Introduction
Thank you for the honor of addressing your organization, the New York State Coalition of Property Owners and Businesses, about the zoning and tactics imposed by the City of Rochester. I have entitled this talk “Shock Zoning - Responding to Extreme Regulation of Private Property.”
It’s hard to decide whether I have Bill Beyerbach or myself to blame for a very unpleasant two days on Monday and Tuesday of this week reviewing the entire new zoning proposal by the City of Rochester, plus the Final Generic Environmental Impact Analysis. After all, I asked him to send me a copy of the zoning proposal. But he is partly to blame, for inviting me to speak.
The new zoning proposal by the City of Rochester is simply voluminous. Emotionally, it is destabilizing to peruse it. When I began seriously studying it on Monday, I wondered whether I had walked through Alice’s proverbial mirror...Rules in unfathomable detail for everything from who can do auto repair and where on your property to what type of weeds you can-presumably unintentionally-plant (non-invasive ones), details about house facades at a level about which the ordinary homeowner rarely thinks even when he or she is actually contemplating buying a house, everything according to the particular area, zoned into districts ad infinitum. Did you realize that in the “garden district” each home must have a turret, covered entry, porch, or bay window?
Did you know that tilt up concrete is prohibited even
in commercial and industrial areas, unless it has the required
texture or exposed aggregate? Did you know that window treatment
is closely described for the “warehouse district,”
even to the extent of translucency to allow a 10 ft.
gaze into the building, and that 55% to 65% clay brick
is required of non-glass material there?
And it is so long. —543 finely typeset pages.
I also studied the Final Generic Environmental Impact Statement,
another two-inch document, with 7 appendices, the longest with
257 pages.
Did you know that for “Bed and Breakfasts” the law allows “No alteration of either the exterior or interior...which changes the character and appearance of the residential premises,” and that “Only rooms designed as bedrooms shall be used for guest lodging”?
Nor may “Rooming Houses” suffer any “alteration of either the exterior or interior...which changes the character and appearance of the residential premises”, and that “only habitable rooms originally designated as bedrooms shall be used for lodging.”
One of the bluntest clauses is that requiring that for demolition of a property the owner “prove” that the property “cannot earn a reasonable return,” or be put to “any other use,” and that there is “no purchaser.”
This clause is especially interesting, considering that most of the city appears to be rezoned so that the land use category is predominantly single-family dwellings. The main reason that the City gives for this admitted “down-zoning” is to respond to a decline in demand for housing! The rule seems to be, the property owners haven’t got enough trouble, so tie them in knots.
Looking at the law overall, the context of rezoning the city by and large to single-family housing does present a problem. It creates a large number of what are called non-conforming properties, as Bill Beyerbach has so often mentioned to me.
The City has graciously tabulated and quantified this effect in the Final Generic Environmental Impact Statement (pages 22 - 23) by listing the number of acres of low density, or R-1 acres before and after the proposed zoning. The increase is from existing acres of 6,100 acres to 9,700 acres. Medium Density decreases from 3,500 acres to 1,400 acres. High Density decreases from 1,400 acres to 710 acres. This means a lot of non-conforming properties, considering that the existing zones should reflect the type of properties within them, by and large, if Rochester’s zoning is like that of other cities in that the zoning ordinarily reflects the type of land-use.
A further chart (page A1-152) presents a precise quantification that clarifies that this assumption is indeed correct.
The chart points out that in zone R-1 if the new code is adopted, there will be 8,792 non-conforming two-family houses, 777 non-conforming multi-family houses, 199 non-conforming mixed use, and 1,791 non-conforming commercial/industrial
The City points out that it is not going to require that non-conforming uses by amortized. This means that there will at least not be a set period of time when the City will declare that the non-conforming uses have to be removed or made to conform. This seems favorable to the non-conforming property owner.
The discussion in the Environmental Impact Statement also states that the City believes that the new zoning reflects the planning principle that nonconformities are an inherent factor of urban zoning. There is an implied statement that the City believes that the diversity of nonconforming structures is interesting and desirable.
