The head of a landlord’s advocacy group working to overturn Kingston’s rent control law says he believes city officials are deliberately withholding results of a rental housing vacancy survey that could render the law invalid.

In 2022, the city opted into the state’s Emergency Tenant Protection Act (ETPA) which allows a locally appointed board to set maximum rent increases at 640 eligible rental units in Kingston. To justify inclusion in the law, municipalities must demonstrate a vacancy rate below five percent in ETPA eligible properties. A 2022 survey conducted by the city’s Department of Housing Initiatives established the vacancy rate at 1.7 percent clearing the way for the Kingston Common Council to declare a housing emergency and invoke the ETPA. The council also inserted a proviso — not mandated by the ETPA — that the vacancy survey be repeated every three years to establish the city’s ongoing eligibility for rent control.

The first vacancy survey has been tied up in court since 2022. The Court of Appeals, New York’s highest court, is expected to rule on the lawsuit filed by the Hudson Valley Property Owners Association (HVPOA) later this year. The lawsuit alleges that the 2022 vacancy survey was rigged to ensure that the city could win inclusion in the ETPA, a goal of Mayor Steve Noble since the law was first opened to upstate communities in 2019. HVPOA attorneys have argued that the group’s own survey pegged the vacancy rate at 6.3 percent, in line with a 2019 study by an outside consultant hired by the city which placed the rate at 6.7 percent. Similar challenges by the HVPOA successfully overturned rent control in Poughkeepsie, Newburgh and Albany.

Now, as the Department of Housing initiatives carries out the follow-up survey, HVPOA President Rich Lanzarone said the city is once again manipulating the process. According to Lanzarone, owners of some ETPA properties received the survey on May 1 with a deadline of May 15 for a response. Lanzarone noted that the survey’s methodology counts properties whose owners do not respond as fully occupied creating an incentive for landlords to comply with the effort.

But Lanzarone pointed to a major change in the methodology compared with the 2022 survey. At an informational meeting for owners of ETPA properties, one owner of two sites covered by the law asked why one had received the survey and the other hadn’t. In response, Lanzarone said that city director of Housing Initiatives Bartek Starodaj said that this time around the city was using statistical sampling to establish the vacancy rate rather than survey all of the roughly 50 ETPA eligible properties in Kingston. When asked why they were using statistical sampling, Lanzarone said that Assistant Corporation Counsel Matt Jankowski said that the method was supported by case law.

Lanzarone questioned the new approach. Lanzarone said that it made sense that New York City, with over a million ETPA buildings, would use statistical analysis rather than a unit-by-unit survey — it was harder to justify in Kingston. Lanzarone added that Newburgh, Poughkeepsie, Albany and other upstate communities with a higher proportion of ETPA buildings had all used a blanket survey method as had Kingston back in 2022 when twice as many properties were covered by the law (since then about half of Kingston’s ETPA eligible housing units have successfully challenged their inclusion).

“It raises the question of why they need to change the methodology when the sample size is so small,” said Lanzarone. “Unless they have an ulterior motive.”

Lanzarone also questioned why, two weeks after the deadline, the city had yet to release the results of the survey. Lanzarone said that with a sample size of less than 50 units and a relatively straightforward formula for determining vacancy there was no reason for the delay other than not wanting to make the data public. In 2022, with Noble and the Common Council eager to get rent control on the books, survey results were released within a week of the deadline. Lanzarone said that he had submitted a Freedom of Information Act request for the survey responses, a process he said he expected the city to drag out for the full 35 days allowed by the law.

“The city has always been very responsive to our requests for information,” said Lanzarone. “But this time they’re dragging their feet.”

In response to an email to Noble and Starodaj asking for a response to Lanzarone’s claim that the city was withholding the survey results and requesting additional information on the process, City Hall spokeswoman Summer Smith (who was included in the email) wrote:

“When the vacancy study is completed, the results will be published. As was mentioned in the Community Development and Housing Committee meeting last week, the expectation is that the study will be complete and published sometime this summer.”

While Lanzarone is pushing for immediate release of the survey results, progressive activist group and close allies of the Noble administration For the Many are lobbying the city to hold back the survey results pending a decision by the Court of Appeals on the 2022 study.

Lanzarone meanwhile said that he believes the real reason for the delay is legislation currently before the state legislature that could do away with the survey requirement entirely. The Rent Emergency Stabilization for Tenants Act introduced in February by local Assemblywoman Sarahana Shrethsa would allow municipalities to justify inclusion in the ETPA by relying on publicly available data rather than conduct a vacancy study. The bill has attracted a number of co-sponsors as well as memorializing resolutions in support from local governments in Kingston, Newburgh, Poughkeepsie and Hudson. Lanzarone hinted that, even if the act does pass, the latest vacancy survey could become the subject of further litigation by the HVPOA.

“The [REST Act] says you can use publicly available data or a vacancy survey, it doesn’t say both,” said Lanzarone. “But that’s litigation for another day.”