How to Change the NYC Charter to Solve the Housing Emergency, Part 1
Introduction // exit the housing emergency by unlocking emergency powers to solve it
For a more polished version of these proposals, see this post: “5 Charter Reforms for Growth, Building, and Bridging the Democratic Deficit.”
There are many ways to change New York City’s charter, but, notably, we have two independent charter revision commissions getting underway this year: one convened by Mayor Eric Adams, and one convened by local law by the New York City Council.
So I thought I would write about how the city can change its charter to help end our housing crisis. This is the introductory post, with more to follow.
What is an emergency?
Emergency declarations are common in law. Usually an executive (president, governor, or mayor) declares an official state of emergency, and this unlocks the temporary use of power to remedy the emergency. That power can take many forms: rushing government expenditure on resources, suspending normal regulatory reviews, and more. But emergency powers are supposed to be temporary—they are deviations from the regular constitutional order, and are only permitted while the emergency persists.
And that’s what makes New York City’s “housing emergency” so strange.
What is NYC’s housing emergency?
It is a legally declared emergency, not just a rhetorical flourish. Under New York State law, the New York City Council can declare a rental housing public emergency when the city’s vacancy rate reaches 5% or below.1 This allows the city to enact rent stabilization, which sharply regulates the value of rental leases.
And while this might seem to fit the “declare emergency, use power to fix emergency” template, it does not. To see why that’s true, we can look at what the city and state rent regulation laws themselves have to say about the emergency:
The housing emergency is fundamentally caused by a lack of housing supply.
The housing emergency is specifically caused by a lack of private residential supply.
The goal of rent regulation is to be a bridge back to a primarily market-based rental system.
Emergency cause: lack of housing supply, particularly market-rate rentals
Emergency declared: by the city council
Emergency power unlocked: rent regulation—does not solve the problem of supply crunch, so the emergency continues!
Rent stabilization might offer temporary relief to some people, but it does nothing to boost the supply of housing, bring the vacancy rate above 5%, and end our housing crisis. If you need further evidence of this, simply observe that we’ve been in a housing “emergency” for over 80 years, with over 50 of those being under the rent stabilization system.
And this is what makes the housing emergency so strange. Year after year, the city council is content to declare an emergency, but they: (1) do not act to solve the emergency, and haven’t for decades, and (2) do not change the law to unlock other emergency powers that would actually expedite supply.
So here are some suggestions to help the council, and the rest of the city government, solve the housing crisis through charter reform.
Exit the housing emergency by unlocking emergency powers to solve it
As simple as this sounds, it hasn’t been done: New York City’s charter should be amended so that, whenever the city council has declared a rental public emergency pursuant to state law, extraordinary powers are unlocked to rush housing supply to the city.
If council declares housing emergency —> city charter rushes housing supply through power and process changes that exist until the housing emergency is over
In other words, New York City’s housing emergency should be treated like an emergency, and the city’s charter should take the city council very literally in their legal declaration of one. The next section takes a first look at what that could mean.
What changes should be made to the charter?
This section will be a brief sketch of what I’m going to write about in other pieces, with more details and ideas coming later. It’s also heavy on changes directed at the city council, whereas other pieces will focus elsewhere in government. Consider this the start, not the finished end.
Some of these changes can be tied to an officially declared housing emergency, but others could stand as permanent reforms. I’ll also write about overarching considerations: state power and preemption, case law, structural incentives, and more.
1. Override §197-d(c) to require a higher threshold for council disapproval of a land use application
Currently, the city council can vote down, or water down (“approve with modifications”), a land use application that increases housing supply; for example, City of Yes for Housing Opportunity recently took at 20% cut.
During a housing emergency, the council should not be able to “approve with modifications” if the City Planning Commission, or someone else, determines that those modifications would result in a net decrease in housing units.
Further: the council should only be able to disapprove a land use application with a 2/3 or 3/4 supermajority vote of the whole council (probably notwithstanding any land use committee or subcommittee votes). I personally favor a 3/4 majority for three reasons:
We are in an emergency, and the council must be near unanimous if they think we should block housing.
This reflects the reality that the council is controlled by one party, and mustering a 2/3 vote isn’t as relatively hard as it should be for proper legislative checks and balances.
Such a high threshold to kill a proposal (especially a 3/4 vote, which, again, I recommend in a housing emergency) would more effectively counter the problem of member deference. You need far more people to go along with you.
The council would not be pleased to see their land use power diminished, but I think this is a fair trade: they have not been using it to increase housing supply, and their voice has mostly chilled housing construction rather than facilitate it. They can have the full voice and veto back when the housing emergency is gone. One would hope this would properly incentivize them to get a move on!
While these emergency provisions would need to be contained within their own new section, I have altered the text of the current §197-d(c) to reflect the rough idea:2
c. Within fifty days of the filing with the council pursuant to subdivision a of this section of any decision of the city planning commission which pursuant to subdivision b of this section is subject to review by the council, the council shall hold a public hearing, after giving public notice not less than five days in advance of such hearing, and the council, within such fifty days, shall take final action on the decision. The affirmative vote of [a majority] three-quarters of all the council members shall be required to [approve, approve with modifications or] disapprove such a decision, which will otherwise be considered approved, notwithstanding the vote of any council land use committee or subcommittee vote. If, within the time period provided for in this subdivision and, if applicable, in subdivision d of this section, the council fails to act or fails to act by the required vote on a decision of the city planning commission subject to council review pursuant to subdivision b of this section, the council shall be deemed to have approved the decision of the commission.
