Wednesday, February 14, 2018

The Fate of Proposed Local Law No. 9

Proposed Local Law No. 9 must be rather poorly written, because everyone seems to miss the point of it. The legislation was intended to address a problem introduced in 1968 when the city adopted its zoning and large areas of the city were zoned residential, in some instances enveloping in the residential designation buildings that were constructed for commercial uses, historically had commercial uses, and continued to have commercial uses long after 1968. It is not clear if fifty years ago the hope was that these commercial buildings would be demolished and residential structures would take their place, but today the residential zoning is standing in the way of some development people would like to see happen.

Three situations have been cited as the inspiration for the Legal Committee to draft what we now know as Local Law No. 9 in 2017. (The legislation started out as part of Local Law No. 4, which also proposed waiving offstreet parking requirements for apartments located in basements and accessory buildings. The two legislative initiatives were bifurcated in November 2017.) The first of the three was Ör.

Ör is located in a commercial building on South Third Street, which was for decades Harmon's Auto Repair. From Cherry Alley south, Third Street is zoned residential--R-4 to the west, R-3 to the east--and Harmon's was a conditional use, grandfathered in. Because of the residential zoning, the possible commercial uses for the building are limited. An eating and drinking establishment is not one of them, but an art gallery is. So, when the proposal to create Ör came before the Planning Board back in November 2014, Daniel Tuczinski, then counsel to the Planning Board, advised the applicants to identify the project's primary use as art gallery, thus enabling the Planning Board to give site plan approval.

The other two situations inspiring Local Law No. 9 are on the north side of town. The first is Basil Nooks' aspiration to open a restaurant at 61-63 North Third Street, a building he has owned since 2007. Although it's been vacant for more than a decade, 61-63 North Third Street has a long history of being an eating and/or drinking establishment.

The other situation is the retail space at 3rd State Hudson, 260 State Street. The entrance to this space, at the corner of the what was originally a single-family home, was discovered when the vinyl siding was removed from the building.

The Planning Board gave site plan approval to reestablishing a commercial space in the building, but the zoning in the area prohibits the space from being used for anything other an office, an antiques shop, or a museum, library, or art gallery. Those restrictions have reportedly made it difficult to lease the space.

The law was meant to apply only to buildings that were constructed for commercial uses or buildings with a long history of commercial use. It was not meant to enable or encourage adapting residential structures for commercial uses. Since there are so few examples of this, it may actually be possible for the proposed law to cite the specific buildings to which it would apply, but doesn't, and hence the problems.

At a public hearing on the law in November, a resident of an R-1 district protested that she chose to live in a neighborhood of exclusively single-family homes because she didn't want the noise and the traffic that comes with commerce. It turns out there are no buildings in R-1 districts to which the amendment would apply. That fact notwithstanding, when the law was revised, it was altered to apply only to R-2, R-3, and R-4 districts. Still the notion that the amendment will encourage new commercial development in residential districts persists. When the law was sent to the Columbia County Planning Board for a recommendation, the CCPB made this comment:
Residential District:  CCPB notes that the R2 zoning district is comprised of three (3) distinctly residential areas in the City, primarily characterized by single-family and 2-family residential dwelling units. Review and consider the "Conditional Uses" allowed in the R2 District under the existing Zoning Law. Consider the potential impacts of re-introduction of new commercial uses in these residential areas. The existing R-2 Zoning district encompasses three (3) areas in the City and includes the following streets:
  • Majority of Worth Avenue and the south side of upper Union Street;
  • Carroll Street and portions of North Fifth, Clinton, Washington, and Prospect Streets;
  • Oakwood, Parkwood, and a portion of Glenwood Boulevard and Spring Street;
  • Bailey [sic] Boulevard and Jenkins Parkway;
  • Aitken and Storm Avenues.
What everyone seems to be missing in the proposed law is this introductory sentence: "With respect to any building or portion thereof, the use of which is a non conforming use, or was a non conforming use and did not subsequently become a dwelling unit." Of course, if people are missing it now, they are likely to miss it in the future. 

Noting the comments from the CCPB, Council president Tom DePietro, at the informal Common Council meeting on Monday, sent proposed Local Law No. 9 back to the Legal Committee. 

The Legal Committee the law is going back to is not the same committee that drafted and proposed it. The committee, now chaired by John Rosenthal (Fourth Ward), is made up of Rich Volo (Fourth Ward), Shershah Mizan (Third Ward), and Tiffany Garriga (Second Ward). Its next meeting takes place on Wednesday, February 28, at 6:15 p.m.


  1. Are any of the legal committee members attorneys?
    That would seem fundamental to the committee's function.

    1. The Common Council committees are made up of aldermen. In the twenty-five years that I have been observing the Common Council, I believe the only alderman who was a lawyer was John Friedman, who served from 2012 until his resignation in the fall of 2017 and chaired the Legal Committee for two of his three terms on the Council. Present at every Legal Committee meeting is the city attorney, now Andy Howard, who advises the committee and drafts the legislation that the committee conceptualizes. This has seemed to be adequate in the past. In my experience, when you set more than one attorney to a task, the result is often extended arcane argument and disagreement.

  2. Would it be accurate to assume Mr. Howard bills the city for time spent advising the committee?

    1. I believe it is part of his duties as city attorney, therefore he would not be billing the City for that time. It would be included in the fee paid to him as city attorney.