ETPA Coverage Ends in Long Beach for Buildings with 100 Units

Facts: In 2000 and 2001, the City of Long Beach declared separate housing emergencies for buildings with 60 to 99 apartments, and for those with 100 or more apartments. These apartments became subject to ETPA coverage. Under ETPA Section 8623, the city must declare the housing emergency at an end once the vacancy rate exceeds 5 percent. Landlord, who owned six buildings with 100 or more apartments, sued the city in 2003, claiming that the vacancy rate had risen above 5 percent and that ETPA coverage should end. The court ruled for landlord, finding that the vacancy rate for buildings with 100 or more apartments was greater than 5 percent from January 2003 through May 2003. The city appealed. Court: The city loses. Although a city report issued in August 2003 found that the vacancy rate never was more than 5 percent, landlord's data showed that it was. And the city never produced its collected data in an organized and understandable format, and made no attempt to address landlord's specific claims. Landlord showed that the vacancy rate was more than 5 percent for more than three months. Under the law, ``once'' the vacancy rate hit this point, ETPA coverage must end.

Executive Towers at Lido, LLC v. City of Long Beach: NYLJ, 2/26/07, p. 40, col. 1 (App. Div. 2 Dept.; Schmidt, JP, Rivera, Covello, Balkin, JJ)