Superstorm Sandy's Legal Legacy

, New York Law Journal

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Sateesh Nori
Sateesh Nori

Superstorm Sandy devastated New York City unlike any other natural disaster in history. The physical effects of the storm ranged from destroyed homes and apartments to mass power outages, flooded subways, stores and office buildings. The storm affected almost 300,000 New Yorkers, took 49 lives, and damaged over 27,000 homes, leaving 2.1 million people without power immediately after the storm.1 Sandy also brought New Yorkers a myriad of legal challenges ranging from federal benefits and insurance claims to housing and employment issues. These legal issues disproportionately affected the poorest and most vulnerable communities in the city, highlighting and exacerbating the deeply rooted inequity in our city. Despite the arrival of billions of dollars in public and private emergency aid, the elderly, the disabled, undocumented immigrants, small businesses and low-income homeowners and renters suffered and are still suffering from unresolved legal issues. In this article, we survey Sandy's legal legacy for New York City and its most vulnerable residents.

Displacement

The hardest hit by the storm were very low-income renters who made on average $18,000 per year.2 According to the Federal Emergency Management Agency (FEMA), this group comprised 55 percent of the surge victims, the majority of whom were housed in public housing units along the coasts of Coney Island, Red Hook, Alphabet City, and the Rockaways.3 Historically, FEMA's primary focus has been on providing recovery services to owners of single-family homes. Therefore, FEMA was greatly limited in its ability to respond in New York City due to the unique urban housing stock.

In New York City, more residents of rental apartments applied to FEMA than owners of single-family homes. Many of these applicants were low-income renters who were ineligible for FEMA assistance since they were living in rooming houses, basement apartments, sublets or other non-traditional housing arrangements common in New York but uncommon under FEMA regulations. As such, many poor families who were directly impacted by Sandy could not obtain benefits to recover from the storm. Many families remain homeless today, almost one year later.4

The City Hotel Program for Sandy Evacuees. In November 2012, the city placed more than 3,000 Sandy evacuees in an ad hoc hotel program, with the aim of assisting these individuals and families in finding long-term affordable housing. Less than nine months later, the city terminated this program and sought to place these evacuees and their families into its overburdened homeless shelter system.5 Many of these evacuees were forced to leave New York City in order to find permanent, affordable housing.

Sandy-Related Housing Subsidy Programs. Both the federal and city governments implemented housing subsidy programs to assist low-income Sandy evacuees. Unfortunately, these programs were mired in arbitrary and evolving eligibility requirements making it difficult for applicants and those helping them to assess eligibility. It is also unclear how many of these subsidies will be granted to needy families.

In March 2013, the federal government, via FEMA and the US Department of Housing and Urban Development (HUD), executed an Interagency Agreement to implement the Disaster Housing Assistance Program (DHAP) to assist families in need. DHAP provides eligible applicants with up to 12 months of rental assistance. Once approved, the level of subsidy is based upon the family's income, but will never exceed 40 percent of their income.

The major hurdle that advocates have faced is deciphering the eligibility criteria for the program. According to the HUD website, a family is eligible for DHAP if it was 1) displaced by Sandy and 2) referred to HUD by FEMA.6 FEMA is solely responsible for determining if a family is eligible and lacks transparency in discussing or publishing its eligibility criteria with advocates. Hundreds of Legal Aid Society clients were displaced by Sandy and assessed by FEMA, but only a few have received DHAP. This is most likely due to FEMA's focus on single-family homes and its inability to assist tenants in cities with non-traditional housing arrangements.

In April 2013, New York City also introduced a housing subsidy program to address low-income individuals and families impacted by Sandy—who were not eligible for DHAP. The Temporary Disaster Assistance Program (TDAP) is administered by the New York City Department of Housing Preservation and Development (HPD), which is authorized to implement the program using Community Development Block Grant (CDBG) Disaster Recovery funds. TDAP works like a federal Section 8 voucher whereby a tenant pays 30 percent of her income toward rent. According to the city, TDAP funding is "extremely limited," with priority going to households who were in the city's hotel program. The eligibility criteria for TDAP is even more confusing than that of DHAP, as it has been modified numerous times since April 2013 and remains in flux to this day. Moreover, burdensome documentation requirements for TDAP have impeded many from obtaining assistance, since the flooding in many evacuees' apartments swept away their vital records and documents.

Landlord-Tenant Issues. Low-income tenants who were able to remain in their homes faced considerable challenges with their landlords after the storm. Some tenants were incorrectly sued for back-rent for the time period in which they were unable to occupy their apartments. Due to their inability to obtain legal representation in Housing Court, many of these tenants unwittingly consented to monetary judgments or even surrendered their rights to their apartments. Other tenants who received federal Section 8 subsidies vacated their uninhabitable apartments after the storm and have been unable to obtain new vouchers to enable them to move to new apartments with their subsidies. As a result, many of these households may have lost their Section 8 subsidies.

Most tenants struggled to effectively advocate for themselves in order to hold their landlords accountable to their duty to repair. While it is the landlord's responsibility to make repairs under the implied warranty of habitability, some landlords either failed to make repairs or attempted to transfer the costs of the repairs to their tenants in the form of rent increases. In result, many tenants could no longer afford to pay their monthly rent, and were forced to move out.

Tenants in buildings operated by the New York City Housing Authority (NYCHA) were already waiting for extensive repairs to their buildings when the storm hit. NYCHA has faced repeated criticism for allowing hundreds of thousands of repair requests to accumulate over years. After Sandy, tenants in NYCHA buildings were devastated by power outages, inoperable elevators, broken boilers, and flooding. By some estimates, more than 21,000 NYCHA residents across 114 buildings were without power for more than a week after the storm hit. While NYCHA eventually sought to address many of the conditions caused by Sandy in its buildings, the significant delays and lack of transparency and accountability severely impacted the lives of NYCHA residents.

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