Full Text
A Division of the New York Department of State Hot Button Land Uses ---PAGE BREAK--- 2 Can a use be prohibited? Exclusionary Zoning • Regulations that singly or in concert tend to exclude low or moderate income housing municipal-wide; i.e., – Large lot or high minimum square footage requirement – Excluding multiple dwellings or mobile home Most non-residential uses may be zoned out if the exclusion is supported by the comprehensive plan ---PAGE BREAK--- 3 • Parcel can be rezoned to allow use supported by comprehensive plan • Zoning changes must be reasonably related to legitimate public purposes “the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners . . Rogers v. Tarrytown, 302 NY 115, 96 NE2d 731 (1951) Spot zoning ---PAGE BREAK--- 4 • Unearth controversy early – Receptive to change – Before the public feels steamrolled • Potentially controversial projects – Hold informational meetings with residents & stakeholders Inform and involve ---PAGE BREAK--- 5 Remedy ignorance with non-confrontation • One spokesperson controls message • Be prepared to correct false assumptions • Response plan: phone, press release, news conference Positive press for controversial issues Bad press usually results from ignorance, not bias: • Inaccurate, or wrong conclusions from facts • Accurate, but unfavorable tone • Overly selective or unbalanced reporting • Blurred lines between fact and opinion ---PAGE BREAK--- 6 If already permitted by zoning, and requirements are met, then community opposition is generally not a valid basis for denying most applications Community opposition ---PAGE BREAK--- 7 • Reduces controversy • Legal support • Infrastructure investments −Identifies areas for municipal & private investment • Public input on controversial issues Municipalities with Comprehensive Plans • Cities 92% • Towns 71% • Villages 66% • All 76% Source: NYS Legislative Commission on Rural Resources (2008) Comprehensive planning ---PAGE BREAK--- 8 Moratoria Adopt moratorium law to: • Update comprehensive plan to consider new uses • Update regulations to prevent: – hasty decision – unplanned & inefficient growth – construction inconsistent with comprehensive plan Wrong reasons for moratoria: • Slow development hoping developer will go away • Halt development while municipality considers buying land ---PAGE BREAK--- 9 Examples ---PAGE BREAK--- 10 May be protected as part of a farm operation if: 1. directly relate to sale/ promotion of beverage produced on farm (at least 51% on-farm produced grain, hops, grapes/fruit/juice); 2. incidental and subordinate to retail sale of beverage on-site; 3. hosted by farm or farm customers (not outside, unrelated parties); and 4. feature beverage produced at the farm Barn “promotional” events ---PAGE BREAK--- 11 State Alcoholic Beverage Control Laws define • farm cidery, • farm distillery, • farm winery, and • farm brewery Farm Wineries/Distilleries in State Ag District Although State Liquor Authority license may allow sale of alcoholic beverages not made from crops grown by farm, they are not part of a farm operation. Production and sale not necessarily protected under AML Article 25AA §305‐a. ---PAGE BREAK--- 12 Barn Weddings without Ag District Protection If the barn is not in a state ag district or barn rental revenue exceeds that of food production, municipalities can restrict • Hours of operation • Number of events per month • Prohibit regular rentals of farm buildings for weddings ---PAGE BREAK--- 13 A Partnership to Review Impacts Agriculture & Markets • Farm operation? • In an agricultural district? • Zoning definitions • Is activity permitted? • Is variance needed? • Cost and time, etc. Municipal regulations • Reasonable • Public health & safety threatened • Amendments needed • Is an expedited review an option? ---PAGE BREAK--- 14 Manufactured homes • Federal: – Construction & Safety • State: −Uniform Code −Manufacturer’s Manual −NYS Dept. of Health: −Mobile home parks with 5 or more homes • Sanitary Code Part 17 ---PAGE BREAK--- 15 • Health, safety & general welfare of the public • Zoning −Lot size & setbacks −Special Use Permit • Site Plan Review • N.Y. Executive Law, Article 21-B, Title 2 – Effective 11/20/15 – Manufactured Home = Single Family Dwelling – “Identical Development Specification and Standards” Manufactured homes ---PAGE BREAK--- 16 • Agriculture & Markets Law §25-AA – State Certified Agricultural Districts • Address in zoning or adopt local law −Show proof of continuing employment on the farm −Do not allow the creation of new lots −Do not allow permanent additions to the home Farm worker housing ---PAGE BREAK--- 17 • Federal Aviation Administration (FAA) regulates airspace • All manned/unmanned aircraft require need FAA