Is ‘Housing Not Warehousing’ Next?

When DeBoRah Dickerson says “it’s been a journey,” she means it both figuratively and literally. The 63-year-old chaplain and community organizer was chronically homeless for several years as a result of family issues and poor health. She now has a home in East Flatbush and is dedicated to ensuring others don’t have to undergo what she experienced.

But she also participated in some real journeys on foot. In 2006, she walked up and down the streets of Manhattan with her roommate, a camera, and a sheet of information; in 2011 she assisted an operation of hundreds of volunteers, who walked neighborhoods throughout the five boroughs—both efforts to count the city’s vacant buildings and lots.

For over a decade, Dickerson has been a member of the organization Picture the Homeless, which since 2004 has pointed to the mismatch between the surging number of homeless people who have lost housing due to the affordability crisis, and the prevalence of vacant buildings and land parcels—both public and private—in neighborhoods throughout the city. The organization has conducted two of its own vacant property counts to bring attention to the problem.

“I call them vultures or gremlins. They’re sitting there waiting for the highest bidder,” says Dickerson, who would like to see vacant buildings transformed not only into housing but also community centers with activities for youth and job training for adults.

The fight to compel landlords to return their properties to productive use is by no means a new one, but the discussion has a new urgency given the current severity of the homelessness crisis as well as the ongoing debates regarding the de Blasio administration’s neighborhood upzoning strategy. The administration often argues that the affordability crisis is caused by an imbalance between the supply and demand of housing, and that upzonings will help to boost supply. Others, including Dickerson, who are concerned that rezonings exacerbate displacement, retort that there is plenty of supply sitting around— warehoused by landlords who seek to wait until the market is ripe.

But just how much vacant land still is sitting around is a source of contention. Since 2015, Picture the Homeless and other groups have been pushing a package of three bills called the Housing Not Warehousing Act, which would mandate property owners to register vacant properties, require the city to conduct a census of vacant property, and oblige the city to produce a report about the status of vacant publicly-owned parcels and describe their path to development. While the organization would like to see the city take aggressive steps to penalize or ban warehousing, they believe the first step is for the administration to get a clear picture of the landscape.

When introducing the Act, advocates were aware that De Blasio’s original housing plan called for a “comprehensive survey of all vacant sites in the City,” for taxing policies to be realigned to discourage warehousing, and for several city agencies to together create a census of vacant and underdeveloped publicly controlled properties, but that such promises had not yet been fulfilled.

At a hearing for the Act held in September 2016, representatives from the de Blasio administration expressed an openness to discussion on some parts of the act and great concern about others. The Department of Housing Preservation and Development (HPD) argued that it was already doing all it could to facilitate the construction of affordable housing on public land, and that private land and buildings are somewhat off-limits.

HPD’s current position on the bills is unclear. Asked by City Limits whether or not the city saw a need to discourage warehousing and to take a census of private and public land, HPD replied with standard facts about its efforts to develop city-owned sites. De Blasio said at a town hall meeting in Central Harlem this summer that he had never heard of the Housing Not Warehousing Act. This Thursday, when a Picture the Homeless member asked about the Act at an East Harlem town hall, he couldn’t answer and asked his staff to follow up.

HPD has taken what seems to be a step forward on the issue as a result of state legislative changes and new grant programs. In June of 2016, Albany signed into law a requirement that mortgage lenders register and maintain vacant, delinquent properties. To help municipalities enforce that law, the Local Initiative Support Corporation (LISC) awarded a variety of cities with funds to help address blight and foreclosure. HPD is receiving $350,000 for a “Zombie Homes Initiative,” which entails efforts like connecting homeowners at risk of foreclosure to resources and, according to SILive.com, working to create a database of vacant and abandoned properties as part of an effort to figure out new solutions to stabilize those properties. While HPD emphasizes that the focus of the initiative is on “zombie homes,” which they define as physically stressed, 1-4 family homes with delinquent mortgages, it seems to suggest that creating better tracking systems is not completely out of sight, out of mind.

