Faith-Based Affordable Housing Act: Win-Win Solution or Reckless Deregulation?

The “Faith-Based Affordable Housing Act” (FBAHA) has been reintroduced in the current New York State legislative session, and Village Preservation Executive Director Andrew Berman participated in a recent panel hosted by the City Club of New York to discuss this proposed legislation and share his concerns. Joining him were urban planning consultant George Janes, Sisters of Charity Housing Development Corporation Chief Real Estate Development Officer Xiomara Pedraza, and Preservation League of New York President Jay DiLorenzo, who offered their own perspectives on the act.

FBAHA essentially grants exemptions from local land use and landmarks laws in order to facilitate housing development with an affordability requirement. Its sponsors argue that this would help kill two birds with one stone. It would bolster the financial viability of numerous faith-based institutions; and it would tackle the affordable housing shortage. Whatever the persuasiveness of this claim, the scope, focus, and timing of the proposal has raised some eyebrows. Typically, land use planning is the prerogative of local government. And, in the case of New York City, local government has been busy as of late enacting or formulating far-ranging initiatives that ostensibly pursue the same goals FBAHA claims through a similar deregulatory approach. So why this and why now? Moreover, is it even constitutional for a law to favor a class of entities on the basis of religious affiliation? These questions lurked in the background as the event panelists offered a spirited analysis of the proposed legislation.

Janes, a staunch proponent of rational comprehensive planning, focused his remarks on the act’s zoning allowances and environmental review exemption. Under FBAHA, a religious site in New York City could develop up to the highest allowable density found within 800 feet of its location. This would constitute an outsized divergence from the city’s predominant bult form typology, which concentrates denser development along its wide corridors—typically avenues— and maintains lower densities along its narrow streets, so as to maximize access to direct sunlight. FBAHA would allow on narrow streets highrise development at even higher densities than those allowed in avenues (because the “tower provisions” designed to minimize building bulk and increase light exposure would not apply to narrow streets). Janes presented the following illustration. 

Such increases in density typically increase demands on local services and infrastructure. But you would not know to what extent under FBAHA, because the act would exempt projects from environmental review requirements. For Janes, this exemption runs afoul of fundamental rational planning principles.

Pedraza, who has extensive experience developing affordable housing in collaboration with religious institutions, argued the bill offered a way to overcome the obstacle to affordable housing construction posed by exclusionary and outdated zoning codes and by bureaucratic obstacles. Focusing primarily on the suburbs, she offered examples of jurisdictions where parking requirements and restrictions on multi-family housing undermined the viability of affordable housing projects or significantly reduced their number of housing units. Pedraza views FBAHA as a way of overcoming these challenges and making it possible to build affordable housing even in towns where it has not been possible.

Berman and DiLorenzo focused their remarks on FBAHA’s impact on landmarked and historic religious buildings. DiLorenzo challenged the act’s underlying presumption that historic preservation and affordable housing development are antithetical to one another and, as evidence, pointed to half a dozen cases in upstate New York where New York State Historic Rehabilitation Tax Credits were used to help finance the adaptive reuse of buildings owned by religious institutions, prevent their wasteful disposal in landfills, and help produce affordable housing units within unique, historic buildings. By his estimation projects using historic rehabilitation tax credits had yielded over 30,000 development units over the past ten years, over half of them affordable. 

Berman described FBAHA as a case of net cast needlessly wide, pointing out that, as formulated, its provisions override future landmark designations as well as arguably existing ones. This could incentivize the demolition of landmarked religious buildings and would certainly imperil that of historically significant religious ones lacking landmark protection. Berman argues that the alleged fear behind these provisions—the possible use of landmarking to thwart development—makes no logical sense in New York City, given how the landmarking process works here. More generally, Berman’s objects to the recklessness of, without so much as doing an analysis of the acts’s likely impacts, overriding environmental review and zoning and landmarking protections for precious little public benefit. Under FBAHA, as little as 13% of a project could be devoted to affordable housing, and at affordability levels well beyond the reach of the household median income of renters in the city.

In the end, there were areas of agreement among the panelists, even when they disagreed about the ultimate advisability of FBAHA. They all generally agreed that zoning presented an obstacle to affordable housing development in some jurisdictions outside of New York City and that, beyond that, one could find isolated examples where the relaxation of outdated zoning restrictions might be warranted. But Janes, Berman, and DiLorenzo nonetheless maintained that this did not justify overriding both local discretion over land use matters and the need for environmental impact assessments; and they expressed a preference for a far more fine-tuned approach. In closing, Janes sounded a warning that touched on many of the concerns shared during the event:

I’m a planning advocate. If you approach these sites and plan them well, you could have something that works for everybody. But the broad-brush [approach of the 800-foot provision]. That’s not planning at all! That’s geography! And it does not make sense to me. It makes no. sense. at. all. And it creates enormous uncertainty in the built form in New York City. And, being a city planner in New York City, the thing I always say is, “Don’t break it! Whatever you do, don’t break it, because it’s this amazing place.” And this actually has the potential to break it. 

To learn more about FBAHA and find out how to make your voice heard on this issue, go here.

To watch the panel in its entirety, go here.