Note: I can imagine many ways to draft a provision that disallows “approval with modification” if the modification decreases estimated housing unit production according to the City Planning Commission, but I will leave that as an exercise for future posts. Further: you can imagine this emergency provision only going into effect for land use applications aimed at residential unit production, or "substantially related" to residential unit production, which would require further language. Another example for further exploration: exemptions from the emergency provisions for things like landfill siting.
2. Consolidate community district and borough advisory reviews in §197-c and §200
Review both inside and outside ULURP requires separate consideration by community boards and the borough layer of government. These should be consolidated, perhaps with latitude given to each borough president to structure the review process for their borough. The Citizens Budget Commission recommended this change in their 2022 land use report as well (all of their city charter recommendations seem reasonable):
Option 4a: Consolidate advisory reviews into a single process led by Borough Presidents. Community Boards are already appointed by Borough Presidents; consolidation of their reviews would allow communities to benefit from the Borough Presidents’ centralized planning staff and resources. While Community Boards and Borough Presidents may not always agree, local reviews could benefit from the Borough Presidents’ broader perspective. Consolidation would also reduce the time and expense of holding multiple meetings, though its benefits would mostly accrue from improving engagement. A more incremental version of consolidation would be allowing the advisory reviews to occur concurrently instead of sequentially in order to encourage collaboration between Community Boards and Borough Presidents. This would require changes to the City Charter.
3. SEQR amendment/repeal trigger laws modeled on the Green Fast Track
New York State’s State Environmental Quality Review Act requires costly, lengthy reviews for new housing that almost certainly facilitates a better local environment. Further: most states do not have these kinds of laws; they are well-intentioned, but have a devastating, anti-building effect (even when building helps the environment through efficient and well-managed density).
The New York City charter should have provisions that only go into effect when the New York State government repeals or amends SEQR to exempt (or substantially exempt) new housing from its review process.
This would give rhetorical force to the ideas already manifest in the Green Fast Track, and would put productive pressure on the state to reform SEQR.
4. Give the council citywide voices
The New York City Council as we know it, with 51 voting members and the non-voting participation of the public advocate, was born in 1990 after the 1989 charter revision commission in the wake of Board of Estimate v. Morris.
It’s been about 34 years since then, and I think we have enough information to say this: many small city council districts cannot come together to legislate effectively on citywide zoning or housing supply issues. We’ve run the experiment that was rigorously debated in 1989, and several hypotheses about proper legislative structure, among other things, have proven false.3
In New York City, there seems to be a strong correlation between the size of an elected official’s jurisdiction and their willingness to support new housing on a citywide basis. Even the same person changes their views in a pro-supply direction as they move to “larger” offices.
The solution? Add at-large members to the council, who represent the whole city. You can imagine many ways to do this—adding more on top of the existing 51, keeping 51 but making 10 of them citywide, etc—and each would have to be carefully considered.
But I think it’s clear we need a citywide voice in the council, which would also make them more representative of the city as a whole.
5. Add legislative findings to the charter concerning the housing emergency and its solution, building on §26-501 of the city administrative code
The city’s Rent Stabilization Law of 1969, enacted in our administrative code, presents legislative findings in §26-501. Taken together with the legislative findings sections of relevant state law concerning rent regulation, they explain the causes of—and solution to—the housing emergency.
Legislative findings help contextualize and explain the laws they’re attached to, and reveal the force and quality of thought behind them. The charter should do the same—and it should include details that current housing emergency legislative findings sections do not, including acknowledgements that:
The emergency has been ongoing since the second world war, and the government has not acted to solve it.
The city and state government previously solved a legal housing emergency between 1920 and 1929 with aggressive action, and they did it by facilitating massive new housing supply.
The “housing emergency” has been allowed to take on the appearance of a permanent fact—so it is either not an emergency, in which case rent regulation must fall, or it must be solved with extreme expedition and all necessary action.
I could imagine many other things to put here, but I think those three are strong examples.
A declaration of emergency may be made as to any class of housing accommodations if the vacancy rate for the housing accommodations in such class within such municipality is not in excess of five percent and a declaration of emergency may be made as to all housing accommodations if the vacancy rate for the housing accommodations within such municipality is not in excess of five percent.
Due to the limits of the Substack editor, my legislative drafting conventions do not conform to the New York City Council’s Bill Drafting Manual. For example, you can’t underline things outside of a hyperlink in the editor! Funnily enough, this makes my text resemble state legislative drafting conventions.
The commission did not correctly structure or anticipate everything in their efforts (nonetheless, I hold them all in highest regard, because perfection is impossible). For example (p.731):
First, writing ten years after the events in which we were such central participants, we may be tempted to speculate on what might have been the outcome of the process had we been able to predict the occurrence of certain events. For example, in the fall of 1989, David Dinkins was elected mayor, the first minority to hold a citywide elected office. We saw the dearth of elected minority officials and the sense by minorities of exclusion from the City's political processes as a problem with the City government structure. This supported several Commission changes. What would we, or the Commission, have done had we known that, within several short months, a minority would be elected mayor? We will not attempt to answer this or any similar speculative "what if" questions for two reasons. First, our focus is on what was done and why. Second, the Charter revision process was too complex and interrelated to speculate on how a particular change in facts might have affected its outcome.
If you want to better understand the housing issues today, let me explain in my podcast here:
https://open.substack.com/pub/soberchristiangentlemanpodcast/p/s2-ep-45-the-housing-shortage-deception-7d8?utm_source=share&utm_medium=android&r=31s3eo