Tutorial
Component IX - Strategic Land Use Issues
New York Municipal Insurance Reciprocal
Land Use Law Center - Pace University School of Law
New York Planning Federation
TABLE OF CONTENTS
INTRODUCTION *
General Authority *
ACCESSORY USES *
HOME OCCUPATIONS *
ACCESSORY APARTMENTS *
NONCONFORMING USES *
CLUSTER DEVELOPMENT *
SIGN CONTROL AND OTHER AESTHETIC CONTROLS *
Junkyards *
GROUP HOMES *
The Padavan Law *
ADULT USES *
RLUIPA*
What is religious exercise? *
What is a “Substantial Burden” on a
Religious Exercise? *
What is a Compelling Governmental
Interest? *
Practice Tips *
REFERENCES *
QUIZ *
Most zoning laws, by creating use districts and regulating the dimensions of what can be built, provide for the orderly growth and development of the community. Frequently, however, issues arise that require amendments to zoning and land use regulations to solve emerging community problems. Citizens may report that: “our community is getting too crowded;” “there is too much traffic in our neighborhood;” “open space is disappearing;” or “all these signs are ugly and driving customers away.” Others may ask: “what do we do about cellular towers;” or “do we have to accept this group home or allow this adult business in our community.”
When questions like this arise, the solution is often to add specific provisions to the zoning law. New York State law provides communities with a variety of choices in responding to these growth related issues. Care must be exercised in addressing these strategic issues in order to respect property rights, constitutional guarantees and various requirements of state statutes.
The authority to adopt strategic local restrictions is contained in the general delegation of power to localities to adopt zoning laws and the Municipal Home Rule Law authority to legislate in the public interest.
Village Law § 7-700, Town Law § 261, and General City Law § 20(24) grant
basic land use authority to local governments and allow them to regulate the
details of land development and building construction and alteration. This may
be done for “the purpose of promoting the health, safety, morals or the general
welfare of the community.”
Village Law § 7-702, Town Law § 262, and General City Law § 20(25)
authorize local governments to divide the community into zoning districts and to regulate
the use, construction, and alteration of buildings and land within those
districts.
Village Law § 7-704, Town Law § 263, and General City Law § 20(24) &
(25) provide that zoning and land use regulations must be in conformance
with the locality's comprehensive
plan. The purposes of such zoning regulations are to lessen congestion,
secure safety from fire and flood, prevent overcrowding, facilitate the provision
of infrastructure, and to
encourage “the most appropriate use of land throughout such municipality.”
Section 10(1)(ii)(a)(11) of
the Municipal Home Rule Law states that a municipality may adopt local laws for the “protection and
enhancement of its physical and visual environment.”
Section 10(1)(ii)(a)(14) of
the Municipal Home Rule Law states that a municipality may adopt local laws
as provided in the Statute of Local Governments. Section 10(6) of the
Statute of Local Governments authorizes cities, towns, and villages to adopt zoning
regulations.
When zoning laws are first adopted in a community, they typically contain a provision that allowed property owners to include land uses on their parcels that are accessory to the principal permitted uses. For example, a tennis court accessory to a single-family home. Sometimes the development of accessory uses can be controversial and have an adverse impact on the surrounding neighborhood. Neighbors ask “is a skate board ramp really accessory to my next-door neighbor's house?” Business owners wonder “how can a helipad be considered accessory to that office building?” What is an accessory use and how can they be controlled so as to not impact adversely on the surrounding area?
Accessory uses are those uses of land found on the same lot as the primary use and that are subordinate, incidental to, and customarily found in connection with the primary use. A common example is the single-family home with an accessory garage and driveway. Local zoning laws allow accessory uses that are incidental to the primary uses and customarily associated with that use. The accessory use is essentially a part of the primary use and permitted as-of-right because it naturally accompanies the primary use. Accessory uses are typically limited to those that are customary and incidental so that neighboring landowners, business owners, and residents can expect to see only neighboring uses that are compatible with the character of the district.
A
typical accessory use definition reads: “A building or use clearly incidental
or subordinate to, and customary in connection with, the principal building or
use on the same lot.”
The
plaintiffs in Wike v. Herms (1946), challenged the building of a
proposed filling station and garage contending that repair shops were a prohibited
use in the zoning district. Minor vehicle repairs would be done on the
premises, but the court concluded that the operation of the filling station and
garage was permitted in the zone and that “all operations incidental to the
conduct of a garage business are impliedly authorized.” Therefore, both the
station and its repair shop were permitted.
A use must be incidental to qualify as accessory. This means, first, that it is subordinate to the primary use. Many local laws themselves require that the accessory use may be only a minor use of the land. Second, any accessory use must also be reasonably related to the primary use. If there were no requirement that an accessory use have some connection with the primary use, any accessory use of the property would be permitted even if entirely unrelated to the primary use.
