IN RE: NEW YORK STATE TENANTS & NEIGHBORS COALITION (2008)

In a proceeding pursuant to CPLR article 78 to review a determination of the Nassau County Rent Guidelines Board dated September 21, 2005, which adopted rent adjustment Guideline 40 pursuant to the Emergency Tenant Protection Act of 1974, § 4(b), as added by L. 1974, ch. 576 (McKinney's Unconsolidated Laws of N.Y. § 8624[b] ), and a determination of the Chairperson of the Nassau County Rent Guidelines Board dated October 5, 2005, certifying Guideline 40, as adopted on September 21, 2005, the intervenor Apartment House Council appeals from a judgment of the Supreme Court, Nassau County (Feinman, J.), dated October 16, 2006, which granted the petition and annulled the determinations.

ORDERED that the judgment is affirmed, with costs, and the matter is remitted to the Nassau County Rent Guidelines Board for further proceedings consistent herewith.

The Nassau County Rent Guidelines Board (hereinafter the Board), responsible pursuant to the Emergency Tenant Protection Act of 1974, § 4(b) ( McKinney's Unconsolidated Laws of N.Y. § 8624[b] [hereinafter ETPA] ) for establishing allowable increases in regulated rent each year, promulgated Guideline 40 in 2005.   Guideline 40 provides that, for leases commencing between October 1, 2005, and September 30, 2006, the allowable rent increases applicable to tenants whose gross aggregate family income is greater than $24,000 per year, are 5.25% for one-year lease renewals and 7.25% for two-year lease renewals.   For tenants whose gross aggregate family income is below $24,000 per year, the allowable increases are 1% for one-year lease renewals and 2% for two-year lease renewals.

The Supreme Court properly annulled Guideline 40 on the ground that the Board does not have the authority to create a separate rent adjustment guideline based on tenant income.  ETPA § 4(b) provides:

“A county rent guidelines board shall establish annually guidelines for rent adjustments which, at its sole discretion may be varied and different for and within the several zones and jurisdictions of the board ․ [and] ․ shall file with the state division of housing and community renewal its findings for the preceding calendar year, and shall accompany such findings with a statement of the maximum rate or rates of rent adjustment, if any, for one or more classes of accommodation subject to this act, authorized for leases or other rental agreements commencing during the next succeeding twelve months.   The standards for rent adjustments may be applicable for the entire county or may be varied according to such zones or jurisdictions within such county as the board finds necessary to achieve the purposes of this subdivision.”

The “classes of accommodation” for which the Board may establish rent adjustments are created, in the first instance, by the legislative body of the relevant city, town, or village, which is empowered to declare (or declare at an end) a residential housing emergency for such classes (see ETPA § 3).   Therefore, the Board exceeded its statutory authority in establishing a separate class of accommodation based on tenant income (see generally Weiss v. City of New York, 95 N.Y.2d 1, 4-5, 709 N.Y.S.2d 878, 731 N.E.2d 594;  Boreali v. Axelrod, 71 N.Y.2d 1, 11, 523 N.Y.S.2d 464, 517 N.E.2d 1350;  Kerwick v. New York State Bd. of Equalization & Assessment, 117 A.D.2d 65, 68, 501 N.Y.S.2d 509).

In light of our determination, we need not reach the appellant's remaining contentions.