1993-08-09
VERGILIS, STENGER, LUCIA & ROBERTS
A TTORNEYS AND COUNSELORS AT LAW
1611 ROUTE 9
W APPINGERS FALLS, NEW YORK 12590
(914) 298-2000
FILE
GERALD A. VERGILIS'
KENNETH M. STENGER
ANTONIA T. LUCIA
ALBERT P. ROBERTS
JOAN F. GARRETT"
CARMINE J. CAROLEI
FAX (914) 298-2842
. ADMmED TO PRACTICE
IN NY '" FLA.
.. ADMI1TED TO PRACTICE
IN NY '" CONN.
RECEIVED
AUG '3 ~!3
SUPERVISOR'S OFFICE
TOWN OF WAflPINGER
LEGAL ASSISTANTS:
DALE O'DONNELL
AMY E. WOODARD
POUGHKEEPSIE OFFICE
276 MAIN MALL
POUGHKEEPSIE, NY 12601
(914) 452-1046
ADDRESS REPLY TO: ( ) POUGHKEEPSIE
( ) WAPPINGERS
August 9, 1993
Town of Wappinger Planning Board
20 Middlebush Road
P.O. Box 324
Wappingers Falls, NY 12590
Attn: Donald J. Keller, Chairman
Dear Don:
I enclose herewith a copy of the lead article in the publication
"Municipal Lawyer" for June 1993 regarding affordable housing. The
article contains some interesting commentary on the affordable
housing issue, and since there are6ne or two projects pending
before this Board, I thought it would be of interest to all Board
,.
members. .
Very truly yours,
VERGILIS, STENGER, LUCIA & ROBERTS
ALBERT P. ~OBERTS
APR/aml
cc: Hon. Constance O. Smith
Daniel K. Wery (w/enc.)
(W/enCo)/
.-. .
IIIII
A joint publication of the
Municipal Law Section of the New York State Bar Association
and the
Edwin G. Michaelian Municipal Law Resource Center of Pace University
1h!~~C.
NYS',^
May / June 1993
Volume 7, Number 3
Validity of Occupancy Preferences for Affordable Housing Questioned
by Lester D. Steinman
Many affluent suburban communities in the New York City metropolitan
area and elsewhere confront a shortage of housing affordable to municipal
and school district employees, volunteer firemen and ambulance corps
members and senior citizens. To remedy this shortage, certain of these
communities have approved the development of multifamily units of lower
cost housing provided that members of these "special needs" groups who
either work, serve or live in the municipality, are given a preference for
occupancy of a majority or all of the units within the development.
However, a recent decision by the New Jersey Supreme Court casts doubt
on the validity of such occupancy preferences. The rationale of that decision
and its implications for New York municipalities are discussed below.
I. Background - The Mount Laurel Doctrine
Decisions of the New Jersey Supreme Court, based upon that State's
Constitution, have required developing municipalities in New Jersey to
affirmatively "plan and provide, by its land use regulations. for a reasonable
opportunity for an appropriate variety and choice of housing, including
low and moderate cost housing, to meet the needs, desires and resources
of all categories of people who may desire to live within its boundaries:'
To meet this obligation, a developing municipality must provide decent
and adequate low and moderate income housing to address not only the
needs of its own residents but also the municipality's fair share of the
present and prospective regional need for such housing as well. Southern
Burlington County NAACP v. Township of Mount taurel, 67 N.J. 151,
cert. den'd 423 U.S. 808 (1975) (Mount Laurel I) and 92 N.J. 158 (1983)
(Mount Laurel II).
Moreover, the State's Fair Housing Act (N.J.S.A. 52:27D-302a) expressly
acknowledges the constitutional obligation of developing municipalities
"to provide through its land use regulations a realistic opportunity for
a fair share of its region's presem and prospective needs for housing fOi
low and moderate income families:' A Counsel on Affordable Housing
(COAH) was created by the Legislature to adopt and administer regulations
implementing the Fair Housing Act. COAH's delegated authority includes
the power to define housing regions within the State and the regional need
for low and moderate income housing and the enactment of criteria and
guidelines to enable municipalities to determine their fair share of that
regional need.
