SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: SPECIAL TERM ------------------------------------------------------------------------x In the Matter of the

Application of : NEW YORK CITY COUNCIL : BARUCH HOUSES TENANTS ASSOCIATION, : ROBERTO NAPOLEON, : DOUGLASS HOUSES TENANTS ASSOCIATION, : and JANE WISDOM, : : Petitioners, : : For an Order Pursuant to Article 78 of : the Civil Practice Law and Rules, and : for other relief, : : -against: : NEW YORK CITY HOUSING AUTHORITY; : JOHN B. RHEA, as Chairman of the Board of the : New York City Housing Authority, : : Respondents. : ------------------------------------------------------------------------x

Index No.

Memorandum of Law in Support of Petition

TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .....................................................................................................1 STATEMENT OF FACTS ..............................................................................................................2 A. B. C. D. NYCHA Fails to Seek Meaningful Input from NYCHA Residents ....................................3 NYCHA Refuses to Submit the Land Lease Initiative to the ULURP ................................3 Despite Widespread Objections, NYCHA Begins Formal Implementation of the Land Lease Initiative.....................................................................................................................4 NYCHAs Failure to Describe the Land Lease Initiative in its 2013 Annual Plan .............5

ARGUMENT...................................................................................................................................6 I. NYCHA LACKS STATUTORY AUTHORITY UNDER STATE OR FEDERAL LAW TO OPEN PUBLIC HOUSING LAND FOR PRIVATE RESIDENTIAL DEVELOPMENT. ...............................................................................................................6 EVEN IF NYCHA HAD THE POWER TO MOVE FORWARD WITH THE LAND LEASE INITIATIVE, IT WOULD BE REQUIRED TO FOLLOW ULURP..................12 NYCHA MAY NOT MOVE FORWARD WITH THE LAND LEASE INITIATIVE IN 2013 BECAUSE THE PLAN WAS NOT DESCRIBED IN NYCHAS 2013 ANNUAL PLAN. ..............................................................................................................13

II. III.

CONCLUSION..............................................................................................................................15

TABLE OF AUTHORITIES Page(s) CASES Abiele Contracting, Inc. v. New York City Sch. Constr. Auth., 91 N.Y.2d 1 (1997) ................................................................................................................6, 7 Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985).................................................................................................................11 Baldwin v. Housing Authority of City of Campden, 278 F.Supp.2d 365 (D.N.J. 2003) ............................................................................................14 Corwin v. Farrell, 303 NY 61 (1951) ......................................................................................................................9 Council of New York v. Giuliani, 93 N.Y.2d 60 (1999) ............................................................................................................9, 10 Gregory v. Ashcroft, 501 U.S. 452 (1991).................................................................................................................11 Holmes v. New York City Hous. Auth., 398 F.2d 262 (2d Cir. 1968)...................................................................................................8, 9 Margulis v. Lindsay, 31 N.Y.2d 167 (1972) ..............................................................................................................12 Matter of Flynn v. State Ethics Commn, 87 N.Y.2d 199 (1995) ................................................................................................................6 New York City Hous. Auth. v. Watson, 27 Misc. 2d 618 (1st Dept 1960) ...............................................................................................7 Nixon v. Mo. Mun. League, 541 U.S. 125 (2004).................................................................................................................11 People ex rel. City of Olean v. Western New York & Pennsylvania Traction Co., 214 N.Y. 526 (1915) ..................................................................................................................7 Saltser & Weinsier v. McGoldrick, 295 N.Y. 499 (1946) ..................................................................................................................7 Saratoga Cnty. Chamber of Commerce v. Pataki, 100 N.Y.2d 801 (2003) ..............................................................................................................6