A
homeowner who attempts to establish accessory parking at his home for a
commercial use can be denied the right because the vehicle is commercial. Even
though parking the vehicle for a social visit would be acceptable, parking of a
vehicle for commercial purposes is not related or incidental to the primary
use, a private residence.
In
commercial zoning districts, accessory uses must be limited to tenants,
patrons, or occupants of the commercial building to ensure that accessory uses
remain incidental to the primary use. If, in an office building, an accessory
snack stand, for example, serves people from other office buildings, it is no
longer incidental. Instead, it takes on the properties of a primary use and
cannot be considered accessory.
Accessory uses must also be customary. This means that they are normally well established and customarily associated with the primary use. For example, vehicle parking is customarily associated with both commercial and residential uses. However, this does not always mean that novel uses cannot sometimes be established.
The
Town of Lewisboro, in Collins v. Lonergan (1993), granted single-family
homeowners a permit to construct a skateboard ramp upon certain conditions. The Zoning Board of Appeals
determined that the ramp qualified as a recreational use of the property that
was customarily incidental to the permitted principal use of the residence. The
test used by the zoning board of appeals was “not whether other landowners in
the municipality are engaged in similar activities, but whether such accessory
use can be deemed to be normally incidental to the residential use.” The
Board's determination that a skateboard ramp is a permitted accessory use
because it its customarily incidental to the primary use, much like a tennis
court might be, was considered to be valid.
Municipalities regulate accessory uses in several ways. They may define accessory uses in a general way and simply allow them in all zoning districts. This provides no guidance to the zoning enforcement officer or zoning board of appeals and may give rise to the types of problems discussed above.
The use of a boarding house as an accessory use to
a hospital, for example, may be customary. In one case, a hospital owned two houses
adjacent to its medical facility in which it housed medical staff. The local law did
not set out what is or is not accessory to a hospital, but hospitals
customarily provide living accommodations for at least some personnel, thus it
was permitted.
Another approach is to permit certain listed accessory uses and prohibit all others. Those uses not expressly permitted in the list are prohibited unless it is clearly stated otherwise. This is the most restrictive means of accessory use regulation because the zoning enforcement officer and the zoning board of appeals are limited to the list adopted by the governing board. This could result in denying the property owner a use that is otherwise naturally incidental and customary to the primary use of the land. A more flexible approach is to list problematic accessory uses in the zoning law and prohibit them. This eliminates foreseeable problems with the listed uses while permitting all other accessory uses. The community is protected from potentially incompatible accessory uses yet property owners are not unduly limited in the use of their land.
To provide guidance to assist the zoning enforcement officer and zoning board of appeals in interpreting what is an accessory use, the legislature may adopt a nonexclusive list of acceptable accessory uses. This approach allows property owners to use their land for any listed accessory use and others that are similar to those listed.
Some communities classify certain problematic accessory uses as “special uses” that require a permit, which allows a local board to minimize conflict with the neighborhood in which they are established. This approach allows property owners the option of applying for a special permit for potentially controversial uses rather than prohibiting them altogether.
Historically, single-family homes have been used by their occupants for a variety of occupational uses such as beauty parlors, dressmaking, laundries, and day care. Zoning laws limit single-family homes to residential uses and to those uses that are customarily associated with residential uses, and incidental and subordinate to that residential use. Does this mean that a single-family homeowner can conduct a particular business in a particular neighborhood as an accessory use, or is the occupational use prohibited?
Some zoning authorities examine the proposed occupational use and determine whether it is customary, incidental and subordinate to the residential use. Other municipalities define “home occupations” more specifically in their zoning laws, requiring homeowners to conform their occupational uses to those definitions. Some adopt a list of permitted occupational uses of homes, while others prohibit specific types of occupations.
The
Village of Brewster defines a permitted “home occupation” with these words: “An
occupation, profession, activity or use that is clearly a customary, incidental
and secondary use of a residential dwelling
unit and which does not alter the exterior of the property or affect the
residential character of the neighborhood.”
In
Osborn v. Planning Board of the Town of Colonie (1989), the court noted
that it is not unusual for a home occupation to be operated on a full-time
basis as an accessory use of a residence. The defendant's zoning law permits
“any profession or customary home occupation, provided that the same is carried
on in the dwelling occupied as the private family residence.” The court
concluded that the plaintiff's proposal to create a full-time office in her
home did not change the character of the residential use of the property and
was therefore allowed as an accessory use.
Specific definitions of the types of home occupations that are permitted in a community are often added in response to complaints from neighbors that occupational uses are altering the residential character of their neighborhoods. The local legislature may add a definition of home occupation when the local zoning enforcement officer encounters difficulties in determining if occupational uses are customary, incidental, or subordinate. In some parts of the state, economic conditions have given rise to a rapid expansion of home occupations, particularly professional offices, leading to the addition of regulatory provisions to local codes.
In
Baker v. Poisinelli (1991), the court concluded that the intensity of
use involved in a home occupation may determine whether the use is customary
and permissible. The court sustained the zoning board's determination that a dance
studio for 160 students, operating five days a week, was not a customary use
within that district. The court held that it was rational for the board to find
that the petitioner's operation was more extensive than what was intended to be
permitted under the law as a home occupation.