However, considering the experience of rental property owners in the City of Rochester, it is my viewpoint that the proposed zoning is definitely unfriendly to existing multi-family properties.
First, consider the principle of creating discretion in approvals, which is endemic throughout the proposed zoning.
To obtain a Certificate of Non-conformity, which is necessary to do any substantial expansion or alteration of a non-conforming property, the property owner must basically overcome administration requirements that are absolute. This creates a situation of total discretion for the permit and enforcement officers. The proposed code states that no application for Certificate of Nonconformity will be received where existing violations, judgements delinquent real estate taxes exist (sect 120-187, page 421) and that proof that all local, state and federal regulations and permits have been met or obtained must be submitted with the application. Applications for a variance require the same hurdles.
Everyone in the building trades knows that the building codes and state and federal regulations are so detailed that some violation can always be found somewhere. The agencies granting the proofs that all the local, state and federal regulations and permits have been met or obtained, as is the case with such bureaucracies, each have their own discretionary situation as to whether to grant the documentation. The City itself has the discretion to impose violations, and keep adding new ones as each one is corrected, or it can simply impose violations that are inherent in the structure and too expensive to correct. In New York City, my hometown, the system of bribes has always been quite formalized, raising the cost of work to, some say, about double the would-be cost of doing work. As an outsider, I have no way of knowing the system in Rochester.
But my reaction to the overall tenor of the zoning proposal is that Rochester is engaged in a master planning boondoggle, unrelated to the ordinary system of bureaucracy and corruption that exists classically in established cities. It appears that Rochester zoners have a grandiose design to remake the city into a beauteous attraction of gracious neighborhoods, small stores, and prosperous commerce, centered about a river greenway, open space, and a downtown that will ceremoniously host parades and events, all somehow facilitated by bureaucracy.
Wording in the zoning proposal evades what I conclude is the real purpose of the creation of massive non-conforming properties. The city-wide design guidelines are said to
“retain, reflect and enhance the dominant aesthetic or visual qualities of the neighborhood as much as possible,” and to “encourage and promote a sense of design continuity that appropriately relates the historic past of the neighborhood to ongoing revitalization and redevelopment efforts.” (p. 335)
This appears deceptive. The only practical purpose of creating non-conformities in this volume is to eliminate the non-conformities.
This can be accomplished with the Point system to create outstanding violations, requiring that the property be closed down and lose its grandfathering, or with selective inspections to impose violations for the same purpose of eliminating grandfathering. As you all know so well, this is already happening with immense dispatch.
We who believe in the American tradition of private property ownership and the fundamental right to own and use private property face great challenges. But we also have opportunities to shape the future. Good laws that protect private property rights have been created as a result of efforts in the legislatures and courts by people like you and me.
By the same token, others have interests in abrogating our rights and traditions. In fact, those who cause us to fear for the future of private property and private property rights often have immense power and intense vested interests in diminishing our basic traditions.
But just as the founders of this nation with its constitutional government faced great odds successfully, it may be that our efforts will return to us fruits that are beyond our obvious resources to generate. So let us only hope for opportunities and the will to be faithful to our forebears.
I’d like to present to you some key information about the status of private property rights today from the broad perspective of what is happening in our nation as a whole, with some information about New York State that may also be useful to you.
Property Rights Efforts Making an Impact:
What is the most encouraging development over recent years in the United States related to private property rights?
Perhaps the most encouraging development is the systematic, spontaneous program in the U.S. Supreme court over the past 20 years to ensure the protection of private property rights. However, even these successes are tempered by a recent decision that seems to be almost based on putting the proverbial finger to the wind.
These court decisions have established precedents that protect many of the broad and important principles related to private property rights that have routinely been infringed by local, state and federal government.
Key Rulings and Laws - Property Rights Victories
Tools to Litigate and/or Defend Private Property Ownership and Property Rights
Civil Rights -
USCA Title 42, Section 1983, The Civil Rights Act:
Damages that occur because “State Action under color of law” deprives individuals of their civil rights can be compensated through a Section 1983 civil action.
