[Added 7-21-2016 by L.L.
No. 4-2016]
The purpose of the affordable housing density bonus is to comply
with and codify applicable requirements of federal and state law,
and the judgment of the United States District Court, Eastern District
of New York, dated April 22, 2014, under the caption "MHANY Management,
Inc. and New York Communities for Change, Inc. v. Incorporated Village
of Garden City and Garden City Board of Trustees," 05-CV-2301, to
the extent affirmed by the United States Court of Appeals for the
Second Circuit.
As used in this article, the following terms shall have the
indicated meanings unless the context clearly demonstrates otherwise:
Housing for which a family whose income is 80% or less of
the Nassau-Suffolk metropolitan statistical area median income (including
families defined by the Department of Housing and Urban Development
either as "low income," "very low income," or "extremely low income"),
whose combined annual rental cost and tenant-paid utilities constitute
no more than 30% of its income or, for homeowners, the annual total
of the sum of secured loan principal and interest, private mortgage
insurance, property taxes, home insurance, common charges and homeowner-paid
utilities does not exceed 30% of said household income.
An additional density increase equal to at least 10% of the
number of residential units permitted at maximum allowable residential
density, or of allowable residential floor area ratio if part of a
mixed-use development, otherwise permitted for such development pursuant
to this chapter, as determined on the date of submission of a complete
application for approval of the first of either a subdivision or site
plan. In the event such calculation of additional units shall result
in a fractional number of units, the required number of additional
units shall be rounded up to the nearest whole number. The additional
units or additional residential floor area ratio required by this
article shall be dedicated and occupied for affordable housing as
provided in this article. Affordable housing density bonuses may be
awarded for developments in any zoning district in the Village in
which residential uses, or mixed uses which include residential uses,
are permitted.
A development of property in the Village for which a completed
zoning amendment, subdivision or site plan application is pending
or is submitted on or after the effective date of this article, and
which is proposed to include or allow five or more residential units,
including a mixed-use development which incorporates five or more
residential units.
A.
Each application for approval of a zoning change, subdivision and/or
site plan for a QRD shall include a yield map showing the maximum
number of residential units, or residential floor area ratio for mixed-use
development, which would otherwise be permitted pursuant to zoning
regulations applicable to the subject property at the time of the
complete application, and any amended or other zoning regulations
requested to be made applicable to the subject property. Each such
yield map shall include any density bonus applicable pursuant to this
article.
B.
Each application for approval of a zoning change, subdivision and/or
site plan for a QRD shall identify the affordable housing density
bonus required by this article. The number of units, or the residential
floor area required in a mixed use development, of affordable housing
shall be specified and included in the conditions of approval given
to the QRD applicant by the first applicable Board, and shall be provided
by the owner, developer or operator of the QRD pursuant to this article.
C.
Each approval of an application for a zoning change, subdivision
and/or site plan for a QRD given by any Village Board or agency shall
include, at a minimum, the conditions of approval required by this
article, and may include such other or further provisions, not inconsistent
with this article, as may be deemed reasonable, necessary or appropriate
by such Board or agency.
D.
In granting approval for a zoning change, subdivision and/or site
plan in relation to a QRD, the Board of Trustees or other Village
Board having authority to grant such approval shall have authority
to grant waivers of the otherwise applicable dimensional, bulk or
parking requirements where the same are determined to be necessary
in order to achieve the affordable housing density bonus. Except as
otherwise authorized by other law, no such waiver shall be granted
except where the applicant demonstrates that it would be unreasonably
difficult or burdensome to provide the affordable housing without
such relief; provided, however, that in no event shall any such waiver
authorize a total overall site density, or floor area ratio, greater
than that otherwise permitted for the site (i.e., the number of units
or amount of floor area ratio otherwise permitted in compliance with
the applicable zoning regulations prior to consideration of the density
bonus) plus the additional units or floor area ratio required by this
article.
A.
Except as otherwise provided in this article, each QRD shall conform
to all other applicable provisions of this chapter. The provisions
of this article shall not otherwise restrict owners' rights relative
to development or use of property consistent with the regulations
of the zoning district in which the property is located. Except for
the affordable housing units or residential floor area ratio required
pursuant to this article, the provisions of this article shall not
be deemed or construed to permit any use or development of a site
other than as otherwise permitted by the regulations for the zoning
district in which the property is located.
B.
Each approval of a QRD application shall include a requirement that
prior to the issuance of any building or other permits for the construction
or improvement of the site, the property owner and the Village shall
enter into a written agreement in a form approved by the Village Attorney
prior to execution, and record the same in the office of the Nassau
County Clerk at the owner's expense, which agreement shall contain
at least the following provisions and conditions, in addition to such
other provisions or conditions as required by the QRD approval.
(1)
Such provisions and conditions shall include, at a minimum,
the requirements that at least 10% of the residential units, or floor
area of a mixed-use development, shall be dedicated to the provision
of affordable housing, or the owner and/or applicant shall provide
at least the same number of units or quantity of floor area of affordable
housing required by the QRD approval and not provided on the site
to be provided and constructed at another site in the Village at or
about the same time or prior to the development of the market rate
units. The provisions and conditions shall further require that to
the extent feasible, the required affordable housing units be made
available equally among "low income," "very low income," or "extremely
low income" families as defined by the Department of Housing and Urban
Development annually for Nassau County. The affordable housing units
shall be integrated and indistinguishable from the market-rate units;
the minimum floor area of the affordable housing units shall not be
less than 80% of the market-rate units, and any single-family affordable
housing units on individual lots shall not be on lots less than 75%
of any market-rate lot in the QRD.