There are a variety of techniques that municipalities use to regulate home occupations and professional offices. They may let their definition of accessory uses govern the matter, leaving it to the zoning enforcement official to determine, in a given instance, whether a proposed occupational use is customary, incidental, and subordinate to the principal permitted use of a parcel as a single-family home. Other local legislatures may adopt a general definition of a home occupation to provide some guidance to enforcement officials to aid their determinations in these matters. They may supplement their general definition of home occupation with a list of permitted occupations, a list of prohibited occupations, and a definition of permitted professional offices.
Certain types of home occupations may be permitted as-of-right or allowed only
upon the issuance of a special
use permit by a designated local board. In that case, local legislatures
may include specific standards that certain occupational uses must meet, such
as limiting the percentage of floor area that may be used, prohibiting carrying
or selling of merchandise, prohibiting any alteration of the exterior of the
building, limiting businesses to those conducted by occupants of the residence,
and limiting the number of associates, partners, and employees.
An accessory apartment is a second residential unit that is contained within an existing single family home. The accessory apartment is designed as a complete housekeeping unit that can function separately from the primary unit. It usually has separate access, kitchen, bedroom, and sanitary facilities. Generally, accessory apartments are contained within the residential portion of existing single-family homes and are subordinate to the primary unit in size, location and appearance. Some communities allow owners to apply to create an accessory residential unit only in a separate garage, carriage house, or servants' quarters.
The
following are two examples of how regulations around the state define accessory
apartments: “A dwelling unit which is incidental and subordinate to a
permitted principal one-family residence use and located on the same lot, where
either unit is occupied by the owner of the premises.” “A dwelling unit in a
permitted one-family residence which is subordinate to the principal one-family
dwelling unit in terms of size, location and appearance and provides complete
housekeeping facilities for one (1) family, including independent cooking,
bathroom and sleeping facilities, with physically separate access from any
other dwelling unit.”
The policy objectives served by laws which allow for accessory living units include creating a source of affordable housing for the individuals occupying the units, creating a source of revenue for existing homeowners, providing a more secure living environment for homeowners who are senior citizens, and increasing property tax revenues from existing single-family neighborhoods. The impetus for the adoption of accessory apartment laws has often been the need to control the proliferation of illegal conversions of single-family homes to two-family or even multi-family residences. Illegal conversions are often fueled by a decline in household size in the community, the lack of affordable housing, and the aging of those who own single-family homes.
The legalization of such conversions and the creation of standards for the creation of accessory apartments allows the community to provide a safe and affordable housing choice needed in the market. Generally, accessory apartment laws authorize property owners to apply for a special use permit to create an accessory apartment. The law authorizes the zoning board of appeals or planning board to approve applications submitted by eligible property owners who demonstrate that they can meet the standards and specifications contained in the accessory apartment law. This allows the local board to review the eligibility of the applicants and occupants and to conduct a review of the design of the unit and of plans for the use of the site. The board is authorized to impose reasonable conditions on each approval to insure that the impact of the apartment on the neighborhood is kept to a minimum. Where the objective of the community is to enable existing owner occupants to remain in their homes, the community often limits eligibility to homeowners who occupy their single-family homes. This owner-occupant requirement may be justified by a finding that such owners are more likely to maintain their homes and supervise their tenants than absentee owners. Where the objective of the community is to enable senior citizens to continue living in the homes that they own, the eligibility requirements may be narrowed to owner-occupants who are 55, 59, 62, or 65 years of age or older. Where the objectives are to provide affordable housing, communities may make all owners of single-family homes eligible to apply for a special use permit for an accessory apartment.
The Town of Brookhaven in Kasper v. Town of
Brookhaven (1988), adopted an accessory apartment law that required
applicants for accessory apartments to be owners and residents of the 
single-family residence in
which the apartment is to be created. The landowner wanted to establish an
accessory apartment but did not reside in the home and was denied a permit. He
challenged the owner-occupancy requirement, arguing that it violated the equal
protection and due process guarantees of the constitution. The court held that
the defendant town did not exceed its legislative authority by enacting the
accessory apartment law. The town had the authority to limit eligibility to
owners who occupy their homes. The purpose of the law was to protect “those
homeowners who may be of modest means and who will be better able to retain
ownership of their residences and to maintain them in aesthetically acceptable
conditions by leasing the available, unused living space in their homes.”
The size of the accessory apartment may be limited to insure that it is subordinate to the primary unit and that the impact of the occupancy of accessory apartments on the surrounding neighborhood is minimized. The size of the unit can be limited in one of three ways: limiting the number of square feet of space in the unit; limiting the unit to a percentage of the square footage in the single-family home; or a combination of the two.
