Sunday, October 16, 2016

Nothing Is Ever Easy

Three years ago, Per Blomquist had a plan to demolish two buildings in the 200 block of Columbia Street--248 and 250--and build a new building that would have five affordable one-bedroom apartments. Blomquist's plan ran afoul of then city attorney Cheryl Roberts' misreading of the bulk and area regulations in the city code, which according to her dictated that the minimum size of an apartment was a palatial 1,500 square feet. The apartments Blomquist was proposing would be about 770 square feet.

Not everyone was happy with the prospect of demolishing two 19th-century vernacular houses, even though they were abused and ramshackle, but the idea of five new apartments that would be affordable for the many twentysomethings who are finding their way to Hudson was appealing. Unfortunately, before a voice of reason could be heard and the misreading of the schedule was acknowledged, Blomquist had spray-painted the buildings gold and moved on.

Now it seems the City, which regularly (and figuratively) wrings its hands over the growing lack of affordable housing, is about to throw a similar roadblock in the path of the self-defined "New Urbanist" architect who wants to build a block of four new row houses on Hudson Avenue.

The problem is that part of the land on which he wants to build these houses is zoned R-3 (Residential) and part is zoned I-1 (Industrial).

The plan came before the Planning Board in March 2016, and because a use variance was required, it was referred to the Zoning Board of Appeals. The ZBA, during the same meeting at which it granted a use variance to Redburn Development to create a hotel at 41 Cross Street, denied a use variance to this project, because they determined that the hardship was self-created: the owner of the land knew, or should have known, when he purchased the parcels, that part of the land he had purchased was zoned industrial. The ZBA recommended that the applicant petition the Common Council to change the zoning.

Months later, in September 2016, an amendment to the zoning law, authored by Third Ward alderman John Friedman, was introduced in the Common Council. The amendment would change the zoning of three parcels on the west side of Hudson Avenue from I-1 (Industrial) to R-S-C (Residential Special Commercial). The Council voted to forward the proposed amendment to the Hudson Planning Board and the Columbia County Planning Department for review. 

Last week, the amendment was discussed at the Planning Board meeting, and Planning Board chair Tom DePietro expressed his opinion that, because all three parcels were owned by the same person, this was an example of "spot zoning," which is illegal. He and Planning Board counsel, Mitch Khosrova, agreed to send a letter sharing this opinion and urging the Common Council to undertake a comprehensive revision of the zoning laws, which could take years, instead of making specific amendments.

Spot zoning typically involves property owned by a single person or entity, but that in itself is not the definition of spot zoning. Anderson's American Law of Zoning defines spot zoning as "the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area for the benefit of the owner of such property and to the detriment of other owners." Granted the proposed new classification is different from the surrounding area--R-S-C (Residential Special Commercial) instead of the simply R-3 (Multiple Residence-Conditional Office), which is the zoning of the adjacent property to the north and all the property across the street--but it hardly seems that the new classification is "totally different" or that what is proposed--building four row houses--would be a "detriment to other owners." 

A website called PlannersWeb: News & Information for Citizen Planners elaborates on spot zoning:    
When considering spot zoning, courts will generally determine whether the zoning relates to the compatibility of the zoning of surrounding uses. Other factors may include: the characteristics of the land, the size of the parcel, and the degree of "public benefit." Perhaps the most important criteria in determining spot zoning is the extent to which the disputed zoning is consistent with the municipality's comprehensive plan.
Hudson's fourteen-year-old Comprehensive Plan doesn't address this specific zoning issue, but it does anticipate the need for new home construction. This paragraph appears in the Executive Summary (p. xi) of the document.
Develop a Housing Strategy While many of New York State’s urban communities are struggling with strategies to attract middle-class residents, Hudson has already started to attract this group. Hudson’s continuing revitalization is likely to coincide with increases in the cost of housing (including housing values and rents). For the most part, this increase in value will be a very good thing for Hudson. However, the challenge for local decision-makers, the business community and neighborhood residents will be to ensure the benefits of Hudson’s resurgence are shared among all community members. Consequently, a coordinated, multi-tiered approach must be developed involving the City, the private sector and not-for-profit organizations such as Housing Resources. 
Addressing the idea of new development within the context of the existing city, these are among the policies recommended by the Comprehensive Plan on page 17: 
  • Sites should be redeveloped at high densities by minimizing lot area and maximizing building coverage. 
  • New buildings should be multi-story (two to four stories)--building up rather than out. 
  • New buildings should be located close to the street and close to each other-- minimizing lot frontage and setbacks. 
  • Whenever possible, development should strive for higher density, mixed use development. 
The proposed amendment to the zoning law cites additional statements in the Comprehensive Plan that support the change.

The City's Local Waterfront Revitalization Program makes specific reference to the site of the former McGuire Overhead Door factory and its zoning. On pages 74 and 75, the LWRP states: "The City proposes to maintain the industrial zoning but acknowledges that this site has great potential for residential, commercial, and recreational uses. A zoning change in the future to accommodate nonindustrial development would be consistent with the LWRP."

This opinion is reiterated on page 79 of the LWRP:
In the southern waterfront area, the City maintains the McGuire property within an industrial zone because of its proximity to the railroad spur and the existence of a well maintained industrial facility and infrastructure. However, if the land does not return to productive industrial use within a reasonable time frame, perhaps 3 to 5 years, a change in zoning to commercial, residential, open space, recreational use or institutional use to better accommodate the needs of the City at that time the would be supported.
The LWRP was adopted by the Common Council in 2011. This language was added to the LWRP at least two years prior to that. McGuire Overhead Door closed down in 2006. Hence, it is fair to say this site has not returned "to productive industrial use within a reasonable time frame," and it is also fair to conclude that the LWRP supports the requested zoning amendment.

It seems the test of whether a change to existing zoning is "spot zoning" is not if the subject parcels are owned by the same person, but if the proposed new zoning is "totally different" from the surrounding area, if it benefits the owner to the detriment of other owners, and if it is inconsistent with the community's comprehensive plan. Judged by those three criteria, it hardly seems reasonable to suggest that the proposed amendment, to allow the construction of four row houses on Hudson Avenue, would constitute spot zoning.



  1. Thank you, Carole, for your excellent research and analysis of this important proposal.

  2. Superb analysis Carole, and yes, it is not spot zoning. A legal opinion from the City attorney should be secured on this matter. Why can't the portion of the parcel to be used for housing be just zoned R-3? Then it is simply, as you suggest absent the slight zoning change (which might be unnecessary), simply a boundary line shift that makes a lot of sense.

    This one is in a neighborhood adjacent really to the Blomquist cf (which I might add was exposed as a cf when this particular lawyer sought my variance also involving in part the apartment size issue, and the legal misinterpretation was reversed, but I digress). After I secured my variance, I called Blomquist to tell him to reapply, and I would help him, but alas he had lost his investor partner, and the window of opportunity had closed. Very, very sad, really. Let's not have a redux!

    I will look into this further to see if I missed anything, and see what I can do.

    PS: At the risk of repeating myself, I am really, really impressed with this post of yours Carole. It is one of your very best. Well done! :)

  3. I really hope that this can be worked out. Hudson desperately needs more housing. Most of the former industrial areas should be fully rezoned to allow for mixed use. Use these proposed new buildings as an example of what that area might be, if it were put to its highest and best use.

  4. Carefully read, lucidly presented, and on point in every respect. The sad part of the story, of course, is that every resource and authority you have cited and so cogently analyzed, already could have and should have been "back of the hand" knowledge for every member of the Board.