Property Rights Foundation of America®

from PRFA's Twelfth Annual National Conference on Private Property Rights
October 18, 2008

No-Growth Zoning

John S. Marwell, Esq.
Shamberg Marwell Davis & Hollis, Mt. Kisco, New York

Thank you, Carol. It is a pleasure to be here today. I'm very grateful for the invitation and very grateful for all the effort you have put in running not only these annual conferences, but all of the work you do in between. I have some bad news and some good news. The bad news is that I basically agree with everything you've heard so far today. The good news is that, since I planned to cover almost everything that has already been covered, you don't have to listen to my 45-page talk. Most of that has already been covered.

My partners and I spend our lives in the daytime litigating on behalf of property owners against governmental agencies and we spend our night time duking it out with zoning boards, planning boards, town boards, village boards, wetlands commissions, and so on. I was originally going to pose two questions to you. Carol asked me to talk about "no growth zoning" and I've been thinking about that for months, trying to figure out how to address that in twenty or thirty minutes, to tell you how we got to where we are. And I thought back to a question that was asked in all innocence. My partner Dan Hollis, who is here, and I, we were representing a brilliant woman, a former media person, former anchorwoman on TV, who had set up a company that was just enormously successful. It developed and made products that were used all over the world. She had come with a brilliant idea to set up a living museum in Westchester County in one of the communities in which we practice. It was part of a wonderful, idealistic, but also capitalistic project, and we had to go through a bunch of zoning applications. A lot of community opposition developed, not only the neighbors but also the municipality. And this is a brilliant woman, a very successful businesswoman.

After about a year and a half of this, she looked at us and she said, "John, Dan, this is America, can they really do this to me?" And that just harkens back to the questions that everybody's been asking, "How did we get into this mess?" You'll be very relieved to know I'm not going to start back in Ohio with Village of Euclid v. Ambler Realty that was so ably discussed this morning. I'm not going to proceed through a series of New York State Court of Appeals decisions that authorized municipalities to basically put in place all kinds of slow growth—parentheses, "no growth," zoning regulations.

Back in 1972 in the case of Golden v. Town of Ramapo. I would note in that case that New York's highest court, the Court of Appeals, was very, very wary of allowing municipalities to pass this type of zoning regulation. In that case, in Ramapo, it's a suburban municipality in Rockland County. It had grown by 300 percent in about a seven-year period. Projections had it doubling again in size. They said, "We don't have the infrastructure, we really can't accommodate this kind of growth." So they got a HUD grant to take a fresh look at the zoning up there. They put together a blue ribbon panel of planners and other demographic experts, resulting in the issuance of a four-volume study, which, in turn, turned into a master plan, and which, in turn, turned into new zoning and a capital budget.

The net result of which was that the town decided that before anybody was going to be able to do anything, before you can subdivide and develop any land, you had to be able to guarantee that the necessary infrastructure was going to be in place. And the town adopted a six-year capital budget, and after the capital budget was in place, a twelve-year infrastructure construction plan. The net result of this was that you could own a piece of property and effectively have a moratorium on your property for eighteen years.

Golden and the Rockland County Builders Association and other property owners got together and said, "That doesn't sound American, that doesn't sound constitutional. How can you do this to us?" I'm giving you the short form, the very simple version, it was a lot more complicated than what I'm saying. The net result was, it worked its way up to New York's highest court, the Court of Appeals. Even though two judges, including the Chief Judge at the time, dissented and thought this was not proper, the majority of the court felt that they were going to go along with it.

Among other reasons, and this is a continuous theme that you hear and you read about in Supreme Court cases and Court of Appeals cases, the Court of Appeals held that the courts should not second-guess legislative decisions that are made by the elected town representatives. Now, of course, zoning ordinances are enacted and adopted by elected officials—town, village and city board members, council members, supervisors and so on. And if there's any rational basis for these ordinances, the courts are generally going to take a "hands off" position. So it was with some reservations, the Chief Judge in his dissent said, "This is a moratorium and I think moratoria are not legal."