Hafer v. Melo (U.S. Supreme Court 1991):
Government officials are personally liable for civil rights damages if they acted in their government capacity but outside the law. The Supreme Court quoted 42 U.S. Code 1983 as follows:
“every person who, under color of statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured...” (All bold face, added in this citation, and those following)
Dolan v. City of Tigard (U.S. Supreme Court, June 24, 1994):
“We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation on comparable circumstances.” (referring to earlier Supreme Court rulings on warrantless searches and commercial free speech)
Trial by Jury - Delmonte Dunes v. City of Monterey, California (U.S. Supreme Court, May 24, 1999)
Because this lawsuit about zoning was filed as a civil rights suit, the U.S. Supreme Court ruled 5 - 4 that the plaintiff was entitled to trial by jury.
National Environmental Policy Act (NEPA) and New York State Environmental Quality Review Act (SEQRA)
These laws allow citizens (and local officials) to have broader standing in court to challenge government laws and regulations on the basis that facets of the required environmental impact analysis are being omitted or are grossly inadequate. Environmentalists use NEPA and state environmental review law to promote more government rules but the mandated environmental review, which by law requires community social, cultural, and economic impact analysis, can be used to challenge zoning rules on social and economic terms.
The federal environmental law can also be used to challenge Federal actions, including federal expenditures for state and local programs, as long as federal funding is involved..
Chipping Away at Eminent Domain
The Institute for Justice, based in Washington, D.C., is involved in efforts to reduce the use of eminent domain to transfer land from one private person to another and in efforts to challenge eminent domain on due process grounds.
The New York State Legislature has a bill sponsored by members of both political parties, from Westchester, which would require individually mailed notices to property owners, rather than the current, outrageous situation where the owner has to find that his property is noticed in the legal ads section of the newspaper during the limited time period during which he has a right to comment on the process.
Important New Decisions Protecting Private Property Rights - In Chronological Order
“Taking” - According to the Fifth Amendment of the U.S. Constitution, “... nor shall private property be taken for public use without just compensation.”
Armstrong v. United States (U.S. Supreme Court 1960):
One of the principle purposes of the Takings Clause is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
Considering New York State case law:
Local municipality may not impose laws that restrict rights
protected by New York State law. - Gregory v. Town of Cambria,
69 NY 2d 655 (1986)
PRFA often uses this principal to advise citizens to obtain the
New York State Department of State manual of zoning law, which
is free. Once citizens know their rights under state law, they
often find that they can obstruct new local zoning law.
David Ahl’s discussion in the environmental statement for City of Rochester’s new zoning law (page A1-109) points out that the clause in the zoning law that prohibits the Zoning Board of Appeals (ZBA) from granting any variance that would allow a use in a residential district that is prohibited in all residential districts is illegal. He also points out that the clause prohibiting a variance to allow conversion of a single-family residence in R-1 if the conversion standards of the ordinance are not met is illegal.
Although he agrees with these new Rochester prohibitions, he points out that “Section 81-b of the General City Law allows the ZBA to grant variances to an applicant who has made an adequate showing of unnecessary hardship or practical difficulties.” He also points out, “Article 2, Section 2(c) of the NY Constitution & Municipal Home Rule Sec. 10 prohibit [the] City Council from passing any local law that attempts to supersede a general state law.”
The bold face lettered response by the City of Rochester’s Final Generic Environmental Impact is interesting:
“Prohibited variances have been part of the Rochester Zoning Code since 1975 and have never been challenged.” (Final Generic Environmental Impact Statement, p. A1-109)
Returning to new U.S. Supreme Court rulings, and coming even closer to the present:
Temporary Taking - First English Evangelical Lutheran Church of Glendale v. Los Angeles County, California, (U.S. Supreme Court 1987, Chief Justice Rehnquist):
The Supreme Court ruled that where regulation destroys the right of a landowner to use his property, the burden to a “property owner in extinguishing such an interest for a period of years may be great indeed.”
