regarding construction,” says Brooklyn Law School professor David Reiss, who focuses on real estate finance and community development. But, he adds, “They do have some. Technically, many of them are not rights. Rather, citizens have a right to complain.”

According to Reiss, the Department of Buildings is the agency to call about excessive debris, problems with fences, safety netting, scaffolding or cranes; or work being done without a permit. (The DOB’s phone number is New York’s general information and non-emergency kvetching number: 311.)

To complain about after-hours construction-before 7 a.m. or after 6 p.m. Monday to Friday, or anytime on Saturday or Sunday, unless the contractor has a permit stating otherwise-Reiss recommends contacting the DOB or the Department of Environmental Protection. The latter’s number is also 311.

“It never hurts to start by talking with the contractor and/or owner directly, “ says Reiss, who also recommends talking to your community board and city councilmember. As with most things, there’s strength in numbers. “The more people that complain, the more likely it is to get on the radar of officials,” he says.

He also recommends collecting all the evidence you can, whether to show officials or, if worse comes to worst, to use in court. “Create a paper trail. Pictures, of course, are worth a thousand words, particularly if they are time- and date-stamped and you annotate them as appropriate.”

October 5, 2015 | Permalink | No Comments

Monday’s Adjudication Roundup

By Shea Cunningham

  • New York federal judge dismisses suit against Bank of America Corp. over “hustle” high-speed mortgage approval process for allegedly defrauding Fannie Mae and Freddie Mac.
  • Midtown TDR Ventures LLC and Midtown GCT Ventures LLC, real estate developers that currently own Grand Central Terminal, file a complaint against the City of New York and SL Green, another developer, claiming that they were robbed of potential profits from air rights when the City and SL Green worked to rezone the area in which Grand Central sits and devalued the property.

October 5, 2015 | Permalink | No Comments

October 2, 2015

Affirmatively Furthering Fair Housing

By David Reiss

OLYMPUS DIGITAL CAMERAAnthony22 at English Wikipedia [GFDL ( or CC BY-SA 3.0 (], via Wikimedia Commons

The United States Court of Appeals for the Second Circuit issued a ruling in Westchester v. HUD, No. 15-2294 (Sept. 25, 2015) the longstanding case regarding whether Westchester County has “adequately analyzed — in its applications for HUD funds — impediments to fair housing within the County’s jurisdictions.” (3) The Second Circuit affirmed the District Court’s judgment in favor of HUD, which means that HUD’s withholding of funds under the Community Planning and Development (CPD) Formula Grant Programs stands.

HUD withheld those funds because it found that the County had failed to “assess the impediments to fair housing choice caused by local zoning ordinances or to identify actions the County would take to overcome these impediments.” (6) HUD further found, as a result that the County would not “affirmatively further fair housing” as required by the Fair Housing Act. (6)

The case resolved a narrow, legalistic question:

May HUD require a jurisdiction that applies for CPD funding to analyze whether local zoning laws will impede the jurisdiction’s mandate to “affirmatively further fair housing”? Because HUD may impose such a requirement on jurisdictions that apply for CPD funds, and because the decision to withhold Westchester County’s CPD funds in this case was not arbitrary or capricious, we conclude that HUD’s action complied with federal law. (50)

While the case was decided on narrow grounds, the Court does notes that

The broader dispute between the County and HUD implicates many “big‐picture” questions. Beyond prohibiting direct discrimination based on race or other protected categories, what must a jurisdiction do to “affirmatively further fair housing”? What is the difference, if any, between furthering “fair” housing and furthering “affordable” housing? How much control may HUD exert over local policies, which, in its view, impede the creation of “fair” or “affordable” housing? And if conflicts of this sort between HUD and local governments are to be avoided, is the simplest solution to avoid applying for federal funds in the first place? (32)

These are all very good questions and it is unfortunate that this case does not help to answer any of them. The level of segregation in the United States by race has been a tragedy for many, many decades and we are no closer to figuring out how to deal with it after all these years.

October 2, 2015 | Permalink | No Comments

Friday’s Government Reports

By Serenna McCloud

  • The Consumer Financial Protection Bureau’s Monthly Complaint Snapshot focuses on consumer complaints related to mortgages.  The CFPB found that consumers have particular difficulty with mortgage servicing – especially when applying for loan modifications to avoid foreclosure.  The report also takes a close look at compliants coming out of the Denver, CO area.
  • The U.S. Treasury has announced $327 million in CDFI Bond Fund Gaurantees, which were awarded to CDFI’s to issue bonds, the funds of which are intended to be used to finance projects in low income communities.  Among the initiatives  guaranteed include senior and long term care development in latino communities and residential and commercial development in Native American communities.

October 2, 2015 | Permalink | No Comments