In addition, support for the Housing Not Warehousing Act is growing in the Council. Over the past year, the council has successfully passed a number of important tenant protection bills, including the universal right to counsel in housing court, eighteen tenant harassment bills, and just this Wednesday, the creation of a real-time enforcement unit in the Department of Buildings to provide more prompt responses to tenant complaints. (The introduction of much-anticipated legislation related to a new, expanded “certificate of no harassment” system is taking longer than originally expected—and just how much more expanded still is unclear—but Councilmember Brad Lander is optimistic something will be announced at the end of the year and credits the delay to a “very thorough and inclusive” process to build the best legislation possible.)

Is Housing Not Warehousing next up for consideration? Bills 1034 and 1036 each have over 30 sponsors, 1039 is already veto-proof, and the sponsors of the three bills recently penned an editorial in support of the Act in City and State.

“I do believe it’s time to get moving,” says Councilman Jumaane Williams, one of the sponsors and chair of the committee on Housing and Buildings. He says he’ll be meeting with HPD soon on his bill, hopes to resolve some disagreements, and may push it forward anyway even if disagreements can’t be resolved.

City Council Speaker Melissa Mark-Viverito, who supported an earlier census bill in 2010 that the Bloomberg administration shot down and has in the past vocalized her concern about warehousing, is not a co-sponsor of any of the Act’s bills and would not reply to requests for comment about her position on the Act.

Justification for better tracking

Councilmembers and advocates say there’s a variety of reasons why creating better systems to identify vacant properties is necessary.

“I’m not sure that we have the best grasp on what’s out there,” says Williams. “I don’t know if it’s a form that’s manipulate-able enough for us to make good policy,” he said, adding that there may also be communication issues between HPD, elected officials, and advocates about the status of vacant properties. He says that even if the de Blasio administration is taking an active approach to repurposing vacant land and buildings “that doesn’t make that the next administration will and it’s important to codify this.”

“There are lots of properties that are not on their radar that I have been involved with in my various capacities over the years,” says Paula Segal of the Urban Justice Center, formerly the director of 596 Acres. 596 Acres compiled the Living Lots NYC map using city data sources, but Segal says her organization often discovered that federal and authority-owned property was sometimes not mapped as vacant lots, and data about city property sometimes mischaracterized the reality on the ground.

While some advocates want a census because they believe the results will justify the creation of a vacancy tax—the legal details of which City Limits will explore in a piece later this month—others say that taking a census is important in itself, and that once there is a better understanding of the vacancies that exist, a host of different strategies could be used to return them to productive use.

Segal notes that the city has a great deal of leverage over tax-delinquent properties but does not determine which of the tax-delinquent properties are vacant. She would like the city to remove vacant properties from the tax list and transfer them to third-party owners, through the existing Third Party Transfer system, who can rehabilitate those properties as affordable housing.

Having an understanding of what properties in a neighborhood are vacant can also be helpful to community representatives in neighborhoods where a rezoning is under debate. Jeremiah Schlotman, a Legal Aid attorney and chair of the Community Board 11 housing committee in East Harlem, says the board is currently cobbling together its own analysis of neighborhood property uses—including information about vacant properties—so that the board is better informed about opportunities for development while engaging with both city agencies and developers.

“I want to know exactly what’s out there and who owns it because that will certainly change, or could potentially change, the way you approach different situations,” says Schlotman, explaining that different landlords have different reasons for warehousing: While there may be larger landlords who have their own development plans and might not even react to a fee on warehousing, there are some smaller landlords who have had bad experiences with tenants in the past but may be more amenable to housing low-income families if they are given the right package of subsidies, he believes.

Earlier census attempts

Figuring out how to define vacant property—and where it is—isn’t as simple as it seems. A seemingly empty parcel of land could actually serve an important infrastructure purpose unbeknownst to the public. A building may have an active commercial ground floor and look occupied, but in fact have no tenants on the second or third floors.

The city already has some records about what buildings units are vacant. Every three years HPD conducts the Housing and Vacancy Survey, performing in person surveys with one in every 170 New York City households. According to the survey’s 2014 results, the city’s rental vacancy rate is only 3.45 percent, a level that constitutes a housing emergency. But the U.S. Census Bureau makes the calculation with a formula that excludes dilapidated units that are not available for rent. Picture the Homeless’s Sam Miller says this results in an underestimation of the total number of vacant units in the city.