The impact of accessory apartments on the neighborhood can be minimized through design standards. A simple provision might state that any exterior alteration to accommodate an accessory apartment must conform to the single-family character of the neighborhood. This can be accomplished by requiring the applicant to submit façade renderings as part of the special use permit application. The law can also stipulate that any exterior stairways to the accessory apartment not be constructed on the side of the residence that fronts on any street.
A nonconforming use is created when a zoning provision is adopted or amended to prohibit a particular use (or structure) that lawfully existed prior to the enactment or amendment.
A
typical local law may state: “a nonconforming use is any use, whether of a
building or tract of land or both, existing on the effective date of this
chapter, which does not conform to the use regulations of the district in which
it is located.”
Nonconforming uses are
usually allowed to continue so that the zoning law is not challenged as having
confiscated property owners' investment.
When property owners propose the improvement, expansion, rebuilding, or other change to their nonconforming property, they must comply with local regulations governing those matters. Normally, these regulations are found in a the section of the local law entitled “Nonconforming Uses.” This section may regulate nonconforming uses by limiting their expansion or enlargement, prohibiting the reconstruction of damaged structures, or disallow the reestablishment of nonconforming uses after they have been discontinued for a time.
The local zoning law may
prohibit the restoration of a nonconforming structure that suffers significant
physical damage and require that any reconstruction conform to the zoning law.
Significant physical damage is usually defined as damage that exceeds a certain
percentage of the structure's value. Typical standards range from 25% to 50%.
These provisions are premised on the theory that owners do not have a right to
reconstruct a nonconforming building after it suffers significant damage
because their property rights were destroyed by the disaster, rather than by
the zoning law. The owner, therefore, is in a situation similar to the owner of
a vacant lot and must comply with the applicable zoning restrictions.
Local laws prohibit the enlargement, alteration or extension of a nonconforming use in order to achieve the underlying goal of eliminating nonconforming uses. Normally, such prohibitions do not extend to structural maintenance and repair or internal alterations that do not increase the degree of, or create any new, noncompliance with the locality's zoning regulations.
Courts
have upheld prohibitions on the construction of an awning over a courtyard
outside a restaurant, on the theory that it would create additional space for
patrons to congregate and, in this sense, increase the degree of the
nonconforming use. Similarly, the prohibition of the conversion of seasonal
bungalows to year-round residences has been upheld as an acceptable method of
preventing the enlargement of a nonconforming use.
A property owner's right
to continue a nonconforming use may be lost by abandonment. Local zoning laws frequently
stipulate that any discontinuance of the nonconforming use for a specified
period constitutes abandonment. Where the established period is reasonable,
discontinuance of the use for that time amounts to an abandonment of the use.
The property owner's right to continue a nonconforming use does not allow the owner to change the nonconforming use to a materially different use. The consequence of a finding that a material change in the use has occurred is to deem the prior nonconforming use abandoned and, therefore, terminated. Some local laws have required certain nonconforming uses to be amortized over a specified period at the end of which they must be terminated. The term “amortize” is used to describe these provisions because they allow the owner some time during which to recoup his investment in the nonconforming use.
In Darcy v. Zoning
Board of Appeals of the City of Rochester (1992), the court upheld a local
determination that a nonconforming use was abandoned when evidence showed
discontinuance for at least twenty months, well beyond the six-month period
specified in the law.
In New York State, cluster development is defined
by statute as follows:
A subdivision . . . in which the applicable zoning law or local law is modified to provide an alternative permitted method for the layout, configuration, and design of lots, buildings, and structures, roads, utility lines and other infrastructure, parks, and landscaping in order to preserve the natural and scenic qualities of open lands.
The statutes (Town Law § 278, Village Law § 7-738, and General City Law § 37) state that cluster development may not allow greater density than if the land “were subdivided into lots conforming to the minimum lot size and density requirements . . . of the zoning district in which the property is located.” Normally, land is subdivided and developed in conformance with the dimensional requirements of the local zoning law. Zoning usually requires that the entire parcel be divided into lots that conform to minimum lot sizes and that buildings on subdivided lots conform to rigorous set-back, height, and other dimensional requirements.
In
a half acre residential zone, under normal circumstances, a property owner will
be required to lay out lots of no less than one half acre in size and place
homes on them that are at least thirty feet from the front lot line and no more
than thirty-five feet high. Under cluster development, the locality permits a
land developer to vary these dimensional requirements. This can allow, for
example, homes to be placed on quarter acre lots in a half acre zone. The land
that is saved by this reconfiguration may then be left undeveloped to serve
open space or recreational needs. Often this land is owned and maintained, if
necessary, by a homeowners' association.
All municipalities in New York are authorized, but not required, to use this cluster development method. The ability to encourage or require cluster development is linked to the local government's authority to review and approve land subdivision, a function normally delegated to the local planning board.
The Town Law delegating
cluster authority to town governments, for example, states: “the town board may, by local law or
ordinance, authorize the planning board to approve a cluster development
simultaneously with the approval of a subdivision plat. These sections
contain nearly parallel authority for towns, villages and cities, with the
exception that villages can adopt cluster development provisions only by local
law while towns and cities can adopt the provisions by law or ordinance.” The
powers of local governments to permit clustering are found in Village Law § 7-738, Town Law § 278, and General City Law § 37.
