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Archive for the ‘Euclidean Zoning’ Category

Scales and Lamp USSCThere was one published decision on land use in the New Jersey appellate courts this week. Motley v. Borough of Seaside Park Z.B.A. addressed the question of destruction, as used in N.J.S.A. 40:55D-68, and upon which the continued toleration of a nonconforming use turns. In this case, the plaintiff-respondent submitted a plan to the Seaside Park Z.B.A. for certain renovations to his property, which contained two residential structures — a nonconforming use in what has been a single-family zone since the 1970s. The Board approved his plan, but upon getting to work the plaintiff’s contractor apparently discovered significant structural issues that required taking the structure down to its foundation and footings. After a building inspector observed the extent of the demolition, a code-enforcement officer issued a stop-work order. Plaintiff lost an appeal to the Z.B.A. to lift the order. The lawsuit followed.

At issue was whether the plaintiff’s extensive dismantling and re-mantling had merely constituted a partial destruction of the non-conforming use, which would have required that use to continue to be tolerated under the borough’s zoning ordinance; or whether his actions had constituted a total destruction, after which any new construction on the parcel would have to conform to the present specifications of the ordinance. The trial court found, among other things, that the plaintiff’s actions had only constituted a partial destruction, and that policy reasons (viz., the importance of encouraging the proper maintenance of non-conforming structures) also supported allowing the plaintiff to rebuild. Accordingly, the Law Division vacated the stop-work order. But in an opinion published this week, an Appellate Division panel reached different conclusions and reversed the trial court’s order. The A.D. noted that New Jersey case law is generally opposed to extending the lives of non-conforming uses. Comparing the facts with those of the Lacey case, and others, the court concluded that a total destruction had taken place. Thus, a variance would have to be obtained in order to build something on the parcel that contravened the land use ordinance. In addition, the court found that the plaintiff had flouted the limits that the Board had initially set on his actions. Finally, the panel was unpersuaded by the policy reasons given by the trial court. Accordingly, it reversed the lower court’s decision vacating the stop-work order.

There was one unreported land use decision in the A.D. last week. I missed it at the time, because I was tied up with an event at one of the research centers, so here’s the belated squib: In Sharbell Building Company LLC v. Planning Board of the Twp. of Robbinsville, a three-judge panel affirmed a final judgment of the Law Division that had reversed the Board’s denial of an application to convert an approved, age-restricted housing complex into a development for residents of all ages. The court held that state legislation facilitating the approval of such conversions (in response to the changing housing marketplace) superseded the township’s zoning ordinance; and that prior to rejecting the proposal, the Board had focused on the wrong issues when it considered the impact of possible additional children on the local tax base, rather than considering the land use implications of the proposal. (You’ve gotta love it.) As always, the temporary New Jersey Courts link is alive for now, but the original opinion will be archived at the Rutgers Law Library next week.

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Take Back the Night

Night

I thought this was a really interesting piece of drafting work. The International Dark-Sky Association and the Illuminating Engineering Society of North America have a model lighting ordinance, aimed at reducing metropolitan light pollution. It proposes creating a new form of land use regulation: lighting zones.

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Scales and Lamp USSCThere were no published opinions on land use or zoning in the New Jersey appeals courts this week. Among unpublished opinions, three touched on land use or zoning matters.

1. In RIYA Cranbury Hotel, LLC v. Z.B.A. of Twp. of Cranbury, et al., an Appellate Division panel affirmed a trial court’s holdings that a banquet facility constituted a restaurant under the town’s zoning ordinance; that an architectural feature did not constitute a sign, under the same ordinance; and that the granting of a D variance permitting a wine shop in a zone whose ordinances did not specifically allow such a use exceeded the limited powers of discretion that zoning boards enjoy to grant use variances.

2. In Kanter v. the Municipal Council of Wallington, et al., a pro se appellant challenged a decision by the local zoning board to grant a variance to a politically-connected company. The board’s decision had subsequently been upheld by the municipal council, and then by the Superior Court, on the challenged points. The case did not raise any substantive issues of New Jersey land use or zoning law, but instead raised procedural points, mainly stemming from alleged technical violations of the Open Public Meetings Act. Here, the Appellate Division panel affirmed the trial court’s disposition of the case, allowing the board’s decision to stand.

