NYU’s Furman Center has posted a policy brief, Creating Affordable Housing out of Thin Air: The Economics of Mandatory Inclusionary Zoning in New York City. It opens,
Law360.com quoted me in Developers, Attys Embrace De Blasio’s $41B Housing Plan (behind a paywall). It reads in part,
Real estate attorneys and their developer clients are cautiously optimistic about New York City Mayor Bill de Blasio’s new affordable housing plan, lauding its concrete objectives while noting that regulatory and financial hurdles could stall some of the most ambitious elements.
The mayor unveiled Monday the highly anticipated plan [you can find the plan here], which presents a $41 billion investment in affordable housing. He pledged to encourage affordable housing development by breaking down existing barriers to density, from adding efficiencies to the land use review process, to making better use of subsidies and tax incentives, to changing the multiple dwellings law to allow for higher floor area ratios at residential buildings.
The multifaceted approach appeared to appeal to many in the development community, who are eager to build across the city but have been uncertain in recent months about how the mayor’s plans to create or preserve 200,000 units of affordable housing would align — or compete — with their interests.
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While de Blasio’s new housing plan is mum on details, Deputy Mayor Alicia Glen said during the press conference Monday that the administration also planned to “take a hard look at where we are able to rezone or upzone to create more opportunities for affordable housing.”
During the last administration, more than 30 percent of the city underwent rezoning, opening up scores of new lots for developers but enraging many community groups and local residents who feared that new market-rate towers would bring with them skyrocketing prices and gentrification.
De Blasio said Monday, however, that while Bloomberg had changed the rules of land use in much of the city, many opportunities remain to increase density — and therefore affordable housing, with mandatory inclusionary zoning — by upzoning additional neighborhoods.
Experts say this may well be one of the most controversial aspects of the plan, though developers and their attorneys generally welcome it. For the most part, they are pleased with the administration’s direction, but the question remains as to whether the plans will be borne out in the face of opposition, said David Reiss, a professor at Brooklyn Law School who blogs about commercial real estate and housing issues.
“The big debate is: Are we going to have a real commitment to increased density in parts of New York City? And if we don’t, it’s hard to imagine we can really reduce the cost of housing,” he said.
The Real Affordability for All campaign has issued An Affordable Housing Policy Platform for Mayor de Blasio. A stated goal of the campaign “is to ensure that Mayor de Blasio’s housing policies prioritize and deliver real affordability for the most economically vulnerable households” in the CIty. (1) As with many such studies (this one, for instance), it does a good job of identifying the problem — incomes are not sufficient to keep housing costs affordable — but its solutions do not match the identified problem.
I am not going to focus on all of the good things in the report (for instance, enhancing enforcement of housing laws to protect tenants), but on fundamental flaws in its proposal that the City implement a 50/50 model for increasing the supply of new affordable housing units. The report states that
Affordable housing developers, private sector developers and housing experts agree on two broad 50/50 scenarios that are viable and pragmatic, based on existing developments, current real-estate market assumptions, and the latest mathematical modeling:
1) For high-cost areas of the city (particularly Manhattan), depending on the level of up-zoning, new developments can ensure that 50 percent of the units are market rate and 50 percent are real affordable units targeted to low-income households: specifically, households of four earning 30-60 percent of Area Median Income.
2) For the outer boroughs, where land costs are lower, 100% of new developments can be affordable: 50 percent of the units can be for low-income households (those earning 30-60 percent of Area Median Income) and 50 percent for moderate income households (those earning up to 100 percent of Area Median Income). 100% real affordability can be achieved by increasing current per unit subsidies in the outer boroughs and applying those subsidies to real affordable housing units for low-and moderate-income households. (3)
The first fundamental flaw is an assumption that if the government requires something of developers, developers will do it. For-profit developers will only build if they can make a profit. Otherwise they will just not build. Given the low rates of new housing construction that we have seen in NYC over long periods of time, this is just a fact of life.
This leads to a second flaw — the proposal leaves fewer market rate units to cross-subsidize more affordable units. Given that the costs of development are relatively fixed, this proposal would have to come up with some real new cost-cutting measures for new developments or new sources of revenue to add to the existing subsidies. But the recommendations put forward by the report don’t really do either of those things. Their recommendations are
- Use Subsidies More Wisely to Drive Real Affordability.
