Document cayugacounty_gov_doc_30765c2c2a

LOCAL UNDESIRABLE LOCAL UNDESIRABLE LAND USE REGULATION New York Department of State ---PAGE BREAK--- Uses most don’t want next door… Allowed or not allowed Allowed or not allowed in zoning code Zoning provisions Zoning provisions †Uses not listed as allowed hibit d are prohibited Special status †Court decisions †State or federal law †State or federal law ---PAGE BREAK--- Acronyms y LULU Locally undesirable land use LULU NIMBY y Not in my backyard NIMEY Not in my election year N i f ffi NIMTOO NOPE Not in my term of office Not on planet Earth NOPE BANANA p Build absolutely nothing anywhere near anything CAVEs anything Citizens against virtually everything ---PAGE BREAK--- Necessary, but how? Often handled differently ƒ Mining & Gas Drilling ƒ Wind Energy Facilities ƒ Group Homes ƒ “Monster” houses ƒ Telecommunications Facilities ƒ Landfills ƒ Home day care ƒ Adult Uses ƒ Billboards & Signs y ƒ Backyard chickens ƒ Non-retail storefronts ƒ Manufactured Housing Non retail storefronts ƒ Large-Scale Retail ---PAGE BREAK--- Comprehensive planning Reduces controversy Reduces controversy Legal support Municipalities with Comprehensive Plans Infrastructure investments Cities 92% Towns 71% †Identifies areas for municipal & private Villages 66% All 76% investment Public input on Source: NYS Legislative Commission on Rural Resources (2008) p controversial issues ---PAGE BREAK--- Can a use be prohibited? p Exclusionary Zoning Exclusionary Zoning † Regulations that singly or in concert tend to exclude low Most non-residential uses may be zoned out if the concert tend to exclude low or moderate income housing municipal-wide exclusion is supported by the comprehensive plan Examples † Large lot or high minimum † Large lot or high minimum square footage requirement † Excluding multiple dwellings c ud g u p e dwe gs or mobile home ---PAGE BREAK--- Spot zoning Parcel can be “the process of singling out Parcel can be rezoned to allow a use supported by the process of singling out a small parcel of land for a use classification totally a use supported by comprehensive plan different from that of the surrounding area, for the benefit of the owner of Zoning changes b bl benefit of the owner of such property and to the detriment of other must be reasonably related to legitimate bli owners . . [Rogers v Tarrytown 302 NY public purposes [Rogers v. Tarrytown, 302 NY 115, 96 NE2d 731 (1951 ---PAGE BREAK--- Wind energy facilities gy Distinguish between residential, g , agricultural or commercial turbines ƒ Regulate with zoning: ƒ Restrict to districts or municipal-wide ƒ Setbacks ƒ Noise ƒ Special Use Permit ƒ Regulate without zoning: ƒ Site plan review ƒ Article X ---PAGE BREAK--- Mining g Regulate with zoning: Regulate with zoning: ƒ Restrict to districts or municipal-wide ƒ Special Use Permit with conditions: ƒ Ingress & egress ƒ Truck routes Regulate without zoning: ƒ Site Plan Review ---PAGE BREAK--- DEC mining permit process Municipalities submit recommendations to Municipalities submit recommendations to NYS Department of Conservation on: ƒ Setbacks from Setbacks from ƒ property boundaries ƒ public R O W ƒ public R-O-W ƒ Dust control ƒ Hours of operation ƒ Barriers restricting access ---PAGE BREAK--- Hydraulic fracturing ƒ Water Water ƒ Roads ƒ Noise ƒ Light ƒ Economic Development Development ---PAGE BREAK--- State regulation ƒ NYS Department of NYS Department of Environmental Conservation ƒ Reviewing comments on DGEIS ƒ Developing regulations ƒ Developing regulations ƒ Hiring, training regulatory g g g y staff DEC: http://www.dec.ny.gov/energy/46288.htm ---PAGE BREAK--- Local regulation ƒ No NYS appellate decisions defining the limits pp g of local regulation of gas drilling ƒ NY case law N case aw ƒ Frew Run Gravel Products v. Town of Carroll St t S C t d i i h ld D d ƒ State Supreme Court decisions upheld Dryden & Middlefield zoning bans E i l C i L Environmental Conservation Law † Article 23 (Mineral Resources): „ §23-0303 §23 0303 „ §23-2703 (Mined Land Reclamation Law) ---PAGE BREAK--- Solid waste facilities Includes storage, transfer, g , , disposal, treatment