Local Housing Plans Trumped By State?


Could the state’s Long Island Workforce Housing Act trump more progressive affordable housing plans on the East End, including a plan over a year in the making in Sag Harbor?

According to New York State Assemblyman Fred W. Thiele, Jr., who is also a village attorney for Sag Harbor, the legislation was drafted as a minimum requirement for municipalities. Currently the law does not expressly state a village or town housing plan can supercede the state law.

 “I just wanted to make sure as we are proposing legislation for inclusionary zoning in our new code,” said Sag Harbor Mayor Greg Ferraris on Wednesday, who reached out to Thiele this week for clarity on this concern. “I want to make sure it is consistent with the state legislation and we are not doing something here that could be jeopardized.”

For over a year now, Ferraris has been crafting a Local Residential Housing Plan to address affordable housing in the Village of Sag Harbor to help aid what Ferraris witnessed emerge as one of the most pressing issues facing the East End of Long Island.

The Local Workforce Housing Act proposes to promote second story residential uses in the village business district and incentive and inclusionary zoning provisions in the proposed village zoning code. The village is also exploring legalizing accessory apartments in its draft code as another form of affordable housing and is exploring residential inclusionary zoning requirements as well.

Last month, Ferraris announced the housing plan was gaining steam, as the trust’s board membership began to take shape, and inclusionary zoning provisions appeared to be moving forward in the village’s proposed code. Which was why this week he reached out to Thiele to address the impact of the state legislation on Sag Harbor’s own plan at Tuesday night’s board of trustees meeting.

As Thiele explained the law, it is a bill that has actually been pending for a number of years in the New York State Assembly, although it has now passed the state senate and assembly and was recently signed into law by Governor David Paterson. The law, which applies to subdivisions and site plans for five units (or lots) and more, will become law on January 1, 2009.

For those subdivisions and site plans, the applicant is entitled to a density bonus of at least 10 percent, said Thiele, with those units gained as a result of the density bonus earmarked as affordable. Thiele said there are three choices for how the affordable provision can be met – by providing on-site housing, by building the housing elsewhere, or by paying into an affordable housing fund.

This week, Southampton Town Supervisor Linda Kabot fired off a letter to Thiele, State Senator Ken LaValle and Governor Paterson expressing a number of reservations with the housing legislation, including concerns about how the cash in lieu of housing will present a windfall opportunity for developers on the East End.

Kabot argued since the legislation states the developer can pay either two-times the median income or the appraised value of the lot, whichever is less, on the East End developers stand to make a windfall as two times the median income is less than $200,000 and many lots sell for a million dollars.

Thiele disagreed with part of Kabot’s interpretation of the law, specifically who decides how the affordable housing requirement is met – the developer or a municipality.

“I think it is rather clear cut that the municipality chooses the best [affordable housing] option in each case,” said Thiele on Tuesday, whether it be on-site, off-site or payment into the fund.

In a letter this week in response to Kabot’s myriad concerns regarding the housing trust, Thiele acknowledged the legislation is “far from perfect” and believes a number of amendments are necessary for the law to succeed on the East End.

“I don’t think it will work any place on the East End,” he said on Tuesday, agreeing with Kabot that the way the fee requirement is legislated, a windfall for a developer is likely given the difference between median incomes on the East End and the value of land. Thiele said the impact fee should apply solely to the appraised value of the density bonus or land in order to ensure this windfall does not occur.

On Tuesday night’s meeting Thiele noted a broader question for Sag Harbor is whether or not the state law preempts the proposed village law, or whether it was intended to be a minimum requirement.

“One, I think it is a minimum,” he said. “You have communities out there already that have inclusionary zoning laws … the legislation was enacted because a lot of local governments were doing nothing at all.”

“Our concern is the village’s pending legislation is a little more progressive,” said Ferraris.

The inclusionary zoning requirements proposed by the village exceed the state law’s requirements in that 10 percent affordable housing is required for projects with five units or more without a density bonus. Developers would be able to make a cash in lieu of housing payment into the Sag Harbor Community Housing Trust, but at almost twice the price as the state law mandates.

Thiele agreed it would be nice if the state law specifically had a provision that allowed more progressive housing plans to supercede the state law, but continued to maintain it is not the intent of the law to override more progressive or comprehensive housing programs, but rather to require municipalities doing nothing, do something.

Thiele said he will seek an amendment that makes clear this is a minimum affordable housing requirement and municipalities have the right to enact legislation beyond what the state allows.

“I think it is safe to say we will work with the assemblyman to ensure the village’s legislation will supercede the state’s legislation as it is more progressive,” said Ferraris on Wednesday.