Zoning - Legal Foundations in NY

The following synopsis was provided by a Pace student studying land-use law, and is not an official document of the Village.

What is zoning?

- Division of land into districts, each with certain land uses and intensity of development.
NYTL Sec. 262 – NYVL Sec. 7-702
"[Regulations within a district shall be uniform for each [ ] kind of building but the regulations in one district may differ from those in other districts."

Why have zoning?

- Protect private property interests
- Enhance public safety by separating incompatible uses
NYTL Sec. 261 – NYVL Sec. 7-700
"For the purpose of promoting the health, safety, morals, or the general welfare of the community, the town board is [ ] empowered [ ] to regulate and restrict
the height, number of stories, [location,] and size of buildings [ ],
the [lot coverage], size of yards, …, and other open spaces,
the density of population, and
the use of buildings [ ] and land for trade, industry, residence …"

Zoning allows:

As-of-Right Uses, Non-Conforming Uses, and Special Permit Uses

If a proposed use does not conform with the Code:
Variances

- Use (difficult to qualify for),

- Area (less difficult to get since lesser impact).

- Rezoning - An owner may apply to the local legislature or the legislature may act on its own initiative in the public interest.

Limits on zoning authority?

NYTL Sec. 263– NYVL Sec. 7-704

"Regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion … to secure safety from fire, flood, [etc.]; to promote health and general welfare; …; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate [ ] provision of transportation, water, sewerage, schools, parks and other public requirements.

Such regulations shall [reasonably consider] the character of the district and its … suitability for particular uses, …conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality."

Balancing Property Rights and the Public Interest: Limiting Doctrines

U.S. Constitution 14th Am – protects all people against illegitimate, unfair or unequal State power

1. Restrictions must serve legitimate public purpose – substantive due process

2. Decision making must be fair – notice, opportunity to be heard – procedural due process

3. Regulations may not unfairly discriminate between similar parcels or similar users – Equal protection

U.S. Constitution 5th Am, and State constitutions
4. Private property cannot be taken for a public purpose without just compensation

U.S. Constitution 1st Am, and State constitutions
5. Local regulations must not abridge freedoms of speech, religion, and assembly

Local authority to zone is granted by the State

6. Decisions must be within the delegated authority

7. Authority to regulate where the owner has "vested rights" in existing investments is limited

8. Local authority may be preempted by state or federal legislatures

To change use of or to build on the land, owner must

1. Apply for a building permit

- Application to include building plans, plot plans (location and scale of buildings and utilities), etc, and the filing fee.

- If subdivision required, must obtain approval of plat from planning board, etc.

Is the use in conformance with the Zoning Code?

a. As-of-Right Use OR

b. Special Permit Use and site plan approved? OR

If not go to 2.

c. Variance granted for non-conforming use?

If not Building Permit must be denied. Owner may:

Apply for a Use Variance from ZBA – 3cA.

Or request rezoning by the legislature (Town Board).

AND Plans in compliance with Code? If yes, Building Permit is issued.

If not Building Permit must be denied. Owner may:

Amend the plans to come into compliance OR

Apply for an Area Variance from ZBA – 3cB.

2. Apply to Planning Board (PB) for site plan approval or Special Use Permit

The role of the Planning Board is typically

- to review site plans - NYVL Sec. 7-725-a

- to grant special use permits - NYVL Sec. 7-725-b

- "to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed special use permit."

Site Plan

a. plan may require preliminary and final reviews.

b. Design elements of the plan and standards of review are set out in local law.

c. Site plan review goes beyond zoning to ensure that development conforms to the planning objectives of the community by considering the adjacent land uses, traffic, flooding, noise, landscape and architechture

d. PB must schedule a public hearing within 62 days once the application is complete (with 5 days public notice) unless it determines a proposed action will not be of significant public interest.

e. PB must approve, approve with modifications or disapprove the site plan within 62 days of the public hearing. (Failure to act is deemed approval.)

f. Given site plan approval, return to 1b.

g. Appeal of an unfavorable decision is in court.

3. Zoning Board of Appeals – apply for variances or for reversal of ZEO determination

ZBA procedure – NYVL Sec. 7-712-a (meetings, minutes, record of proceedings).

ZBA is empowered to interpret the Zoning Code. – NYVL Sec. 7-712-b

a. ZBA may authorize a variance:

- If not contrary to the public interest AND

- Owner makes sufficient showing of need.

A. ZBA shall not grant a Use Variance (UV) unless applicant shows:

1. Applicant cannot realize a reasonable return for each and every permitted use, demonstrated by competent financial evidence

2. Alleged hardship is unique to the particular property

3. Grant of the UV will not alter essential character of neighborhood

4. Alleged hardship has not been self-created.

B. For an Area Variance (AV) ZBA shall weigh the benefit to the applicant if the variance is granted against the detriment to the health, safety and welfare of the neighborhood. ZBA shall also consider:

1. whether granting AV will produce undesirable change in the character of the neighborhood or a detriment to nearby properties

2. whether benefit sought is achievable by another feasible method

3. whether requested AV is substantial

4. whether AV will adversely impact the neighborhood physical or environmental conditions

5. whether the alleged difficulty was self-created (not dispositive)