Other agencies, including the Department of Buildings, the Fire Department, and the Department of Finance, also collect information about vacant buildings. The Department of Finance sends inspectors to look at 300,000 buildings (out of the city’s more than 1 million total), and as of 2015 had observed 764 vacant buildings vacant; of those 27 are city-owned. Yet HPD Deputy Commissioner Daniel Hernandez himself cautioned at last year’s hearing that “a visual inspection, such as the one DOF performs, can be imperfect” and fail to count buildings that “through observation, look as if it houses residents or is used for its intended purpose.”

As for empty lots, the Department of Finance classifies land as vacant based on assessor inspections, sales files, and building records of demolition. Hernandez cited 26,000 lots categorized as vacant, but said that the number includes sites that are about to be developed and that are used for important infrastructure or community purposes. About 7,400 of those parcels, including a variety of lots that may or may not be feasible spots for development, are owned by city-agencies. HPD estimated that of the approximately 1,100 properties in its own portfolio, 760 were suitable for development, and plans are already underway for 400 of those sites.

And then there have been efforts by others: The census conducted by Picture the Homeless and Hunter College in 2011 involved identifying key neighborhoods with vacancies using city data, then sending almost 300 volunteers to those neighborhoods to conduct block-by-block surveys of vacant buildings and property. Using this method—which, they emphasize, cost a modest $150,000—Picture the Homeless concluded that in the one third of the city it surveyed, there were 3,551 vacant buildings and 2,489 vacant buildings. Comptroller Scott Stringer, (who when he was Manhattan borough president worked with Picture the Homeless on their earlier 2006 survey of Manhattan) released his own report in 2016 focused just on city-owned properties, and concluding that HPD’s 1,100 properties could be developed, that there were 340 other city-owned parcels that were also suitable for development, and that HPD was moving too slowly.

But City Limits found there were issues with some of the properties identified by Stringer as vacant. HPD has also objected to Stringer’s analysis, arguing that almost 500 of its properties were not suitable for development, and noting that housing development requires a process of extensive community engagement and investment in new services.

Figuring out how to track vacant properties is a concern across the country. In the wake of the foreclosure crisis, many local governments made efforts to establish tracking systems. According to HUD, from 2000 to 2012, the number of ordinances in the United States requiring landlords to register vacant properties increased from fewer than 20 to more than 550. For many years, Boston has conducted an annual survey of unoccupied, distressed buildings and published lists of such privately owned buildings on its website. In 2016, Vancouver, in its efforts to address its affordability crisis, used city electricity usage records to determine how many buildings are unused for significant periods of time, and a lawmaker in San Francisco now hopes to follow Vancouver’s lead.

A number of concerns

The Housing Not Warehousing Act approaches the matter from three angles. Intro 1034 would require all private landlords to register if their property is vacant for a year or more, potentially pay a registration fee, and face penalties of $100 to $500 if they fail to register within two month. It does not define “vacancy.” 1036 requires an annual census of vacant buildings, defined as those “not being used for any purpose for which it may lawfully be used” and vacant lots “on which no lawful structure exists and which is not otherwise being used for any purpose for which it may lawfully be used.” Intro 1039 requires the city to submit a report to the Mayor and Speaker of City Council about what public property—including federal and state property—is suitable for development and chart out a path for its use.

Last year, HPD raised a number of issues with the bills: that the agency would be tasked with overseeing a registry of properties that aren’t necessarily in its jurisdiction, including commercial and manufacturing buildings, that the penalties imposed for failing to register are too high, and that publicly disclosing the location of public vacant sites could have negative consequences, such as revealing sensitive information like the location of key environmental infrastructure. HPD also argued that publicly disclosing the city’s plans for its public sites could lead to a frenzy of land price speculation nearby, making it difficult for HPD to acquire parcels adjacent to its sites.

But HPD’s largest concern was one of cost and energy—that “monitoring and collection required by the census would require extensive staff time and a commitment of financial resources without providing the data we really believe is desired,” Hernandez said at the hearing.

HPD argued last year that the census would provide a lot of unneeded information about private vacant land that it does not necessarily have control over. It insisted it was already conducting the conversations necessary with local stakeholders and other city agencies to ensure that parcels with a potential for development make it to the pipeline, that it has established “aggressive and realistic timelines” for the development of viable city-owned land, and that it has created new financing programs to promote development on smaller city-owned parcels. It’s true HPD under de Blasio has put foot to the pedal: the agency told City Limits this week it had issued about 31 housing Request for Proposals across 138 public sites since the beginning of the administration, which will ultimately generate 8,000 to 9,000 units.

