By: George S. Van Nest//February 21, 2022
By: George S. Van Nest//February 21, 2022
The New York State budget often includes dramatic and striking changes to state law and policy. For example, in 2019, then-Gov. Andrew Cuomo passed the sweeping Climate Leadership and Community Protection Act (CLCPA) that turns state energy priorities upside down to achieve climate change objectives as part of the budget. This year, Gov. Kathy Hochul proposed significant legislation to address affordable housing that tramples on local government control of zoning. Local government leaders and municipal organizations are deeply opposed to the changes. Based on the significance of the local impacts, all New York residents would be well served to understand the proposals.
The governor pulled her proposals from the budget after intense municipal opposition, but given the significance of the proposals and the chance that they could be included in future end of session legislation or next year’s budget, we are addressing these issues for informational purposes.
The governor announced a state-wide Accessory Dwelling Unit (ADU) mandate that would have been required in each city, town, and village. The proposal was an abomination and an affront to local municipal control of zoning by each distinct local government across the state. Rather than respect the decades upon decades of local planning and zoning decisions, the ADU legislation would have stripped New York municipalities of local control to meet a state-wide mandate aimed at affordable housing. Perhaps after two years’ worth of Albany mandates on COVID restrictions, elected officials are immune to respecting local autonomy and decision-making, but to strip individual municipalities of authority to make local zoning decisions to fit their particular needs and community is draconian even by NYS standards.
The legislation defined an ADU as “an attached or detached residential dwelling unit that provides complete independent living facilities for one or more persons located on a lot with a proposed or existing primary residence and shall include permanent provisions for living, sleeping, eating, cooking, and sanitation on the same lot as the single-family or multi-family dwelling.” The proposal stated that despite any local law or zoning which prohibits ADUs, each municipality must pass a local law permitting the creations of ADUs including “all areas zoned for single-family or multi-family residential use and all lots with an existing residential use.” Further, each municipality must “authorize the creation of at least one accessory dwelling unit per lot.”
It is axiomatic, but land use planning and local zoning regulations exist to provide for appropriate and consistent land uses within municipalities. As such, commercial, industrial, multi-family housing, and single-family housing are routinely identified and placed in areas of compatible uses. Hence, single-family residential areas are often protected from more intense and robust zoning classifications, including multi-family housing.
The governor’s ADU proposal, which in and of itself was not germane to the state budget, sought to obliterate local zoning autonomy. Moreover, it would have turned zoning classifications upside down by forcing ADUs into single-family zones, against the interest of the duly elected local officials and zoning ordinances which are structured to fit the needs of each municipal setting.
The governor’s original proposed budget also included another dubious state land use mandate. The budget included a Transit Oriented Development (TOD) mandate that would have required cities, towns, and villages to permit development of at least 25 dwelling units per acre on any residentially zoned property within a half mile of rail or bus stations in the metro New York City region. Strikingly, the proposal would have prevented municipalities from enacting zoning regulations to prevent the development of this high-density housing per acre. Further, it would have mandated that New York municipalities adopt comprehensive plans and zoning regulations to conform with these density requirements.
These two attempted land use mandates are unprecedented in the state. They would have eliminated home rule zoning authority in each individual municipality tailored to fit individual needs and local land use characteristics. Instead, this would transfer major land use planning, to meet affordable housing development goals, to central planners in Albany. There are myriad legal and practical issues with forcing mandated ADU and TOD housing on existing development frameworks in New York’s municipalities. Waiving a magic zoning wand in Albany as part of a budget process does nothing to address infrastructure (streets, traffic congestion, sidewalks, water, and sewer services) and municipal service constraints which exist in each municipality should they be forced to accept high density affordable housing.
The budget proposal also contained a provision to allow the NYS Secretary of State to seek an order authorizing the county to investigate local city, town, village code enforcement and administration of the NYS Uniform Fire Prevention and Building Code. The investigation would allow the local county to determine whether the local government is complying with minimum standards for enforcement of the Uniform Code. If not, the county could assume responsibility for local code enforcement with reimbursement from the municipality. This proposal also ignored the scope, extent, and experience of code enforcement by local municipalities and the limited role that counties play. However, it appears consistent with the ADU and TOD proposals which were aimed at removing local control of land use decisions.
Whether affordable housing is a necessary and appropriate policy decision is separate from what was at stake in these budget proposals. Very simply, the governor’s proposals on ADUs and TOD would have undermined longstanding legal principals of local municipal control of zoning regulations, while simultaneously imposing a one-size-fits all mandate across the state irrespective of existing development and infrastructure capacity. The proposals were unsound from a legal perspective, as well as land use planning approach. New York’s local municipalities and advocacy groups would be well served to closely assess the proposals and comment if they come up for consideration in the future.
George S. Van Nest is Partner in Underberg & Kessler LLP’s Litigation Practice Group and chair of the firm’s Environmental Practice Group. He focuses his practice in the areas of environmental law, development, construction, and commercial litigation.