The limitations of traditional zoning requirements, including its rigorous lot size and set back provisions, have long been recognized. Their essential function, for most communities, is to establish the maximum density at which land can be developed. By knowing this maximum density, the community can determine its future service and facility needs and otherwise plan its future. As applied to particular parcels and neighborhoods, however, the rigorous dimensional requirements can limit the ability of the planning board to create developments that best meet local needs.
As part of its
“conservation subdivisions” local law, the Town Board of Bedford authorized its
planning board to preserve “a unique or significant natural feature of the
site, including but not limited to a vegetative feature, wildlife habitat,
surface water supply, underground aquifer, endangered species, rock formation
and steep slopes” and to protect “a unique or significant feature of the
man-made environment of the site, including but not limited to a building,
structure or artifact of architectural, historical or archeological value.”
Bedford's cluster law allows lot sizes in residential zoning districts to be
reduced to 10,000 square feet, with widths reduced to no less than eighty-five
feet.
The flexibility that localities enjoy under their authority to cluster development is often misunderstood. For example, it is assumed that land developers may elect the cluster development method, but may not be required to do so. If the locality wishes, however, it can require development to be clustered to meet local objectives.
Under cluster development authority, the planning board may be authorized to permit multi-family housing in a single-family zone as long as it does not increase the permitted number of houses otherwise permitted. Further, clustering can be done in commercial and industrial zoning districts; it is not limited to residential districts, as is often assumed.
The first step in adopting cluster development provisions is for the local legislature to enact a law or ordinance authorizing the planning board to adjust the dimensional requirements of the zoning law in particular circumstances. The legislative act must specify the particular zoning districts in which clustering is to be permitted. The act must also contain the circumstances under which clustering is permitted, the objectives it seeks to accomplish, whether clustering may be required of a land developer and which provisions of the zoning law may be altered. These provisions of the act will define how broad the authority and discretion of the planning board will be in applying the cluster technique to subsequent subdivisions.
The developer must submit a conventional subdivision plan, or “plat,” so that the planning board may determine the density of development that would be allowed without clustering. The planning board must exercise its judgment to determine the maximum density that would be permitted if a conventional subdivision were approved. Then, a clustered subdivision plat may be submitted that places the permitted density on a portion of the site, leaving the remainder as undeveloped open space or as a recreational facility.
The planning board must have
sufficient information to make a credible judgment as to the density permitted
for a conventional subdivision, but does not need to follow all the formal
steps required in the conventional subdivision process. If the applicant fails
to submit sufficient information and detailed drawings to allow the planning
board to perform this function, the board may deny the application.
All of the requirements of subdivision approval must be met as the clustered subdivision application is reviewed and approved. These include compliance with the provisions of the comprehensive plan, the environmental review procedures imposed by state and local law, and the public notice and hearing and other requirements applicable to all subdivision approvals.
After the clustered
subdivision is approved and formally filed, a copy of the approved plat must be
filed with the municipal clerk
who is required to place appropriate notations and references regarding the
permitted development on the zoning map
of the municipality.
Localities must be careful
in designing their clustering system to avoid uneven, arbitrary, and
discriminatory treatment of applicants for subdivision approval.
SIGN CONTROL AND
OTHER AESTHETIC CONTROLS
Local aesthetic regulations can serve two important purposes: to prevent bad design; and to preserve existing visual assets. The negative impact caused by certain uses -- such as junkyards and billboards – can be mitigated or avoided by aesthetic regulation. In addition, views of positive visual assets, such as historic buildings and landmarks or a nearby landscape may be preserved through the application of such regulations.
All land use regulations must be designed with the goal of protecting the public health, safety and general welfare. Aesthetic regulations are principally justified as a method of protecting the public welfare. They do so by stabilizing and enhancing the aesthetic values of the community. This enhances civic pride, protects property values, and promotes economic development. Vibrant communities generally contain natural and man-made features that provide visual quality and distinction which, in turn, enhance the reputation of the community as a desirable place to work, visit, and live. Regulations that protect important visual features and that prevent visual blight further the public welfare and constitute a valid exercise of the police power.
Communities are often confronted with the issue of how to deal with signs. They can be unsafe for drivers or just unsightly. Many communities have adopted local sign control laws to address this problem. Provisions can be added to the zoning law, or separately enacted to control the location, size, and aesthetics of signs and billboards. In addition to advancing aesthetic purposes, such provisions can protect public safety, stabilize property values, and foster sound economic development. Sign controls must be adopted with caution, however, because of Constitutional, First Amendment considerations.
The First Amendment right
to free speech protects the content
of signs, which may only be regulated to achieve a compelling state interest.
