Are We Family?

Albany tries to find common ground on an ordinance that some feel attacks student housing and others think is necessary to preserve the Pine Hills neighborhood

Samantha Eferstein, a Uni versity at Albany senior, says she and her five roommates are very close. “We look out for each other,” Eferstein says. She and her roommates haved lived in a large, blue Victorian house at 414 Hudson St. in Albany for the past two years. The six friends have lived together since they were freshman, and two of them have known each other since their high-school days on Long Island. They appear to enjoy living together. The house they share is well-kept, with lace curtains and matching furniture—a rare sight among the college apartments on their street. They cook meals together, study together, and throw parties together.

These students, all seniors, are not only counting down the days to graduation, but are also counting down the days until they will no longer have to live in fear of eviction due to a violation of what is known as the “grouper law.”

The grouper law is not an actual law; it is a city zoning ordinance that defines the word “family” as it applies to single- and multi-family houses. A family is defined in the city of Albany code as “one, two, or three persons occupying a dwelling unit; or four or more persons occupying a dwelling unit and living together as a traditional family or the functional equivalent of a family.” The tricky part of the ordinance—and the part that is referred to as the grouper law—is the second half of the definition, which states, “it shall be presumptive evidence that four or more unrelated persons living in a single dwelling unit do not constitute the functional equivalent of a traditional ‘family.’ ”

Essentially, the code restricts four or more unrelated people from being considered a family. This can cause problems for some tenants and property owners of four-, five-, and six-bedroom apartments in the heavily-student- populated area of Pine Hills. The majority of the controversy is centered on a four-block radius, including Hudson, Hamilton, Quail, and Ontario streets, that is commonly known as the “student ghetto.”

Eferstein’s experience with the grouper law began after some partygoers got out of hand at her house last November. A fight broke out, and one of her roommates called the police.

One of the police officers inquired about the residency and found out that six people were living at the house. “We didn’t think anything of it,” says Eferstein. That same night, at 1 AM, workers with Albany’s Division of Building and Codes showed up to inspect the property. The city threatened to evict the tenants, and the building’s owner, Matt Morrissey, was threatened with fines.

After the incident, Morrissey began the lengthy process of converting the house from a six-bedroom single unit to two three-bedroom apartments. Because Morrissey has kept up with the process of making the renovations, he has not yet been fined and has not had to evict anyone.

The tenants say that if they were forced to move out they would most likely have to crash on friends’ couches or try their luck at finding available on-campus housing in the middle of the semester.

Morrissey and the tenants at 414 Hudson are just one of many examples throughout the city of apartment dwellers living under threat of the grouper law. According to Nicholas DiLello, director of Albany Building and Codes, records of citations are sealed once the case has been settled, so it is hard to get an accurate picture of the scope and geography of the citations. He estimates the number of cases at only two or three a month, and says that citations are complaint-based.

“We’re not the Gestapo,” he says. “We don’t go out there and hammer landlords.” DiLello says that the city has a 100-percent victory rate: All grouper-law citations have either resulted in compliance or in the citation being upheld in court.

Some landlords complain, however, that they are discouraged from bringing the issue to court and told by DiLello that it is “expensive and pointless.”

“Nick DiLello,” Morrissey says, “is the judge, the jury, and the executioner.”

An April 8 meeting of U-Albany’s committee on University and Community Relations of the University Police offered the first opportunity for property owners to publicly address the grouper law. A panel, including DiLello and property owners, considered a proposal to change the definition of family.

The proposal, presented by Debbie Pusatere, vice-president of the New York Capital Region Apartment Association, expands the definition of family to up to five unrelated persons and allows for a group of six or more unrelated persons to prove that they are the functional equivalent of a family if they meet certain qualifications, like sharing the cost of food and utilities, and “any other factor reasonably related to whether or not a group of unrelated persons living together are functioning together as a family.”

“I’m not saying this is exactly what would be passed,” says Pusatere. “I’m saying this is what’s on the table to open it up.”

Her proposal, she says, brings the defintion of family “up to current times.”

As many college towns across the country have found, using the definition of the term family to evict tenants has complicated legal implications. Some cities have found their versions of the grouper law to be unconstitutional, while other places can’t seem to pinpoint exactly what constitutes a family.

An ongoing case in Oneonta, filed in March of this year, cites a 1989 New York State Court of Appeals decision in the case of Baer v. Town of Brookhaven. In this case, the town of Brookhaven charged five unrelated elderly women living together with a violation of a zoning ordinance similar to that in Albany. The court determined that the zoning law, which did not place a similar restriction on the number of related people allowed to live together, violated the state’s due process clause because it restricted the size of a functional equivalent of a family but not the size of a traditional family.

