New York State Assn. for Affordable Hous. v. Council of the City of N.Y.

141 A.D.3d 208, 33 N.Y.S.3d 202
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 2, 2016
Docket158093/13 269
StatusPublished
Cited by2 cases

This text of 141 A.D.3d 208 (New York State Assn. for Affordable Hous. v. Council of the City of N.Y.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New York State Assn. for Affordable Hous. v. Council of the City of N.Y., 141 A.D.3d 208, 33 N.Y.S.3d 202 (N.Y. Ct. App. 2016).

Opinions

OPINION OF THE COURT

Andrias, J.

Local Law No. 44 (2012) of City of New York, effective January 1, 2013, amended title 26 of the Administrative Code of the City of New York by adding a new chapter 10, which relates to the disclosure on a public website of information regarding “affordable housing” projects that defendant New York City Department of Housing Preservation and Development (HPD) initiates, funds or otherwise participates in. Although one may reasonably argue, as does the dissent, that the disclosure requirements imposed by the law are costly, difficult or cumbersome, or that the law will not remedy corruption in the developer selection process or further the flexible and economi[211]*211cal implementation of publicly funded housing, the wisdom, necessity or efficacy of the law is not the province of the courts (see Matter of New York County Lawyers’ Assn. v Bloomberg, 95 AD3d 92, 108 [1st Dept 2012], affd 19 NY3d 712 [2012]). Rather, the only issue before us is whether Local Law No. 44 is unconstitutional because it is preempted by state statutes or violates the Due Process and Equal Protection Clauses of the New York State Constitution. Applying well established precedent to the facts, we find that Local Law No. 44 does not unlawfully interfere with or frustrate HPD’s authority under the City Charter or impermissibly conflict with the state legislature’s delegation of authority and discretion over affordable housing programs to HPD, and that it is not otherwise unconstitutional.

The legislative history reveals that the City Council, in passing Local Law No. 44 over former Mayor Bloomberg’s veto, was concerned that there was “no single, comprehensive, and easily located resource that the public can use to obtain all of the relevant information about [affordable housing] projects,” and that “there [had] been a number of events indicating that HPD’s developer selection process may not be functioning as intended” (Committee on Housing and Buildings, Report of the Infrastructure Division, Sept. 24, 2012 at 3). These events included the receipt by the Committee of “documentation of allegations calling into question the construction quality of the housing built by some HPD-selected developers” (id.). They also included “investigations by the United States Department of Labor (DOL) as well as allegations in the press indicat [ing] possible underpayment and other mistreatment of .construction laborers by some HPD-selected developers and their contractors,” and the indictment of several HPD-selected developers and HPD staff “on charges related to manipulation of HPD’s developer selection process” (id.).

To address these concerns, section 26-902 (a) of the new chapter 10 requires HPD to disclose on its website “the list identifier and the criteria used by the department to determine whether an entity [developer, contractor or subcontractor] qualifies for [each prequalified] list.” Section 26-902 (b) requires HPD to disclose on its website “the list identifier, the name and address of each entity on [a disqualified] list and the name and title of each principal officer and principal owner of such entity and the criteria used by the department to determine whether an entity is disqualified.”

[212]*212Section 26-903 (a) requires HPD to disclose on its website certain information concerning each affordable housing project carried out using discretionary financial assistance. This includes the project identifier; the applicable HPD program; the project’s size, location, and number of proposed dwellings (separated by bedroom number, income limits and rents); the amount and type of financial assistance given by the City; the anticipated completion dates; the name, address, and principal owners of the developers, contractors, and subcontractors; the manner in which the developers were selected, including if prequalified or disqualified lists were used; whether work on the project will be subject to state or federal prevailing wage law; descriptions of the final outcomes of complaints related to prevailing wage violations; and the total number of “construction conditions” (violations, quality complaints, and quality determinations by HPD) related to the project along with a description of any remedial actions taken, ordered, or requested by HPD. Section 26-903 (b) provides that for projects where the developer was selected by HPD after January 1, 2013, HPD must update project information at least once every six months until completion and must update the information on construction conditions at least once every six months until five years after completion.

Section 26-904 requires quarterly wage reports from contractors and subcontractors with annual gross revenues of at least $2.5 million. The reports must include each laborer’s job title along with the information specified under Labor Law § 195 (3). Section 26-905 provides that, “[i]n addition to any other penalty provided by law,” any contractor or subcontractor which (a) “fails to provide wage reporting information in accordance with section 26-904,” or (b) has “a history of construction conditions, as determined by [HPD],” “shall be ineligible to be included on a prequalified list of contractors and subcontractors.”

Plaintiffs and defendants City of New York and HPD contend that Local Law No. 44 is preempted by state statutes, including Labor Law §§ 650-665, Municipal Home Rule Law § 11 (1) (f), and various provisions of the General Municipal Law and the Private Housing Finance Law. Plaintiffs also contend that the law violates the Due Process and Equal Protection Clauses of the Constitution.

“A local law will be preempted either where there is a direct conflict with a state statute (conflict preemption) or where the [213]*213legislature has indicated its intent to occupy the particular field (field preemption)” (Eric M. Berman, P.C. v City of New York, 25 NY3d 684, 690 [2015]; see DJL Rest. Corp. v City of New York, 96 NY2d 91, 95 [2001]).

Under the doctrine of field preemption, a municipality is prohibited from exercising a police power “when the Legislature has restricted such an exercise by preempting the area of regulation” (New York State Club Assn. v City of New York, 69 NY2d 211, 217 [1987], affd 487 US 1 [1988]). In that event, local governments are precluded from enacting laws on the same subject matter whether or not they actually conflict with state law (see Matter of Chwick v Mulvey, 81 AD3d 161, 172 [2d Dept 2010]), unless there is “clear and explicit authority to the contrary” {DJL Rest. Corp., 96 NY2d at 95 [internal quotation marks omitted]).

Field preemption may be based on an express statement in the statute that it preempts all local laws on the same subject matter or “implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area” (Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372, 377 [1989]). To find implied preemption there must be clear evidence that the legislature has “evinced its desire to do so and that desire may be inferred from a declaration of State policy by the Legislature or from the legislative enactment of a comprehensive and detailed regulatory scheme in a particular area” (New York State Club Assn., 69 NY2d at 217).

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Cite This Page — Counsel Stack

Bluebook (online)
141 A.D.3d 208, 33 N.Y.S.3d 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-york-state-assn-for-affordable-hous-v-council-of-the-city-of-ny-nyappdiv-2016.