- By Carol W. LaGrasse
The new zoning proposal by the City of Rochester is voluminous, with 543 finely typeset pages. In addition, the Final Generic Environmental Impact Statement, which sheds light on the new code, contains another two-inches of pages, including 7 appendices, the longest with 255 pages.
It presents the reader with an Alice in Wonderland experience, with rules in unfathomable detail for everything from who can do auto repair and where on private property to what type of weeds a person can-presumably unintentionally-plant (non-invasive ones). The code stipulates details about house façades at a level about which the ordinary homeowner rarely thinks even when the person is actually contemplating buying a house. All of the details appear in chapters according to the particular zoned districts, ad infinitum. In the "Garden District," for instance, each home must have a turret, covered entry, porch, or bay window. Window treatment in the "Warehouse District," must have translucency to allow a 10 ft. gaze into the building. For "Bread and Breakfasts" and "Rooming Houses," the law allows "No alteration of either the exterior or interior...which changes the character and appearance of the residential premises," and requires that "Only rooms designed as bedrooms shall be used for guest lodging."
Rezoning to make large areas of functional housing illegal
But the aspect of the rezoning that spells immediate trouble for landlords is that most of the city appears to be rezoned so that the legal land-use category becomes 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. A recent automobile tour through residential streets revealed that much of the housing consists of single-family dwellings that have been remodeled into two-family houses which are occupied by low and moderate income residents. The rule behind the re-zoning seems to be that in case the struggling business owners and landlords in once-prosperous neighborhoods hard hit by industrial decline such as the down-sizing at Kodak and migration to the suburbs, haven't given up the ghost, give them a final blow.
Rochester's rezoning by and large to single-family housing creates a large number of what are called non-conforming properties. The City's Final Generic Environmental Impact Statement states that the number of acres of Low Density, or R-1, land would increase from 6,100 to 9,700 acres. Medium Density would decrease from 3,500 to 1,400 acres. High Density would decrease from 1,400 to 710 acres. The result is a lot of non-conforming properties, considering that the existing zones, by and large, reflect the type of properties within them.
An official chart confirms the striking increase in non-conformities. 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 Environmental Impact Statement states that the City believes that the new zoning reflects the planning principle that nonconformities are an inherent factor of urban zoning, implying that the City believes that the diversity of nonconforming structures is interesting and desirable. However, this stated attitude is contrary to the experience of rental property owners in the City of Rochester
Too much discretion for City officials
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 overcome administration requirements that are absolute, allowing total discretion for the permit and enforcement officers. The proposed code states that no application for Certificate of Nonconformity or for a variance will be received where existing violations, judgements, delinquent real estate taxes exist, and that proof that all local, state and federal regulations and permits have been met or obtained must be submitted with the application.
Everyone in the building trades knows that 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.
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."
This appears deceptive. The only practical purpose of creating non-conformities in such an enormous number must be to wage war on the properties with such the non-conformities.
City enforcement actions can effectuate loss of grandfathering of non-conforming structures. This can be accomplished with the already-existing Point System to tally outstanding violations on the premises by occupants, such as drug crimes, requiring that the property be closed down long enough to lose its grandfathering, or with selective inspections to impose violations for the same purpose.
The New York Coalition of Property Owners and Businesses, a group of landlords and businesses that had already formed in response to the City's heavy-handed enforcement of code violations in older two-family houses, has taken the stance that the rezoning is designed to force landowners to give up buildings by dropping them or losing them to condemnation after they are held out of the rental market because of aggressively imposed citations until they lose they grandfathering under the strict variance rules in the new zoning law.
Recorded in part in the Final Environmental Impact Statement is the Coalition's succinct written statement that the overzealous, unjust Point System 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 was, "The presumption is that inspectors are doing an appropriate job and that the code can not be designed to eliminate all potentials for abuse."
This perfunctory response fails to meet the bare minimum requirements of either the federal or state law for environmental impact analysis, while appearing to demonstrate a disinterest in the rezoning's impact on landlords and the economy of the area.
During a tour of a Rochester neighborhood in September, observers could see vacant lots in once-gracious neighborhoods where landlords gave up many of their two-family rental properties. Many empty lots have been retained by the City and are kept mowed to maintain a neat "open space" effect. Density has been reduced at the loss to the private property owner. On one block, a substantial house is posted for eminent domain, its value obviously reduced by vandalism. A few of the two-family houses where private landlords once had viable businesses providing housing are being replaced with new houses subsidized by the New York State Division of Housing and Community Renewal, which will be sold or rented to low and moderate-income residents. It can readily be seen that the issue of the City's enforcement of code and crime laws that drives landlords out of business is tied to pork-barrel to build again at public expense what already existed, substituting boring, warehouse designs lacking the architectural character of the structures once built by private builders for sale to a demanding market. But it is impossible for the taxpayers to finance a replacement of all older houses with new ones. The system is a solution only for a declining city.