II. Occupancy Preferences Invalidated
Against this framework, the New Jersey Supreme Court has recently
struck down a regulation adopted by COAH permitting developing
municipalities, in discharging their Mount Laurel obligations under the
Fair Housing Act, to reserve up to 50 percent of the low and moderate
income housing units produced for those who presently reside or wor"
in the.municipality. The Court found that such a preference is incompatible
with the purpose of the Fair Housing Act to provide affordable housing
on a regional basis.
From the Court's perspective, the effect of COAH's regulation was to
exclude from eligibility for a part of a municipality's low and moderate
income housing, members of the class for whose benefit the obligation
to construct the housing was established. As such, the Court held that
the regulations violates the Fair Housing Act, given the Act's mandate
that developing municipalities must provide for regional housing needs
in order to remediate historical suburban exclusionary zoning practices
which frequently excluded the poor by prohibiting construction of
affordable housing within the municipality's boundaries. Maller of
Petitions for Substantive Certification Filed by the Township of rfimen
et all32 N.J. I (1993).
Also, in its decision, the Court addressed but did not definitively rule
upon contentions that the occupancy preference was violative of the federal
Fair Housing Act (Title VIII of the 1968 Civil Rights Act, 42 U.S.C.A.
993601-3631). That Act prohibits discrimination in the sale or rental of
housing "because of race, color, religion, sex, familial status or national
origin:'
Specifically, it was alleged that because of the disproportionately low
number of minority residents or workers in the six municipalities involved
in the case, the occupancy preferences favored eligible white households
as occupants of the newly constructed affordable housing and virtually
excluded minorities from the units eligible for the preference. By contrast,
allocation of the preference units to minority households, in the same
proportion as such households are represented in the region's low and
moderate income population (50.5070), would result in the allocation of
half of those preference units to minority households.
Reviewing the applicable case law interpreting the federal Fair Housing
Act, the New Jersey Supreme Court concluded that "a facially neutral
law or policy that results in a discriminatory effect on the sale or rental
of housing will establish a prima facie violation of Title VIII, even if
unaccompanied by evidence of discriminatory intent:' See e.g. Huntington
Branch NAACP v. Town of Huntington, 844 F. 2d 926 (2nd Cir. 1988),
aff'd 488 U.S. 15 (1988). To rebut such a prima jacie case the defendant
would have to prove "that its actions furthered a legitimate, bona fide
governmental interest and that no alternative would serve that interest with
less discrminatory effect:' [d. at 396, citing Resident Advisory Board v.
Rizzo, 564 F.2d 126, 148-49 (3d Cir. 1977).
Here, the governmental justifications for the occupancy preference were
articulated as follows:
(I) The interest of municipalities in providing affordable housing for
existing residents who encounter financial turndowns;
(2) The desire to preserve a municipality's social fabric by providing
affordable housing for residents with roots in the community;
(3) The desirability of encouraging adoption of fair-share plans likely
to meet with approval by community residents, thereby promoting voluntary
compliance with the Act.
Applying this case law, the New Jesery Supreme Court reversed the
Appellate Division's summary disposition of the federal Title VIII claims.
In doing so, it rejected the lower court's rulings that (a) Title VIII did
not apply to residential preferences for government sponsored housing;
and (b) proof of discriminatory motive was an essential element of a
(Continued on Page 3)
NYSBA Fall Meeting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2
Determining Responsibility of Bidders. . . . . . . . . . . . . . . . . . . Page 2
Municipal Briefs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 3
Copyright · 1993, by the Michaelian Municipal Law Resource Center
and the Nell' York State Bar Association.
Municipal Lawyer
Page 3
Municipal Briefs
Building Permit
A municipal agency responsible for issuing
building permits may not require a developer
to submit an Environmental Impact
Statement (EIS) as a prerequisite to
approving a building permit application
where such agency is not vested with the type
of discretion which would allow a permit
grant or denial to be based on the
environmental concerns detailed in the EIS.
Incorporated ViI/age of Atlantic Beach v.
Cavalas, 81 N.Y.2d 322 (1993).