- Implement a New Low-Income Real Affordability Framework Across All Housing Programs.
- Enable Not-for-Profit Developers and Owners to Play a Strong and Active Role in the City’s Housing Agenda.
- Prioritize Permanent Affordability for All City-owned Land Dispositions.
- Require that Developers and Investors Receiving Any Type of City Subsidy Provide a Reserve Fund that Creates a Safety Net for Excessively Rent-Burdened Tenants.
- Flip Tax.
- Non-Occupancy Tax.
- Water and Sewer Tax Reform
- Property Tax Overhaul.
- Density Bonuses.(4-5)
Many of these recommendations amount to moving things around, not to reducing costs or increasing subsidies. The ones that do raise revenues, raise relatively small amounts. For instance, the flip tax proposal is estimated to generate between $100 million and $150 million per year. Using a conservative cost estimate of $200,000 per unit of new housing, $150 million in new revenue would only produce 750 new units of real affordable housing per year, a drop in the bucket.
Many have been trying to shape the Mayor’s housing agenda in recent days (here for instance). But few have seriously faced the real market and political constraints that the City faces as it attempts to increase the supply of affordable housing. There is reason to think that the Mayor’s housing team will grapple with these issues seriously, so let’s wait patiently for their plan to be released . . ..
The housing folks in the De Blasio Administration may want to take a look at a recent article in the Journal of Affordable Housing by Sullivan and Power. Coming Affordable Housing Challenges for Municipalities After the Great Recession (also on SSRN) provides an overview of some modest ways to protect the existing affordable housing stock. Policies such as these can inform the Mayor’s overall affordable housing strategy which will have to emphasize preservation as much as new construction.
The authors note that for “low-income individuals who are to find employment, the disparity between wages and housing affordability is stark.” (298) They also note that while “housing prices have fallen approximately 30 percent since 2006, adjustments in value have done little to ease the financial burden of rental housing.” (2) The article then looks at various opportunities that local governments have to stem the loss of rental units to conversion, demolition and abandonment.
The authors identify three cost-effective and ways that states and local governments may be able to “curtail the ongoing loss and conversion of affordable housing units . . ..” (308) They can adopt “no net loss” policies that could, for instance require that downzonings of residential communities be matched by upzonings . They can implement “rights of first refusal” that grant governmental and not-for-profit housing agencies “the right to notice of an owner’s intent to sell within a certain time frame and an opportunity to purchase expiring or opting-out affordable housing units.” (310) And local and state governments can amend their building codes to make it easier and cheaper for providers of affordable housing to maintain their properties.
NYC already does some of these things, but it is worth it for the new Mayor to take a fresh look at the City’s approach to preservation to ensure that there are no missed opportunities.
I wrote an op ed for Law360,com that was posted today. While it is behind a paywall on Law360, it reads in full as follows:
As Mayor-Elect Bill de Blasio is making the transition from campaigning to governing New York City, it is worth contemplating some of the fundamental riddles that perplex those who spend their time thinking about the city’s housing policy. I address three of the most perplexing below.
The Riddle of Mandatory But Not Sufficient
The housing policy centerpiece of the de Blasio campaign is to require developers to build some affordable housing units when they build on lots that have been upzoned, a policy known as mandatory inclusionary zoning. The campaign website states that this policy will create 50,000 new units of housing.
Let’s put aside the fact that this number appears to be very aggressive given the lack of significant upzonings on the horizon (see second riddle below). Just because the city mandates that affordable housing be part of any new construction, it cannot mandate that developers build any housing at all if the deal does not make economic sense for them.
The de Blasio administration will need to carefully calibrate the mandatory inclusionary zoning rules to ensure that builders are sufficiently incentivized to build in the first place. This may limit the amount of affordable housing that can be mandated as part of that new construction.
One key aspect of this policy is whether the mandatory affordable housing will be required to be on-site or if the developer can build it off-site. If it is the former, it will help achieve the progressive goal of increasing socio-economic diversity in a city that is rapidly losing it.
