Abstract

Excerpted From: Andrew Darcy, New York City's Public Housing Preservation Trust: The Case for Cautious Optimism, Necessity, and Racial Justice, 51 Fordham Urban Law Journal 745 (March, 2024) (241 Footnotes) (Full Document)

The story of the New York City Housing Authority (“NYCHA”) is one of stark contradictions. In one telling, NYCHA is the result of progressive vision and innovation. As the nation's first public housing authority (“PHA”), it has, for nearly a century, successfully cemented a home and supportive community for millions of working-class and low-income New Yorkers. But, unfortunately, that is not the whole story. There is another one--one which has as main characters neglect, malfeasance, and disarray. For anyone attuned to New-York-related news, there is no longer a shock upon hearing that conditions at some NYCHA developments are downright horrid--or, as a line from a report issued by New York City's Public Advocate puts it, “entirely unlivable.”

How did things get this way? The answer is complex, subject to debate, and well documented. Suffice to say that it would be folly to argue that NYCHA's problems can be traced to a single source. The complexity notwithstanding, there is a simple truth (albeit one that might be contrary to the wisdom of the late Notorious B.I.G.): more money, fewer problems. NYCHA has been struggling with the competing challenges of a portfolio that comprises aging, deteriorating buildings, and decades of disinvestment from the federal government. The sum of this equation is more than $70 billion. That is, in order for NYCHA to make the repairs it needs to fully sustain its buildings, it needs more than $70 billion, which is money that it does not have. Without it, the unlivable conditions will not only persist, they will worsen. And, while the threat might not be imminent, it is not beyond the realm of possibility that without an infusion of capital funding, certain NYCHA developments could go the way of Robert Taylor Homes in Chicago and Pruitt-Igoe in St. Louis--turned to rubble.

Make no mistake about it: The fight for NYCHA is about more than repairs and the warranty of habitability. It is also about race and class. Nearly all people who call NYCHA home are people of color, and many of them are low income. That demography is no accident. The combination of 20th century discriminatory housing policies in the private market, white flight from the inner city, and policy choices regarding what type of housing to favor (private, single-family homes) and disfavor, conspired to create a segregated, deteriorating, low-income public housing system. Racial housing covenants, the practice of “steering” people of color away from white communities, as well as redlining--a practice by which the mortgage industry refused to lend or insure mortgages in communities of color-- made it difficult, if not impossible, for Black families to enjoy the fruits of home ownership in the burgeoning suburbs of mid-20th-century America. Thus, in New York City's challenging decades that spanned the 1970s through early 1990s, which saw severe fiscal problems and historically high crime rates, there was an exodus from public housing and the city, generally by those who had the means and opportunity.

The conditions in which many NYCHA residents live are not merely temporary, cosmetic inconveniences. Rather, housing conditions are directly related to dignity, health, economic security, and opportunity. It is not, therefore, hyperbole to frame the issue in terms of asking whether a significant percentage of New York's low-income people of color are entitled to the same basic opportunities as their more affluent neighbors.

Once framed as such, it becomes clear that NYCHA has not just a moral, but a legal obligation to ensure the answer is yes. Legally, NYCHA must comply with laws, regulations, and rules that govern the landlord-tenant relationship, but it must also do more. Specifically, it is required to take steps to affirmatively further fair housing (“AFFH”). AFFH obligations are found in federal and state law and are designed to ameliorate the vestiges of race-based housing discrimination. They have two aspects, both of which are tied to access to opportunity: (1) providing residents of marginalized communities the chance to move to areas deemed to be of higher opportunity, and (2) bringing opportunity to traditionally underserved communities through investment in resources.