“Where this burden results from governmental action that amounted to a taking, the Just Compensation Clause of the Fifth Amendment requires that the government pay the landowner for the value of the use of the land during this period.”
As have most of the decisions that I’m pointing out to you, First English Evangelical Lutheran Church has been widely cited over the years.
Nexus (essential nexus, or the doctrine of “unconstitutional conditions”)
Great progress was also made in the area of “nexus” of a government regulatory exaction to the impact of a project.
Nollan v. California Coastal Commission (U.S. Supreme Court 1987)
The “government may not require a person to give up a constitutional right — here the right to receive just compensation when property is taken for a public use — in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit.” (as quoted in Dolan v. Tigard)
Regulatory Taking - Lucas v. South Carolina Coastal Commission (U.S. Supreme Court 1992, Justice Scalia):
Regulations that deny the property owner all economically viable use of his land for the common good are one of the categories requiring compensation.
“Where ‘permanent physical occupation’ of land is concerned, we have refused to allow the government to decree it anew (without compensation), no matter how weighty the asserted ‘public interests’ involved... We believe similar treatment must be accorded confiscatory regulations, i.e., regulations that prohibit all economically beneficial use of land: Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership.”
Proportionality - Dolan v. City of Tigard (U.S. Supreme Court 1994, Chief Justice Rehnquist):
The Supreme Court held that the permit condition exacted from the property owner must be roughly proportional to the impact of project contemplated by the property owner on the public.
“We think a term such as ‘rough proportionality’ best encapsulates what we hold to be the requirement of the Fifth Amendment. No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.”
The category of “partial takings” is an area where property rights advocates have failed to bring a case to the U.S. Supreme Court, but where a high court ruling is favorable:
Partial Taking - Florida Rock Industries, Inc. v. United States (U.S. Court of Appeals for the Federal Circuit 1994)
The federal court of appeals saw no logical distinction
between (1) a taking of private property by physical occupation
for the public use as a park and (2) a regulatory imposition
to preserve the property as a wetland for public uses.
The case was remanded to the Court of Claims to determine how
much of the value of the 98 acres had been taken by government
regulation. In 1995, Oregonians In Action stated, “The decision
of the U.S. Supreme Court not to review Florida Rock is
a major breakthrough; the high court implies it favors paying
landowner compensation for ‘partial takings’ by regulatory
use restrictions as well as total takings.”
(“Looking Forward,” Oregonians In Action. March 1995)
A Free Speech Victory of Importance to Property Rights Activists
Right to Post Signs at Residences - City of LaDue
v. Gilleo - U.S. Supreme Court, 512 US 43 (1994)
The United State Supreme Court upheld the right to post signs
at residences. This right is circumscribed by case law, but is
basically very powerful, being as it is based on the First Amendment
to the Constitution, guaranteeing Freedom of Speech. This case
may be very useful to you in your activities to defend property
owners.
Now the key cases of the series of important victories in the U.S. Supreme Court:
Transferable Development Rights - Suitum v. Tahoe Regional Planning Agency (U.S. Supreme Court, Justice Souter, May 27, 1997)
In lieu of purchasing a conservation easement by eminent domain or otherwise, a governing body prohibits construction and awards property owners “transferable development rights” (TDR’s) which allow increased development elsewhere above the zoning restrictions. TDR’s are supposed to be saleable on the open market to some other person in the planning district. The governing body does not offer to buy the TDR’s at the fair market value of conservation easements.
After decreeing that certain lands were allowed no construction, the Lake Tahoe Regional Planning Agency broke up the remnants of the fee simple ownership of property into the unbuildable land and TDR’s that had components of residential development rights, land coverage rights and residential allocations.
In the Amicus Curiae Brief of Richard Epstein with the Institute for Justice for Bernadine Suitum v. Tahoe Regional Planning Agency pending before the U.S. Supreme Court, the discussion of Transferable Development rights states,
“These propositions confuse an owner’s right to use her own property with the owner’s obligation to sell it in order to minimize the State’s constitutional duty to provide just compensation for the state-imposed restrictions.”
