At the first Lloyd Town Board meeting of 2019, Councilman Joe Mazzetti again touched upon the lack of compliance with the Affordable Housing provisions in the town code.
A recent Freedom of Information request by the Southern Ulster Times revealed that Lloyd’s Town and Planning Boards have failed to have owners/developers of residential projects provide 10 percent of their units for Affordable Housing, despite it being required in the code. The FOIL request also showed that on numerous occasions the Building Department and the town’s land use attorney have not compelled the Planning Board to ensure that a developer provide affordable housing units when it came time for the board to vote on approving their projects.
Mazzetti provided board members with an opinion he received from Sarah Brancatella, of the Association of Towns, who stated that a town may retroactively enforce provisions of its code.
“The mistaken or erroneous issuance of a permit does not estop [bar or preclude] a municipality from correcting errors, even where there are harsh results,” she wrote. Brancatella went further, pointing out that going back to apply these provisions may in some limited situations not be appropriate, but in the case of the High Bridge housing project, it appears that the, “property owner should have been able to discover the town’s error in issuance of a permit by reasonable diligence in examining enabling legislation.”
The requirement to provide Affordable Housing was well known during the approval of the High Bridge project. Then Planning Board Chairman Peter Brooks brought it up with the owner’s representative, but inexplicably dropped his line of inquiry when this representative said the apartments would, instead, be rented at market rate.
Brancatella wrote that the Town Board, absent an appointed Housing Administrator, is responsible for implementing the Affordable Housing regulations and for informing the owners/developers of a residential project about its requirements. She added that Certificates of Occupancy should not be issued until all code provisions are met.
Mazzetti suggested the Town Board consider passing a Moratorium on this to ensure that town officials fully understand the housing code and properly administer its provisions, “because it is a law that’s existing and we’ve not been following our laws.” The board did not immediately act on this but indicated they may take the matter up at their next meeting.
A December 19, 2018 letter to the town from their land use legal firm, Whiteman, Osterman & Hanna, states that, “the town’s Comprehensive Plan calls for incentives to encourage construction of affordable housing, as well as for waivers for such requirements where it is in the town’s best interest.” It is this firm’s representative, who has not told the Planning Board that affordable housing is required when it came time to vote on subdivision projects.
Mazzetti took issue with the waiver suggestion.
“A lot of our laws [like] the Walkway Gateway District, our Planned Residential District and our Planned Unit District are so loose-goosey that it seems like they can conform to fit almost anything,” he said. “I really don’t want to have a law with a waiver and if we have laws with waivers, why have the law? I think the lawyers really have to fix this and make it right.”
In a subsequent interview, Supervisor Paul Hansut questioned whether the town could retroactively require developers, who have already received approval for their projects, to now have them provide affordable units within their projects.
“My belief is that if you go back, you’re going to find yourself getting into a legal battle with the developer or the owner of the property because they were given their site plan approval [and] they’re occupied and got people in there...That’s why we’re waiting to get a better opinion from the lawyers up in Albany [Whiteman, Osterman and Hanna],” he said.
Hansut favors getting Affordable Housing “right” but said it is Councilman Mazzetti’s responsibility to bring any moratorium vote to the floor for the Town Board.
Hansut said the bottom line is, “we pay a lot of money to a Building Director, we pay a lot of money for attorneys, we pay a lot of money for engineers and that’s who I trust to make sure that everything is up to standard. Perhaps moving into this new year it is something we have to look at and perhaps ask more questions about these projects. Now we’ve been put on notice about it [affordable housing] and know there is a problem and we’ve got to address it.”
Ulster County Planning Board Director Dennis Doyle believes communities can rise to the occasion when faced with difficult administrative tasks.
“I would like to think that the community may think it’s difficult to administer [but] they can find the means and the wherewithal to meet that difficulty, if that’s the case, or to simplify it to the extent that it’s not as difficult. The expertise is not great in order to administer this [affordable housing] and if they needed to, they could think about whether there are other affordable housing agencies that would be willing to administer it for them; I suspect you would find some that would be.”
Councilman Mike Guerriero said he has invited a representative from the Rural Ulster Preservation Company [RUPCO], which is dedicated to maintaining quality, sustainable housing and rental opportunities, to a Town Board meeting to see how to move forward and properly administer the Affordable Housing code.
Doyle called this “good news.”
“From a positive perspective, a conversation with the community that’s looking at its affordable housing provisions and beginning to say this hasn’t worked well over time [and] what do we do to change it to make it work well; that’s an important discussion and its one I think is worth having. They recognize that it hasn’t worked and they’re not saying because it hasn’t worked we should throw it out [but] they’re saying lets figure out a way to make it work better. The community should be given some kudos for recognizing that it hasn’t worked and then thinking about ways they can change it so it does work.”