Sunday, August 19, 2018

Another Opinion About Local Law No. 5

On Friday, August 10, Gossips reported about a letter from former city attorney Ken Dow advising the Planning Board to recommend that the Common Council not enact Local Law No. 5, the law that would amend the zoning in R2 and R2H districts as it pertains to nonconforming uses. On Monday, August 13, Planning Board chair Walter Chatham received another letter on the subject, this one from John Friedman, a lawyer, who served three terms as Third Ward alderman, two of them as chair of the Legal Committee. 

Friedman makes the message of his letter clear in the first paragraph: "I strongly urge the [Planning] Board to recommend that this legislation not be enacted." The letter continues:
I have no objection to either [Stewart's or Scali's] expanding in the manner in which they have each indicated they wish to. Unfortunately, the solution encapsulated in the proposed local law is legally flawed for a number of reasons. There issues have more than adequately been addressed by Ken Dow's cogent and learned memo. . . .
Friedman goes on to recommend a "better and legal approach to solving the issue of commercial development in areas where it is not otherwise permitted by the City's existing zoning code": a commercial overlay.
Properly drafted, this statutory device permits a property owner in specific circumstances to petition the Board to have such an overlay placed in a specific location subject to Board-mandated operational parameters. This is a rather well-understood mechanism for solving the need for neighborhood-anchoring commercial spaces (such as bodegas, taverns, laundromats, etc.) in districts where such development is prohibited by zoning, while simultaneously protecting the integrity of the neighborhood fabric. I strongly urge the Board (and the Council) to research this option as it can often obviate issues surrounding spot zoning and legislative licensing. I also strongly urge the Board to advise the Common Council to vote "no" on proposed Local Law No. 5.
The recommendation of a commercial overlay brought to mind the Green Street Overlay District proposed by Stewart's in January, so I asked Friedman if that proposal was what he had in mind. He told me it was not, but the concept was the same. What he was recommending was a "commercial corner overlay," which presumably could be applied to areas throughout the city where there are historic nonconforming commercial uses in residential districts and not just in R2 and R2H districts.

What's next for Local Law No. 5, which is now "ripening" on the aldermen's desks, is not clear. At the Planning Board meeting on August 9, Council president Tom DePietro indicated there was a "time limit" for the Planning Board to make a recommendation about the law, intimating that the Council could move ahead without waiting for input from the Planning Board. The monthly Legal Committee meeting, scheduled for Wednesday, August 22, has been canceled, but John Rosenthal, who chairs the Legal Committee, has been invited to appear at the next Planning Board meeting, on Thursday, September 13, to explain the thinking behind proposed Local Law No. 5. On Monday, August 13, DePietro announced a plan to create a Planning Task Force to, among other things, "encompass the discussions" of Local Law No. 9 of 2017 and Local Law No. 5 of 2018, both amendments to the zoning code having to do with nonconforming uses in residential districts. More information about that task force is promised to be presented at the next Common Council meeting, which takes place on Tuesday, August 21, at 7 p.m., not at City Hall but at 1 North Front Street. 

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