Regrettably, he was in the dissent and, regrettably, the U.S. Supreme Court disagreed with him some 25 or 30 years later in the Lake Tahoe case, in which the United States Supreme Court basically lauded building moratoria as legitimate and progressive planning tools that the courts were going to uphold. For those of you who may not be familiar with the Lake Tahoe case, in effect there was a six-year moratorium on the development of properties in the Lake Tahoe, California, area while the Regional Planning Commission had an opportunity to review its zoning and environmental restrictions. And there were some 2,400 property owners in that area who were affected by this and were basically prohibited from doing anything with their property for that period of time. It was originally an eighteen-month moratorium. It had been extended for an additional fourteen months, and then there turned out to be an injunction for another four years or three years. So, in effect, there was a six-year moratorium on these property owners being able to do anything with their property except pay taxes and maintain the property and carry liability insurance.

This was also a controversial decision in the United States Supreme Court; it was not unanimous. Former Chief Justice Rehnquist wrote a vigorous dissent in which he basically said that what has happened is that the federal government has taken a free six-year lease on everybody's property. But the majority of the Supreme Court held that this was not an unconstitutional taking and indeed municipalities needed time to be able to review their master plans and update zoning ordinances so, not in so many words, we're basically encouraging municipalities to use a moratorium as a legitimate planning tool. To me that's the ultimate no-growth zoning tool.

It might be interesting to look at the area where we practice in the lower mid-Hudson region—Westchester, Rockland, Putnam, Dutchess, Orange Counties. I think there's a land use planning process in our area which is as complex as you're going to find anywhere. We have so many overlapping regulations at the local level. We have a lot of very intelligent elected and appointed officials who know how to play the game, who know how to delay development. And frankly there is very little, if any, political support for development. People get elected on anti-development platforms. We've seen a lot of people rise to fame as head of development opposition groups. They find that they really like going out to these meetings and having people listen to them, and "having" to listen to them at these public hearings. They feel that this is really cool, and they get elected or appointed to town boards, village boards, planning boards on an avowedly anti-development platform.

We have two pieces to this: Piece number one is the enactment of the laws and piece number two is how they apply those laws. Probably every twenty years or so, we see a rash of moratoria around our area, when the development pressure builds to the level where all of the newcomers in the community have said, "I moved from the Bronx to get away from traffic and development, I came to this community because I like it the way it is and I don't want to see it change." They will put enough political pressure on the elected officials so that a moratorium will be adopted. Then a bunch of very intelligent planners and other experts will be hired to take a look at zoning laws with an intention to—in my view and I don't admit to being objective, having fought these battles for many years—slowing growth and delaying growth and coming up with new ways to prevent any further growth. Very often a moratorium will be enacted for twelve months and it will be renewed for six months. It's not uncommon to see a moratorium in effect for 36 months to give the town board, village board and other elected officials the opportunity to figure out what they want to do with the zoning. I guarantee you that none of the zoning initiatives result in less regulation. Not one, not one that I've seen in thirty years.

What we see is every fifteen or twenty years or so, people get really bright and really smart and you see different kinds of environmental regulations that get enacted. On a local level and on the regional level, twenty or twenty-five years ago we started seeing wetlands, occasionally steep slopes law, wetland setbacks law. And this was sort of the beginning of it all. What we see now is ridgeline protection acts, we see much more rigorous steep slopes laws, different definitions to expand what is considered to be a wetland. They don't have to be wet. As long as you have soil and vegetation of certain types and sizes, that is a wetland that is protected. We see attempts to increase the wetlands buffer areas. Not only is the wetland sacrosanct, but an area around the wetland is sacrosanct. Whether it's 50 feet, as it is in Greenwich, Connecticut, 100 feet as it is in a lot of communities, or 150 feet, this continues to grow and is another way of restricting development and increase in permitting procedures and costs. We've seen some very creative new kinds of proposed legislation. Viewshed protection is very nice. There was an editorial in one of the local business magazines that said, "You know, this is the ultimate craziness because every single spot on earth is a viewshed." So what are we protecting here? As I said, we're seeing ridgeline protection.