3. Finally, in Ginsburg Development Companies., et al. v. Twp. of Harrison, an A.D. panel vacated a trial court’s holding that a developer would not have to pay its share of infrastructure improvements, pursuant to a developer’s agreement, until it commenced building. The A.D. distinguished the facts of this case from those of two precedents on which the lower court had relied. The panel found, inter alia, that because the developer had not disavowed its plans (which would necessitate the improvements), or sought to modify those plans in such a way that its presumptive pro rata share of the resulting costs would change, that the facts of this case were inconsistent with those of the precedents. The judges also noted that a contract had already been awarded for the work of those improvements, and that, in awarding that contract, the township had acted pursuant to its agreement with the developer.

The temporary New Jersey Courts links are alive for now, but the opinions will be archived at the Rutgers Law Library next week.

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The Times editorial page expressed its support for a strong Mount Laurel doctrine, as Governor Christie continued seeking to dismantle New Jersey’s Council on Affordable Housing (COAH). Christie also vetoed the latest incarnation of the foreclosure land-bank for affordable housing, but he seems open to a possible reworking of its objectives through new legislation.

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Scales and Lamp USSCJust a couple of unpublished opinions from the Appellate Division this week: In Rosenblum v. Z.B.A. of the Borough of Closter, et al., the court reversed a Law Division ruling that had affirmed the zoning board’s granting of a D variance for commercial uses, finding that the requisite criteria had not been met. The winning appeal was argued pro se by the plaintiff — an aggrieved neighbor. Meanwhile, in Gourley v. Monroe Twp., the court affirmed a Chancery decision to deny plaintiffs’ claims, including a reverse condemnation claim that they had brought against the township for damage from storm water runoff that may have been exacerbated by adjacent, permitted land development. The temporary New Jersey Courts links are alive for now, but the opinions will be archived at the Rutgers Law Library next week.

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Scales and Lamp USSCThere were no published opinions on land use or zoning this month, from the Appellate Division or the Supreme Court. There was one unpublished opinion from the A.D. last week, Montague v. Borough of Deal, which addressed board discretion about variances. The temporary New Jersey Courts link is alive for the moment, but the opinion will be archived at the Rutgers Law Library next week.

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In the Shadows of America

For those who believe that a ‘housing crisis’ means that the price of housing is not going up quickly enough: this is why smaller, less expensive units need to be permitted in our land use codes. Addressing this problem is more important than protecting the ten-fold returns on investment that people are expecting to reap on properties that they purchased when Jimmy Carter was in office. Would a supply of more, cheaper units solve all of the housing problems described in this story? Maybe not. But it would begin to alleviate the stress on the population that is employed in entry-level positions, and whose wages do not overcome the structural failures of bizarrely distorted real estate markets. I mean, seriously, what kind of a society allows this to happen to young people who are just starting out? It’s a disgrace.

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Michael Bloomberg has put an array of game-changing development projects at the forefront of his administration’s urban planning policy– and seen a lot of them through. As Bloomberg prepares to leave office at the end of his present term, The Architect’s Newspaper has put together a fascinating survey piece that describes many of the individual projects of the Bloomberg era, which together have reshaped the city in the most significant ways since the time of Robert Moses. (Thanks, Jon Goldman, for the tip!)

A new vision for Coney Island. Source: NYCEDC.

As a New Yorker (regionally, at least), I have very mixed feelings about Bloomberg’s planning legacy. On one hand, I now work in the city two or three days each week, and I have to say that I really enjoy the streetscaping changes that have been made to Broadway, in particular. Sometimes, when I feel like I need some exercise at the end of the day, I’ll walk up Broadway from the office in Gramercy Park to the PATH station at Greeley Square. The transformation of Broadway is palpable: Traffic lanes have been replaced with trees, bike lines, and outdoor seating. One day last week, a wedding was being performed in the middle of the street. With the reduction of motor-traffic, it became clear how much of the stress-inducing aggression that one expects to find in New York City is a direct result of having homicidal drivers competing for blacktop. Without them (or, even, with fewer of them), Broadway– in Midtown– has been transformed into a relatively quiet and peaceful setting. The redevelopment of Broadway is part of a wider administration focus on complete streets. No doubt that further reductions in vehicular traffic, as the Bloomberg administration has sought, would improve the ambience of the city, immeasurably.

On a much grander scale, I also really admire the ambition of a lot of the city’s signature projects, as highlighted in the Architect’s Newspaper article. The Hudson Yards Redevelopment Area, for example, will herald the most significant change to Manhattan’s geography since the 1920s: It will open an enormous new section of the city to Midtown-style development, supported by a  city-financed extension of the No. 7 subway (which is almost complete), and by the 2005 and 2009 upzonings of nearly 60 blocks on the Far West Side. Across town, in the middle of the East River, a new Cornell campus on Roosevelt Island will greatly increase the university’s footprint within the city limits. Downtown, the new World Trade Center is finally coming together, while Governor’s Island remains an empty canvas–but not for long. It’s an exciting time in New York City development. Forget about the numbers– the money to be made, the square footages to be built. Just look at the pictures in the above-mentioned article, and try to not be impressed by what’s happening.