The Town of North
Hempstead enacted a local law regulating the use of signs that completely banned
freestanding political signs. The law made it “unlawful to erect and/or
maintain any freestanding political sign in any use district.” The law was
enforced in People v. Middlemark (1979). The Court held that the total
prohibition of freestanding political signs is an infringement of First
Amendment rights In addition, the law violated the constitutional guarantee of
equal protection to all citizens by drawing an “impermissible distinction
between political signs and other signs.”
The local law was thus held to be unconstitutional.
The right to free speech, however, does not affect the authority of local governments to regulate the “time, place and manner” by which signs and billboards communicate their messages. Some municipalities in New York State have adopted extensive provisions that regulate the type of construction, size, location, color, illumination, design, texture, and other aspects of signs, and apply different standards in selected zoning districts. There are a variety of visual resources that a community may want to protect from the potential negative effects of new development. These may include a historic district; distinctive landmark building; corridor of distinctive architecture; views from the community to outlying hills, mountains, or rivers; a dramatic visual entry into the community; or a cultural or historic landscape. When this type of visual asset enhances a community's reputation and character, regulations that preserve it for the benefit of the community may be needed.
Junkyards
Strategic local laws are sometimes enacted specifically to regulate junkyards. Junkyards should be defined by local law, and often include areas where junk, waste and discarded or salvage materials are bought, sold, exchanged, stored, baled, packed, disassembled, or handled. Section 136 of the General Municipal Law requires that automobile junkyards, as defined therein, be licensed, but junkyards may also be regulated locally. Some laws completely exclude junkyards. This approach is not advisable. Instead, junkyards should be regulated to avoid negative effects on the surrounding neighborhood. This may be done by relegating junkyards to industrial zones or requiring screening. Enclosing junkyards with a high fence made of opaque material protects the public from the unsightly view of junkyards and is within the power and authority of local governments to require.
Local junkyard regulations
are sometimes invalidated for vagueness. The definition of “junkyard” should be
definite and clear and the definition must not be too broad or all-inclusive.
If this is the case, property owners might not be able to ascertain whether
they are violating the law or not. In these situations, courts will consider
the law void for vagueness.
Authority for local governments to protect local aesthetic and scenic assets comes from many sources. These include the power to adopt zoning provisions to accomplish the most appropriate use of the land and to adopt a comprehensive plan to provide for the preservation of historic and cultural resources. Under their Home Rule Authority, a locality may provide for the “protection and enhancement of its physical and visual environment.” State laws provide localities with authority to preserve trees, landmarks, and historic districts. State laws delegating authority to local governments to adopt regulations and procedures for approving site plans, subdivisions, variances, and special use permits recognize that such regulations may be protective of the visual environment. As lead agencies under the State Environmental Quality Review Act, local reviewing bodies must take all practical steps to avoid significant negative environmental impacts on environmental resources of “historic or aesthetic significance.”
The term “group homes“ covers a wide range of living arrangements. It can include both unlicensed and licensed homes for recovering substance abusers, the mentally and physically disabled, special needs populations such as pregnant/parenting teens and victims of domestic violence, and supervised foster homes. Typically group home residents are supervised and share a home with a common kitchen, sanitary facilities, and other common living facilities. Group homes may take the form of institutional type facilities such as shelters, transitional housing, single-room occupancy hotels, or facilities that include more than fourteen residents, but may also include other non-traditional households such as shared housing arrangements for the elderly and other unrelated populations simply seeking to create a more affordable housing alternative through home sharing.
In McMinn v. Town of
Oyster Bay (1985), the Court of Appeals held that a zoning law that restricted
the occupancy of single-family homes had no reasonable relationship to a
municipality's legitimate zoning purposes. The zoning law in McMinn
restricted the definition of family to “any number of persons related by blood,
marriage, or legal adoption, living and cooking on the premises together as a
single, non-profit housekeeping unit” or “any two (2) persons not related by
blood, marriage or legal adoption, living and cooking on the premises together
as a single, nonprofit housekeeping unit, both of whom are sixty-two (62) years
of age or over, and residing on the premises.”
According to the Court, “manifestly, restricting occupancy of single-family housing based on the biological or legal relationships between its inhabitants bears no reasonable relationship to the goals of reducing parking and traffic problems, controlling population density and preventing noise and disturbance.” Thus, these legitimate goals, including the goal of preserving the character of a single-family district, could be not achieved through such a narrow definition of family.
As a result of McMinn,
zoning laws that effectively limit the number of unrelated persons living
together in a single-family zone, but do not similarly restrict the number of
related persons, are violative of the New York State constitution.
To meet the McMinn
standard and avoid violating the New York State Constitution, a municipal law
cannot differentiate between related and unrelated individuals when defining
“family” or occupancy restrictions for single family zoning districts.