In Pius v. Bletsch, 70 N.Y.2d 920 (1988),
the Court of Appeals held that compliance
with the State Environmental Quality Review
Act (SEQRA) was a necessary prerequisite to
the issuance of a building permit where the
issuing agency was authorized to exercise
"site plan approval powers" and had "the
authority to make certain case-by-case
judgments on site plan design:' In marked
contrast, where, as here, the issuing agency's
discretion to issue a building permit is limited
to insuring compliance with building and fire
safety regulations, it would be illogical to
require an EIS since the acting agency has no
authority to approve or disapprove the permit
based on the environmental concerns
addressed in the EIS. Under these
circumstan:es, the municipal agency's
determination on a permit application does
not constitute an "action" requiring
preparation of an EIS under SEQRA.
I
Drug Testing .
Nassau County's Police Department may
not implement a random, periodic drug
testing program for its narcotics bureaus so
as to require the same 10 randomly selected
members of such bureaus to be tested each
month. Maller of Delaraba v. Nassau County
Police Department, 597 N.Y.S.2d 82 (A.D.2d
Dept. 1993).
Under the proposed plan, a member
randomly selected for one testing period
would not be removed from the selection
process for subsequent testing periods.
Indeed, notice was given _to the union
president that 10 of the approximately 100
members subject to random testing would be
rested each month.
Under these circumstances, the Court ruled
that the frequency of testing constituted an
unreasonable invasion of privacy:
"While the Court of Appeals has in
specific cases approved of random drug
resting of law enforcement units involved in
narcotics interdiction (see Maller of Caruso
\'. Ward, supra) and corrections officers (see,
Maller of Seelig 1'. Koehler, 76 N.Y.2d 87, cert.
denied 498 U.S. 847; Matter of McKenzie v.
Jackson, 152 A.D.2d I, aff'd75 N.Y.2d 995),
there is no basis on this record for testing with
the frequency of the plan implemented by the
respondents. Absent some evidence that the
desired objecrives require the frequency of
testing under the respondents' plan and
cannot be accomplished with a less stringent
testing schedule, we must conclude that the
affected members' reasonable expectations of
privacy are subject to unregulated discretion,
and that the respondents' plan is therefore,
unreasonably intrusive. . ."
Fair Housing Act
Under the federal Fair Housing Act, 42
U.S.c. ~3601 et. seq., which inter alia
prohibits discrimination in the sale or rental
of a dwelling because of handicap, the
occupancy of a single family residence by a
number of unrelated recovering alcoholics
could not be terminated by the municipaiity
notwithstanding the fact that, under the
Town's definition of family, the occupants
did not constitute either a family or the
functional and factual equivalent of a family.
Oxford House, Inc. v. Town of Babylon, 819
F.Supp 1179 (E.D.N.Y. 1993).
According to the Court, enforcement of
such zoning provision would have a disparate
discriminatory impact on the handicappe.d
which would outweigh the significance of tI~e
government's interest in preserving stable
single family. residential neighborhoods.
Additionally, the Court found that even
absent proof of disparate impact, the Town
was required under the Fair Housing Act to
make reasonable accommodation in its
zoning ordinance for such occupancy because
the success of the group residence for
recovering alcoholics is dependent on the
facility being located in a residential
neighborhood.
On the same subject, a federal court has
also ruled that persons who are HI V-positive
are handicapped within the meaning of the
federal Fair Housing Act and enjoined
Village officials from interfering, through the
enactment of zoning amendments or
otherwise, with the establishment of a State
certified adult home facility for up to 15
homeless persons with AIDS. Support
Ministries for Persons with AIDS, Inc. v.
Village of Waterford, New York 808 ESupp.
120 (N.D.N.Y. 1992).
Variances
Evaluating the recently enacted changes to
the State enabling legislation for zoning
boards of appeal, the Appellate Division,
Second Department has opined that the five
criteria for the issuance of area variances
outlined in Town Law ~267-b(3) (b) are not
appreciably different from the case law gloss
previously given to the familiar "practical
difficulty" standard. Malter of Vilardi v.
Roth, 597 N.Y.S.2d 86 (A.D.2d Dept. 1993).