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Wisc.Pub. Intervenor v. Mortier, 501 U.S. 597 (1991).................................................................................................................11 STATUTES 42 U.S.C. 1437c-1..................................................................................................................13, 14 42 U.S.C. 1437p..........................................................................................................................10 N.Y. Pub. Hous. Law 2 .................................................................................................................7 N.Y. Pub. Hous. Law 3(13) ......................................................................................................8, 9 N.Y. Pub. Hous. Law 3(14) ......................................................................................................8, 9 N.Y. Pub. Hous. Law 3(15) ........................................................................................................13 N.Y. Pub. Hous. Law 37 ...............................................................................................................9 N.Y. Pub. Hous. Law 150 .................................................................................................1, 12, 13 N.Y. Pub. Hous. Law 401 .............................................................................................................7 CONSTITUTIONAL PROVISIONS N.Y. State. Const. Art. XVIII ......................................................................................................7, 9 OTHER AUTHORITIES 24 C.F.R. 903.7(h) .........................................................................................................................14 N.Y. Charter ch. 8 197-c(a)(8)....................................................................................................13

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PRELIMINARY STATEMENT Earlier in 2013, the New York City Housing Authority (NYCHA) announced an unprecedented initiative, known as its Land Lease initiative, to allow private developers to build market-rate residential high rises on several parcels of public housing land in Manhattan south of 104th Street. Despite NYCHAs mission to provide housing to low-income New Yorkers, the rents in these buildings will be affordable only to New York City residents with high incomes. NYCHA is moving forward with the Land Lease initiative in violation of New York State and federal law and should be enjoined from doing so. New York State law does not authorize NYCHA to lease or transfer New York Citys public housing land to private developers for use as market-rate housing. NYCHA asserts that federal law grants it this power but that is incorrect. Federal law may allow the United States Department of Housing and Urban Development (HUD) to approve the Land Lease initiative, but federal law does not, and cannot, empower NYCHA to pursue it. NYCHAs powers come from New York State law and under New York State Law, public housing land may only be used to house low-income residents. Furthermore, New York State law requires NYCHA to comply with New York Citys Uniform Land Use Review Procedure (ULURP) in implementing significant changes to public housing projects. NYCHA has stated publicly that it is not required to comply with ULURP because NCYHA is a State-created authority subject to federal government regulation. However, Section 150 of the New York State Public Housing Law requires housing authorities such as NYCHA to obtain approval from the local legislative body for significant changes to

public housing projects which the Land Lease initiative certainly is. In New York City, the designated process for obtaining this approval is ULURP. In addition, federal law requires NYCHA to consult with affected residents and resident associations before developing a plan to transfer public housing land to private interests, and to publish notice of any such initiative in its annual plan. Yet while NYCHA has gone through the motions of holding resident meetings in order to create the appearance of complying with the consultation requirements of federal law, it has insisted on pressing forward with the Land Lease initiative in 2013 despite having failed to describe the plan in its 2013 Annual Plan as required by federal law, and despite widespread calls to submit the plan to further deliberation and review by residents and local government officials. Petitioners, the New York City Council, the residents associations of two of the affected developments, and the presidents of these associations, bring this petition to prevent NYCHA from transferring public housing land to private developers without statutory authorization and without the legally required collaboration of City elected officials or NYCHA residents. STATEMENT OF FACTS Early in 2013, NYCHA publicly announced a plan to lease public housing project land to private developers for purposes of building market-rate housing. Verified Petition 1. The plan, which NYCHA refers to as its Land Lease initiative, would mark the first time in the history of New York City that public housing land is opened to large-scale private residential development with the majority of units rented out at market rates. Id. 13. NYCHA asserts that it needs the revenue from high-income housing in order to support its capital budget. Id. 14. Under the Land Lease initiative, fourteen parcels of land from eight NYCHA developments, including those of petitioners Baruch Houses Tenants Association and the 2

Douglass Houses Tenants Association, would be leased for 99 years to private developers for the purpose of building high-rise residential buildings. Id. 12. Eighty percent of the units in the new developments would be leased out at market rates, with only twenty percent of units reserved for low-income individuals. Id. Current market rents in the neighborhoods NYCHA has chosen are far beyond the reach of even middle-income New York City residents, much less the low-income New Yorkers it is NYCHAs mission to serve. Id. 16. A. NYCHA Fails to Seek Meaningful Input from NYCHA Residents NYCHA asserts that it has undertaken a multi-year effort to engage residents, elected officials and other community leaders in the development process for the Land Lease initiative. Id. 18. In truth, however, NYCHA has refused to submit the plan for approval by elected officials and has presented the Land Lease initiative to affected residents and resident associations in a series of perfunctory public meetings which it had little intention of incorporating into its actual decision-making process. Id. NYCHAs approach to its meetings with residents is epitomized by the way one of its officials reportedly responded to a question at a meeting at the Campos Plaza development: Come up with a better idea or shut up. Id. 22. As discussed below, NYCHAs meetings with residents have unsurprisingly resulted in no material changes to the Land Lease initiative. B. NYCHA Refuses to Submit the Land Lease Initiative to the ULURP Since NYCHA announced the Land Lease initiative, elected officials and residents of the affected NYCHA developments have urged NYCHA to slow down the process to allow for broader community consultation and consideration of a wider range of development alternatives. Resident associations representing seven of the eight impacted developments, including those of petitioners Baruch Houses Residents Association and Douglass Houses Residents Association, have publicly opposed the plan in its current form. Id. 23. Residents, 3