approval • Commercial use currently regulated on a case-by-case basis • State and Local Laws attempting to regulate aircraft under the FAA’s jurisdiction have been unsuccessful when challenged in court. Drones (Unmanned Aerial Vehicles) ---PAGE BREAK--- 18 FAA proposed rules for commercial use Commercial use • Must be operated below 500 ft and under 100 mph • Small drone must be less than 55 lbs. • Must be within operator’s eyesight. • Can only be operated during the day. • Prospective drone operators need to pass a test of aeronautical knowledge Recreational use • Should be operated below 400 ft. • Must be within the operator’s eyesight. • Should not be flown within 5 mile radius of an airport. • Should not be operated recklessly ---PAGE BREAK--- 19 Regulate with zoning: • Restrict to districts or municipal-wide • SUP with conditions: −Ingress & egress −Truck routes Regulate without zoning: • Site Plan Review Mining ---PAGE BREAK--- 20 Municipalities submit recommendations to NYS DEC: Setbacks from −property boundaries −public R-O-W • Dust control • Hours of operation • Barriers restricting access DEC mining permit process ---PAGE BREAK--- 21 Cell towers as public utility • Cell towers defined as a public utility • Compelling reasons to grant use variance: −Necessary to provide safe & adequate service −Significant gaps in coverage if placed on alternative sites Cellular Telephone Co. v. Rosenberg (NYS Court of Appeals, 1993) ---PAGE BREAK--- 22 Telecommunications Act of 1996 Municipality must not • Prohibit personal wireless service • Unreasonably discriminate among providers • Regulate based on health effects from RF emissions Municipality must • Act on applications within “reasonable period of time” – 90 days for co-locations – 150 for new locations ---PAGE BREAK--- 23 Section 6409 Middle Class Tax Relief & Job Creation Act of 2012 • Applies to support structures and transmission equipment used with any Commission-licensed or authorized wireless transmission • Limits local control of co-location and replacement of equipment on existing towers • Good news: increased use of DAS (distributed antenna system) technology A diagram contrasting a single antenna configuration with DAS ---PAGE BREAK--- 24 Over-the Air Reception Devices (OTARD) Rule Municipality cannot: • Delay or prevent signal use • Unreasonably increase cost of installation Municipality can: • Regulate for safety • Regulate in historic districts by least burdensome, clearly defined restrictions Dish antenna (1m or less) www.fcc.gov/mb/facts/otard.html ---PAGE BREAK--- 25 *Vendors cannot comply with vending laws they do not understand, be clear! PROS • Low cost for both owners and customers • Convenient • Variety of food choices • Creation of dynamic “urban” environment CONS • Congestion, litter • Complicated and inconsistent permitting • Unfair advantage to bricks and mortar food establishments Street vendors and food trucks ---PAGE BREAK--- 26 Street Vendors and Food Trucks Municipality can regulate: • Vending districts • Distance from curb (don’t crowd sidewalks), business entrances, crosswalk, bus stop, restaurant, etc. • Amount of time vendor can remain in one location • Permit fees • Increase number of permits for fresh fruits/veggies Justify regulations by citing pedestrian congestion and other effects of street vending, not protection of other businesses ---PAGE BREAK--- 27 Solar systems • Scale • Solar access • Comprehensive Plan – Policy statement – Resource map • Potential adverse impacts – Glare – Neighborhood character ---PAGE BREAK--- 28 Residential/small solar Regulations & review • Street & lot layout • Setbacks • Height – Solar setback – “Solar fence” • Solar-ready construction – Building Code or incentive zoning ---PAGE BREAK--- 29 Solar systems & historic resources Design Guidelines for Solar Installations (National Trust for Historic Preservation) • locate on non-historic buildings or additions • minimize their visibility from the road • avoid permanent loss of character-defining features ---PAGE BREAK--- 30 Commercial/ industrial solar • Special Use Permit • Site Plan Review • Industrial & agricultural zones • Adverse impacts • Lot size • Screening • Safety • Decommissioning • Public Service Law Article 10 ---PAGE BREAK--- 31 Model*Law:4www.cuny.edu/about/resources/sustainability/reports/NYS_Model_Solar_Energy_L awToolkit_FINAL_final.pdf e_Guide.pdf NY Sun Solar Map & Portal: ---PAGE BREAK--- 32 Distinguish between residential, agricultural or commercial turbines • Regulate with zoning: – Restrict to districts or municipal-wide – Setbacks – Sound – Special Use Permit (SUP) • Regulate without zoning: – Site plan review • Article 10 Wind turbines ---PAGE BREAK--- 33 Pet facilities & uses