TDR’s use one theft as a palliative for another. What government takes away from one person by zoning, it gives to a second person as supposed compensation for taking away his property.
The Supreme Court rendered a strong decision that the case was ripe for litigation even though Suitum had not explored every possible remedy that might have generated compensation for her.
“Suitum did not seek those rights, but instead brought this action for compensation under 42 U.S.C. 1983.” Syllabus, Bench Opinion, p.1
“The sole question here is whether the claim is ripe for adjudication, even though Suitum has not attempted to sell the development rights she has or is eligible to receive. We hold that it is.” Decision, Bench Opinion, p.1
“...the TDRs’ valuation is simply an issue of fact about possible market prices, on which the District Court had considerable evidence. Similar determinations are routinely made by courts without the benefit of a market transaction in the subject property.” Syllabus, Bench Opinion, p.2
This case arose in the situation of TDR’s, but may be useful in defending the property owner to defend his assets from unjust zoning impositions.
In wetland law, the Supreme Court dealt the federal government a major blow:
Migratory Bird Rule is Void - Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (U.S. Supreme Court, January 9, 2001)
The Supreme Court dealt a fatal blow to the U.S. Army Corps of Engineers’ decades of regulation of isolated wetlands. Justice Rehnquist’s opinion held that the “Migratory Bird Rule” that the Corps of Engineers put in place in 1986 “Exceeds the authority” granted to the Corps of Engineers under Section 404 (a) of the Clean Water Act.
For over two decades, the Corps of Engineers has been claiming authority over such isolated wetlands, ones that are not connected to any navigable waters or even small tributaries of them, on the basis of its authority under the Commerce Clause to regulate such ponds because “millions of people spend over a billion dollars annually on recreational pursuits relating to migratory birds.”
The Supreme Court stated, “We conclude that the ‘Migratory Bird Rule’ is not fairly supported by CWA,” and decided not to address the constitutional question related to the Commerce Clause.
The decision pointed out that the Corps’ original interpretation of the 1972 Clean Water Act in its 1974 regulations—which emphasized that a water body’s capability of use by the public for transportation or commerce determines whether it is navigable—is inconsistent with the authority the Corps espoused in its current arguments before the Court.
Not only does this decision represent a great victory under wetland jurisprudence, but it also demonstrates the power of citizens who go to court to rein in rogue agencies that have been taking private property rights.
A decision that came down last year protects property owners who would like to sell their land but are afraid of what we referred to as the “New York Rule” that any law that came before the owner took title deprives the owner of compensation:
“Takings” Claims Are Not Wiped Out By Change of Ownership - Palazzolo v. Rhode Island (U.S. Supreme Court, June 28, 2001)
In this case involving filling of a wetland regulated by the Rhode Island Coastal Commission, Justice Kennedy held that a purchaser was not barred from claiming compensation for a “taking” due to a restriction enacted earlier.
“The state should not be allowed to put an expiration date on the takings clause.”
“Were the Court to accept the State’s rule, the postenactment transfer of title would absolve the State of its obligation to defend any action restricting land use, no matter how extreme or unreasonable.”
“Future generations, too, have a right to challenge unreasonable limitations on the use and value of land.”
Court Victories under New York State Law:
Rural property owners achieved a victory late last year in New York State court.
Right To Farm - A Very Important Victory in New York State against Local Zoning - Hafner v. Lysander (New York State Court of Appeals, Oct. 18, 2001)
In a decision written by Judge Howard Levine, the court ruled 7 - 0 that Paul Hafner, Jr., in the town of Lysander, Onondaga County, was free to use his existing 900 sq. ft. ordinary, single-wide mobile homes for worker housing even though the town of Lysander zoning called for a minimum of 1,100 sq. ft. for single family homes. Following the argument of the State Agriculture Commissioner Nathan Rudgers, the court established that worker housing comes under “right to farm” law.