community leaders, and elected officials have called on NYCHA to submit to the Land Lease initiative to ULURP, New York Citys established mechanism for deliberation and community participation concerning proposed developments. Id. 23-24. NYCHA has rejected these calls to submit the Land Lease initiative to the ULURP or otherwise alter its content or timetable. In response to numerous written inquiries from elected officials and others, NYCHA has stated that the Land Lease initiative is not subject to ULURP, and that the only approval process NYCHA will undertake is the HUD procedure governed by federal statutes and regulations. Id. 25-26. C. Despite Widespread Objections, NYCHA Begins Formal Implementation of the Land Lease Initiative Despite widespread calls for further deliberation, NYCHA issued a Request for Expressions of Interest (RFEI) for the Land Lease program on August 16, 2013. Id. 28 & Ex. B. The RFEI invites developers to submit proposals for the design, construction and operation of the residential developments called for by the Land Lease initiative. Id. As NYCHA had previously indicated on its Land Lease website, such a request for proposals from developers would represent NYCHAs formal[] decision to move forward with the Land Lease initiative. Id. To no ones surprise, NYCHAs RFEI makes no material changes to the Land Lease initiative, as compared to what was described in documents issued before NYCHAs summer 2013 meetings with public housing residents. The RFEI includes the same fourteen sites at the same eight developments as originally proposed. Id. 29. It calls for the same 80%/20% mix of market-rate to affordable units, with the 20% affordable units governed by the same income formula as described in the pre-RFP document. Id. It includes substantially the same financing requirements and design requirements. Id. The only change from the pre-RFP 4

document is that an unspecified amount of ground floor retail use is now requested at eight of the fourteen sites. As the proposed buildings are high rises, this is an insignificant difference. Furthermore, though NYCHA has attempted to characterize its issuance of an RFEI rather than a Request for Proposals as a concession to public opposition, the RFEI in fact calls for a rapid process for selecting developers and moving forward with the Land Lease initiative, with no required involvement from anyone besides NYCHA and HUD. Id. 30. Expressions of Interest from developers are due on November 18, 2013. Id. An internal selection committee of NYCHA staff will review the submissions, and may recommend to the NCYHA board that a Developer be selected for a particular Development Parcel. Id. If the NYCHA board approves the recommendation, it will issue a Conditional Designation Letter to the developer. The selected Applicant must begin pre-development work within thirty (30) days of the date of the conditional Designation Letter. Id. In short, while NYCHAs RFEI is not called a Request for Proposals, it is the functional equivalent of a request for proposals. It represents NYCHAs formal decision to unilaterally move forward with the Land Lease initiative. D. NYCHAs Failure to Describe the Land Lease Initiative in its 2013 Annual Plan In addition to the above procedural deficiencies, NYCHAs federally-mandated annual plan for 2013, dated October 18, 2012 (2013 Annual Plan), provides no detailed description of the Land Lease initiative as required by federal law. Id. 32. The 2013 Annual Plan1 does not identify the eight housing developments to be affected, the fourteen parcels to be included, or even the proportion of market-rate units to low-income units contemplated. The

The entire 2013 annual plan, a 226-page document, is available on the Internet at http://www.nyc.gov/html/nycha/downloads/pdf/Final_FY2013_Annual%20Plan_10_18_2012.pdf.