Zoning
The State planning and zoning enabling
legislation does not authorize a municipality
to condition the issuance of a building permit
upon prior payment of a contract claim
where the claim is unrelated to zoning
compliance and does not affect the proposed
use of the property. Malter of Triphammer
(Continued on Page 4)
May / June 1993
Occupancy Preferences
(Continued from Page 1)
Title VIII violation. Remanding this aspect of
the matter to COAH to develop a proper record,
the Court left little doubt concerning the
likelihood of Success {)f this claim:
"On the sparse record presented, the disparity
between the percentage of minority population
in the six municipalities as compared with their
respective regions would be sufficient to present
a significant possibility that the occupancy
preference could cause a discriminatory impact
on minorities. Because COAH did not hold an
evidentiary hearing, the issue is not before us
on an adequate record, no evidence whatsoever
having been presented with respect to the
percentage of minority workers in each of the
municipalities. The inference is compelling that
unless the percentage of minority workers
proved to be sufficient to compensate at least
in part for the significant disparity in the local
and regional percentages of minority residents,
the occupancy preference would exert a
discriminatory effect on minority residents in
the region eligible for affordable housing:'
"Nor can we readily accept the Appellate
Division's summary assessment of the validity
of the asserted governmental justifications for
the occupancy preference, or its conclusionthat
no alternative provision would adequately serve
those interests. In our view, the conclusion that
a prima facie violation of Title VIII has been
rebutted adequately by governmental
justifications cannot be reached without the
benefit of a full evidentiary record that includes
evidence establishing and contesting the
legitimacy of the governmental interests and the
existence of reasonable and non-discriminatory
alternatives. Assessed at face value, however, the
governmental justifications proffered to support
the occupancy preference do not appear to have
sufficient weight to counterbalance proof that
the occupancy preference may have a
discriminatory impact on minorities eligible to
occupy low and moderate income housing:'
Ill. Applications to New York Municipalities.
Neither the courts nor the Legislature in New
York has embraced the Mount Laurel doctrine.
Hence, to date, municipalities in New York are
under no State constitutional obligation to
affirmatively provide low and moderate income
housing for either their own residents or for
those residing in the region.
However, the New Jersey Supreme Court's
analysis regarding the discriminatory effects of
a residential occupany preference under Title
VIII of the federal Fair Housing Act is equally
applicable to New York municipalities. Also, as
in New Jersey, the New York courts have
condemned exclusionary zoning practices
designed to effect socio-economic or racial
discrimination.
Under Berenson 1'. Town of New Castle, 38
N.Y.2d (1978), and its progeny, a municipality
in New York enacting a zoning ordinance, must
provide for a "properly balanced and well-
ordered plan for the communtiy.' Such a plan
must contain an array of housing that will meet
the present and future needs not only of the
municipality's residents but also residents of the
larger metropolitan area of which the
municipality is a part.
Moreover, the Court of Appeals has
repeatedly warned municipalities that it will not
(Continued on Page 4)
Municipal Lawyer
Page 4
Occu pancy Preference
Continued from Page 3
tolerate the use of zoning power to perpetuate
discrimination. Thus, in Kurzius v. Village of
Upper Brookville, 51 N.Y. 2d 338 (1980), the
Court of Appeals declared:
"A zoning ordinance will be invalidated on
both constitutional and state statutory grounds
if it was enacted with an exclusionary purpose
or if it ignores regional needs and has a
unjustifiably exclusionary effect..:' Id. at 343:'
Also, the Court in Kurzius cautioned:
"We realize, of course, that large lot zoning may
also be used as a means to exclude persons of
low or moderate incomes; and as we have stated
before, we will not countenance community
efforts at exclusion under any guise:' Id. at 344.
Thereafter, in Suffolk Housing Services v.
Town of Brookhaven, 70 N.Y.2d 122 (1987), the
Court of Appeals reiterated this theme:
"Implicit in our rulings is a recognition of
the principle that a municipality may not
legitimately exercise its zoning powers to
effectuate socio-economic or racial
discrimination (citations omitted). Thus, we
have scrutinized carefully the talismanic
invocation of seemingly legitimate police power
purposes (see Town Law Sections 261, 263) by
municipalities to discern whether they seek to
conceal exclusionary zoning practices (citations
omitted):' Id. at 129-130.