But each unit of on-site housing would likely be more expensive to construct than off-site affordable units. And the opposite is true if the mandatory affordable units are allowed to be off-site; they will be likely cheaper to construct and thus more housing could be built. But it would not work toward increasing socio-economic diversity in the city.
And thus, the riddle of mandatory but not sufficient poses two challenges to the administration. Can it incentivize the creation of a meaningful number of units? And should it favor socio-economic diversity or the maximum production of affordable units? No easy answers here.
The Riddle of Now Versus Later
Can you increase the supply of housing to address the needs of a growing population while also downzoning large swaths of the city to respond to the preferences of the city’s current residents?
The Michael Bloomberg administration wanted to have this both ways, but that can’t work. The Bloomberg administration had planned on an increase in population of roughly another million people by 2030 while at the same time downzoning a large swath of the city (and, to be fair, upzoning some other portions).
This downzoning made current residents happy as it kept big, modern, out-of-context buildings from popping up near their homes. But it also limited the opportunities for increasing the housing stock, particularly near transit hubs. This is the basis of the second riddle — what is seen as bad by current residents may be good for future residents.
It is a fundamental economic truth that if more and more people are flocking to New York City, housing costs will rise unless supply increases. But for city residents, there is a paradox. New Yorkers see gleaming towers rise in their neighborhoods along with the rents for their nearby apartments. There are two explanations for this paradox.
First, the supply of new housing may be increasing without keeping pace with rising demand. Historically, New York City has not had many new units of housing built each year, maybe 20,000 units or so in a good year. This modest increase in supply has been overwhelmed by the increase in population of a million people in the last 20 or so years. This disparity goes a long way to explain the high rents and the miniscule vacancy rates that are seen throughout the city.
Second, new housing in one community (Williamsburg, for example) may be causing or be part of a wave of local gentrification in the existing housing stock. So, even if the new housing is having a tendency to decrease housing costs in the city overall because it increases the supply, it can also be pushing rents higher in the communities in which it is situated.
Increasing the supply of housing has to be a key component of providing “safe affordable homes for all New Yorkers,” as de Blasio calls for on his campaign website. This has to mean zoning significantly more land for high-rise residential construction as well as incentivizing the construction of affordable housing units in that new construction.
At the same time, de Blasio must attend to the concerns of those negatively impacted by the new construction. Hence, the riddle of now versus later.
The Riddle of the Few Versus the Many
The de Blasio campaign website calls for “tighter standards that ensure subsidies meet the needs of lower-income families and are distributed equitably throughout the five boroughs.” Distributing affordable housing subsidies equitably throughout the city is important, but there is another equity issue — should the city heavily subsidize affordable housing for a small portion of those who are eligible or should it distribute resources more broadly and thinly among everyone who is eligible?
Fewer than 8 percent of low- and middle-income households receive a direct or indirect subsidy for an apartment (excluding public housing) while more than 20 percent live below the poverty line of $23,283 annually for a family of four.
Should the city’s limited resources be used to create a relatively small number of new affordable units or should some of them be used in ways that benefit a broader swath of low- and moderate-income New Yorkers, albeit more modestly?
Certain policies can address the needs of many, many more low- and moderate-income households than does heavily subsidized new construction that houses perhaps a few thousand low- and moderate-income households each year.
Examples of such policies include tax credits for low- and moderate-income households that put money in their pockets and increased enforcement directed against landlords who try to illegally drive their tenants out of rent-regulated units. On the other hand, without an affordable apartment, staying in NYC can just be untenable no matter what additional benefits the government may be able to provide through more broadly available programs.
Thus, the third riddle is — do you give a lot of help to a few or do you give a little help to the many? It’s like choosing between the rock and the hard place for policymakers and New Yorkers alike.
Mayor-Elect de Blasio and his team will have to struggle with these riddles, and more. The only thing that is clear is that there are no right answers and no easy answers when it comes to housing policy in New York City.
—By David Reiss, Brooklyn Law School
David Reiss is a professor of law at Brooklyn Law School. He concentrates on real estate finance and community development and writes about housing policy.