2013 Annual Plan simply states that NYCHA is planning a mixed-use, mixed-income development, without specifying the size, location, or nature of the planned development.2 In contrast to the 2013 Annual Plan, NYCHAs draft 2014 Annual Plan does describe the essential details of the Land Lease initiative, identifying the eight houses to be affected, the fourteen parcels to be included, and the proportion of market-rate units to lowincome units (80% to 20%).3 NYCHAs draft 2014 Annual Plan states that NYCHA staff is currently meeting with stakeholders and plans to develop and issue a Request for Proposal (RFP) in the spring for 14 sites located within 8 developments in Manhattan south of 110th St.4 In fact, however, NYCHA did not wait until the spring of 2014 to request proposals for the Land Lease initiative. It did so in 2013, despite the lack of notice in the 2013 Annual Plan. ARGUMENT I. NYCHA LACKS STATUTORY AUTHORITY UNDER STATE OR FEDERAL LAW TO OPEN PUBLIC HOUSING LAND FOR PRIVATE RESIDENTIAL DEVELOPMENT. Under the New York State Constitution, the powers of statutorily-created agencies are limited to those granted by statute, either expressly or by necessary implication. Saratoga Cnty. Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 823 (2003) ([B]ecause agencies are creatures of the Legislature, the Constitution requires that agencies carry out only those duties assigned them by the Legislature expressly or by necessary implication.); Abiele Contracting, Inc. v. New York City Sch. Constr. Auth., 91 N.Y.2d 1, 10 (1997) ([A] creature of statute lacks powers not granted to it by express or necessarily implicated legislative delegation.) (quoting Matter of Flynn v. State Ethics Commn, 87 N.Y.2d 199, 202 (1995));
2 3

Id. at 12.

The draft 2014 Annual Plan is available at http://www.nyc.gov/html/nycha/downloads/pdf/draft-annualplan-fy2014.pdf, at 13-16.

4

Id. at 14 (emphasis added).

internal citation omitted). A power not expressly granted by statute is implied only where it is so essential to the exercise of some power expressly conferred as plainly to appear to have been within the intention of the legislature. Saltser & Weinsier v. McGoldrick, 295 N.Y. 499, 506 (1946) (quoting People ex rel. City of Olean v. Western New York & Pennsylvania Traction Co., 214 N.Y. 526, 529 (1915)). If an agency acts without statutory power or in excess thereof, the action is void. Abiele Contracting, Inc., 91 N.Y.2d at 10. The New York Public Housing Law is the basis for NYCHAs existence and the source of its powers. See N.Y. Pub. Hous. Law 401 ([t]he New York City Housing Authority is hereby constituted and declared to be a body corporate and politic with all the powers, rights and duties set forth in the Public Housing Law); New York City Hous. Auth. v. Watson, 27 Misc. 2d 618, 618 (1st Dept 1960) ([T]he . . . New York City Housing Authority[] is a public corporation existing by virtue of the Public Housing Law.). The Public Housing Law does not grant NYCHA the power, either expressly or implicitly, to transfer public housing land to private developers for the purpose of building housing that will be affordable only to high-income individuals. On the contrary, the purposes of the Public Housing Law are the clearance, replanning, reconstruction and rehabilitation of substandard and insanitary areas and the providing of adequate, safe and sanitary low rent housing accommodations . . . for persons and families of low income. N.Y. Pub. Hous. Law 2 (emphasis added). These purposes are enshrined in Article XVIII of the New York State Constitution, which authorizes the Legislature to provide . . . low rent housing and nursing home accommodations for persons of low income as defined by law and for the clearance, replanning, reconstruction and rehabilitation of substandard and insanitary areas. N.Y. State. Const. Art. XVIII, Sec. 1. NYCHA exists to pursue these constitutional and statutory purposes