Again, in Asian Americans for Equality v.
Koch, 72 N.Y.2d 121 (1988), the Court of
Appeals declared:
"Exclusionary zoning may Occur either
because the municipality has limited the
permissible uses within a community to exclude
certain groups. . .or has imposed restrictions so
stringent that their practical effect is to prevent
all but the wealthy from living there. It is a form
of socio-economic discrimination which we
have repeatedly condemned. If the party
attacking the ordinance shows that it was
enacted for an exclusionary purpose or has an
exclusionary effect then the ordinance will be
annulled. (citations omitted). Id at 133.
IV. Conclusion
Research has not revealed similar litigation
in New York State challenging occupancy
preferences. Indeed, many communities have
successfully implemented residential preference
schemes without incident.
However, against the background of this New
Jersey decision, it cannot be gainsaid that
occupancy preferences are now vulnerable to a
legal challenge. Given the limited number of
multifamily units typically authorized to be
constructed in these communities, it is likely
that few, if any, units will be allocated outside
the preferencingscheme to eligible households
in the region not having a present connection
with the municipality.
As a result, given the comparative
demographics of affluent suburban
municipalities and the New York City
metropolitan region, it is equally likely that the
implementation of such a preferencing scheme
will produce the same evidence of disparate
racial impact which the New Jersey court found
to constitute a prima facie Title VIII violation.
Similarly, such data could be used to support
a claim under the New York Court of Appeals
case law regarding exclusionary zoning.
Finally, the New Jersey Supreme Court
alluded to the possibility that a limited
occupancy preference designed to address
. 'special and cognizable needs of local
residents" might be consistent with the State's
Fair Housing Act. However, the Court observed,
"whether such a limited occupancy preference
would be consistent with the mandate of the
federal Fair Housing Act. . . would depend on
municipally specific statistical data indicating
the effect of the preference on minorities eligible
for affordable housing within the region:'
Mr. Steinman is the Director of the Edwin G.
Michaelian Muni~iJ;'al Law Resource Center of
Pace University and co-editor of this publication.
He also serves as Counsel to the White Plains law
firm of Wormser, Kiely, Galef & Jacobs where he
concentrates his practice in municipal and land
use law.)
Comp~titive Bidding
(Continued from Page 2)
2. The term "contract" shall mean any
construction or service contract covered by
Article 8 or Article 9 of the Labor Law,
exceeding a dollar value not more than
$10,000 to be determined by the Council of
Contracting Agencies, that is required by
statute to be let by competitive bid to the
Ig.west responsible bidder.
3. The terms "bidder;' "contractor" and
"subcontractor" shall mean any person or
business entity submitting a competitive bid
for, receiving an award of, or submitted for
approval as <l subcontractor on, a contract
by anyone of the contracting agencies.
May / June 1993
4. A corporation, partnership or
proprietorship shall be considered to be an
"affiliate" of the bidder or proposed
subcontractor if one owns, controls, or has
the ability to control the other, or if a third
person, corporation, partnership or
proprietorship owns, controls or has the
ability to control both:'
Municipal Briefs
(Continued from Page 3)
Development Company, Inc. v. Board of
Trustees of the Village of Lansing, 154
Misc.2d 369 (Sup. Ct. Tompkins Co. 1992).
Here, the company sought a building
permit from the Village to perform
renovations within its shopping mall. At the
time, the Village had a lawsuit pending
against the company seeking to recover
certain expenditures made in improving
Triphammer Road and connecting roadways
located on the Company's private property.
Based upon this claim, the Village denied the
building permit pursuant to a provision of
its zoning law which precluded the issuance
of a building permit to owners against whom
any unpaid village claim had been asserted
"in connection with the improvement,
development or maintenance of the subject
property:'
Finding that the company's debt had no
connection with either the present or
proposed use of the property or any proper
zoning function delegated to the Village in
the State enabling legislation, the Court ruled
that the local law was invalid as inconsistent
with State law. Since the Village, in enacting
the local law, neither properly invoked nor
exercised its supersession powers under the
Municipal Home Rule Law, the Court
declined to address the Village's supersession
arguments on the merits.
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