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Real Estate & Property Law

: Kelo and Beyond

A Modest Proposal

By Greg Alvarez, Esq.

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The dog days of summer are upon us, and in this month when many boards decide to forego meeting, or at the very least, scale back their hearings, it seems like a fitting time to step back from the day-to-day routine, and take a long view of the state of affairs. Recently, I've been running into situations where the matters to which I'm tending remind me that when I was practicing back in New Jersey, the procedure of obtaining land use approvals seemed to make more sense than they do over here in the Empire State. Sure, it's not like things are that much greener on the other side of the Hudson River (even though New Jersey is the Garden State), but in New Jersey there is much more uniformity across jurisdictions thanks to a statewide Municipal Land Use Law. I look at the current way of doing business in New York, where the way things are done vary widely from Town to Town, Village to Village, and I wonder if things could be done a little more consistently.

One of the hallmarks of the federal system the United States lives under is that from state to state, and even municipality to municipality, everyone can experiment with different approaches and ways of getting things done. However, here in New York, it sometimes baffles me why you just have to know "how things are done" in each municipality to have any intelligent method to proceed with applications. For instance, one particular Town on Long Island requires everything to route through its Planning Department. From there, if necessary (for variance or special permit relief, for instance), matters are referred to the Town's Board of Zoning Appeals, with a quick stop over in the Building Department for a denial of a building permit application. It sometimes is the case that variances must be reviewed by the Town Board, instead of the Board of Zoning Appeals, depending on the Town's discretion. If you earn an approval from the Board of Zoning Appeals and/or Town Board, the matter gets sent back to the Planning Department for final review, and perhaps, an appearance before the Planning Board. After you sort out any other administrative approvals, like Fire Safety Division sign-off, then you may return to the Building Department for your building permit to complete the process.

Contrast this with another large Town in Long Island, which first requires a building permit denial, followed by an appearance before the Board of Appeals (not Board of Zoning Appeals, or even Zoning Board of Appeals) if special permit or variance relief is required, a return trip to the Building Department to go through a multi-month process to obtain site plan approval (amounting to sign-offs from a number of Town and County departments), and then finally, building permit approval from the same Building Department, which runs the show (as opposed to the Planning Department in the other unnamed Town). When you start talking about the Villages, then the procedures vary even wider from one another.

If you're still with me, or even if you're not, I think it's clear that things just get plain muddy in these parts. Is it so difficult to maybe come to some agreement as to a general method that must be followed? As another example, I am involved in a matter where not even the Town officials can decide, without research conducted by the Town Attorney, which procedure, and which boards, will be applicable. Isn't there a better way? Referring back to my days in New Jersey, I compare things between the two states, and I see certain choices from which New York could benefit. I must admit, I am not as well versed on the procedures which govern things across the other states, but it seems that these sorts of issues come up from time to time wherever you are. So in response to my recent musings, I offer the following top ten list of procedural improvements from which we in New York (and no doubt elsewhere) could benefit. So here it goes:

10. Hire an attorney for each board, and have that attorney at every hearing.

This seems obvious, but, especially in smaller villages, it is not always the case that an attorney representing the board's interest will be in attendance at hearings. This leaves boards, particularly inexperienced ones, unable to conduct their hearings without this vital resource.

9. Have the professionals attend every board hearing.

The same would seem to apply to board engineers and planners, along with any other professionals who assist boards.

8. Create a system of ancillary jurisdiction to prevent ?board hopping?.

This would be a wonderful thing to avoid situations as described above, where the list of boards and stops at various departments seem to never end.

7. Make boards vote in public at meetings.

This is an unusual characteristic I've noticed with many boards in New York. After concluding a hearing, a board will advise an applicant that they will essentially get the decision "in the mail." Shouldn't this most important part of any hearing be conducted at the hearing?

6. Require more specific resolutions of approval.

Some boards don't see fit to draft formal resolutions specific to each application. In an effort to create more complete municipal records, and as a way to protect boards in the case of any potential challenges to their decisions, it would seem like boards would find this procedural piece quite important.

5. Reduce the power of civic associations. Obviously you cannot limit their
right to participate, but boards should not allow these organizations to hold
applications hostage.

The public should always have a right to be heard. However, should civic associations be making decisions for boards? Sometimes, unfortunately, this appears to occur. The applicant has the right to be heard as well, in a timely fashion. Any attempts by civic associations to stall the process should not be tolerated. A hearing is for the benefit of all sides to voice their positions. By allowing civic associations to effectively "kill" applications before the applicant has the chance to present his/her case effectively defeats the whole purpose of discussing land use decisions in a public forum.

4. Require the Mayor and a municipal legislator to sit on the planning board.

This suggestion would seem to keep elected officials deeply involved in the land use process, and ensure that the general performance of a board can be a part of the political process come election day.

3. Draft better ordinances.

This one is a constant theme, no matter which side of the Hudson River you find yourself, as quality drafting must be present for municipalities to have strong bases upon which to base their land use decisions.

2. Incorporate stronger planning principles into municipal codes.

Planning seems to get lost in certain municipalities. I'm talking long-term review of goals of a municipality, taking into account all of the available planning concepts and applying them to the needs of the area. So often it seems the minutiae of applications gets in the way of the big picture, and the benefits an application can bring to a site and surroundings in need of redevelopment are too easily forgotten. It's unfortunate that these considerations often get lost in the specifics of a matter.

And, of course:

1. Require uniformity from Town to Town, Village to Village.

Just some simple thoughts to think about, as we struggle with better ways to do things. It doesn't seem like much to at least consider, particularly as we find ourselves navigating through processes that, at times, seem endless and arbitrary. The land use process should be about openness, clarity, consistency and expediency. It would seem that that is not too much to ask of the machinery we have in place to abide by these simple rules.

Full post as published by Kelo and Beyond on August 12, 2008 (boomark / email).

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