Above photo: Rent strike in Sunset Park! 2012. Michael Fleshman / Flickr / MRonLine.
Five judge panel rules unanimously determination of Kingston Rent Guidelines Board mandating 15% rent reduction is valid.
“[N]othing in the applicable statutory language explicitly requires that the Board adjust the rent upward rather than downward.”
New York State’s Emergency Tenant Protection Act of 1974 permits the regulation of residential rents (“rent stabilization”) on the declaration of a housing emergency in New York City when the vacancy rate falls below 5%, or by similar declarations in municipalities in the suburban New York City counties of Nassau, Westchester and Rockland. A “Rent Guidelines Board” then has the power to set guidelines for rent adjustments. Today about half of all apartments in New York City are rent stabilized. And each year the Rent Guidelines Board in New York City, after bitterly fought public hearings, has allowed rent increases between one and six percent, and even on occasion—as during the initial years of the COVID pandemic—has frozen rents. It has never reduced rents.
Kingston, county seat of Ulster County, is a port on the Hudson River in the center of the Hudson Valley some 90 miles north of New York and 50 miles south of Albany. It had been the first capital of New York State in 1777, and was noted for the excellence of its bar and judiciary. Judge Alton Brooks Parker, whose career commenced as a clerk in the Kingston law firm of Hardenbergh and Schoonmaker, was the Democratic candidate for President in 1904, losing to Theodore Roosevelt. Kingston prospered as the eastern terminus of the Delaware and Hudson Canal, that linked the anthracite coal fields of Pennsylvania with New York City. It never recovered from the closing, due to railroad competition, of the D&H Canal in 1898. In 1900 Kingston’s population was 24,535, and today is 24,100.
In 2019 the Legislature allowed municipalities statewide to opt in to the 1974 Emergency Tenant Protection Act upon a declaration of emergency due to a housing vacancy rate of 5% or less. The onset of the COVID pandemic saw a sudden flight of many New York City residents upstate, including to Kingston. At the same time, the nationwide process of the acquisition of rental housing by ruthless private equity firms was underway in Kingston as well. The result was a sudden sharp increase in rents. An official Ulster County rental housing survey found that between 2016 and 2020, the median rent for a two-bedroom apartment rose by nearly 50 percent.
The city of Kingston conducted a housing vacancy study that in July 2022 found that the vacancy rate for rental properties potentially subject to the Emergency Tenant Protection Act was 1.57%, well below the 5% threshold. The City of Kingston Common Council declared an emergency within the meaning of the Emergency Tenant Protection Act, effective on August 1, 2022, becoming the first municipality north of the New York City suburbs to enact rent stabilization. A Kingston Rent Guidelines Board was appointed, and following public meetings and hearings on November 9, 2022 voted to require that rent charged for one- and two-year leases commencing between August 1, 2022 and September 30, 2023 be reduced by 15% from the base rate. It was the first city-wide legally mandated rent reduction in New York State history.
The landlord lobby statewide was apoplectic, and a prominent landlord law firm from New York City, notorious for its brutal and aggressive tactics, immediately challenged the emergency declaration and the action of the Kingston Rent Guidelines Board in the Supreme Court, the court of general jurisdiction in New York State. In February 2023 the Supreme Court ruled that the Common Council had properly declared a public housing emergency, but that the rent adjustment guideline reduction adopted by the Board had exceeded its authority under the Emergency Tenant Protection Act.
Both sides appealed to the Appellate Division of the Supreme Court, Third Department. On Thursday, March 21, 2024, the five judge panel ruled unanimously that the November 9, 2022 determination of the Kingston Rent Guidelines Board that mandated a 15% rent reduction is valid, noting that “[n]othing in the applicable statutory language explicitly requires that the Board adjust the rent upward rather than downward.”
In New York State the Court of Appeals is the highest court, but unanimous decisions in the Appellate Division in civil cases cannot be appealed as of right, and leave to appeal in such cases is rarely permitted. Nonetheless, given the formidable power of the landlord lobby one should take nothing for granted, but it should be noted that the New York Court of Appeals is today among the more decent and honest courts in the country. So the outlook is good.
The credit for this outstanding achievement goes to the outraged tenants of Kingston, who stood up to the power of grasping private equity that has been taking over what had once been affordable housing across the nation. And also to the organizing of tenant and activist groups “For the Many” in Kingston itself and the state-wide coalition “Housing Justice for All,” and to veteran New York State tenant advocate Michael McKee whose career bridges the old-left Met Council on Housing days of Jane Benedict and todays tenant activism.
And the small city of Kingston, for which candor requires that I admit to having a special affection, has once again laid claim to playing an honorable role in U.S. history. May many more municipalities follow its example.
John Mage, an attorney, practiced criminal defense and international law, and is a member of theMonthly Revieweditorial committee.