In New York State, the Padavan Law takes precedence over local zoning authority in the siting of licensed community residential facilities for the mentally disabled. The Padavan Law is a statute that provides for community input into the siting of group home facilities. The purpose of the law was to promote and encourage the placement of mentally disabled individuals in community settings to provide the “least restrictive environment that is consistent with” the needs of such individuals. The statute includes a community notice requirement in which the project sponsor formally identifies the proposed site, the type of community residence, the anticipated number of residents, and provides this information in the form of a notice to the chief executive officer of the municipality. Then the municipality has a forty day response period to analyze the proposal, approve the site, suggest one or more suitable sites, or reject the siting of a facility within the municipality because of an over concentration of such facilities.
Section 41.34 of the Mental Hygiene Law,
known as the Padavan Law, defines a group of individuals ranging from four to
fourteen individuals as a single family for local zoning purposes, if their
home is licensed by the New York State Office of Mental Health or Office of
Mental Retardation and Developmental Disabilities. The law requires notice to
the affected community and subjects such homes to certain dispersal guidelines
to avoid saturation in any particular neighborhood.
The essential element of the Padavan Law is mandated, but flexible, dispersion guidelines. After receiving notice, a municipality may approve the recommended site, suggest alternative sites, or object to the establishment of a facility because of over-concentration. If a municipality claims saturation or over-concentration, a critical factor is whether the nature and character of the area in which the facility is to be based would be substantially altered as a result of establishment of the facility. Over-concentration is determined by identifying the number of similar facilities (licensed community residences and residential care facilities, and facilities providing residential services to former in-patients) located in proximity to the area of the proposed siting or located within the municipality. It must be noted that these dispersion guidelines are absolute and must also be applied to alternative sites recommended by a municipality prior to approval by either the Commissioner of Mental Health or by the Commissioner of Mental Retardation and Developmental Disabilities. No municipality has ever succeeded on a challenge of a proposed siting based on over-concentration. Municipalities have raised traditional local concerns to show the proposed siting will alter the character of a neighborhood. These traditionally valid concerns, such as safety and traffic, have been found to be without effect unless there is an over-concentration of similar facilities and the nature and character of a neighborhood will be substantially altered.
In Jennings v. New York
State Office of Mental Health (1997), the Court of Appeals dismissed an Article 78 petition and
interpreted the facility siting criteria of the Padavan Law. A community residence
to be licensed by the New York State Office of Mental Health was proposed to be
sited in an Albany neighborhood. The Mayor of Albany objected to the site and
requested a hearing without suggesting an alternative site for the facility. At
the hearing, the State Office of Mental Health provided evidence that there was
a significant need for more residential, non-institutional programs in Albany
County. The City's witnesses argued that: (1) there was an over-concentration
of special needs housing (unlicensed and licensed housing) in the Albany
neighborhood; (2) property values had been adversely impacted by these existing
facilities; and (3) when conducting an over-concentration analysis, facilities
located in the area adjacent to the neighborhood should be included.
The Court stated that, “while over concentration is certainly relevant, whether the nature and character of an area will be substantially altered by the establishment of the proposed facility is the dispositive inquiry.” Furthermore the neighborhood boundaries were defined by the City's own witnesses and there was “no indication that the larger area . . . would be any more 'saturated' than the smaller neighborhood.” Moreover, the Court affirmed both the hearing officer's and Commissioner's conclusion that testimony concerning a decrease in property values was an irrelevant inquiry.
The regulation of adult uses occurs when local governments adopt land use laws aimed at controlling businesses that provide sexual entertainment or services to their customers. Adult uses can include X-rated video shops and bookstores, live or video peep shows, topless or fully nude dancing establishments, combination book/video and “marital aid” stores, non-medical massage parlors, hot oil salons, nude modeling studios, hourly motels, body painting studios, swingers clubs, X-rated movie theaters, escort service clubs, and combinations thereof.
The public purpose justifying adult use zoning is to prevent or contain the increased crime, diminished property values, and blight that can occur as secondary effects when adult businesses operate in an area. Studies prepared prior to the adoption of local adult use regulations in New York have identified the “secondary effects” of these uses. These include increased sex-related crimes, drug dealing and petty street crime, a reduction in property values, long-term economic decay, adverse effects on surrounding businesses, and the perception of blight and decay. Communities are moved to action when they experience or fear the negative secondary effects of adult establishments and sense a need to adopt special regulations to control those effects.
The public interest in controlling the secondary effects of adult uses provides the legal, factual, and political justification for their regulation. The Supreme Court has held that secondary effects studies are the factual backbone supporting the substantial government interest necessary for controlling adult uses through land use regulations. Utilizing these studies, communities use the authority delegated to them by the state to adopt zoning provisions to protect the public safety and welfare “with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the municipality.”
Municipalities should draft adult use zoning regulations based on impact studies conducted by them or by other jurisdictions that are relevant to their particular circumstances. Courts have held that the substantial government interest in adult use restrictions must be supported by evidence gathered through public hearings, law enforcement memoranda, affidavits from planners and real estate experts, and statistical and empirical evidence. Information collected in secondary effects studies becomes the factual and evidentiary basis justifying restrictions on adult uses.
