Hochul, Lawmakers Look to Override NY’s Exclusionary Zoning Amid Housing Crunch

State leaders—including Kathy Hochul and one of her gubernatorial rivals, Tom Suozzi—are at odds over bills that would override local “exclusionary zoning” rules that prohibit homeowners from renting accessory dwelling units (ADUs) on their property.

New York lawmakers are heading for a showdown over single-unit zoning, a policy that has limited legal homes in the suburbs and, reform advocates say, artificially suppressed the state’s housing stock during a deep shortage.

At a legislative budget hearing Monday, state leaders and housing advocates went to bat for bills that would override local “exclusionary zoning” rules that prohibit homeowners from renting out basements, top floors, carriage houses or other potential residences known as accessory dwelling units (ADUs) on their property. They have a powerful ally: During her State of the State speech last month, Gov. Kathy Hochul backed a plan to allow ADUs in areas zoned for single-unit homes. Her accompanying capital plan would direct money to municipalities and nonprofits to help homeowners get their extra units up to code.

Single-unit zoning, commonly known as single-family zoning, applies to a vast suburban expanse outside New York City, as well as some parts of northeast Queens and Riverdale. New York stands alone among comparable states—including New Jersey, Connecticut, Massachusetts and California—in the way it empowers local governments to limit new housing production, according to the Furman Center.

That’s an issue that has long needed fixing, said New York State Division of Housing and Community Renewal Commissioner RuthAnne Visnauskas.

“We are not keeping pace with our housing production based on our population growth and our job growth so there’s a real demand for housing, especially downstate,” Visnauskas said at the hearing Monday. “You could argue that many people in our homeless shelters are there for purely economic reasons.”

A 2019 report from the Department of City Planning found that New York City added 770,000 new jobs between 2001 and 2018, but only 407,000 new units of housing, creating steep competition for minimal middle-income and low-income housing. A year later, a report by the Citizens Budget Commission found that housing production rates in suburban Westchester, Rockland and Nassau Counties are among the lowest in the country, in large part due to exclusionary zoning. That lack of available housing only drives costs, making homeownership impossible for the majority of downstate residents and forcing more than 40 percent of tenants to spend over a third of their income on rent.

ADUs alone would not address the affordability issue, wrote Brookings Institute fellow Noah Kazis ahead of the hearing Monday, but they would increase housing supply without upending the existing landscape.

Thousands of ADUs already exist, supporters point out, but the units remain in the shadows and are not necessarily safe for renters—as was the case in illegal basement apartments where 11 people drowned in floodwaters brought by Hurricane Ida this past fall. A bill sponsored by Westchester State Sen. Pete Harckham and Manhattan Assemblymember Harvey Epstein, both Democrats, would order municipalities to adopt rules that allow for at least one ADU on owner-occupied lots, allowing property owners to create safe homes without penalty.

By legalizing the accommodations, “we can create extra income for homeowners, we can create safe and affordable housing for tenants, we can give seniors the ability to age in place,” said Casey Berkovitz, an official with the think tank The Century Foundation. “It’s such a win-win policy.”

But opponents of the ADU bill say the measure is hardly a win for local governments.

At the hearing Monday, Suffolk County Assemblymember Mike Fitzpatrick, a Republican, questioned “the rationale in, frankly, removing local control and local zoning,” from towns and cities.

Hochul’s opponent in the Democratic primary, U.S. Rep. Tom Suozzi, has also taken aim at the ADU legislation, calling it overreach from Albany.

“Governor Hochul’s radical proposal would take away zoning control from municipal governments, erode local government authority, and end single-family housing across New York,” Suozzi, who represents parts of northeast Queens and Nassau and Suffolk Counties, tweeted Jan. 27. “Hochul’s plan to eliminate home rule is not what we need. I support affordable housing, building up around downtown train stations, and helping the homeless. I oppose eliminating home rule and ending single-family housing.”

That framing has rankled supporters of the ADU bill, who say the measure would not take away single family homes. Instead, the legislation would allow “single-unit” property owners the option of legally renting out extra spaces. The bill allows municipalities to set rules related to size, establish permitting fees and ban short-term rentals.

Bill supporters have sought to position the measure as a potential boon for homeowners, like seniors on a fixed income, who would be able to earn additional income legally. The legislation would direct DHCR to create a lending program for low- and middle-income homeowners to assist with financing and other costs to make their extra accomodations safe.

“We see ADUs as giving homeowners more choice,” Citizens Housing Planning Council Senior Policy Analyst Kate Leitch told lawmakers. “To have more affordability options and to have more income options.”

Nevertheless, Leitch added, property owners will need financial assistance to bring their units up to code. Hochul’s proposed housing capital budget earmarked $85 million to subsidize those conversions, though it didn’t include specific details on how that money will be distributed.

The ADU bill is a less drastic measure than another piece of legislation introduced by State Sen. Brad Hoylman. Hoylman’s bill would prevent municipalities from blocking four-unit residential construction—or six-unit buildings near transit stations—requiring off-street parking or establishing minimum lot sizes greater than 1,200 square feet. Legalizing ADUs statewide could be seen as a compromise by comparison.

The measure is just one component of a plan to build more housing. Hochul described her focus on transit-oriented construction and lifting density caps in New York City in her January speech and accompanying policy book. She has also backed a modest change to the controversial 421-a tax abatement for residential developers.

The zoning reform push is a matter of equity, supporters say, because racism has defined single-unit zoning since the first suburban lots were carved up for white World War II veterans.

Exclusionary zoning has fueled deep segregation, a function of rules that prevented people of color, especially Black Americans, from buying homes in Levittown, the original Long Island suburb constructed in 1947. Other towns adopted similar racist convenants, a precursor to the steering and less explicit housing discrimination still in effect across Long Island and elsewhere in the state.

Harkham said Monday that opposition to zoning reform often sounds like “a lot of dog-whistles” even as critics tend to focus on the potential burden to local infrastructure.

“Everyone becomes a traffic expert, and a wetlands expert and steep slope expert,” he said.

Ex-President Donald Trump infamously sounded his own racist, classist dog whistle in 2020, when he warned that eliminating single-unit zoning and building low-income housing would “bring who knows into your suburbs, so your communities will be unsafe and your housing values will go down.”

Though the ADU bill would increase affordable housing, the units are still subject to discriminatory housing practices, said Elaine Gross, president of the Long Island-based fair housing and civil rights group ERASE Racism. Racist exclusion could continue without affordability considerations or penalties for discrimination, she said.

Gross urged lawmakers to adopt legislation that forces ADU owners to publicly advertise their residences, abide by fair housing laws and cap rents at below market rates if they receive state financing or subsidies. Those provisions are each included in the current bill.

“Sometimes there are people on Long Island with blinders who think we don’t have a problem out here, but we do,” she said.