Friday, August 10, 2018

Local Law No. 5 and the Planning Board

At its July meeting, the Common Council referred Proposed Local Law No. 5 to the Planning Board for a recommendation. This law would amend the zoning code for R2 and R2H districts to allow a nonconforming use "that has been established and has operated for a period of more than twenty years" (specifically Stewart's and Scali's) to double the size of their building and expand onto adjacent property. Last night, the Planning Board began its discussion of the proposed law.

The discussion began with Planning Board member Laura Margolis saying she didn't want to make a recommendation without understanding the issue better. Mitch Khosrova, counsel to the Planning Board, pointed out that the Planning Board had already opined on this issue when they were asked to make a recommendation on the Green Street Overlay District proposed by Stewart's. Khosrova reminded the members of the board that their opinion had been that "tackling zoning issues piecemeal is not the way to go," and they wanted the City to revise the City's comprehensive plan and undertake comprehensive zoning revision.

During the course of the discussion, board member Betsy Gramkow commented, "I don't like nonconforming uses, and this is making it even larger." Walter Chatham, chair of the Planning Board, expressed the opinion that what was proposed "is not spot zoning, but it approaches spot zoning." Chatham also mused, "If the city had some design leverage," and Gramkow spoke of "standards [presumably design standards] the community can use."

Repeated reference was made to a letter the Planning Board had received the previous day from Ken Dow, who served as city attorney in Mayor Tiffany Martin's administration. Gossips was able to get a copy of the six-page letter last night. Earlier today, it was made available on the city website. Dow introduces his critique with this statement: "To begin, I think the proposed law has several serious problems. Some are mainly technical, and some are substantive that go to the very essence of the purpose of zoning."

Dow first discourses on "the ambiguities and uncertain effects of the law." He then explains what he considers the substantive problems: (1) re-designating the currently existing non-conforming uses as conditional uses; (2) allowing the expansion of non-conforming uses and continuing to designate them as non-conforming; (3) discrimination and inequitable granting of rights to use certain parcels. In his discussion of discrimination and inquity, Dow cites an objection that Michael LeSawyer made (and Gossips reported) at the Common Council meeting on Tuesday, July 17. The following is quoted from Dow's letter:
A post on Gossips of Rivertown on July 17, 2018, contained the following passage: “Michael LeSawyer, whose house is situated midway between Stewart's and Scali's, the ‘two historic nonconforming uses’ that would benefit from the zoning amendment, complained about the inequity of the amendment: ‘Stewart's can do anything they want, Scali's can do anything they want, but I can't.’” I think Mr. LeSawyer is spot on. If a parcel next to Scali’s can be used for restaurant purposes, it should be permissible for anyone to use it for such purpose, not just Scali’s. If a parcel next to Stewart’s can be used for convenience store purposes, it should be permissible for anyone to use it for such purpose, not just [Stewart's]. Otherwise, the law is not zoning the land; it is giving personal grants of rights to use land.
Dow's  conclusion is stated in these three paragraphs. (The boldface italic in the third paragraph is his). 
While the apparent discriminatory effect of this proposed law and its selective granting of rights based upon one’s use and ownership of a different parcel is problematic, the concerns in that regard pale in comparison to those arising from the central purpose and thrust of this proposed law. To return to the most important point, at its core and in light of the fundamental principles of zoning, the proposal to allow and even “encourage” the continuation and expansion of non-conforming uses—especially onto additional parcels—is extraordinarily ill-conceived. 
It is my view that this proposed law needs important revisions if it is to be enacted. In addition to making decisions on, and clarifying, the ambiguities discussed above, the “Legislative Findings” should be re-written to remove any statement of purpose to encourage, continue, or expand existing non-conforming uses. That such a statement is currently in the law is mind-boggling. If, in fact, the effect of the law would be to convert current non-conforming uses to conditional uses, then it is not even correct to say that the law is promoting the continuation or expansion of non-conforming uses; it is instead finding that circumstances have made the subject uses appropriate for their locations and re-designating them as conditional uses. 
The problems of this proposed law can perhaps be mitigated to some degree if the Comprehensive Plan and other factual grounds support re-classifying the specific nonconforming uses at issue as conditional uses and the text of the law is revised to clearly do so. But to continue to identify the uses at issue here as “non-conforming uses” and to then promote their expansion—especially onto a new and separate parcel—is, in my opinion, an extremely misguided course of action that is both in direct conflict with the fundamental purposes of zoning and may also open the door to unintended adverse consequences for the City. To enact a law that would do so, as the current text appears to do, would be—to put it mildly—a seriously unwise step by the City.
In the end, the members of the Planning Board decided they needed more time to digest the content of Dow's letter, and because, as Khosrova observed, "the document they got [i.e., Proposed Local Law No. 5] doesn't explain the thinking behind it," they decided to invite John Rosenthal, who chairs the Common Council Legal Committee, to come to the next Planning Board meeting to explain the thinking.