Commercial • Veterinarians & animal hospitals • Kennels, day care & boarders • Groomers • Breeders • Trainers Non-commercial • Adoption centers • Pounds • Shelters • Private pet ownership ---PAGE BREAK--- 34 Pet facilities & uses Regulate or require •Number of animals •Minimum lot size & setbacks •Parking requirements •Hours outside on run •Sound attenuation, buffering & screening •Emergency response plan Reviews •With zoning: – Special Use Permit – Site Plan review •Without zoning – Site plan review •Ability to impose condition on approval ---PAGE BREAK--- 35 Doggie day care • Define use – Number of dogs per day – No overnights • Potential impacts – Noise – Parking • spaces per dog/ staff • drop off area “Commercial facility for supervised dog care for less than 24 hours a day, not including facilities that provide boarding, breeding or selling of dogs, or facilities whose primary revenue is licensed veterinarian services.” Town of Amherst ---PAGE BREAK--- 36 Backyard chickens PROS • Urban agriculture movement • Inexpensive protein source • Therapeutic and educational • Little space needed CONS • Noisy roosters (not hens) • Fowl odor? • Decreased property value fears • May attract pests (foxes, coyotes) ---PAGE BREAK--- 37 • “A community residence established pursuant to this section and family care homes shall be deemed a family unit, for the purposes of local laws and ordinances.” – Mental Hygiene Law § 41.34 • Will facility result in a concentration of similar homes to the extent that community character is altered? Group homes for the disabled ---PAGE BREAK--- 38 Religious Land Use & Institutionalized Persons Act (RLUPA) • Religious uses are not exempt from land use regulations • Municipalities may not: −Place “substantial burden” −Zone out of residential districts −Prohibit if impact similar to other allowed uses Regulate characteristics influencing physical environment: lot coverage, parking, signage ---PAGE BREAK--- 39 Nonretail uses in “storefronts” • Reduces critical mass of central business district Zoning: • Exclude residential on first floor • Minimum percentage street- level retail • SUP for nonretail Nonretail uses in retail districts ---PAGE BREAK--- 40 Large-scale retail • Maximum square footage – Absolute – SUP • Economic Impact Study through SEQR • Review criteria – Architectural style – Landscaping – Buffering & screening • Parking requirements ---PAGE BREAK--- 41 Short-term rental housing Precise definitions: • Generally rented for less than 30 days • Permanent provision for living, sleeping, eating, cooking, and sanitation • Owner not necessarily on premises ---PAGE BREAK--- 42 Short-term rental housing Pros • Supplemental income to owners • Discounted lodging and interesting tourist experience for guests Cons • Transient guests • Excessive noise • Increased traffic • Commercial use in residential district • Unfair competition to hotels • Lost lodging tax revenue • Inflated housing costs ---PAGE BREAK--- 43 • Restrict by zoning district • Cap number of permits • Restrict by proximity • Maintain ratio of long-term dwelling units to short-term units Quantitative Restrictions ---PAGE BREAK--- 44 • Maximum occupancy limits • Rental period and frequency • Parking • Noise • Emergency access • Mandatory designated representatives • Trash and refuse Operational Restrictions ---PAGE BREAK--- 45 • Cannot prohibit – 1st Amendment Protection • Regulate with zoning −Must provide viable locations −Definitions must be clear • Aim regulations at secondary effects Adult uses ---PAGE BREAK--- 46 • Can’t regulate content – 1st Amendment protection • Regulate size & location: −State Uniform Code −Zoning −Site Plan Review −Local Permit • NYS DOT regulates signs along interstate & primary highways −Municipality may be more restrictive than DOT Billboards ---PAGE BREAK--- 47 Temporary signs • Regulate physical characteristics: −traffic safety, aesthetics, property values • Regulation should be content neutral: −size, height & location: • ban all signs on public property −Permits: apply to all signs −Duration: apply evenly −Fees: relate to administrative costs ---PAGE BREAK--- 48 Medical Marijuana: Legislation • Federal Controlled Substances Act • NYS Compassionate Care Act 2014 – S7923/A6357-E • NYS Medical Marijuana Program – Administered by the NYS Department of Health – Rolled out 1/7/16 Dispensary in Manhattan Credit: Benjamin Norman for The NY Times ---PAGE BREAK--- 49 • Police power: enact regulations regarding dispensaries necessary to protect public welfare of people in community • Nuisance law: file public nuisance actions against dispensaries to abate “conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all” • Currently no case law to suggest local bans