The Hafner case gives an example of the important state-level decisions that can be achieved to protect private property rights from illegal zoning. In addition, New York courts have awarded excellent compensation levels for the imposition of local zoning which infringes on private property rights.
For instance, Thalle Construction Company won an award of $9 million plus $6 million interest against the town of Cortlandt in Westchester County in 1998 because the town zoned their quarry property for residential use where it was impossible to build houses because of the town’s road ordinance and because septic systems couldn’t be built in solid rock. Their lawyer, Geraldine Tortorella of Shamberg Marwell Hocherman, et al., in Mt. Kisco proved that the land was good solely for mining.
A troubling decision came down from the U.S. Supreme Court earlier this year:
No “Categorical” Compensation for Temporary Taking
- Tahoe-Sierra Preservation Council, Inc., et al., v. Tahoe
Regional Planning Agency (U.S. Supreme Court, Justice Stevens,
April 23, 2002)
The property owners had sought compensation for being prohibited
from all productive use of their property for between 32 months
and almost six years, depending on the definition of the government
“action.” But Justice John Paul Stevens wrote for the
6-3 majority that the Tahoe Regional Planning Agency had extracted
only a “temporal slice of the fee interest” by
imposing a moratorium on development, not a temporary “taking”
that rose to the level justifying compensation.
Refusing to make a one-year rule, or any rule for whatever period, the judge advised that each case had to come separately before the court to define what constituted a temporary taking.
The court’s questionable assumption of decency and competence upon the part of government
The Lake Tahoe Supreme Court ruling was couched in an ivory tower understanding of the participatory process during regional planning, stating that the moratoria enabled the government to “obtain the benefit of comments and criticisms from interested parties, such as the petitioners, during its deliberations.”
I wonder how the Supreme Court justice would comment about the City of Rochester’s one-sentence written response to what I consider the most fundamental criticism that the New York State Coalition of Property Owners and Businesses made about the new zoning.
The Coalition made a succinct written statement that is recorded in the Final Environmental Impact Statement that the overzealous, unjust Point system (for use violations including violations by the occupants of the property, as I understand it) would close down a property within 12 months, which is longer that the 9 month provision in the new zoning that automatically results in abandonment, making the property permanently ineligible for grandfathering.
The City’s entire official written response:
“The presumption is that inspectors are doing an appropriate job and that the code can not be designed to eliminate all potentials for abuse.”
(Final Generic Environmental Impact Statement, p. A1-154)
The City’s response at this point to the statement made by your organization parallels the callousness of its response to David Ahl on variances. In my opinion, this is a “perfunctory” response, which does not meet the bare minimum requirements of the law for environmental impact analysis.
Rental Property Inspections - A troublesome area of infringement on Privacy
Davis v. U.S. - U.S. Supreme Court (1946)
Historically, in order to search private property, government officials had obtain a search warrant based on probable cause that a law is being violated. However, in Davis v. U.S., the U.S. Supreme Court made an exception to this requirement for “administrative inspections of businesses and other commercial property.”
According to Scott Bullock, of the Institute for Justice:
“The standard for administrative inspections is based
merely on an official’s word that a search is necessary to
protect public health and safety or because a period of time has
elapsed since the last inspection. What was once a narrow exception
in constitutional jurisprudence has today been expanded into the
virtually unchecked authority of administrative officials to intrude
onto private property...”
(Scott Bullock, “Is Your Home a Castle? Not if You’re
a Renter,” The Wall Street Journal, Jan. 3, 1996)
(Bullock v. Forest Park) Federal District Judge Joan Gottschall, 1998)
In 1995 Scott Bullock represented tenants in single family rental dwellings, challenging the Chicago suburb of Forest Park’s inspection practice. He based his challenge on their being treated as a second class of citizens.