or internment Types „Landfills „Open dumps „Open dumps „Transfer stations ---PAGE BREAK--- Solid waste regulation: Local ƒWith zoning: as of right, special use permit ƒWithout zoning: site plan review State ƒNY ECL §27-0701(1) and 6 360 F d l Federal: ƒResource Conservation & Recovery Act of 1976 ƒ40 CFR Part 258 ---PAGE BREAK--- Exceptions DEC permit & registration not required for certain Construction & Demolition (C & D) landfills determined by: ƒ Hours of operation- sunrise & sunset ƒ N f ƒ No fee ƒ Debris type: ƒ i bl t i t d t & t d t ƒ recognizable uncontaminated concrete & concrete products (steel or fiberglass reinforcing rods embedded in concrete, asphalt pavement, brick, glass, soil & rock) ƒ d & d h ƒ trees, stumps, yard waste & wood chips „ Must originate & be disposed of on properties under the same ownership or control „ 6 Part 360 – 7.1(b) ---PAGE BREAK--- Transfer stations Regulate with zoning: Regulate with zoning: ƒ Restrict to districts or municipal-wide municipal wide ƒ Special Use Permit with conditions: conditions: ƒ Ingress & egress ƒ Truck routes PROS: ƒEconomically viable if dump is more ƒ Truck routes Regulate without zoning: than 15-20 miles ƒ Potential reuse of empty buildings CONS: Regulate without zoning: ƒ Site Plan Review ƒ Increased traffic, noise, odors, litter ƒPotential to zone into poor/minority communities ---PAGE BREAK--- Economies of scale Several smaller stations Single large station ƒ Reduces equipment, construction, waste handling, and transportation costs ƒ Increases construction and operations costs relative to station with same total capacity g g ƒ May be easier than siting multiple facilities ƒ Conducive to barge or rail operations (decreasing traffic impacts) ƒ Siting process repeated several times ƒ Less conducive to barge or rail operations (increasing traffic impacts) ƒ D t li i d i t id (decreasing traffic impacts) ƒ Concentrated impacts create perception of neighborhood inequity ƒ Longer travel times lead to increased ƒ Decentralizing spreads impacts over wider area, addressing social equity issues ƒ Savings from reduced travel times might offset capital costs, resulting in lower down time for collection crew, increased wear and tear on vehicles ƒ No backup facility--needs additional equipment in case of equipment failure overall system costs ƒ May serve as backups for one another in case of scheduled or emergency shutdowns. equipment in case of equipment failure or other emergencies. ---PAGE BREAK--- Telecommunications facilities Municipality cannot Municipality must ƒ Prohibit personal wireless service ƒ Act on applications ithi “ bl Municipality cannot Municipality must wireless service ƒ Unreasonably discriminate among within “reasonable period of time” discriminate among providers ƒ Regulate based on ƒ 90 days for co- locations g health effects from RF emissions ƒ 150 for others ---PAGE BREAK--- Cell towers as public utility To site tower where not To site tower where not allowed by zoning, show: ƒ Compelling reasons to grant variance: ƒ Necessary to provide safe & adequate service ƒ Significant gaps in coverage if placed on alternative sites Cellular Telephone Co. v. Rosenberg (NYS Court of Appeals 1993) (NYS Court of Appeals 1993) ---PAGE BREAK--- Dish antenna (1m or less) Over-the Air Reception p Devices (OTARD) Rule Municipality cannot: ƒ Delay or prevent use of signal ƒ Unreasonably increase cost of dish installation ƒ Can regulate for safety & ƒ Can regulate for safety & in historic districts by least burdensome, clearly www.fcc.gov/mb/facts/otard.html defined restrictions ---PAGE BREAK--- Adult uses ƒCannot prohibit this land use Cannot prohibit this land use (1st Amendment Protection) ƒRegulate with zoning ƒ Must provide viable locations Must provide viable locations ƒ Definitions must be clear ƒAim regulations at secondary effects secondary effects ---PAGE BREAK--- Billboards ƒ Regulate size & location: ƒState Uniform Code ƒState Uniform Code ƒZoning ƒSite Plan Review S e a ev ew ƒLocal Permit ƒ Cannot regulate content (1st Amendment protection) NYS DOT regulates signs along interstate & primary