in New York City. See Holmes v. New York City Hous. Auth., 398 F.2d 262, 263 (2d Cir. 1968) (The New York City Housing Authority is a public corporation created pursuant to the Public Housing Law of the State of New York for the purpose of implementing the State Constitution by providing low-rent housing for persons of low income as defined by law.). Under the Public Housing Law, housing authorities such as NYCHA carry out public housing plans and projects. N.Y. Pub. Hous. Law 37(1)(d). Both plans and projects are limited by statutory definition to the constitutional purposes of the Public Housing Law: clearing substandard or insanitary areas and providing housing for people of low income. See N.Y. Pub. Hous. Law 3(13) (defining plan as a plan or undertaking for the clearance, replanning and reconstruction or rehabilitation of a substandard and insanitary area or areas . . . to effectuate the purposes of article eighteen of the constitution . . . or providing homes for persons of low income); id. 3(14) (defining project as a specific work or improvement to effectuate all or any part of a plan). Notably, the term project expressly includes the lands, buildings or any dwelling units used to provide dwelling accommodations for persons of low income, as well as any non-housing facilities that are incidental or appurtenant to a project. Id. Furthermore, the Public Housing Law expressly includes federal projects financed, in whole or in part, by the federal government, within its statutory definition of housing projects. Id. 3(15). All eight of the NYCHA housing developments affected by the Land Lease initiative are public housing projects under the meaning of the Public Housing Law. Verified Petition 12. The fourteen parcels to be leased for the development of market-rate residential high-rises constitute lands and non-housing facilities on these projects and are therefore, by definition, part of the projects themselves. N.Y. Pub. Hous. Law 3(14). Under the Public

Housing Law, these parcels must be used to provide dwelling accommodations for persons of low income. Id. 3(14). NYCHAs enumerated powers, which are set forth in section 37 of the Public Housing Law, do not authorize NYCHA to lease public housing project land to be used as highincome housing. See id. 37. On the contrary, NYCHAs power to lease lands is expressly limited to projects (which, by definition, are limited to low income residents as discussed above) or other programs to provide dwelling accommodations for persons of low income. See id. 37(k) (granting housing authorities power to lease or rent, as lessor or sublessor, any of the housing or other accommodations or any of the lands, buildings, structures or facilities embraced in any project or connected with any program to provide dwelling accommodations for persons of low income, and establish and revise the rents or charges therefore). Moreover, even if NYCHAs enumerated powers could be read literally to include the power to transfer housing project land to private developers which they cannot these powers would still be limited by NYCHAs purpose of implementing the State Constitution by providing low-rent housing for persons of low income as defined by law. Holmes, 398 F. 2d at 263; accord Corwin v. Farrell, 303 N.Y. 61, 63 (1951) (noting that NYCHA is a public corporation engaged, pursuant to article XVIII of our State Constitution and the Public Housing Law, in the construction and operation of public low rent housing projects); N.Y. Pub. Hous. Law 3(13) (defining plan to be an undertaking to effectuate the purposes of Article 18 of NY Constitution); id. 2 (articulating policy and purpose of Public Housing Law). In Council of New York v. Giuliani, 93 N.Y.2d 60 (1999), the New York Court of Appeals addressed a similar attempt by the New York City Health and Hospitals Corporation (HHC) to sublease public real estate (the Coney Island Hospital) to a private, for-profit entity.

The Court of Appeals concluded that HHCs statutory power to lease land did not include the power to lease a public hospital to a for-profit hospital corporation. Id. at 7172. As the Court explained: [T]he sections upon which defendants rely recognize that HHC's ability to divest itself of its assets or services is limited by HHC's corporate purpose. To read these sections to permit the wholesale transfer of administrative, operations and management control over Coney Island Hospital to a private for-profit entity would be incongruous with the statutory purpose and intent of the Legislature. Id. at 71. The Court emphasized that in interpreting the scope of legislative grants of power the spirit and purpose of the act and the objects to be accomplished must be considered. Id. at 69. The Courts reasoning in Council of City of New York v. Giuliani applies even more strongly to NYCHAs Land Lease initiative. Notably, the HHC planned to sublease the Coney Island Hospital to a for-profit corporation that would be contracted to continue operating the hospital similarly to how it had previously been run. See id. at 66-68. NYCHA, however, proposes to lease housing project land to private developers for the purpose of developing highincome housing, the exact opposite of NYCHAs mission to provide housing for low-income New York City residents. NYCHAs Land Lease initiative is even more incongruous with the statutory purpose and intent of the Legislature than was HHCs plan to privative the Coney Island Hospital. Id. at 71. Contrary to NYCHAs belief, federal law does not grant it the power to proceed with the Land Lease initiative that is lacking in State law. RFEI, Ex. B to Petition, at 16. By its terms, Section 18 of the Housing Act of 1937, the federal statute on which NYCHA relies, grants powers only to HUD. See 42 U.S.C. 1437p (authorizing HUD to approve an application by a public housing agency for authorization . . . to demolish or dispose of a public housing project