On the other hand, I can’t help but feel that the city has become too managed, and too planned, on a human scale. It’s hard to characterize, exactly, what has been diminished over the last decade. But it feels as though the chaos and spontaneity that once made New York New York have been methodically reduced, and what we now have in New York is something more like a polished European capital, whose politically-connected denizens have shaped it to showcase their own riches and refinement, than like the crazy American city that we once loved. I still remember a city whose energy and danger seemed to promise that anything could happen here. What happened to that? The city of today is easier to deal with, in some ways. But it’s also become a preening, intolerant, and exclusive in-club, in ways that America’s largest city should never have been allowed to become. There’s something that I just find deeply dispiriting and stifling about much of New York now. It represents, I think, in all of its hair-splitting regulations, its commercialized hipness, and its matter-of-fact acceptance of locked doors, the decisive transformation of metropolitan America into a class-structured society whose boundaries are increasingly impenetrable to all but a select few. Its neatness is not something to celebrate.

It would be unfair, and perhaps too easy, given his personal characteristics, to lay most of the blame for this on Mayor Bloomberg. These changes have been coming for a generation, and many are the results of national and even global phenomena. Furthermore, to give credit where it’s due, the Bloomberg administration has probably done more to prioritize the development of affordable housing than any New York City mayor since the 1960s. Few things represent the narrowing of the city more starkly than its cost of living; and while Bloomberg’s willingness to tackle this may simply make good business sense, it also addresses an inequity that has been tolerated for far too long. At the same time, Bloomberg has had more than 10 years to leave his mark on the city, and it is what it is. There may be more affordable units in the pipeline as a result of his policies, but rest assured that their numbers will be very tightly controlled; and never will enough of them be permitted through the city’s land use policies to threaten the astronomical market equilibrium. Instead, the experience of living in New York City will become increasingly bureaucratized and contingent for those who are not rich: As Bloomberg once gloated, he believes the city is a “luxury product” for which people ought to expect to pay. And pay they do. His is not a vision of a city whose plans respond to the needs of its people; rather, it’s a city whose political players make room for the people they might need.

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New feature. You get the idea. Let’s start with an only-in-New-Orleans case that would be a harbinger of the more famous Penn Coal and Euclid decisions: It’s L’Hote v. New Orleans, from 1900.

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Forbes is back on the case of how the aggregation of local land use regulations can distort metropolitan land markets, creating barriers to entry in agglomeration economies, and possibly even slowing economic growth by depriving such economies of desperately needed new blood. This closely follows some of the insights that Ryan Avent hit on, last year, in The Gated City.

To the list of grievances against overzoning, I would add the appalling inequity of making entire metropolitan regions effectively off-limits to the middle and working classes, to the young, and to those who have children– including so many of those regions’ own long-time residents. Government and academic research have almost completely dodged the question about what has driven the massive, native-born out-migration from places like California and the Northeast– and whether this migration has been truly voluntary. To hear the press coverage, millions of stupid people have eagerly given up their proximity to friends, family, and relatively stronger economies in order to snap up cheap, new houses in Godforsaken places. I’m cynical, but not that cynical.

The truth is that housing costs have been forcing people out, and it is apparent that the labor forces in those cities that have been abandoned by the US-born working class have been steadily replaced by migrant workers who see being crowded and overworked in an American city as an improvement. On a long-term basis, this is not a sustainable arrangement. But the ultimate challenge is in overcoming the myopic politics of municipal government, writ large, that resists even the most modest changes to existing land use patterns. I really appreciate that Forbes is keeping up on this story. I feel like this is a drum that needs to be beaten until the harm of overzoning becomes clichéed.

Back in the 1970s, in a harbinger of what has come, the New Jersey Court addressed the issue of what was then called exclusionary zoning in its first Mount Laurel decision. In 1983, Justice Pashman described the specific land use devices that were resulting in the wholesale exclusion of market uses in his concurrence to the second Mount Laurel decision. In those days, only the housing markets for poor and working-class people had been strangled. By the 90s and 2000s, the suburban middle class was starting to get screwed. Today, Silicon Valley and Forbes are complaining. Maybe now it becomes an issue.

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