highways Municipality may be more restrictive than DOT ---PAGE BREAK--- Political signs g Regulate physical characteristics: Regulate physical characteristics: ƒ Traffic safety, aesthetics, property values Treat as temporary signs: ƒ Size, height & location: Ban all signs on public property g p p p y ƒ Permits: Apply to all signs ƒ Duration ƒ Duration: Apply evenly & linked to “event” ƒ Fees: Relate to administrative costs ---PAGE BREAK--- Manufactured homes Federal Federal † Construction & Safety State † Uniform Code † Manufacturer’s Manual NYS D t f H lth NYS Dept. of Health † Mobile Home Parks † Sanitary Code Part 17 ---PAGE BREAK--- Manufactured homes Municipalities may amend zoning or adopt local law to address farm worker housing Examples of local law provisions: Examples of local law provisions: † Show proof of continuing employment on the farm † Do not allow the creation of new lots † Do not allow permanent additions to the home p ---PAGE BREAK--- Manufactured homes Health, safety & general welfare of the public ea , sa e y & ge e a we a e o e pub c † Zoning „ Limit to certain districts Limit to certain districts „ Lot size & setbacks Cannot exclude completely Cannot exclude completely † Town of Pompey v. Parker Conditions Conditions † Site Plan Review S i l U P i † Special Use Permit Cannot exclude based on age of home ---PAGE BREAK--- Group homes for the disabled p M l H i Will facility result in a Mental Hygiene Law § 41.34 y concentration of similar homes to the extent “A community residence established pursuant to community character is altered? p this section and family care homes shall be d d f il i deemed a family unit, for the purposes of local laws and local laws and ordinances.” ---PAGE BREAK--- Religious Land Use & Institutionalized Persons Act (RLUIPA) Institutionalized Persons Act (RLUIPA) Regulate characteristics influencing physical environment: Religious uses are not exempt from land use regulations environment: „ Lot coverage, parking, signage Municipalities may not: † Place “substantial burden” † Place substantial burden † Zoned out of residential districts † Prohibit if impact similar to other allowed uses ---PAGE BREAK--- Monster houses Recognize desire for Recognize desire for larger homes Consider economic Consider economic health of community Balance affordable Balance affordable housing interests See “First Suburbs See First Suburbs Coalition Idea Book” http://www.marc.org/firstsuburbs/plan book htm book.htm ---PAGE BREAK--- Monster houses Limit size & establish floor area ratio (FAR) Limit size & establish floor area ratio (FAR) Require site plan review for houses that meet thresholds for size or percentage of expansion thresholds for size or percentage of expansion Gross Floor Area: † All covered space such as porches carports etc † All covered space such as porches, carports etc. † Additional ceiling height calculated as 2nd & 3rd floors „ Cathedral ceilings, open stairwells, etc. Limit “Squarification” † Require set backs for upper floors † Control side yard setbacks ---PAGE BREAK--- Home day care Comprehensive plan should recognize need for residential day p p g y care and identify appropriate areas; zoning should follow suit Definitions are important: ƒ “Family home day care” and “G f il h d ” Municipality can enforce: fire, building and health regulations “Group family home day care” allowed by right in single-family and multi-family dwellings Municipality cannot enforce: anything beyond the underlying residential use, i.e.: ƒ i i l t i ƒ “Child day care center” and “school age child care” are different, and fully subject to ƒ minimum lot size ƒ minimum floor-space per child ƒ off-street parking ƒ off-street pickup/drop-off areas different, and fully subject to zoning off-street pickup/drop-off areas ƒ no outdoor play area after P.M ---PAGE BREAK--- Doggie day care gg y Often not addressed in zoning Often not addressed in zoning † Allow in more districts Define † How many dogs per day † No overnights Address potential impacts † Noise DOG DAY CARE FACILITY: A commercial facility for the supervised f d f i d f l h † Parking „ Staff care of