(2)
Such provisions and conditions shall include the requirement
that the owner, developer or operator of the property shall institute
and conduct an application process for sale or rental of all affordable
housing to be provided pursuant to the QRD proposal which shall assure
a fair, open, and random selection process for the purchases or rental
of all such affordable housing, and a requirement that the owner,
developer or operator of such property annually provide to the Village
a written report as to the current nature and status of such process,
and of all affordable housing sold or rented during the period of
time covered by such annual report. The affordable housing units shall
be marketed in a manner that is consistent with HUD's fair housing
marketing guidelines.
(3)
The provisions and conditions in Subsection B(1) and (2) shall remain binding and in effect for a period of 50 years and during such time shall not be cancelled, terminated or amended except with the express approval of the Village Board or agency which approved the QRD application and then only upon a showing of hardship.
C.
Notwithstanding the provisions of this article, or any other law,
no applicant for QRD development or owner of land which is the subject
of a QRD development, may satisfy the affordable housing requirements
of this article by opting to construct less than the maximum permitted
density or providing less than the maximum permitted residential floor
area ratio otherwise authorized by this chapter for development of
the property which is the subject of the QRD. The number of required
affordable housing units, or the amount of affordable housing floor
area, shall be calculated based on the maximum permitted development
on the site, regardless if the project proposed for the site is for
a density or residential floor area less than the maximum permitted.
D.
Except as specifically provided in this article, and notwithstanding
the provisions of any other law, no applicant for QRD development,
or owner of land which is the subject of a QRD development, may satisfy
the affordable housing requirements of this article by making any
payment of money or other thing of value to any person or entity.
E.
The written agreement required for any QRD development also shall
include deed restrictions to assure that the development shall continue
to include, on the site or at another site within the Village, at
least the number of affordable housing units required by this article,
and which require that occupancy, sale or resale of any affordable
unit shall be restricted only to persons or families with incomes
meeting the criteria set forth in this article.
(1)
Such deed restrictions also shall include the requirement that
the owner or operator of residential property which is the subject
of a QRD shall take such actions as may be required to assure compliance
with the requirements of this article with respect to affordable housing
units and the occupancy thereof, and shall provide to the Village
upon request any and all information relevant to such compliance and/or
reasonably necessary to permit the Village to monitor the same.
(2)
Such deed restrictions also shall include requirements that
leases for affordable housing units have a term of not more than two
years, and shall assure on an annual basis that in the event residents
of affordable housing units required by this article cease to meet
the income or other eligibility criteria specified in this article,
such residents shall be required by the owner, developer or operator
of the property to vacate their respective affordable housing at the
QRD premises no later than one year after a determination of a loss
of eligibility unless the owner, developer or operator of any property
on which such affordable housing is located provides an equal number
of equivalent affordable housing units or residential floor area elsewhere
on the QRD site or at another location in the Village.
(3)
With respect to any affordable housing unit, the title to which
is owned in fee ownership, condominium ownership or cooperative ownership,
no such unit may be resold at a sales price which exceeds the original
purchase price paid by the selling owner, plus an additional amount
based on increases in the Consumer Price Index for Urban Wage Earners,
plus the nondepreciated value of any capital improvements made by
the selling owner.
F.
The listing of conditions of approval contained in this section shall
not be deemed exclusive and nothing herein shall prevent or restrict
the inclusion of other reasonable conditions in any approval of a
QRD, provided that such other conditions shall not be inconsistent
with, contrary to or in conflict with the provisions of this article.
Compliance with this requirement shall be monitored by the Superintendent
of Building Department, or other Village official designated by the
Board of Trustees.
A.
The provisions of this article shall be construed and applied together
and consistent with the provisions of the Long Island Workforce Housing
Act (LIWHA),[1] to the extent the LIWHA may be applicable to any QRD,
but this article shall not be construed to require the provision of
units required by this article in addition to units required by the
LIWHA. To the extent the LIWHA requires the provision of housing units,
and one or more units of affordable housing provided pursuant to this
article also satisfy the requirements of the LIWHA, such units shall
be included in the calculation of the number of affordable housing
units required to be provided in the Village pursuant to this article.
[1]
Editor's Note: See General Municipal Law § 699 et
seq.
B.
Notwithstanding the provisions of the LIWHA, and except as otherwise
specifically permitted in this article, no applicant, owner or developer
of a QRD shall be permitted to avoid the requirement to provide units
of affordable housing by providing such housing, or by payment of
a fee or other thing of value to any person or entity to provide such
housing, on any site outside the Village.
The agency or agencies determined to be the lead agency shall
review each QRD project pursuant to the State Environmental Quality
Review Act[1] and its implementing regulations (collectively referred
to herein as "SEQRA"), and shall classify such action, comply with
the provisions and requirements of SEQRA for the process of environmental
impact review, and make such findings or other determinations with
respect to environmental impact as provided in SEQRA. Notwithstanding
the foregoing, pursuant to 6 NYCRR Part 617.5(b), the Board of Trustees
hereby determines that the portion of any such QRD application as
may include the affordable housing density bonus and any related waivers
or variances of dimensional or parking requirements as provided in
this article are deemed and classified to be a Type II Action, and
such portion of any QRD application shall be subject to review pursuant
to SEQRA only as provided therein with respect to Type II Actions.
[1]
Editor's Note: See Environmental Conservation Law § 8-0101
et seq.
