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Bryan Sullivan was quoted in Kaitlin Ugolik’s Law360 article “‘Poor Door’ A Symptom Of Tough Balancing Act In Housing.”  The full article can be found below.

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‘Poor Door’ A Symptom Of Tough Balancing Act In Housing

By Kaitlin Ugolik

Law360, New York (July 30, 2014, 6:54 PM ET) — Extell Development Co.’s so-called “poor door” — a separate entrance for affordable housing tenants at a development on Riverside Drive — made headlines last week after receiving official approval, but experts say the controversy clouds the reality of balancing private and public housing interests in a city like New York.

The building and its “poor door” first caught the world’s attention last year, when the developer released renderings for the project that showed separate doors for condominium buyers and affordable rental tenants.

It wasn’t the first setup of its kind, particularly not in New York City, but with news of growing inequality around the country and especially in large urban areas, many criticized the separate door as classist and suggested that affordable housing tenants were being treated as “second- class citizens.”

The controversy erupted again last week when the Department of Housing Preservation and Development confirmed that it had approved Extell’s application for the department’s inclusionary housing program, which gives the developer access to certain incentives in exchange for adding to the city’s affordable housing inventory.

Many have argued that the trade-off may not be worth it: If developers that qualify for such programs end up relegating lower-income tenants to a separate entrance, are those tenants benefiting fully from the city’s efforts to house them? “

One reason that the ‘poor door’ issue touches a nerve is that real estate and class are so closely linked in New York City,” said David Reiss, a professor at Brooklyn Law School who focuses on real estate finance and community development. “Affordable housing units are seen as a great equalizer. The notion that someone living in an affordable housing unit must be constantly reminded of their status is repugnant to many.”

This has led to headlines around the world proclaiming Extell’s design and the city’s approval a “disgrace.” But experts say the question of what to do about such practices is not that simple.

Inclusionary housing has been a major tenet of Mayor Bill de Blasio’s plan to add or maintain 200,000 affordable housing units over the next decade. In a city with such high land prices and rents, it has become clear that developers need some kind of incentive to include affordable housing in their projects, and the mayor and city council have made a series of adjustments and concessions to get such housing into projects like the new Domino Sugar Factory development and under-construction buildings at Hudson Yards.

But just how affordable and market-rate housing should be built together in these developments has not been as closely considered, and experts say the “poor door” controversy may just be the first of many unanticipated issues in need of creative solutions.

To get around the issue of affordable units having different entrances or looking different and having different amenities from market-rate units, some have suggested making the units indistinguishable, but Reiss warns that this might cause additional problems.

“For instance, given a particular amount of funding for affordable housing, is it better to build fewer units of affordable housing that are indistinguishable from market-rate units in a Manhattan building, or is it better to build more units of affordable housing in an outer-borough — and therefore cheaper — building?” he said. “There is no right answer to that question. Each reflects a policy preference. But it is most important to realize that a trade-off between cost and number of units exists.”

Lawmakers in New York — and, thanks to the viral nature of the Extell story, around the world — are now grappling with that trade-off.

Manhattan Borough President Gale Brewer said at a city council meeting last week that having separate doors is “an affront to New Yorkers’ belief in fairness and diversity” and that with the backing of the mayor, she was looking for a way to block future “poor doors.”

De Blasio has said he wants to change the city’s housing laws to prevent developers from building this way in the future, although the New York Post pointed out this week that the mayor voted for the zoning resolution that made “poor doors” possible as a councilmember back in 2009.

Meanwhile, community groups and individual residents may take things into their own hands. Several petitions have been started, and while representatives for the American Civil Liberties Union have publicly stated that “poor doors” are not illegal under the Equal Protection Clause, some experts say they can see a precedent for some concerned parties taking the issue to court.

While discrimination based on income is not considered actionable, if nonprofit groups and residents argue that the net effect of a “poor door” is that people are discriminated against based on their race, they might have a strong case, said Bryan Sullivan of Early Sullivan Wright Gizer & McRae LLP.

“On its face, it doesn’t discriminate,” he said, “[but] the net effect of this would be to affect minorities the most, since they’re the most likely to be in an affordable housing unit. So there could be an argument that the effect of this policy and the intention of it is to discriminate against minorities.”

Those who represent condominium and cooperative owners say they can see both sides of the coin.

“One could certainly argue that the affordable housing folks are being treated as more like second-class citizens,” said Steven Sladkus, a partner with Wolf Haldenstein Adler Freeman & Herz LLP.

But at the same time, he says, he can understand the opposite view. “When you’re spending $10 million for an apartment, you should legitimately expect a grandiose entrance.”

–Editing by Kat Laskowski and Philip Shea. All Content © 2003-2014, Portfolio Media, Inc.