Mr. Bullock succeeded in obtaining a ruling in 1998 from Federal District Judge Joan Gottschall that struck down approximately half of the municipality’s ordinance, declaring that it was unreasonable and arbitrary. Warrants that are called “administrative warrants,” but lack the Constitutional requirements of affidavits of probably cause, are generally used for minute searches of private property. The judge ruled that the Fourth Amendment concerns for privacy and security are profoundly implicated when a government official invades the sanctity of a person’s home. The inspections here are unquestionably invasive. Warrants are served by an inspector and a police officer. Every room in a residence is inspected, including bedrooms and bathrooms.
Judge Gottschall held that the local law was not based on “reasonable legislative and administrative standards,” and declared “this court can find nothing in the record to indicate why the Village undertook such an intrusive inspection program solely for rented single-family homes and can find nothing that limits in any way the scope of the inspections.”
However, the danger in this decision is that the court will approve across-the-board searches of all dwellings if the need to protect “public safety” is well articulated.
Judge Gottschall also ruled that the $60 fee imposed upon residents who demanded a search warrant is an unconstitutional restriction on their Fourth Amendment rights. Courts have consistently held that no government agency may infringe upon citizens’ rights by imposing fees for their exercise, which turns these rights into purchased governmental privileges.
It should be kept in mind, also, that New York State jurisprudence related to privacy rights is more protective of the individual than is that handed down by the Supreme Court. (People v. Scott, People v. Keta, New York State Court of Appeals, Apr. 2, 1992, discussing privacy protections for posted land outside the curtilage of a house.)
The Future
Opportunity exists to exploit environmental law to fight zoning. SEQRA, the State Environmental Policy Act, and NEPA, the National Environmental Policy Act, should be used successfully by more property owners.
SEQRA was one of the key grounds in Peter’s and my lawsuit with Howard Aubin, several hunting clubs, and St. Lawrence County challenging the State’s 139,000-acre Champion International lands purchase. We challenged the land deal on grounds that the government failed to perform a social, cultural and economic impact study of the land acquisition, whether with respect to the local communities or with respect to the 298 hunting camps that the government decreed will be torn down.
The lawsuit was dismissed on technical grounds, but the adverse publicity that the lawsuit generated influenced the State to comply with the two important state funding laws that also were grounds for our lawsuit. The laws require local permission before the State acquires forest land in any political subdivision. The State began to ask for such permission after our lawsuit was brought. This illustrates the importance of a lawsuit in both the publicity arena and the court of law.
The City of Rochester’s proffering of a merely dismissive response to your concern for the impact of the automatic abandonment clauses in conjunction with the City’s point system and the non-conformities that will result from rezoning to single family houses is the sort of “perfunctory” treatment of economic and social issues that is, in my opinion, illegal under SEQRA.
Local government agencies can also be brought to court under SEQRA for segmenting a project. This is where they go for part of the goal with one set of action and later come back with the second part of the goal. This is happening in the City of Elmira where the expansion of Elmira College is being facilitated by the City with the staged closing of streets and piecemeal rezoning.
Individuals will keep litigating about the constitutionality and legality of regulations. Where the Rochester zoning exceeds the law, there is the opportunity for a defense on this bases. Remember that, when an organization litigates, it is equally important to fight the case in the media. At every step of the way, press releases, press conferences, and human interest stories, can pave the way for fair hearings by the judges.
Fight Shock Zoning
The most important thing is to keep informed about what is happening in your city. It is never too late to begin using official freedom of information requests. It is never too late to begin studying issues and issuing formal reports, issued to the media with a press conference, and to potentially interested agencies. This is outreach. A report dealing with the sections of the zoning proposal dealing with non-conforming properties would be a powerful publication, especially considering the tie-in with the point system and the neighborhood searches.
Once you are informed and are starting to succeed with effective outreach, then the most important actions are to be extremely visible in your opposition and to demonstrate your backing by many articulate citizens.
