The Emergency Tenant Protection Act of 1974 (ETPA) enables municipalities outside of the City of New York, with populations of under 1 million, to declare "housing emergencies" when vacancy rates dip below 5%.
In Executive Towers at Lido, LLC v. City of Long Beach , the City of Long Beach declared "housing emergencies" for residential buildings with 100 or more units in both 2000 and 2001. Executive Towers (ET) -- owners of 6 different apartment buildings with 100 or more units -- presented proof that the vacancy rate for that particular class of structures exceeded the requisite 5% from January 2003 through May 2003 and argued that the City must rescind the emergency declaration.
In August 2003, the City responded by enacting an ordinance which consolidated into a single classification those residential buildings with 60 to 99 units with those containing 100 or more apartments and then issued a report reasserting a "housing emergency" for this new group of residential housing.
ET challenged both the validity of the City's "state of emergency" claim and the enforceability of the new ordinance creating the single classification for buildings with 60 or more units. In addition, ET asserted civil rights violations.
The Nassau County Supreme Court found that ET properly established that the vacancy rate for residential buildings with 100 or more units exceeded 5% between January and May of 2003 and granted partial summary judgment. However, the Supreme Court also held that ET's challenge to the enforceability of the new ordinance was without merit and then granted summary judgment dismissing ET's civil rights claim.
On appeal, the Appellate Division, Second Department, affirmed the lower court's decision and agreed that the "housing emergency" for residential buildings with 100 or more units had come to an end. In its decision the AD suggested that while a municipality need not conduct a comprehensive housing survey, it must demonstrate in good faith that the survey was derived from precise data. Since the City's report failed to satisfy that standard, any prior housing emergency was thus extinguished.
Will somebody from the City of Long Beach, phone home ?
For a copy of the Appellate Division's decision, please use this link: Executive Towers at Lido, LLC v. City of Long Beach