Wednesday, March 16, 2016

First News from Tonight's ZBA Meeting

The suspense is over. The day after the Common Council took another step toward passing a zoning amendment that would permit hotels in the "southern R-S-C district," the Zoning Board of Appeals granted a use variance to Redburn Development to create a hotel at 41 Cross Street.

The decision was not unanimous. With Mary Ellen Pierro absent and Russ Gibson, who is the co-owner of The Barlow and The Croff House, recusing himself, there were only five members voting on the application. The ZBA's newest member, Steve Dunn voted to deny the use variance, although he called the proposed hotel "a great project in concept." The other four members--Lisa Kenneally, Theresa Joyner, Myron Polenberg, and Kathy Harter--voted to grant the variance, and four votes were enough to make it happen.

According to New York State law, there are four tests for the issuance of a use variance:
  1. The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence.
  2. The alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood.
  3. The requested use variance, if granted, will not alter the essential character of the neighborhood.
  4. The alleged hardship was not self-created.
Dunn maintained that the hardship was self-created and for that reason could not agree to grant a use variance. 

Alderman John Friedman (Third Ward), who was present at the meeting, argued that the hardship was not self-created but in fact was created by the City. He noted that the Common Council, the night before, had taken up the question of zoning in the area, and "the LWRP was determined to be the controlling document." The Local Waterfront Revitalization Program, in a section titled "Southern Waterfront Area Opportunities," states: "The R-S-C zone permits retail stores and banks; personal services stores; professional, governmental or business offices; schools, churches, libraries, museums and art galleries; theaters, assembly halls, bowling alleys and eating and drinking places; hotels (including rooming and boarding houses), motels and clubs, light industry and residential uses." Friedman concluded, "If the City makes a series of zoning changes and proceeds to enact them but overlooks something, who creates the hardship? The City did."

The proposal to redevelop 41 Cross Street as a hotel was just one of the projects before the ZBA tonight. The fate of the other projects before the ZBA will reported in the morning.


  1. I support the hotel on Cross Street, but the LWRP is merely supportive of the proposed amendment to the R-S-C Zoning District. The so-called "LWRP Zoning" was a precondition of the LWRP, and not the program itself.

    In that way, the LWRP must enjoy a similar status as the 1996 Vision Plan, which has no official status. Each can be cited for their support of this or that issue, but only for their recommendations.

    Where the LWRP is shown to be self-contradictory, as it is with the South Bay conveyor zoning, the unapproved document may be helpful to amend the Code. It has no place, however, in interpreting existing Code, and cannot be said to contribute to a hardship any more than the Vision Plan can.

    Whatever your opinion about the proposed hotel, Mr. Dunn was right to stick to the letter of the law. The ZBA should not be in the business of correcting badly formulated zoning language.

    The waterfront program is unapproved for good reason; suddenly elevating it to the level of a "controlling document" is absurd, not to mention a little scary.

    1. Unheimlich--There is a significant difference between the 1996 Vision Plan and the LWRP. For all its flaws, the LWRP was adopted by the Common Council in 2011; the Vision Plan, on the other hand, was never adopted by the Common Council, the legislative body of the city.

    2. Yes, that's true, and in itself would make the "adopted" LWRP a controlling document if an LWRP is equivalent to a Comprehensive Plan.

      But a Comprehensive Plan is a Comprehensive Plan, and a waterfront program a waterfront program.

      For an LWRP to attain the full status of its defined function, so that all related land and water use regulations must be in accordance with it, adoption by the municipality is only the first step of three.

      Approval by the Secretary of State is next, and because Hudson is within the state’s coastal area, the final step is a concurrence by the NYSDOS Office of Coastal Management.

      Until these three steps are completed, the waterfront program is not the equivalent of a Comprehensive Plan. No law or ordinance pursuant to the LWRP can take effect before the program's final approval.

      The so-called "LWRP zoning" was actually a precursor to the waterfront program, and not to be conflated with the program itself.

      Without a State-approved LWRP, it is the language of our existing Zoning Code that counts. The discovery of alleged zoning intentions from an unsuccessful waterfront program cannot have the force of law.

      When the Common Council amended the zoning in 2011, that was its opportunity to get things right. The Aldermen should have thought before acting, which is what the public recommended at the time, at the Public Hearing for the proposed zoning changes.

  2. I slight correction: I don't believe I argued anything except that the situation -- where the City has failed to enact a zoning change mandated by the controlling "comprehensive land use plan" (quoted language from the SEQRA form that is used in determining land use effects) years after its enactment -- it might be argued by someone with a dog in the fight (I have none) that the hardship wasn't self-created but created by the City. The caselaw doesn't deal with this situation and, therefore, a movant could so argue and the ZBA could so find without contravening settled law.

    1. An unapproved LWRP doesn't have the power to "mandate" anything. 

      To borrow from SEQR, though, and maybe kill two birds with one stone, "[if] plans such as LWRP's ... have been adopted, those plans may further articulate desired future uses within [a] planning area" (SEQR Handbook, p. 88).

      The question is whether an internal conflict between a locally adopted LWRP and its implementing technique (the zoning) constitutes a hardship, as distinct from being a confused way through which a community may articulate its desired future uses. 

      What's the legal status of a locally adopted land use plan which lacks the inner cohesion of the waterfront program which occasioned it? 

      Can it be said that a merely adopted, though unapproved, waterfront program "controls" its zoning precondition? Falling short of an approved LWRP, though still situated within the State's waterfront revitalization program, any argument that an LWRP is a "controlling document" over its precondition reverses their logical sequence. If and when it is approved, though, I'd think that that logic would change.

      So if the State never conferred its authority on our LWRP, then outside of the waterfront program, the legal implications of any resulting disharmony between the plan and its implementing techniques disappear.

