On Friday, February 10, state Supreme Court judge David Gandin dashed the hopes of a consortium of landlords seeking to overturn the July 28, 2022 Kingston Common Council declaration of a housing emergency in Kingston by attacking the vacancy study upon which it was based.
“The mere presentation of some disputed issues of facts provides an insufficient legal basis for the court to invalidate the study,” wrote Gandin.
The 1974 Emergency Tenants Protection Act (ETPA) allows some municipalities to declare a housing emergency when the vacancy rate in their apartment buildings of six or more units built before that year falls below five percent. When that occurs, a local rental guidelines board can issue recommendations to address the housing shortage.
With the passage of the Housing Stability and Tenant Protection Act (HSTPA) in 2019, the law was extended to municipalities statewide.
The declaration of a Kingston housing emergency was lawfully made, according to Gandin. It was up to the landlords to prove the manner in which it was set in motion was arbitrary and capricious.
Throughout the final two months of 2022, counsel for the landlords questioned the thoroughness of Kingston’s data-collection effort, citing alleged survey deficiencies and denying that a housing emergency existed. The landlords introduced a competing survey purporting to demonstrate a 6.7 percent vacancy rate.
In his ruling, Gandin dismissed the landlords’ survey. “While petitioners claim they obtained a 100 percent survey participation rate,” he said, “property owners had a vested interest in participating in the private survey for the express purpose of challenging the imposition of rent control.”
Landlord Richard Lanzarone’s Hudson Valley Property Owners Association’s (HVPOA) website endeavors to show the dire results of any kind of housing regulation. It argues that good-cause eviction is a misnomer used to camouflage the creation of permanent tenancy. It supports short-term rentals as a way to keep the restaurants filled rather than a competitor for limited housing stock.
“Rent control destroyed Hanoi” blares one heading, juxtaposed with a building in Kharkiv, not Hanoi, that appears to have had its windows blasted out by mortar shells.
Say what you will about Lanzarone, but the man is passionate about landlording.
The survey at the center of the dispute conducted by city director of housing initiatives Bartek Starodaj in April and May 2022, found a vacancy rate of 1.57 percent. Starodaj arrived at this rate after compiling a list of multiple-dwelling rental apartment buildings with over six units built before 1974 and sending a rental-vacancy survey to each eligible property owner via certified mail. The envelopes were printed with the official seal of the City of Kingston. Each survey letter underlined the consequences of not responding while stating that a response was required by May 2.
Responses to the survey accounting for 911 units, or 72 percent of the total surveyed units, arrived via a mix of online responses, phone calls, emails and physical mail. Some of those who neglected to respond got an in-person visit at the property by Starodaj.
“When viewed as a whole,” ruled Gandin, “petitioners fail to demonstrate that the city’s director of housing initiatives’ survey results were unreasonable.”
Starodaj was pleased by the decision. “It reaffirms what we already knew,” said Starodaj. “The vacancy survey performed by housing initiatives was sound and accurate. The city’s declaration of a housing emergency to provide stability and tenant protections to those that need it most was appropriate.”
With the results of the vacancy survey upheld, the recommendations of the local rental guidelines board, frustrated by the judge’s restraining order since last November 22, have been vacated.
Gandin took issue with the guidelines board’s recommendations of a 15 percent across-the-board rent reduction for the affected tenants, with its 16 percent maximum allowable rent increase over a three-year period, and with its recommended retroactive three-year lookback period for filing an appeal with the state Division of Housing and Community Renewal. “Nothing in the ETPA authorized the RGB to make a blanket determination that all subject units,” wrote Gandin, “are subject to a maximum rent increase of 16 percent retroactive to January 1, 2019 and an immediate l5 percent of rent reduction.”
Judge Gandin found no authorization in the ETPA for the RGB to impose a rent reduction rollback date of January 1, 2019. He ruled that the rollback period should go back no farther than the creation of the rent guidelines board.
“The rental emergency still stands, but maybe it was an overreach on our part to do January 1, 2019 rather than July,” acknowledged Michael Tierney, tenant member of the rent guidelines board. “We thought it would actually cause more confusion if the date was halfway through the year rather than the start of the calendar year. “
Tierney did not seem particularly dismayed that the judge has ordered the RGB to reconvene. “Look. People are getting kicked out of their houses,” he said. “So we’ll have to just discuss all of that again. We’re gonna find a way to work around this to still protect tenants in any way that we can. But hopefully this is the impetus to make changes to our senator and our assemblywoman to clarify this language in the ETPA to explicitly allow a rent reduction. I have no idea how much this lawsuit cost the state or the city, but if it was just clearly elaborated in the law we wouldn’t have this problem.”
Serious legal firepower appears to have gained entry into the lawsuit. A motion to intervene filed on behalf of four additional parties, having gone unopposed, has now been granted by the judge. Activist groups Citizen Action of New York and For The Many have joined the fray on the side of the defendants, guaranteeing their strident legal participation should the landlord group appeal to a higher court.
These two groups were not altogether happy with the Gandin ruling. “We are pleased that the court upheld the city’s enactment of rent stabilization and the underlying vacancy study,” they said in a joint statement. “However, we are disappointed that the rent guidelines board’s historic 15 percent rent reduction remains blocked. Over 1200 renter households have been denied the relief they deserve, and will continue paying unaffordable rents for the foreseeable future.”
Two individuals, Amanda Treasure and Lisa Lerner, have also joined the suit.
Once the vacancy rate of this class of housing exceeds five percent again somewhere down the line, the city will be required to declare the emergency at an end. The city council has already approved a resolution requiring the housing director to perform a new vacancy study every three years.
The clock is ticking again for the rent guidelines board, and every detour into court eats up valuable time. Fighting for change at the municipal level is like sprinting in ankle-deep sand. All eyes now turn towards the capitol for legislators to settle the question at the state level.
Come what may, corporate counsel Barbara Graves-Poller, who represented Kingston in the courthouse, is savoring the moment. “This,” she said, “is one of the most meaningful projects I’ve worked on in my legal career.”