Blame America’s housing woes on zoning laws

As far as bureaucratic errors go, this was a relatively minor one. It wasn’t a botched rollout of the president’s signature domestic policy. It wasn’t even as embarrassing as when, say, Washington, D.C., laid brand new streetcar tracks on a bridge a few years before that bridge was scheduled for replacement. But in its own small way, the New York City Department of Housing Preservation and Development had a “How did they manage to screw that one up?” moment late last month. It misread its own map.

Astoria Cove, one of New York’s largest real-estate projects, will be a mixed-use waterfront complex in Queens with about 1,700 new units. Housing policies enacted by Mayor Bill de Blasio and the New York City Council require the project’s developers to make a certain number of those units affordable. Specifically, city planners told developers that in this middle-class part of Queens, affordable apartments would have to be set aside for families making no more than 80 percent of the area median income (AMI).

Actually, just kidding. Late in October, planners took another look at the city’s zoning map and realized they made an error. Astoria Cove’s affordable apartments will actually have to target families making a maximum of 60 percent of AMI. With this new criterion taken into account, the project got final City Council approval just before Thanksgiving, and the developer has pledged to make 27 percent of the units affordable — the first time in years that the city took on the real estate industry and won.

For New Yorkers who have spent decades trying to navigate the city’s housing market, it’s a small comfort to know that not even city planners can make sense of the city’s web of zoning policies. But this is nothing compared with the comfort that landlords feel, safe in the knowledge that they’ve used zoning to game the system. The tax breaks, rent-control laws and building restrictions that make up zoning codes in many major cities require lawyers to decipher. And whether by design or in effect, a housing regime that is intelligible only to highly trained professionals is one that spells endless power for owners and endless misery for tenants. Zoning codes must be simplified — quickly, radically and without mercy.

Even the Astoria Cove example is more complicated than it seems. The City Planning Department’s map mishap involves an arcane provision known as 421-a, which exempts developers from a number of property taxes for 25 years. As Crain’s New York notes, “In some parts of the city, developers can get this break with no strings attached. In other parts, where building residential is more lucrative, developers have to dedicate 20 percent of their apartments to households making below 60 percent of the area median income.”

Astoria falls into the latter category. The 421-a provision is extremely popular, and there is little doubt that Alma Realty is going to apply for it. But technically it’s an afterthought to de Blasio’s basic affordability requirements, not a part of them. Extra layers of complication like this usually end up working in landlords’ favor. To take advantage of the city’s coveted J-51 tax break, for instance, developers must agree to keep their apartments in the city’s rent stabilization program. But this hasn’t stopped many from claiming exemptions while driving rent-regulated tenants out of their homes. In 2009 tenants in the Stuyvesant Town complex sued their landlords for doing precisely this. The case was so unusual largely because the tenants won.

This is to say nothing of other infamous tactics — harassing rent-regulated tenants until they move, illegally barging into occupied apartments to make never-ending “repairs” and so on. Many landlords reap another windfall because some affordable-housing programs, including 421-a and New York state’s Mitchell-Lama program, are designed to sunset after 25 or 30 years. Landlords are then able to increase the rents to their liking. And the city’s chronic shortage of affordable housing means landlords have all the incentive to assume tenants will end up so exasperated by the minutiae of zoning laws that they’ll simply give up. In other words, landlords evict first and ask questions later.

New York has a higher percentage of renters than any other major American city, so its rent laws are uniquely detailed. But the tradition of treating renters as second-class citizens, entitled to none of the stability or dignity that the law gives homeowners, has a proud national lineage. Ironically, this tendency may reach its fullest flower in liberal California, with its autocentric culture and extremely powerful homeowners’ lobby. Unlike in New York, complicated zoning laws in Los Angeles don’t center on rent control or affordability set-asides. Instead, they make it artificially difficult to build rental housing at all, keeping the city’s supply well below demand.

In an article on the politics of L.A. land use, Josh Stephens notes that the fiercest opposition to rental housing tends to come from homeowners. “Typical reasons for opposing high-density housing,” he writes, “center on notions of ‘neighborhood character.’ Whatever neighbors’ particular concerns are, the message they send to politicians and planners is, ‘Do not upzone. Do not grant that variance. Do not promote the use of density bonuses, and find any loopholes you can to resist them. Parking, parking, parking.’” The result of decades of tight, exclusionary zoning in the city is that, according to a recent University of California at Los Angeles study, the L.A. area has the highest median rent burden in the country, at 47 percent.

Matters appear less complicated north the border. While zoning policies in Canada’s two largest cities aren’t exactly simple, they have a number of features that make them easier on renters. In Montreal a provincial commission is empowered to set guidelines for nearly all the apartments in the city. While these guidelines are not legally binding, tenants have the legal power to dispute rent hikes, forcing landlord and tenant to reach consensus.

In Toronto the law extends rent controls to nearly all units built before 1991 — a level of protection that’s unheard of in any U.S. city. The debate over whether rent control is sound economic policy on a macro scale is far beyond the purview of a single article. But whatever one’s views on rent control as policy, it’s hard to dispute the value of knowing how much your apartment is worth and what your landlord can do to you. Canadian cities are empowered to provide tenants with this peace of mind in a way that U.S. ones are not.

Toronto and Montreal haven’t gotten everything right; both are heavily segregated by class, for example. But their successes provide a potential path forward for anyone who believes renters should have the same opportunity for stability and dignity that homeowners do. There are many ways to build affordable housing and ensure it stays that way: Require inclusionary zoning in new developments rather than incentivizing it through tax breaks. Expand the use of housing vouchers. Plan affordable housing under the assumption that it should stay affordable in perpetuity, not just for the length of a tax abatement. Build bona fide public housing. And perhaps most urgent, streamline and strengthen anti-eviction protections, above all for tenants who are not rent-regulated.

In other words, make zoning laws understandable for people who can’t hire a lawyer. Mistakes like the misread map in Astoria Cove don’t reflect poorly on city planning bureaucrats so much as they represent a system built up through decades of patronage and willful obfuscation. Fixing it will require renters who know their rights and stand up for them. And it will require the rest of us, regardless of whether we aspire to own or rent, to understand that sometimes the most fearless thing you can do is just stay at home.