Roderick Hills led a recent brown bag discussion where he argued that certain legal reforms could change the political climate surrounding the siting of affordable housing in New York City. He identified two fundamental problems that currently exist:
1. The lack of universal agreement within the city council. Each separate community board supports affordable housing as long as it is not built within its own districts.
2. The lack of transparency in the customization of property lots and use rights. This reduces the size of the buyers’ market since not everyone understands zoning regulations; not everyone knows what they can build on each specific lot.
To overcome these problems, he proposed that the city establish universal use rights for property that would be ‘sticky’ and binding. These use rights would cover all lots regardless of value or location. The plan would have a detailed price sheet attached to each lot explaining exactly what can be built according to the zoning laws. This would expand the market beyond developers to the buyers who previously lacked the appropriate knowledge.
For example, ‘as of right’ uses - developments that comply with all the applicable zoning regulations - would have a price of zero. However, if an industrial lot was made available for residential development and the developers wanted extra FAR (Floor Area Ratio) above a certain level, the proposed price sheet would specify precisely how much more they could get depending on the amount of plaza space provided or what percentage of the development consisted of affordable housing. The idea is to display, within the price sheet, what the city would have gotten had there been a case-by-case bargaining and eliminate further negotiations that benefit the developer.
Another advantage of this universal scheme is that it would be approved by the legislature in a one-off vote, preferably under a closed rule with no amendments, allowing more inter-neighborhood trades. If the price is set simultaneously for all the lots, it makes the community boards of each borough less hostile to the idea of building affordable housing since they know that all the other boroughs will be complying as well.
Hills based his discussion on his working paper that can be found here.
William T. Comfort, III Professor of Law, New York University School of Law
Roderick Hills teaches and writes in public law areas with a focus on the law governing division of powers between central and subcentral governments. These areas include constitutional law, local government law, land use regulation, jurisdiction and conflicts of law, and education law. Hills has been a cooperating counsel with the American Civil Liberties Union of Michigan and also files amicus briefs in cases on issues relevant to the autonomy of state and local governments and the protection of their powers from preemption. Hills holds bachelor’s and law degrees from Yale University. He served as a law clerk for Judge Patrick Higginbotham of the US Court of Appeals for the Fifth Circuit and previously taught at the University of Michigan Law School. He is a member of the state bar of New York and the US Supreme Court bar.