One of the more interesting ones that we see is "environmental subtractions." These ordinances are going to define and create all these environmentally sensitive areas and say that you've got to go through permits, you can't disturb them. And then they throw in an environmental subtraction on top of it, which means that if your property is affected by any of these—steep slopes, wetlands, wetland setback and so on and so forth—, you lose that acreage for density computation purposes. So it's a double hit. These things are so subtle that the ordinary person taking a look at this or reading about it in the paper, says either, "I don't understand it," which is very common (there's no reason why anybody would understand this stuff), or "It can't affect me."

Well, let me give you an example of a regulation that got passed in Westchester, under the Health Department years ago. No one except some of the civil engineers picked up on it. There used to be a slope requirement that a septic system couldn't be installed on a slope of more than 20 percent, and right under the radar screen that was changed to 15 percent, as a result of heavy lobbying by some of the environmental groups. No one knew what that meant, except building lots and development rights just disappeared right off the face of the earth, without any meaningful notice.

But I don't want to tell you that the "forces of darkness," as we call them, have won. Carol did ask me to tell you about a couple of success stories, and I want to leave on something of a positive note. I think that the positive experiences that we've had tie in a lot to what other speakers today have said. Most of them, or many of them, have been in the context of groups either formed for the purpose of opposing these rezonings in a community, or as advocacy groups. Twenty years ago we were involved in the last rash before the present rash of moratoria, particularly in Putnam County. In a lot of the communities, all of a sudden there was development pressure in areas where there hadn't been development pressure before. And a number of the communities had newcomers that got elected to local office, saying, "We have to protect the town, we have to protect the water, we have to protect the ridgelines, we have to protect the slopes, we have to protect our children, we have to protect the lakes, the ponds, the streams, the highways, the forests, the exposed rock outcropping." So they put moratoria in place and they started developing these proposed regulations.

We helped to organize citizen taxpayers groups, people who were the business folks, the infrastructure of the town, the people who had been there a long time. And we helped to educate them as to, you know, every action has a reaction. And you start putting these regulations in place, property values, the other side to this is that all of a sudden property that hadn't had any value in the past now had great value to developers. And when you start putting these moratoria in place, the rezoning, the value is perhaps going to come back down, the adverse impact will be felt on jobs and development, and so on. Once the public hearings started being held, a lot of the long-time residents of the town, the business folks, the rock-solid infrastructure of these communities, came out and said, "What are you guys doing? This is the first time in our lives, and our grandparents' lives and our parents' lives that our property is worth anything, and you want to kill that? You're crazy." And it was a very effective opposition and in many cases these initiatives failed to take wing and failed to become enacted.

We had a couple of recent experiences in which we were working for a series of private clients. Carol mentioned earlier that she came down and spoke; she's spoken twice to the Building and Realty Institute for Westchester in the Mid-Hudson region. This is a group of builders and developers, about 1,400 members, contractors also, and people with great interest in real estate, and over the years the Building and Realty Institute has taken on a lot of these issues. Its members recognize the very serious importance of property rights. These are folks who clearly have a vested interest in development and in preserving property rights. At the Builders Institute, we've worked with them in a number of different ways. One way in which they participate is by participating in litigation. I'm just throwing these out, because these are sort of tools in the toolbox, perhaps a hackneyed phrase now, but you have to know what kind of tools you have. We've talked about the importance of getting the word out, educating the public, getting to the media and so on.

Some cases come up in the higher appellate courts in New York that have important principles of law involved. There's a procedure known as filing an amicus curiae brief where you can participate. You can state what interest you have in it and ask the court's permission to submit a brief outlining your position, if you have reason to believe that the parties have not expressed this particular opinion, or you bring something new to the table, effectively, on issues of statewide significance. We had a recent very important SEQRA case. (I'm going to talk about SEQRA, the State Environmental Quality Review Act in a moment.) It was an important case because, had the case been decided the wrong way—again, I'm not objective—, it would have served to further prolong what is already an out of control SEQRA review process under the SEQRA litigation process, and would have given these advocacy groups and the, quote, "environmental activist groups" yet another legal arrow to shoot at property owners and developers. So we put in an amicus brief on behalf of the builders. There were a series of amicus briefs, one put in by the Council of Mayors, interestingly, on the side of the property owner. And a couple of environmental advocacy groups put in amicus briefs on the other side. We expressed these opinions.