      Short of discovering an actual hardship, just change the precondition, the zoning language, rather than look for things which don't exist in a previous Council's shoddy work.

  3. As I understand the NYSDOS guidance on this (now academic) issue, as explained by James Coon in "Zoning and the Comprehensive Plan" (revised 2015), the LWRP would have to have been made an appendix to the city's Comprehensive Plan for it to have been the explanatory authority on the 2011 zoning amendments.

    Without that, the hardship was self-created by the project sponsor, as Mr. Dunn maintained.

  4. Now that I've watched the video of the March 15 Common Council meeting, the Council made no such claim that "the LWRP was determined to be the controlling document" of the 2011 zoning amendments (as allegedly claimed in the above post).

    The Council's decision to admit the LWRP as a generically "comprehensive" land use plan was in answer to questions in an Environmental Assessment Form (EAF). This allowed the "specific recommendations" of the LWRP to inform a proposed zoning amendment, and that is all.

    If the ZBA discerned evidence of comprehensive planning outside of THE Comprehensive Plan for the City, then it was not because anyone decided beforehand that the LWRP was "the controlling document" for the zoning.

    Watch the video; it never happened.

  5. Alderman Friedman, you allegedly made statement to the ZBA which was untrue (see preceding comment from 3/19 at 2:03).

    May we have your comment?

    1. Of course it's controlling to the extent described at the ZBA meeting: it is the last comprehensive land use plan the City adopted per the SEQRA analysis conducted the prior evening as to the exact question at hand. At that time the Council unanimously agreed; that's what I told the ZBA. And I told it to them in the context of the question of whether or not a particular hardship was self-made or created by the City. Use variance analysis is fact specific -- numbers, dates, factors like these are used to make the determination. Thus, the issue presented a novel question of law and is, therefore, amenable to reasonable interpretation in any of a number of ways. I have my reasonable interpretation, but I didn't provide it to the ZBA; I merely reported to them that the question existed.

      In my experience, Tim, your legal analysis is sometimes correct, and sometimes not. Generally, you seem to infer into the law a rigidity that it simply doesn't contain or employ except in cases of "strict liability" and the like as that term is understood within the profession. Use variance analysis is not about strict liability. Other times, your analysis is centered on perceived conspiracies of varying sizes and goals. In this case, I've been instructed by my masters in this particular conspiracy to provide the foregoing statement. Wink wink, nudge nudge.

      In the final analysis you simply disagree with my interpretation of things. That's fine; reasonable people can disagree, right?

    2. The Common Council didn't do anything the previous evening except recognize that the LWRP was already a generically comprehensive land use plan.

      Beyond that, I'm not going to comment on the decisions of either the Common Council with its SEQR form, or the ZBA with its variance.

      What I'm challenging is your claim that the Common Council's action had expressly deemed the LWRP a "controlling document," which "mandated" the zoning amendments of 2011.

      In fact, Part I of the SEQR form, which is where the Council first encountered the question, asked only if "any" municipally-adopted land use plans included the site of the the proposed action.

      If the answer was Yes, which is how the Council answered, then the EAF went on to ask whether or not such plans make specific "recommendations" for the site of a proposed action.

      Part II of the SEQR form asks only whether or not a proposed action is inconsistent with such plans.

      These are not questions and answers which proffer the degree of authority you claim for them, which is why the EAF is carefully worded to avoid the kinds of interpretations you've made.

      But for the benefit of the ZBA, and a variance which you apparently hoped to gain, you transformed the Council's Yes/No answers on an EAF into a fabricated "mandate," and a "controlling document" for the City's Zoning Code.

      To the lay person, words such as "mandate" and "control" convey a great deal of rigidity, and for that reason I would call your characterization of the Council's work the previous evening an inexcusable misrepresentation.

      So no, we are not reasonable people disagreeing. It's my opinion that, at the very least, you deserve the censure of your colleagues on the Council.

  6. Do readers grasp how serious this matter is?

    We cannot have representatives on the Common Council, who are also lawyers, giving incorrect or false characterizations before other decision-making bodies concerning highly-complex Council decisions.

    It's one thing to be wrong about the length of time in which Amtrak trains block Broad Street (c.f., the same Alderman on the Ferry Street bridge issue), but it's quite another to be wrong when allegedly claiming, before the ZBA, that the Common Council had determined a specific authority for a document which in fact it had not.

    It's conceivable that this very claim decided the ZBA in favor of issuing the variance.

    If the Alderman simply made a mistake, then that's understandable. We all make mistakes.

    Perhaps he prefaced his alleged argument with something like, "It's my understanding," or "I may be wrong" (gestures of modesty and courtesy can go a long way in civilized society).

    It is odd, however, that at the previous evening's Council meeting, the same Alderman argued that the same document merely "adds strength to what we're doing." Is that something you'd say about a controlling document?

    In the meantime, I've written to the Alderman in question about this serious, alleged error, but have yet to receive a reply.

  7. The only "controlling document" as far as concerns the ZBA is the zoning ordinance AS IT EXISTS on the date of the application; not as it may become once the Council rules on the proposed zoning amendment, nor as the ordinance should have been, even presuming that the assertion of a mistake or oversight in its drafting is correct. The idea of this hotel on Cross Street may be excellent in every way, and thus will hopefully be borne out by adoption of the zoning amendment. However, putting forth an argument in support of the application which is both trumped-up and irrelevant, and which the ZBA apparently chose to swallow, evidences a pattern for use and abuse of the powers of law; and has delivered the ZBA into the unfortunate position of, indeed, having acted in an "arbitrary and capricious" fashion. Of course, if everyone did the right thing, we wouldn't need laws at all. Or lawyers.