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or a portion of a public housing project). It does not purport to grant any powers to NYCHA, which as discussed above is a creature of State, not federal, law. In the absence of an express grant of power to NYCHA in the federal statute, none can be drawn by implication. It is an established principle of federal law that federal legislation threatening to trench on the States' arrangements for conducting their own governments should be treated with great skepticism, and read in a way that preserves a State's chosen disposition of its own power. Nixon v. Mo. Mun. League, 541 U.S. 125, 140 (2004). Federal statutes will not be read to alter the powers of State governmental entities unless there is plain statement to that effect. Id.; see also Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) ([I]f Congress intends to alter the 'usual constitutional balance between the States and the Federal Government,' it must make its intention to do so 'unmistakably clear in the language of the statute.) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)). This principle applies even more strongly to local entities such as NYCHA, as it is well settled that local governmental units are created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them in its absolute discretion. Wisc. Intervenor v. Mortier, 501 U.S. 597, 607-08 (1991) (quotation marks omitted; alterations incorporated). The existence of a federal mechanism for HUD to approve applications by local housing agencies to dispose of public housing land does not confer any powers on NYCHA, whose powers come from New York State law. As discussed above, New York State law limits housing project land, such as the fourteen Land Lease sites, to the purpose of providing lowincome housing. NYCHA lacks the statutory authority to pursue the high-income developments called for by the Land Lease initiative.

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II.

EVEN IF NYCHA HAD THE POWER TO MOVE FORWARD WITH THE LAND LEASE INITIATIVE, IT WOULD BE REQUIRED TO FOLLOW ULURP. Even if NYCHA had the statutory power to pursue the Land Lease initiative, it

would still be required to submit the plan to ULURP for review and approval. NYCHA has stated publicly that like other New York state-chartered public benefit corporations such as the Port Authority, it is not subject to . . . ULURP, and that only those aspects of the Land Lease initiative that involve changes in New York City land use regulations, such as the required ground floor retail at select parcels, are subject to ULURP. RFEI, Ex. C to Petition, at 16. NYCHA is incorrect. New York State Public Housing Law specifically requires NYCHA to submit every plan or project to the local legislative body for approval, which in the case of New York City is obtained through the ULURP process. Section 150 of the New York State Public Housing Law provides that the prior approval of the local legislative body and of the planning commission is requisite to the final adoption or approval by an authority or municipality of a plan or project. N.Y. Pub. Hous. Law 150. Under controlling New York Court of Appeals case law, any essential or significant modification to a public housing plan or project requires approval under Section 150. Margulis v. Lindsay, 31 N.Y.2d 167, 173 (1972). In particular, any change to the number and quality of the tenant population is a significant modification requiring prior approval. Id. The Land Lease initiative constitutes a significant modification to plans or projects, and therefore requires approval under section 150. All of the eight NYCHA developments affected by the plan, including their associated land and non-housing facilities, are housing projects under New York State law. The Land Lease initiative would involve a significant increase in the number of individuals residing on these projects, and would also change the nature of the tenant population (from low-income to high-income). Furthermore, as 12