Your organization’s pamphlet about the City of Rochester program called “Operation Uplift” presents information that would amaze people from outside the neighborhoods. The little pamphlet is dynamite. Property used, a succinct flyer like this could mean the downfall of an entire zoning program. I almost couldn’t believe my eyes to read that multi-agency searches proceed down a street that is blocked off with police cars or fire equipment, that nine agencies can search through a private home the Police Department, Fire Department, Code Enforcement, Animal Control, Monroe County Probation, and Social Services, as well as the Rochester Gas and Electric and Time Warner Communications- all as part of a remarkably named agency called the City of Rochester Neighborhood Empowerment Team.
Bill Beyerbach and I discussed the need to make a visible record of this gestapo-like procedure. This is an extreme case of the need for video recording equipment and a large group of citizen observers with cameras - plus whatever media that you can muster.
The use of a video record and the mustering of many citizens are two of the key methods of exerting power against tyrannical government. A citizen-response team to be ready to muster when such a search is announced would be an effective support for the frightened people who are being forced to admit the enforcement search officials into their homes. People, especially tenants, need to be warned that the search teams may be the first step toward forcing them to move out! Now, it is also important to find out what is happening in neighborhoods which experienced the searches and to report this information systematically.
Over the years, I have noticed that the press is always looking for something interesting to report. They appreciate it when easily digested, interesting news is presented factually and reliably to them. If there is inadequate attention to your issues by the local press and radio and TV, there are also statewide media, including radio, TV, and talk shows; web media; and national conservative magazines, such as Insight.
National press would be very interested to learn of your research that the City of Rochester has a heavy-duty enforcement program called “Operation Uplift” that systematically invades the homes of the poor and minorities.
Some of the programs of the Property Rights Foundation of America are designed to be specifically helpful to other organizations and grassroots citizens. PRFA does not form affiliate or satellite organizations. Instead, it has as one of its fundamental goals to help independent state and local property owners’ organizations. I am not here today to try to obtain new members for PRFA, but instead have come in response to a request from your organization for me to present useful information. It is my wish to help your organization to be stronger and more successful.
Please make use of our web site, prfamerica.org
Zoning is one of our specialties. We post stories of zoning problems and successes won by property owners. All of the information posted on approximately 450 web “pages” is entirely free. Much information deals with zoning.
PRFA has been developing an area of information called “Citizens Strategies for Defending Private Property Rights.” We are now publishing an articles about how to organize a grassroots group. The publication about this subject will come out as our Fall issue of our Positions on Property, serving also to announce our “Citizens Strategies” program to our participants. It will be published on the web, also. I’m mentioning it to you because it covers much more than what the title, “Getting Started,” implies. It includes many important areas of building and strengthening an organization and its work for private property rights, as well as warning about pitfalls to avoid. Topics range from the “publicity blitz” to how to use public hearings for your purposes to piggy-backing to finances and fund-raising.
In addition, many narrower publications are posted, including “Events with Impact” (how to stage a large public rally or fund-raiser), “Press Release Essentials,” “Letters to the Editor-Keys to Success,” “The Visit to the Legislator,” and other topics about which people constantly request information.
In addition, copies of one of back issues of our journal Positions on Property about “Zoning and Building Codes” are available for free on the table, along with copies of the latest issue of our newsletter, the New York Property Rights Clearinghouse.
In closing, I’d like to urge you to strengthen your awareness of the threats and opportunities related to private property ownership and private property rights, and to deepen your commitment to the defense of property owners.
If any of you are not members of the New York Coalition, which is hosting this meeting, please see Bill Beyerbach, Carl Weekes, or Rene England after the meeting to find out how to join. It is very important to have an organization like this to defend the property owners in Rochester. Their accomplishments defending private from unconstitutional searches are impressive! They need your support!
We have hard battles just to meet the immediate challenges of well-funded interest groups. We are fighting government agencies that thrive on the accumulation of power and its corollary, the subjugation of citizens. “Shock zoning,” the situation in Rochester, exemplifies extreme use of government power.
But our work is for the long-term. Therefore, at the same time, we should be building for the future to insure that we leave a heritage of private property ownership and rights in private property that will protect the freedom of those who come after us.
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