In other Capital Region cities, “family” has become a loaded word as well.

Schenectady corporation counsel L. John Van Norden determined in April 2008 that his city’s grouper law was written so vaguely that 10 members of the Union College football team qualified as a family. Norden found that the students shared expenses and had the social functions of a family, which were requirements of the city’s definition.

In Troy, after determining that a grouper law would be unconstitutional, the city tried an alternative route to combat overcrowded houses. Taking particular concern with property owners who were renovating buildings to add extra bedrooms without adding extra space, Troy enacted a moratorium to prevent this type of construction. The Troy City Council has since extended the moratorium while working out the kinks of a resolution, attempting to define a “rooming house” and “roomers” in order to avoid the word “family” in zoning laws.

The architectural approach that Troy has taken is similar to a solution recommended by the Capital District Association of Rental Property Owners (CDARPO) and its president, Robert McRae, another panelist at the April 8 meeting. McRae suggests modifications to the law that rely on limitations to the architecture of a house, instead of trying to define the word “family.” For example, a law could define a bedroom by square footage, have bathroom requirements per number of bedrooms, or allow only single-room occupancy for houses containing more than three bedrooms.

McRae also provides alternatives to the grouper law, like encouraging property owners to require parental co-signers and using laws such as the noise ordinances and litter laws already in place, to address problem properties.

“They just want to shoot the shotgun and say ‘You can’t do that’ to everyone,” McRae says. “They have this idea that the less kids are running around out there the fewer problems there will be, and we don’t agree with that.”

McRae is also concerned that, in its current state, the zoning ordinance could be used as a weapon or threat against property owners in Albany.

“What concerns me, and what concerns my members, are the innocent causalities,” McRae says. “The guy who is smart enough to say, ‘Nick, Bob McRae next to me has six kids in his building; if you’re not enforcing it with him, you can’t enforce it with me.’ There’s where I have a problem.”

That’s what happened to at least one Pine Hills landlord (who wishes to remain anonymous for fear of retaliation). He first found out about the grouper law a year ago when one of his properties was cited while he was on vacation.

The house, a two-family located in Pine Hills, contains two four-bedroom apartments. Three of the four students living in the upstairs unit requested to have the fourth person evicted, and the landlord agreed. However, he explained that the rent would remain same regardless of the number of tenants, and that the remaining three would each have to pay more to add up to the full amount.

“One girl would not agree to pay for the additional rent for the missing fourth person,” the landlord says. “Then she wouldn’t pay me at all, and I threatened eviction. Her father called Nick DiLello and turned me in for the grouper law because he knew I had four [tenants] downstairs also,” even though there were only three people living in the apartment at that time.

When the landlord returned from vacation a week later, he found two notices on the building: The first was an order to fix the situation on both floors. He says initially he was given about two to three days to comply, which, being out of town, he obviously hadn’t done. The second notice was an order to appear in court.

“So here’s a situation where I helped the tenants out, and they were able to use the grouper law against me,” he says. “This is not a neighbor calling in to complain. This is a guy from Brooklyn [the father] who has never even seen the house.”

He was charged a $1,000 fine and given 30 days to evict the tenants or it would be an additional fine of $1,000 per day.

The upstairs tenants already were moving out that month, but the downstairs tenants—who already had signed a renewal lease for the next year—had to scramble to find another apartment. The tenants ultimately ended up moving out and finding another four-bedroom apartment.

“When I tried to call the city of Albany and Nick DiLello to reason with them what was going on, they treated me like a common criminal,” he complains. “They literally treated me like dirt.”

Consider, he says, that he knows of more than 100 four-bedroom apartments in the student ghetto, and the eviction of one student from each of these apartments not only would displace many students, but also would reduce the amount of money a landlord is able to earn from a property. His apartments currently rent out as three-bedroom units at a lower rate: a loss of $7,000 a year.

“In the end, the entire community is going to suffer,” says McRae, “because if an investor or owner can’t make the expenses to maintain that property, it’s going to fall into disrepair, no matter what your intentions are.”

Pusatere, who has properties in Cohoes and Watervliet, says that she has seen students in Albany moving out to these areas.

DiLello argues that the displacement of students is not an issue because, according to him, there is no shortage of available apartments in Albany.

“There are a lot of vacant buildings,” DiLello says. “There’s a lot of potential for residence in the city. I mean, just look at the vacant buildings. If there was a greater demand for residence in the city, there wouldn’t be many vacant buildings.”