The Real Estate Board of New York took issue with the fact that Intro 1034 lacked a definition of vacancy, while the Buildings Owners and Managers Association argued that “using a one-year time frame to establish that a property is vacant is too broad and would result in a registry that includes a lot of properties that are in the planning and development stages.” (In Vancouver, the definition of vacant property used for its registration system comes with several exceptions for property owners who are undertaking renovations, are hospitalized, etcetera.) The Association also questioned the purpose of the census— “It would be helpful to know what process might be followed to convert vacant lots to usable amenities.”

The Furman Center’s Vicki Been, who was commissioner of HPD until this year, recognizes that the warehousing of vacant private property can be a problem, but doesn’t think the main problem is locating those properties.

“It isn’t just HPD who is looking for vacant buildings — there are many, many people in the affordable housing community who are constantly on the lookout for vacant buildings, and trying to buy them up so that they can be used for affordable housing…The agencies also work together to identify potential underused land, and between HPD, EDC, HRA, and DOF, they have a good understanding of where potential development opportunities lie,” wrote Been in an e-mail to City Limits.

She argues that the real problem is not finding those properties; it’s that there’s no consequences for landlords who don’t return their properties to productive use.

“To really tackle the problem, we need to examine ways to make it more costly for people to underuse land – taxing land at the value it would have if put to its ‘highest and best use’ for example, or charging owners for costs that the vacancy imposes on neighborhoods,” Been wrote, adding that such a policy would be controversial, would need to be worked out carefully, and that sometimes it doesn’t make sense to compel a private landlord to immediately develop or fill up their property.

From ending warehousing to community based-development

There’s a bigger question here beyond how to end warehousing, and that’s how to ensure the vacant properties that do exist are used specifically to create housing for low-income families.

A case in point is Malcolm X Boulevard and 125th Street. Prior to launching their 2006 census, Picture the Homeless held a sleep-out in front of a block of vacant tenements owned by Jeff Sutton. DeBoRa Dickerson and other activists then decried the state of affairs, but today the block is now the site of Harlem’s first Whole Foods and Dickerson has new concerns: while the Whole Foods is “decent,” she is worried about the gentrification of the area and the loss of housing.

This is not the only set of properties Dickerson counted that has been developed. Indeed, Been is right when she suggests that developers certainly know where the vacancies are. And it might also be true that de Blasio’s rezonings—at least those that are approved and do what they’re expected to do—will eventually lead to the development of some currently warehoused property. According to Picture the Homeless’s 2011 census, a vast number of vacant lots are concentrated in areas that are currently considering targeted for a rezoning, including the western Bronx, Northeast Staten Island, Eastern Brooklyn and the Rockaways.

What the Act does is take information that might already be available to real estate actors, and maybe to HPD, and make it publicly accessible—or at least more accessible to the Council. It is part of a larger push to make community development more accountable when it comes to public land, and less subject to the whims of the market when it comes to private parcels. It’s a push inseparable from the movement, also spearheaded by Picture the Homeless’s members, for the community land trust model.

Perhaps it’s also what de Blasio recently referred to as the “socialistic impulse” he’s seen in neighborhoods to determine “which building goes where, how high it will be, who gets to live in it, what the rent would be”—an impulse he said he shared, but which he believes is “not reachable right now” in our current economic system. Yet to the Act’s advocates, at least, the administration has here an opportunity to take a small step in the direction of that socialistic impulse.

“De Blasio, I wonder sometimes where he’s at,” says Dickerson, who recognizes that de Blasio’s administration hasn’t been as quick to oppose the effort as the Bloomberg administration. “The [Act] is sitting on de Blasio’s desk. It’s right before [him]. Why are you holding on it?”

Update: Speaker Melissa Mark-Viverito sent an e-mail to City Limits with the following statement: “I am proud of our track record on this matter. We have been a consistent advocate for homeless New Yorkers and the unprecedented productivity of the Council during this session as well as my voting record reflects this – we have introduced and passed a record number of bills, including ones to support the homeless and vulnerable population in our city.”