Code Enforcement Sweeps
The Rochester landlord's organization has published a dynamic little pamphlet about the City's "Operation Uplift" program. The pamphlet, "Citizens of Rochester - Beware," describes block searches witnessed personally by Bill Beyerbach, who is the president of the organization. With shocking detail, the English/Spanish flyer shows how the City carries out its new code enforcement sweeps. Multi-agency searches proceed down a street that is blocked off with police cars or fire equipment. Members of the landlords association have witnessed nine agencies searching through private homes, including 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 an incongruously named agency called the City of Rochester Neighborhood Empowerment Team. The members of the landlords association believe that the code enforcement sweeps are tied into the City's re-zoning plan.
"They set up an abandonment system to be used selectively as they choose," Mr. Beyerbach said.
The landlords association plans to make a video record of this Gestapo-like procedure in the future. The group has a citizen-response team ready to muster when a block search is announced, to support frightened people who could be intimidated into admitting the search officials into their homes.
The tenants in the low-income neighborhoods do not generally understand the down-side of code enforcement, according to Mr. Beyerbach. But the landlords have learned to see the full picture the hard way. Under the new zoning law, when buildings are cited and the owners are prevented from satisfying the requirements of code officials before the buildings lose their grandfathering, it will be impossible to restore them for rental as two-family houses. The large, gracious houses are two expensive to maintain to provide affordable rental units to low- and moderate-income residents as single-family units.
Mr. Beyerbach said that his group has not been able to communicate in advance to low-income tenants that the search teams, by finding violations that may result in declaring a house unsuitable for occupancy, may be the first step toward forcing a tenant to move out.
The irony is that the City of Rochester, under the rubric of making neighborhoods of the poor and minorities safe from crime, has a heavy-duty enforcement program called "Operation Uplift" that systematically invades the homes of the same poor and minorities.
Landlords Fight Rental Property Inspections
The practice of rental property inspections, which has been growing more popular throughout the country, is a troublesome area of infringement on privacy. Rochester tenants have not been immune, but it is the landlords who have organized.
Historically, in order to search private property, government officials had to obtain a search warrant based on probable cause that a law is being violated. However, in the case of Davis v. U.S., in 1946 the U.S. Supreme Court made an exception to this requirement for administrative inspections of businesses and other commercial property. Municipalities have been gradually expanding administrative searches to include routine inspections at regular intervals of private residences that are rental properties.
Scott Bullock, an attorney at the Institute for Justice in Washington, D.C., fought the practice of administrative inspections of single family rental dwellings in the Chicago suburb of Forest Park. In an editorial in The Wall Street Journal on January 3, 1996, he described the issue faced by these tenants, which they have in common with those in Rochester, saying, "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..."
Mr. Bullock obtained a ruling in 1998 from Federal District Judge Joan Gottschall declaring approximately half of the municipality's ordinance unreasonable and arbitrary, and holding that, "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."
New York State's highest court has historically given stronger protection to privacy rights than that proffered by the federal court system and the U.S. Supreme Court.
Taken by surprise, the Rochester landlords were not organized in expectation of the code enforcement sweeps in time to assert their rights. However, they have gathered a strong membership, demonstrated by their monthly meetings and the activity of their members, and are influencing the City of Rochester to begin to respect constitutionally guaranteed protections for privacy rights.
On June 2, 2002, Mayor William A. Johnson, Jr., transmitted to the City Council legislation amending the City Charter to state that an applicant does not have to consent to an inspection. "If the applicant does not give consent, the issuing authority shall obtain an administrative search warrant," he stated.
The Council followed the major's recommendation with a law passed on June 18, stating, "No local law or ordinance of the City shall be construed to require a person to consent to an inspection of a premises in order to determine compliance with applicable code provisions. When applying for a license, permit, certificate or other City approval, a person shall have the right to decline to consent to an inspection, and the issuing authority is authorized to apply for an administrative search warrant to conduct the necessary inspections." The City next issued a form where the owner/agent of the property could either voluntarily consent to an inspection or check the box, "I do not consent to have my property inspected by the City of Rochester."
This legislation and administrative change resulted directly from a declaratory judgment action brought by two of the landlords from the Rochester group against a section of the municipal code related to certificates of occupancy.
A Long-Term Battle
The Rochester group is formally organized as a corporation, with the intention of indefinitely defending landlords, businesses, and other property owners. At its headquarters on Dewey Avenue, the group maintains a drop-in office called the "Resource Room," where members can peruse a library of legal volumes, obtain the latest information and advice about affairs related to their private property interests, and view a wall-sized bulletin board of news related to their issues.
They have succeeded in becoming extremely visible to their opposition and in demonstrating backing by many articulate citizens. While they operate on many fronts to defend private property rights in Rochester, some of their accomplishments stand out. Their effectiveness in defending the rights of private property owners from unconstitutional administrative searches serves both landlords and tenants. With their legal research, they are laying the groundwork for further advancement.