SITING HOMELESS SHELTERS IN NEW YORK CITY: FAIR SHARE VERSUS BOROUGH-BASED.

• Author: Halimi, Madeline

Introduction 1520 I. Housing and Homelessness in New York City 1522 A. The Homelessness Crisis 1522 B. The Loss of Affordable Housing 1523 C. The Right to Shelter in New York 1525 D. The New Shelters 1526 E. The Two Siting Approaches and the History of Fair Share 1527 II. The Two Approaches 1530 A. The Mayor's Borough-Based Approach 1531 i. Keeping Shelter Residents near Social Supports 1532 ii. Restrictions during High Need 1534 iii. The Cost 1536 iv. Compliance with the Right to Shelter Mandate 1538 B. The City Council's Fair Share Approach 1539 i. Even Distribution of "Local Unwanted Land Uses'' 1540 ii. "Moving to Opportunity" 1544 iii. Housing Integration 1546 III. A Modified Fair Share Approach 1547 B. Prepare a Budget Plan and Allocate the Money 1548 B. Prepare a Budget Plan and Allocate the Money 1549 i. Employ Exactions and Developer Impact Fees to Finance Shelters in More Expensive Areas 1550 ii. Redirect NYPD Funding 1551 iii. Redirect Funding from Cluster and Hotel Shelter Sites 1553 C. Enforce the Fair Share Criteria as Binding Rules Rather Than Mere Guidance 1553 Conclusion 1554 INTRODUCTION

In February 2017, Mayor Rill de Rlasio and the New York City Council (the City Council) both released plans for siting new homeless shelters, advocating for polar opposite strategies. (5) Mayor de Rlasio's plan, Turning the Tide on Homelessness in New York City, outlines his Administration's intent to develop 90 new shelters and expand approximately 30 existing shelters. (6)

Disagreement has arisen, though, over where to locate these new shelters. In Turning the Tide, Mayor de Blasio advocates for a "borough-based" siting approach, which would place the new shelters near shelter residents' home communities. (7) The report contends that a borough-based approach would keep residents close to their schools, jobs, and houses of worship at a time when they need their social supports the most. (8) In contrast, in Doing Our Fair Share, Getting Our Fair Share: Reforming NYC's System for Achieving Fairness in Siting Municipal Facilities, the City Council advocates for a "fair share" siting approach, which would place the new shelters in neighborhoods with few or no existing homeless shelters, and avoid neighborhoods already hosting their fair share of shelters. (9) The report contends that evenly distributing the new shelters throughout New York City's five boroughs would prevent low-income, marginalized neighborhoods from being overburdened with "local unwanted land uses" (LULUs). (10)

This Note explores the debate between Mayor de Blasio's borough-based approach and the City Council's fair share approach. Part I provides background information on homelessness in New York City, New York State's (the State) legal obligation to provide shelter to people experiencing homelessness, Mayor de Blasio's plan to build new shelters, and the Fair Share Criteria already in the New York City Charter (City Charter). Part II outlines the benefits and drawbacks of each approach. While the borough-based approach keeps shelter residents near their social supports, is more cost-effective, and better allows the State to comply with its legal obligation to provide shelter, it also has the potential to concentrate homelessness in low-income, marginalized neighborhoods and perpetuate housing segregation. (11) On the other hand, while the fair share approach would more evenly distribute the shelters, give the residents access to greater resources and opportunities, and avoid overburdening low-income, marginalized neighborhoods with LULUs, it may also delay homeless shelters' development at a time when housing instability is at its height. (12) Part III recommends a modified fair share approach in which the City prioritizes shelter residents' individual needs and preferences, allocates a proper budget to site the new shelters in under-concentrated areas, and enforces the criteria as binding rules rather than mere guidance. (13)

1. HOUSING AND HOMELESSNESS IN NEW YORK CITY

   1. The Homelessness Crisis

      According to the Coalition for the Homeless (the Coalition), a New York City advocacy and direct services organization, in May 2020, 59,308 people slept in municipal homeless shelters each night in New York City. (14) This includes 13,523 families and 20,044 children. (15) The number of people sleeping in municipal shelters each night in 2020 is 61% higher than in 2010. (16)