McRae doesn’t agree.

“The reason a building is abandoned is because it wasn’t supporting itself,” McRae says. “A lot of that vacant stock is in really bad shape and is going to cost a serious amount of money to bring to livable conditions.”

Some property owners are getting creative about ways that they can improve quality-of-life issues in Albany as an alternative to the grouper law. One suggestion is to install security cameras on the buildings to survey the streets and sidewalks in Pine Hills. Another is to target the number of cars.

“I’d have no problem at all not renting to a student if they had a car,” McRae says. “I would put it in my lease. If that eases the neighborhood’s parking situation I would say, ‘You know what, this is great off-campus housing, but you can’t have a motor vehicle because the neighborhood can’t support it.’ I would look at options like that.”

After spending more than $15,000 in architect fees, Morrissey says that it’s no longer financially viable to make the necessary renovations to 414 Hudson. He is currently seeking a use variance from the Board of Zoning Appeals. A use variance is another tool that property owners can utilize; that is, they can apply to be an exception to the rule. The Pine Hills Neighborhood Association likes this because it allows the neighborhood association to be involved in the decision.

“We do like the way the current law is written in that it allows the neighborhood associations to have a say regarding use variances,” says association president Dan Curtis, “but I still take issue with it in that I think we may be requiring property owners to jump through too many hoops.”

Morrissey is presenting his case at this month’s PHNA meeting. But, an approval from the PHNA does not automatically guarantee approval from the Board of Zoning Appeals.

“Basically the BZA, they don’t usually issue variances without our support, and they don’t usually deny a variance when we do support it, but there’s not a one-to-one relationship,” Curtis says. “I think that the BZA has come to a point where they appreciate that we’re very active, and we take some time to investigate these matters and to investigate the other property that the landlord owns and see what kind of impact we really think it’s going to have on the community.”

Morrissey has his concerns, however, because he says DiLello told him that applying for a use variance was a waste of time.

“Nick certainly plays a role in that,” Curtis says, “but I think that Nick plays less of a role than he thinks he plays. There is a Board of Zoning Appeals and I’m pretty confident that the ultimate decision would lie with them, but if the board didn’t go with the way the neighborhood association felt was appropriate—as you’ve seen before—I have no problems with making a bit of noise.”

There are, however, many who feel that the grouper law is an effective tool to preserve the quality of the neighborhood. For some of the residents in Pine Hills, college students don’t make the best neighbors. Littering, late-night parties with loud music, public urination, and vandalism are all part of an average Saturday night.

“If you’ve got four kids in one flat, and then next door he’s got 10 kids, it does affect the neighborhood,” says DiLello. “If we don’t get strict enforcement there, probably in 10 years we’re talking slums.”

Cecelia Quinn is a resident of St. Vincent’s Senior Apartments on Yates Street in the heart of the Pine Hills student area. Two popular college bars are just half a block away, and on weekend nights students parade up and down the street in front of her building.

“We are surrounded by frat houses, college kids and everything in between,” Quinn says. “We are apartments for senior citizens.”

Quinn seems torn about the situation and has particular concern with how the senior citizens in the apartment complex can coexist with the college students. She spoke at the April meeting, saying she felt the need to “stand up for the people.”

“What hurts us is they disrespect our building; they throw pizza garbage near the school, they skateboard, and we call the police,” Quinn says. “We’re not trying to run them out of town, but it feels somehow like they would like to terrorize us.”

Despite the described abuse at the hands of college students, she still feels optimistic about the students and the area.

“We have so much potential here,” she says. “What gets me about these kids is that they are smart, they are talented, and they are the future. It’s tough being a young person now; they have a lot of demands. But the thing is, we have a lot in this area, and I love this area. We have the best schools, and we have a real chance to turn things around. These kids have more IQ, they’re smarter than I’ll ever be. Why do they think the street is their garbage pail? I just think it’s heartbreaking.”

McRae understands the desire for better neighborhoods, and feels that the solution goes beyond citing property owners.

“There are three people that need to come together on this: the city, the landlords and the students,” McRae says. “The students need to take responsibility for themselves and for their actions, and the city needs to start holding the landlords accountable for these types of things.”

There hasn’t been any public action in regards to the proposed changes, but property owners are anxious to get the ball rolling.

“We brought this issue up at the meeting to inform people about what the law is and to allow for discussion,” says Gebhardt, who says that the university has no official stance on the issue.

Curtis also says that the grouper law is going to be a big issue for the PHNA over the coming months.

“I’m really looking forward to stoking that conversation,” Curtis says, “and getting it riled up.”

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