It happened the Court of Appeals, New York's highest court, came out on the side of the property owner. It was a very important SEQRA decision. It was an important and good decision to try to gather some modicum of control back over the type of litigation process that we all see.

Our firm has had a couple of cases go to the Court of Appeals in the last several years in which we're litigating zoning and taxing exemption issues for religious institutions. You're going to hear more about RLUIPA later from Roman Storzer. We managed to get amicus support in the Court of Appeals from the kind of legal advocacy group that Don mentioned earlier; it was very, very helpful in both of our cases. So there's another way to participate in the process when there's an important legal principle, or property rights principle. You can help to educate the court as amicus curiae, which means "friend of the court" and you can bring certain other aspects of the case to the attention of the Court, perhaps some unintended consequence of a decision in a way that should be brought to the court's attention. I think that's been very effective in our experience and a very helpful way to weigh in on some issues.

One of the techniques in the municipal toolbox that we've seen, and the opposition groups' toolbox, is to latch on to an application. Let's say there's a development application and it becomes very controversial. Political pressure can be put on the elected officials to change the zoning during the course of the pendency and your pursuit of that application. We see that happening a lot. It happens all over the state. It's really basically unfair and that kind of thing has got to offend most everybody who's got a sense of decency and a sense of fair play. My partner was mentioning this at lunch today. We've got a client, this may be shocking, but he's got a big commercial development and he's into it for between $2 and $2-1/2 million dollars and he has not yet finished the environmental review process. There's an effort to rezone a part of his property. And under New York State law, until you actually get a shovel in the ground, after you've got all your approvals in place, and you've made a significant improvement to the property in anticipation of finishing the project, then you get what are called "vested building rights." But right now you don't have them.

So the builders have worked with a number of their experts and put together what Carol has referred to on her website and some of their other materials, as a "vested rights bill." Much to our surprise, to my surprise, a Democratic Assemblyman, a very thoughtful and bright Democratic Assemblyman, has become a co-sponsor of this bill. Basically, what it would do is freeze the zoning and give the property owner protection against the rezoning for a period of time to allow him to finish processing his application if he has a complete application for development pending. This would be a major change in the law. The environmental groups are very unhappy about this. It almost made it out of committee, but it failed to make it out of committee the first time by one vote. But that's another tool in the toolbox. We're trying to seek legislative help, legislative relief from some of these very unfair legal problems.

We are also keeping our eye peeled for a vested rights case that we could present. If this municipality that I mentioned goes ahead and rezones our client's property, that would make a striking case. I think it violates all sense of fairness and decency. The old vested rights law, basically, for all intents and purposes, predated SEQRA. There used to be a time when a developer or property owner could go through a very truncated review and approval process before SEQRA was enacted. He could get his approval, start getting into the ground. Well, that doesn't happen now. We all know you spend tons and tons of money, years—and if you're lucky only a few years of effort—and experts, burdensome paper and reports and so on, before you even get to the point where you can think about building permits and starting the project.

So we're looking and seeing if there is that test case out there where someone is into a property, and has spent a substantial amount of money, and, where we can bring that to the attention of the highest courts in New York State to try to see if we can't get the law changed, what we call the common law, the decisional law of the state.

We had a positive experience. There was a municipality in northern Westchester, known as a very environmentally progressive community, which has very restrictive laws, including an aquifer protection zone, very restrictive wetlands laws, zoning, planning and other environmental laws. There was an effort to increase the wetland setback from 100 feet to 150 feet. Seemingly, well, what's the big deal? Well, it was a huge deal, the town had been put under a lot of pressure to do this.

How can it be bad to have an increased wetlands setback? It's going to improve water quality, it's going to improve wetlands vegetation, it's going to improve habitat for wildlife, everybody's going to be better, the world's gonna be a better place. That's sort of the accepted reasoning on this, and it looked as if this was on the road to quick approval.

With the Builders Institute, we got a bunch of the good consultants on this and did an analysis and took on the scientific rationale. It was sort of a two-pronged approach. There was a rationale being put forth referring to all of this literature that seemed to justify the incremental benefit to an increased wetland setback. Well, when you put the microscope on it, it wasn't there. The science didn't support it and I would call that "junk science." There's a lot of that floating around, used to justify increasing environmental regulations, and we brought this to the town's attention.

