NYSDEC has released its proposed its “affordable housing project” and “underutilized” definitions that were required by the Brownfield Cleanup Program (BCP) amendments. These definitions, along with the other criteria for eligibility for tangible property tax credits (the site’s location in an EnZone or the site meeting the statutory definition of “upside down”), will be used to determine whether a site in New York City will be eligible for those credits. The “affordable housing project” definition will also be used statewide to determine a site’s eligibility for the five percent affordable housing tax credit bonus.
The Notice of Proposed Rule Making will be published in the June 10, 2015 issue of the State Register. Written public comments will be accepted by DEC from June 10 through August 5, 2015.
The rulemaking will also amend the “brownfield site” definition at 6 NYCRR 375-1.2(b) to meet the definition in the new BCP law as well as deleting 6 NYCRR 375-3.3(a)(1) to conform to this definition
The proposed affordable housing definition at 6 NYCRR 375-3.2(a) is as follows:
(a) “Affordable housing project” means, for purposes of this part, title fourteen of article twenty seven of the environmental conservation law and section twenty-one of the tax law only, a project that is developed for residential use or mixed residential use that must include affordable residential rental units and/or affordable home ownership units.
(1) Affordable residential rental projects under this subdivision must be subject to a federal, state, or local government housing agency’s affordable housing program, or a local government’s regulatory agreement or legally binding restriction, that defines (i) a percentage of the residential rental units in the affordable housing project to be dedicated to (ii) tenants at a defined maximum percentage of the area median income based on the occupants’ households annual gross income.
(2) Affordable home ownership projects under this subdivision must be subject to a federal, state, or local government housing agency’s affordable housing program, or a local government’s regulatory agreement or legally binding restriction, that sets affordable units aside for tenants at a defined maximum percentage of the area median income.
(3) “Area median income” means, for purposes of this subdivision, the area median income for the primary metropolitan statistical area, or for the county if located outside a metropolitan statistical area, as determined by the United States department of housing and urban development, or its successor, for a family of four, as adjusted for family size.
The proposed “underutilized” definition set forth at new subdivision 375-3.2(l) is as follows:
(l) “Underutilized” means, as of the date of application, real property:
(1) on which a building or buildings, can be certified by the municipality in which the site is located, to have for at least five years used no more than fifty percent of the permissible floor area under the applicable base zoning immediately prior to the application which has been in effect for at least five years;
(2) at which the proposed development is solely for a use other than residential or restricted residential;
(3) which could not be developed without substantial government assistance, as certified by the municipality in which the site is located; and
(4) which is subject to one or more of the following conditions, as certified by the municipal department responsible for such determinations of the municipality in which the site is located:
(i) property tax payments have been in arrears for at least five years immediately prior to the application;
(ii) contains a building that is presently condemned, or presently exhibits documented structural deficiencies, as certified by a professional engineer, which present a public health or safety hazard; or
(iii) the proposed use is in whole or in substantial part for industrial uses.
“Substantial government assistance” shall mean a substantial loan, grant, land purchase subsidy, or land purchase cost exemption or waiver, from a governmental entity; or for properties to be developed in whole or in part for industrial uses, a substantial loan, grant, land purchase subsidy, land purchase cost exemption or waiver, or a tax credit, from a governmental entity, or a low-cost loan from an industrial fund managed by the municipality and partner financial institutions.
DEC will hold a legislative public hearing during the public comment period to receive public comments on the amendments to Part 375, as follows:
July 29, 2015 at 1:00 PM
New York City Department of Health
1235 Worth Street
Second Floor Auditorium
New York City, NY