While many discussions regarding AFFH obligations tend to focus on the former, the latter is the only realistic and appropriate option for NYCHA--a unique community within New York City that cannot, and should not, prioritize displacing its residents. Thus, NYCHA's AFFH obligation is, fundamentally, to preserve its permanently affordable housing and make meaningful efforts to transform its communities to higher-opportunity ones. The focus of this Article is one such action, albeit one that NYCHA may have taken without contemplating its AFFH obligations: the creation of the New York City Public Housing Preservation Trust (the “Trust”).

The Trust is a public benefit corporation, which is an agency or authority established by the government for a specific public purpose. The Trust was created by legislation enacted in June 2022. Its primary purpose is, at first glance, a modest one: to enter into long-term ground leases with NYCHA. The modesty, however, masks a potentially transformative change. Once a NYCHA development is leased to the Trust, it would no longer be pure public housing, otherwise known as Section 9. Rather, the property would convert to a form of Section 8 housing, which, for reasons ensconced in federal law, will allow NYCHA to obtain substantially increased funding for capital projects. As a result, the Trust is a vehicle that could allow NYCHA to end the cycle of disinvestment and disrepair that has continued for decades. It would provide the opportunity for NYCHA's residents to have safe, habitable homes, which would hopefully have a positive spillover effect on all aspects of life activities, from health to happiness.

Alarm bells have gone off about the Trust. The skepticism is appropriate. Any tinkering with public housing--the gold standard when it comes to deeply affordable housing with strong tenant protections--must be scrutinized with a magnifying glass. The skepticism is rightly amplified, given NYCHA's track record of deception and unfulfilled promises.

This Article suggests that the criticisms, while understandable, are not reason to reject the Trust outright. Rather, it argues that the Trust should be viewed with optimism and as a potentially transformative measure to reimagine what small “p” public housing is and can be. It is also a note of caution: the Trust is an opportunity for NYCHA to do it right. If NYCHA swings and misses, the Trust could very well be looked upon as a grave mistake. But there are ways to avoid that judgment, which this Article addresses in the following sections.

Part I provides a brief overview of NYCHA's history, including its innovative origins and strong benefits to tenants. It also details how disinvestment has negatively impacted NYCHA's residents to the point of crisis. Part II explains how issues of racial justice are inherent in any discussion relating to NYCHA. It then addresses the AFFH mandate, with a focus on preservation and place-based strategies. Part III details preservation and modernization efforts used by NYCHA in the past, as well as their shortcomings. Part IV provides a history of the Trust legislation, as well as an explanation of how a Trust conversion would work in practice. It also highlights the serious concerns that have arisen regarding the Trust. Part V addresses those concerns and suggests that the Trust is a critical component of NYCHA's fair housing obligations. It further explains how NYCHA should fulfill those obligations in practice. This Article concludes by contending that the Trust must succeed if permanently affordable, decent, public housing will exist in New York in the future.

[. . .]

The Trust is a creative and necessary method for NYCHA to preserve and modernize its housing stock while satisfying its AFFH obligations. It is a worthwhile experiment, and one that is sorely needed. Given that it is an experiment, it is also an opportunity to completely reimagine what public housing is and looks like. While popular media tends to focus on the negative, NYCHA developments are proud communities that are a core part of the fabric of New York. It is time that the government and NYCHA's neighbors provide the necessary support to allow NYCHA's communities to thrive.

For those who think that is an unrealistic and idealistic goal, bear in mind that “[t]here is very little inherent in the public housing model that precludes these outcomes; it is how our public and private institutions respond to public housing that has produced the negative outcomes we have seen in American public housing.” The challenge, instead, is one of will and one of resources.

The eyes of the country are on NYCHA, for it is not alone in struggling to manage its public housing. Leaders at all levels of government, tenant advocates, and resident leaders should work together to ensure the Trust experiment is not only a success for New York but for public housing residents across the country.

Assistant Clinical Professor of Law at Seton Hall University School of Law and Supervising Attorney at Mobilization for Justice, Inc. In 2022, I spent several months working as Special Counsel in the Office of Strategy and Innovation at the New York City Housing Authority (NYCHA).