      These numbers do not include those who do not use municipal shelters and instead sleep on the streets, in the subway, or in other public spaces. (17) Thousands of "street homeless" individuals go unsheltered every night, but there is no accurate measurement of this population. (18) According to the Coalition, surveys significantly underestimate the number of street homeless New Yorkers. (19) However, a 2017 New York City Department of Homeless Services report revealed a 39% increase from the prior year, the highest increase since 2005. (20)

      Furthermore, housing instability and homelessness disproportionately impact Black and Latinx New Yorkers. (21) Around 57% of heads of households in shelters are Black and 32% are Hispanic and Latinx. (22) This is largely due to racial discrimination in the housing market, leading Black, Hispanic, and Asian renters to face greater difficulty finding and keeping housing. (23) Studies show that landlords and brokers show minority renters fewer units, offer Black and Hispanic renters higher rent, (24) and deny Black renters leases more frequently than they do white renters. (25) For example, one study found that African Americans submit more housing applications and experience more difficulties when searching for a home than white people do. (26) Similarly, the Urban Institute found that real estate agents recommend and show fewer houses and apartments to minority groups than to white people. (27) Such discrimination, paired with gentrification and decades of redlining practices, has led to massive numbers of families pushed out of their apartments and neighborhoods with nowhere else to go. (28)

   2. The Loss of Affordable Housing

      Rising homelessness is primarily due to a shortage of affordable housing for low-income New Yorkers. (29) Over approximately the past two decades, New York City has lost over 1.1 million apartments with rent below $800 per month, (30) and currently has a deficit of over 500,000 apartments needed in that price range. (31)

      This lack of affordable housing is the result of high demand for apartments as increasingly more people wish to live in New York City. (32) While developers jumped at the opportunity to build luxury apartment buildings to meet this demand, Mayor de Blasio has failed to ensure the production of enough low-rent units in those buildings. (33) Between 2011 and 2017, the number of high-rent units increased from 8% to 13%, or 170,000 to 280,000 units, while the number of unassisted low-rent units decreased from 21% to 14%, or 445,000 to 300,000 units. (34)

      Although tenants in regulated units have some protections against sharp rent increases, landlords use loopholes, such as Major Capital Improvements (MCI) and vacancy bonuses, to raise the rent on those apartments and deregulate the units. (35) Meanwhile, unregulated, low-rent units are disappearing because unregulated tenants do not have a right to a lease renewal, making it easy for landlords to kick them out and raise the rent. (36)

      Furthermore, as rents rise, wages have not kept up, creating an impossible rent burden for some low-income households and forcing people onto the streets. (37) In 2020, the fair market rent for a two-bedroom apartment in New York is $1,691. (38) To afford this level of rent, a household must earn at least $67,653 annually. (39) The household would have to work a total of 110 hours per week at minimum wage to afford this rent. (40)

   3. The Right to Shelter in New York

      New York is not the only state currently experiencing high rates of homelessness. Half of all people experiencing homelessness in the United States reside in New York, California, Florida, Texas, and Washington combined. (41) However, New York is unique in that it is a "right to shelter" state, meaning state and local governments have a legal obligation to provide shelter to people experiencing homelessness. (42)

      In 1979, the founding members of the Coalition brought a class action lawsuit against the City and State on behalf of all New York City homeless men in Callahan v. Carey, arguing that the state constitution implies a right to shelter. (43) Article XVII of the New York State Constitution declares, "the aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions." (44) The City of New York settled and signed a consent decree, which mandated that it provide all homeless men shelter and maintain the shelters at basic health and safety standards. (45) In 1982, Eldredge v. Koch extended this right to homeless women, (46) and in 1983, McCain v. Koch extended this right to homeless families. (47)

      Because of this legal obligation to provide shelter to people experiencing homelessness, New York City has one of the lowest levels of unsheltered people in the nation at about 5%. (48) In contrast, for example, in Los Angeles, 75% of homeless individuals go unsheltered because the state government is not required to provide shelter. (49) However, the City's mandate does not address the root cause of the housing crisis, which is the lack of affordable housing. (50) Therefore, while the development of new shelters will put a much-needed band-aid on the issue, it does not provide a sustainable solution to homelessness in New York City. (51)

   4. The New Shelters

      In the 2017 Turning the Tide on Homelessness report, the de Blasio Administration stated its goal to create 90 new shelters over a period of five years and expand 30 existing shelters over seven years. (52) The report stated that the new...