discussed above, section 150, relying as it does on the statutorily-defined term project, expressly applies to federal projects. N.Y. Pub. Hous. Law 3(15). For cities of one million or more people such as New York, the Public Housing Law defines local legislative body as the officer or agency vested with power under the charter of such city, or by other law, to act pursuant to this chapter. Id. 3(7) (emphasis added). The entities the New York City Charter designates for the approval of public housing plans or projects are those set forth in ULURP. The Charter does so expressly: one of the categories to which ULURP applies is [h]ousing and urban renewal plans and projects pursuant to city, state and federal housing laws. New York, N.Y. Charter ch. 8 197-c(a)(8). Thus, under Section 150 of the Public Housing Law, the entities vested with power to approve public housing plans or projects or significant modifications thereto are those specified in ULURP. N.Y. Pub. Hous. Law 150. NYCHA is required to comply with those procedures. III. NYCHA MAY NOT MOVE FORWARD WITH THE LAND LEASE INITIATIVE IN 2013 BECAUSE THE PLAN WAS NOT DESCRIBED IN NYCHAS 2013 ANNUAL PLAN. Finally, by issuing an RFEI for the Land Lease initiative in 2013 while having failed to describe the Land Lease initiative in its 2013 Annual Plan, or any modification thereto, NYCHA has violated federal law limiting public housing authorities to activities included in its annual plan. Federal law requires each local public housing authority (PHA) to file and adhere to an Annual Plan setting forth its major initiatives, budget, and objectives. 42 U.S.C. 1437c-1. Among the necessary contents of the plans are any intended [d]emolition and disposition of federally funded housing projects. Id. 1437c-1(d)(8). In particular, the agency is required to include in its annual plan (A) a description of any housing for which the PHA will apply for demolition or disposition under section 18 [of the Housing Act of 1937]; and (B) a 13

timetable for the demolition or disposition. Id. Similarly, HUD regulations require PHA to include in its Annual Plan a description of any public housing development, or portion of a public housing development, owned by the PHA for which the PHA has applied or will apply for demolition and/or disposition approval under section 18 of the 1937 Act, and the timetable for demolition and/or disposition. 24 C.F.R. 903.7(h). PHAs are required comply with the rules, standards, and policies established in the public housing agency plan. Id. 1437c-1(l)(1). In accordance with the statutory mandate, NYCHA has published an Annual Plan for Fiscal Year 2013. However, NYCHAs 2013 Annual Plan does not identify the eight housing developments to be affected by the Land Lease initiative, the number of parcels included, or even the fact that 80% of the units would be market-rate. In contrast to the 2013 Annual Plan, NYCHAs draft 2014 Annual Plan does describe the essential details of the Land Lease initiative, identifying the eight houses to be affected, the number of parcels included, and the proportion of market-rate units to low-income units (80% to 20%). NYCHAs draft 2014 Annual Plan states that NYCHA staff is currently meeting with stakeholders and plans to develop and issue a Request for Proposal (RFP) in the spring for 14 sites located within 8 developments in Manhattan south of 110th St. In fact, however, NYCHA did not wait until the spring of 2014 to request proposals for the Land Lease initiative. It did so in 2013, despite the lack of notice in the 2013 Annual Plan. Because it has not provided a description of the Land Lease initiative in its 2013 Annual Plan or any amendment thereto, NYCHA is not permitted to issue and proceed with the RFEI for the Land Lease initiative in 2013. See Baldwin v. Housing Authority of City of Campden, 278 F.Supp.2d 365, 380-86 (D.N.J. 2003) (because public housing authority had not included specific eligibility criteria in annual plan or properly adopted amendment thereto, it

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could not rely on it to make eligibility determination). NYCHAs decision to do so is in violation of federal law. CONCLUSION For the above reasons, NYCHA should be enjoined from proceeding with the Land Lease initiative as set forth in its RFEI, and this Court should declare that any attempt to proceed with the Land Lease initiative is subject to ULURP. In the alternative, NYCHA should be required to rescind the Land Lease initiative RFEI for failure to describe it in its 2013 Annual

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Plan, and should be enjoined from considering any proposals received in response to the RFEI, or otherwise from moving forward with the Land Lease initiative in 2013. Dated: New York, New York October 10, 2013

Respectfully submitted, Steven Banks Attorney in Charge Adriene Holder Attorney in Charge, Civil Practice Judith Goldiner Attorney in Charge, Civil Law Reform Unit Robert Desir, of counsel Ellen Davidson, of counsel Lucy Newman, of counsel The Legal Aid Society 199 Water Street New York, NY 10038 (212) 577-3332 Elizabeth Fine, General Counsel Jeffrey P. Metzler, Chief of Litigation New York City Council 250 Broadway, 15th Floor New York, New York 10007 (212) 788-9131 Patterson Belknap Webb & Tyler LLP By: _________________________ Lisa E. Cleary Aron R. Fischer Zhiqiang Liu 1133 Avenue of the Americas New York, New York 10036 Tel: (212) 336-2000 Attorneys for the Petitioners

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