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  • Writer's pictureGeorge S. Van Nest

New York State Budget Attempts to Pre-empt Local Municipal Zoning Regulation

The New York State budget often includes dramatic and striking changes to state law and policy. For example, in 2019, then Governor Cuomo passed the sweeping Climate Leadership and Community Protection Act (CLCPA) that turns State energy priorities upside down to achieve climate change objectives as part of the budget. This year, Governor Hochul proposed significant legislation to address affordable housing that tramples on local government control of zoning. Local government leaders and municipal organizations are deeply opposed to the changes. Based on the significance of the local impacts, all New York residents would be well served to understand the proposals.

The Governor announced a state-wide Accessory Dwelling Unit (ADU) mandate that will be required in each city, town, and village. The proposal is an abomination and an affront to local municipal control of zoning by each distinct local government across the State. Rather than respect the decades upon decades of local planning and zoning decisions, the ADU legislation strips New York municipalities of local control to meet a state-wide mandate aimed at affordable housing. Perhaps after two years’ worth of Albany mandates on Covid restrictions, elected officials are immune to respecting local autonomy and decision-making, but to strip individual municipalities of authority to make local zoning decisions to fit their particular needs and community is draconian even by NYS standards.

The legislation defines an ADU as “an attached or detached residential dwelling unit that provides complete independent living facilities for one or more persons located on a lot with a proposed or existing primary residence and shall include permanent provisions for living, sleeping, eating, cooking, and sanitation on the same lot as the single-family or multi-family dwelling.” The proposal states that despite any local law or zoning which prohibits ADUs, each municipality must pass a local law permitting the creations of ADUs including “all areas zoned for single-family or multi-family residential use and all lots with an existing residential use.” Further, each municipality must “authorize the creation of at least one accessory dwelling unit per lot.”

It is axiomatic, but land use planning and local zoning regulations exist to provide for appropriate and consistent land uses within municipalities. As such, commercial, industrial, multi-family housing, and single-family housing are routinely identified and placed in areas of compatible uses. Hence, single-family residential areas are often protected from more intense and robust zoning classifications, including multi-family housing.

The Governor’s ADU proposal, which in and of itself is not germane to the State budget, seeks to obliterate local zoning autonomy. Moreover, it turns zoning classifications upside down by forcing ADUs into single-family zones, against the interest of the duly elected local officials and zoning ordinances which are structured to fit the needs of each municipal setting.

Unfortunately, the Governor’s original proposed budget also included another dubious State land use mandate. The budget includes a Transit Oriented Development (TOD) mandate that would require cities, towns, and villages to permit development of at least 25 dwelling units per acre on any residentially zoned property within a half mile of rail or bus stations in the metro New York City region. Strikingly, the proposal would prevent municipalities from enacting zoning regulations to prevent the development of this high-density housing per acre. Further, it mandates that New York municipalities adopt comprehensive plans and zoning regulations to conform with these density requirements.

These two land use mandates are unprecedented in the State. They would eliminate home rule zoning authority in each individual municipality tailored to fit individual needs and local land use characteristics. Instead, this transfers major land use planning, to meet affordable housing development goals, to central planners in Albany. There is a myriad of legal and practical issues with forcing mandated ADU and TOD housing on existing development frameworks in New York’s municipalities. Waiving a magic zoning wand in Albany as part of a budget process, does nothing to address infrastructure (streets, traffic congestion, sidewalks, water, and sewer services) and municipal service constraints which exist in each municipality should they be forced to accept high density affordable housing.

The budget proposal also contains a provision to allow the NYS Secretary of State to seek an order authorizing the county to investigate local city, town, village code enforcement and administration of the NYS Uniform Fire Prevention and Building Code. The investigation would allow the local county to determine whether the local government is complying with minimum standards for enforcement of the Uniform Code. If not, the county could assume responsibility for local code enforcement with reimbursement from the municipality. This proposal also ignores the scope, extent, and experience of code enforcement by local municipalities and the limited role that counties play. However, it appears consistent with the ADU and TOD proposals which are aimed at removing local control of land use decisions.

Whether affordable housing is a necessary and appropriate policy decision is separate from what is at stake in these budget proposals. Very simply, the Governor’s proposals on ADUs and TOD would undermine longstanding legal principals of local municipal control of zoning regulations, while simultaneously imposing a one-size-fits all mandate across the State irrespective of existing development and infrastructure capacity. The proposal is unsound from a legal perspective, as well as land use planning approach. New York’s local municipalities and advocacy groups would be well served to closely assess the proposals and comment as they deem necessary.

Note that after this article was written, it was reported on February 17 that after intense municipal opposition the Governor pulled the ADU and TOD proposals from the budget. The Governor’s budget has been revised to provide authorization for New York City to establish a program to legalize preexisting ADUs. Given the significance of the proposals and the chance that they could be included in future end of session legislation or next year’s budget, we are keeping the ADU and TOD discussions for informational purposes.

For additional information about the issues discussed above, or if you have any other Environmental Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or George S. Van Nest, the author of this piece, here or at (716) 847-9105.

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