dogs for periods of less than 24 hours a day, not to include facilities that provide boarding, breeding or selling of dogs, or facilities whose „ Spaces per dog „ Drop off area selling of dogs, or facilities whose primary source of revenue is licensed veterinarian services. ---PAGE BREAK--- Backyard chickens y PROS PROS ƒ Urban agriculture movement ƒ Inexpensive source of protein ƒ Therapeutic and educational ƒ Need little space CONS ƒ Roosters (not hens) are noisy Consider regulating: ƒ Fowl odor? ƒ Fear of decreased property value ƒ May attract pests (foxes coyotes) 9 Number of birds, gender 9 Setbacks for coops/pens 9 Feed storage 9 F ƒ May attract pests (foxes, coyotes) 9 Fences 9 Cage size, height, materials 9 Neighbor consent ---PAGE BREAK--- Nonretail uses in retail districts ƒ Nonretail uses in “storefronts” Nonretail uses in storefronts ƒ Reduces critical mass of retail shopping district ƒ Zoning Tools: ƒ Zoning Tools: ƒ Minimum percentage street-level retail ƒ Special use permit for nonretail ƒ Special use permit for nonretail ƒ Exclude residential on first floor E l d ll l t ti ƒ Exclude all or some non-sales tax generating uses ƒ Minimum separation between non-sales tax generating uses generating uses ƒ Pedestrian-Oriented Shopping overlay ---PAGE BREAK--- Large-scale retail ƒ Maximum square footage Ma u squa e oo age ƒ Absolute ƒ SUP ƒ S d h h ƒ Economic Impact Study through SEQR ƒ Review criteria Review criteria ƒ Architectural style ƒ Landscaping ƒBuffering & screening ƒParking requirements ---PAGE BREAK--- D f di Y D i i Defending Your Decisions ---PAGE BREAK--- Inform & involve public p Unearth controversy early Unearth controversy early †Receptive to change †Before the public feels steamrolled Potentially controversial projects †Hold informational meetings with residents & stakeholders ---PAGE BREAK--- Community opposition Generally, community opposition is not a valid basis for denying most applications— if already permitted b i d by zoning, and requirements are met ---PAGE BREAK--- Moratoria Adopt moratorium law to: Adopt moratorium law to: Update comprehensive plan to consider new uses to consider new uses Update regulations to prevent prevent: † hasty decision Wrong Reasons for Moratoria: † Slow development hoping d l ill † unplanned & inefficient growth † construction inconsistent developer will go away † Halt development while municipality considers † construction inconsistent with comprehensive plan municipality considers buying land ---PAGE BREAK--- LULUs & Media Controversial Applications Controversial Applications †Decide how to respond „P l f ff th d „Press release, news conference, off the record, spokesperson †Define “off the record” †Define off the record †Correct false assumptions †Be wary of loaded words ---PAGE BREAK--- LULUs & Media Most news people Most news people are generalists †Not experts in municipal law †Educate them „Knowledge of local government improves accuracy ---PAGE BREAK--- The Record Materials in the record tell the story of the Materials in the record tell the story of the application & typically include: †Application & supporting documentation †Application & supporting documentation †Newspaper notices †Meeting minutes Mee g u es †SEQR materials †Public hearing testimony g y †Written submissions from public †Expert opinion †Decision, conditions, findings ---PAGE BREAK--- Findings ƒ Describe reasons for denial or approval of an Describe reasons for denial or approval of an application & may support: ƒ Why a condition was imposed ƒ Why a condition was imposed ƒ Decision if challenged in court ƒ C l t t t t “Fi di ” ƒ Conclusory statements are not “Findings” ƒ “The standards were not met.” A ƒ A decision based on conclusory statements is: ƒ Not supported by factual information in the record ƒ Will be struck down in the courts ---PAGE BREAK--- New York Department of State (518) 473-3355 Training Unit (518) 473 3355 Training Unit (518) 474-6740 Counsel’s Office ( ) (800) 367-8488 Toll Free Email: localgov@dos ny gov Email: [EMAIL REDACTED] Website: www.dos.ny.gov www.dos.ny.gov/lg/lut/index.html www.dos.ny.gov/lg/lut/index.html