of dispensaries would be invalidated – Concerned municipalities should commission health impact assessments Local regulation of Medical Marijuana ---PAGE BREAK--- 50 Registered organizations by county Dispensaries • Albany • Bronx • Broome • Clinton • Erie • Fulton • Monroe • Nassau • Manhattan • Onondaga • Orange • Queens • Suffolk • Ulster • Warren • Westchester Manufacturing • Fulton • Monroe • Orange • Queens • Warren ---PAGE BREAK--- 51 • Recognize desire for larger homes – Consider community’s economic health – Balance affordable housing interests • Limit size – Set floor area ratio • Site plan review for new or expanded homes Monster houses ---PAGE BREAK--- 52 Home day care Enforceable: fire, building and health regulations Not enforceable: anything beyond underlying residential use: • minimum lot size • minimum floor-space per child • off-street parking • off-street pickup/drop-off areas • no outdoor play area after P.M. Definitions are important: • “Family home day care” and “Group family home day care” allowed by right in single-family and multi-family dwellings • “Child day care center” and “school age child care” are different, and fully subject to zoning ---PAGE BREAK--- 53 Solid waste facilities Includes storage, transfer, disposal, treatment or internment of landfills, open dumps, and transfer stations REGULATION • With zoning: as of right, SUP • Without zoning: site plan review • State: NY ECL §27-0701(1) & 6 360 • Federal: Resource Conservation & Recovery Act of 1976 (40 CFR Part 258) ---PAGE BREAK--- 54 Exceptions DEC permit & registration not needed for certain Construction & Demolition (C & D) landfills determined by: •Hours of operation (sunrise & sunset) •No fee •Debris type –Must be recognizable –Must originate & be disposed of on properties under same ownership or control 6 Part 360 – 7.1(b) • Recognizable: uncontaminated concrete & concrete products (steel or fiberglass reinforcing rods embedded in concrete, asphalt pavement, brick, glass, soil & rock) • Trees, stumps, yard waste & wood chips ---PAGE BREAK--- 55 Transfer stations PROS: • Economically viable if dump is more than 15-20 miles • Potential reuse of empty buildings CONS: • Increased traffic, noise, odors, litter • May be sited in poor/minority areas Regulate with zoning: • Restrict to districts or municipal-wide • SUP with conditions: – Ingress & egress – Truck routes Regulate without zoning: • Site Plan Review ---PAGE BREAK--- 56 Economies of scale Single large station • Less equipment, construction, waste handling, and transportation costs • Easier than siting multiple facilities • Conducive to barge or rail operations (less traffic impacts) • Negative neighborhood impacts • Longer travel means down time for collection crew, vehicle wear & tear • No backup facility for equipment failure or other emergencies. Serving smaller stations • More costs relative to station with same total capacity • Repeated siting processes • Less conducive to barge or rail operations (increased traffic impacts) • Impacts spread around neighborhood • Reduced travel times means lower overall system costs • Backups for scheduled/emergency shutdowns. ---PAGE BREAK--- 57 Composting ---PAGE BREAK--- 58 Commercial/municipal food composting With zoning • define: principal or accessory use • compost source: generated on or offsite • materials: plant-based food scraps; unharvested crops; animal waste • setbacks: location of bins, piles, rows and distance from streets/buildings • size: maximum square footage/cubic yards on parcel Without zoning • Nuisance controls to thwart odors and vermin/pests; access to water/moisture minimums DEC requires permit/registration depending upon the operation’s size; regardless, local approvals are still needed. ---PAGE BREAK--- 59 Defending Your Decisions ---PAGE BREAK--- 60 Materials in the record tell the story of the application & typically include: • Application & supporting documentation • Newspaper notices • Meeting minutes • SEQR materials • Public hearing testimony • Written submissions from public • Expert opinion • Decision, conditions, findings The Record ---PAGE BREAK--- 61 • Describe application’s reasons for denial or approval & may support: −Why a condition was imposed −Decision if challenged in court • Conclusory statements are not “Findings” −“The standards were not met.” • A decision based on conclusory statements is: −Not supported by factual information in the record −Will be struck down in the courts Findings ---PAGE BREAK--- 62 • Training Unit: (518) 473-3355 • Counsel’s Office: (518) 474-6740 • Toll Free: (800) 367-8488 • Email: [EMAIL REDACTED] • Website: www.dos.ny.gov • www.dos.ny.gov/lg/lut/index.html NYS Department of State Division of Local Government