We also had a huge educational program. We insisted that the town prepare a detailed map of who would be affected by this, so people wouldn't just say "Ho, hum, that's not going to affect me." But there was a map in Town Hall that illustrated exactly whose property would be affected by this and what the impacts would be. And it was a big educational program.

Lo and behold, we come to the public hearing. Well, there's the usual cast of characters you'd expected, there's a bunch of people from New York City, "You're going to contaminate our water supply, we have to have bigger wetland setbacks, the world is going to come to an end if you don't approve this." I don't mean to make light of this or denigrate it, but you get a little cynical after a while. But there were also a lot of long-time residents of the town, who said, "What are you doing? Do you know what you're going to do to me if you enact this setback?" There was really passion and outrage in position, because they realized that the science wasn't there. And they realized that this whole thing was sort of a public relations deal, and it was basically an attempt to railroad the town into doing this. The good news is that it got voted down by a 3 to 2 vote. The town board members read all of the reports that had been issued and they said, "You know what, we agree." At least the three who voted against it said, "The science isn't there. We don't buy it." It got voted down, much to everybody's surprise. So that's a positive story.

There was another effort made, and this is such a typical experience, when you're in close proximity to New York City. There was a community whose tax base was very much reliant upon one major commercial taxpayer in the town, a corporate headquarters. And the corporate headquarters became outdated. The corporate owner started looking around to move the corporate headquarters, perhaps moving to Connecticut. There's all kinds of tax incentives to move out of New York State. We all know there's no affordable housing. We all know that taxes are the highest in the nation. And on and on and on. And the community, I think, realized at that time that it was very vulnerable and that the tax base was very much in jeopardy. This is going back about twelve or fourteen years. There was probably the longest-serving supervisor in the history of the State of New York who said, "You know what, we've got to protect the tax base, we're going to basically open up, we're going to encourage development in the town, to shore up the tax base so that the real estate taxes don't just get further out of control for the residents."

And as is always the case, there was a tremendous growth surge and the new folks that came in got increasingly agitated over all of the development, and said, "We didn't move up here to have all this development, it's got to stop." So they challenged the incumbent supervisor after all this and they won. And the first thing they did was to enact a moratorium to allow them to review all the zoning and planning and environmental regulations, so that they could revise all of these. The moratorium went on and on and on, and they hired a big planning firm, and that planning firm came up with the most creative menu of proposed environmental regulations that we've ever seen. It was impressive. It literally had everything that you could conceive of they were going to enact.

Well, we went after them the same way, and we challenged the science. This isn't for the faint of heart. We got a team of experts, and we challenged these proposals. There was a big educational program for the community. At the public hearing, a lot of the old time residents came out and said, "What are you people doing? Why are you considering this? I've lived in this town thirty years, I've always counted on my property as my retirement fund, and you're gonna take it away from me if you pass all these regulations." The town's own chairman of its Architectural Review Board came out and said, "What, are you nuts with this steep slopes law? You don't even know what you're talking about. This is crazy, there's no basis for it." Long story short, many, many of those regulations were either abandoned or modified significantly as a result of the community opposition, which probably wouldn't have happened all if there hadn't been this concerted effort to organize, educate and invigorate these folks.

You challenge the basics of these proposed laws, you don't just accept the big lie that this is going to better everybody. Challenge it and see if there's a legitimate scientific basis for all these proposals. Because in many, many cases there isn't.

So I guess what I'm saying is the same as you've heard before: Get involved. If you're not involved, there's going to be a vacuum and we all know who has, frankly, significantly filled that vacuum for the last twenty-five years. And it's not people who are bashful about telling you what you ought to be able to do with your own property. They're not offering to pay your taxes and they're not offering to share the burdens, but they're very happy to push the elected officials to pass regulations that are going to restrict what you can do with your property. So we have to look in the mirror and get out there and take an activist role. It's not always pleasant, and we're all very busy, but that's what it takes. No one ever said that democracy was efficient or easy. But that's where we are.

Thanks very much.

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