Adult
use laws should not be adopted simply in response to community opposition. The
use of empirical and anecdotal evidence has been approved by courts to show the
adverse impacts of existing adult businesses in communities. The evidence was
provided by business owners and community leaders at public hearings held prior
to the law adoption. This type of evidence should be supported by an impact
study which includes factual information such as crime statistics conducted for
the jurisdiction preparing adult use zoning restrictions.
References to moral
objections in adult use resolutions may be enough to spark a constitutional
challenge. Laws which speak in terms of the “objectionable” nature of adult
businesses or requiring that applicants for adult use permits be of “good moral
character” are particularly vulnerable to attack.
Municipalities must be
careful not to aim their prohibitions and restrictions at the content of the
expression found in adult business services, and to limit their proscriptions to
regulating the secondary, adverse effects of adult use businesses.
The
U.S. Supreme Court upheld a local zoning law requiring adult motion picture
theaters to locate 1,000 feet from any residential zone, family dwelling,
church, park, or school in Renton v. Playtime Theaters, Inc. (1986).
Following the prior holding of American Mini Theaters, Inc., the
court allowed the adult use regulation to impose time, place and manner
restrictions. The court reinforced American Mini Theater's holding that
“preserving the quality of urban life” is a substantial government interest,
and that interest may be justified by factual studies exposing adverse
secondary effects associated with adult businesses. The court also found that
the law was narrowly tailored to affect only the group of uses producing the
unwanted secondary effects. It also held that the availability of five percent
of the entire land area of the town for relocation was reasonable and that
adult business owner must “fend for themselves in the real estate market”
because economic impact is not a viable First Amendment argument.
Where communities need time to study how best to regulate adult businesses, they are authorized to adopt a moratorium on the issuance of permits to all adult businesses or such businesses in particular zoning districts or neighborhoods. Reasonable progress toward studying the situation and drafting zoning controls should be made following the adoption of a moratorium or before one is extended.
RELIGIOUS LAND
USE AND INSTITUTIONALIZED PERSONS ACT (RLUIPA)
The Federal RELUIPA statute generally requires that no government shall impose or implement a land use regulation in a manner that imposes a substantial burden on religious exercise, unless the government demonstrates a compelling governmental interest that is the least restricticve means of furthering that interest.
Because of New York State’s own long-standing legal precedents that religious (and educational) institutions are to be afforded special treatment and enjoy constitutionally protected status, state courts have – consistent with RLUIPA - generally supported the siting of religious uses subject only to the local government’s finding of public health, safety and welfare concerns (traffic and parking are usually the big issues).
What is religious exercise? The term
‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious
belief.
What is a “Substantial Burden” on a
Religious Exercise? RLUIPA does
not define “substantital burden”. Most courts agree that it is not a
substantial burden to require religious entities to apply for variances or
special permits. However, a “complete denial” of an applicant’s proposal is not
necessary for a substantial burden to be found. Cathedral Church of the Intercessor v. Incorporated Village of Malverne
(E.D.N.Y.2006)
What
is a Compelling Governmental Interest? Traffic
and parking concerns may possibly be compelling interests, but strong evidence
is needed that the regulations are the least restrictive means of furthering
those interests. Westchester Day School; Lighthouse Community Church of God; Greater
Bible Way Temple of Jackson. Concerns related to property values are not
compelling interests. Preventing blight and sprawl are also not compelling
interests.
Religious organization
proposed to replace its existing monastery with a new facility to contain 42
bedrooms, a dining hall, laundry facilities, meeting rooms, office space, a
bookshop and a library. The Court noted religious institutions are more than
“merely an edifice affording people the opportunity to worship” and that
religious uses include activities beyond prayer and sacrifice. Committee to Protect Overlook, Inc. v. Town
of Woodstock (2005)
While religious
institutions are not exempt from local zoning laws, great flexibility is
required when reviewing an application for a religious use as opposed to another
use, and every effort must be made to accommodate that use. Where there is no
effort to accommodate, courts will annul a denial. St. Thomas Malandara Church, Inc. v. Town of Hempstead (2005).
Practice Tips
· Develop a detailed record for any administrative actions involving religious institutions for the purpose of supporting any findings of “compelling government interest”. Be careful to avoid statements and actions that could be construed as discriminatory.
· Begin public meetings/hearings on any religious use application by reminding the public about the government’s responsibility not to discriminate – ask that the public also refrain from such comments and actions. Consider making a statement that the Board may not and will not consider mere public opposition as a factor in reviewing the application. If conditions are placed upon a religious use, make sure they are narrowly drawn to address only the specific potential adverse effects documented in the project review. Finally, don’t comment on potential projects that have not been formally submitted for review.
A. Irina Olevsky, The Regulation of Home Occupations Under Zoning Ordinances, http://www.law.pace.edu/landuse/.
B. Michael Murphy and Joseph Stinson, Cluster Development, http://www.law.pace.edu/landuse/.
C. A Guide to Accessory Apartment Regulations: The Westchester Experience; Westchester County Department of Planning, March, 1989.
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