At one point, toward the end of the meeting, when the floor was opened to the public, Chatham asked LeSawyer what his position on Stewart's expansion was. LeSawyer replied: "I don't think it's necessary. It's what Stewart's is doing, and we just happen to be Store #88. . . . It's not really a Hudson thing. What's proposed is a template being imposed on the Hudson store." LeSawyer's assessment is borne out by this statement, which is the lede in an article that appeared on June 6 in the Albany Business Journal reporting that Stewart's had just acquired a former restaurant property in the Town of Malta: "Acquisition comes as convenience store chain invests up to $50 million to expand, renovate and add new stores in New York and Vermont." The following, quoted from an article that appeared in the Albany Business Review in February, provides more information about the business plan that is compelling Stewart's expansion here:
Three years ago, the fourth-generation company started investing close to $50 million a year to renovate or completely rebuild stores to expand the fastest-growing segment of its business--food-to-go. Soups, sandwiches, pasta, pizza and a growing number of drinks are the cornerstone of store remodels for a company whose leadership is determined never to stray too far from its dairy image.
The focus on food-to-go prompted Stewart's to start building larger stores as well. The average shop was about 2,500 square feet a few years ago. Today, new stores are closer to 3,700 square feet, depending on the location.
I was curious to know if the Stewart's at the corner of Green Street and Fairview Avenue really was Store #88, or if LeSawyer had just pulled the number out of thin air, so I checked. It was the latter. The Stewart's in Hudson is actually Store #209. 


  1. Dow's letter is very odd -- I don't think he lives in Hudson and he certainly no longer works for the City of Hudson. Worse, thought, I think he's completely wrong to assert that the proposed law means that "If a parcel next to Scali’s can be used for restaurant purposes, it should be permissible for anyone to use it for such purpose, not just Scali’s." In fact, the premise of the proposed law, as I understand it and as Carole states it, is that Scali's and Stewarts are a "nonconforming use `that has been established and has operated for a period of more than twenty years.'" The proposed law simply allows Scali and Stewarts to improve their businesses, which used to be a kind of fundamental American right. It certainly doesn't allow McDonalds to come into the intersections and put up some Golden Arches. Dow's letter is more hysterical than historical.

  2. the larger problem here is the inevitable consequence of allowing Stewarts to enlarge and exploit the corner. the traffic will double and soon the store will be enlarged even more.

    what will be lost ?

    We can tear down Hudson and make an old time residential neighborhood into a huge strip mall.
    That will be the ultimate consequence of enlarging the store. No more hudson as we know it.

  3. The old time neighborhood existed with a gas station and a liquor store at Fairview and Green St long before Stewarts purchased the property.
    In addition that same crossroad was used as a water source for horses, inverted bell, long before the combustible engine.
    Well Hudson could always ban ALL gas powered vehicles from entering the City, convenient stores, etc.
    Wouldn't that return us to the true historic period?

  4. Through the fog of all “the legalize,” this issue really comes down to making policy choices. Local Law No. 5 (aka the Stewarts’ expansion law), embraces a policy of giving the Planning Board the option of allowing the expansion of non conforming uses onto adjacent parcels in the zoning district (thereby converting what were residential use parcels into non residential parcels), and only the zoning district, that Stewarts is located in, in exchange for paying the City money or other consideration as a mitigation fee. This policy vests a lot of trust in the Planning Board to do the right thing, and act wisely, because the stakes are relatively high, given that existing residential parcels are subject to being permanently extinguished, and a non conforming use substantially expanded.

    Local Law No. 9, that I helped draw, and supported, and still support, and as to which I intend to make a personal effort to revive, puts no existing residential parcels at risk, and only allows a revival of a non conforming use, or a change of a non conforming use to certain other specified uses, subject to Planning Board approval. It does not change the zoning as to parking requirements, so any proposed non-conforming use would need to meet the off street parking requirements, or obtain a variance, which is the case now. (Thus, I consider this comment as well as the other comments made by the County Planning Board as to this proposed law in general to be not well taken.) So yes, proposed Local Law No. 9 does in effect change what are non conforming uses to conditional uses, but with a very limited impact to the city, and as to parcels which make no sense to convert to residential, or which would be uneconomic to convert to residential (as Carole notes the buildings were never designed to be residential when built), with the intent of providing some needed services to underserved areas of the city.

    We also have a factual discrepancy here. Carole in her March 18, 2018 blog states that the Planning Board did not address Local Law No. 9 from 2017, but only Local Law No 5 (the Stewarts expansion law). Yet, Carole quotes Mitch Khosrova as stating in the most recent meeting of the Planning Board that the Planning Board did address Local Law No. 9, and deemed it unwise because it addressed zoning on a piecemeal basis or whatever. So either the March 18 blog post was in error, or Mitch was in error, or I am misunderstanding something. Which is it?

    If in fact the Planning Board did make a negative determination as to Local Law No. 9 (which is merely advisory and non binding), I respectively disagree with that opinion. This would be a classic example of the perfect being the enemy of the good. It is going to be a long time before the city revamps its zoning code, given its lack of resources and the complexity of the task. I intended to take on that task myself, and write up a draft of a new zoning law, as a template and outlining the various policy choices that the city needed to make (with parking perhaps the most difficult and sensitive), but I got defected by other projects. I do hope to get back to that task at some point.

    In the meantime, a part of our city is still underserved by retail amenities, parcels are vacant and will remain vacant because our zoning laws as an economic matter dictate that, or trapped into a use that is uneconomic, or our laws are circumvented by the adoption of legal fictions, such as 1) the Or being an art gallery rather than a bar, which is just objectively ridiculous, and is a horrible way to operate as a matter of public policy, and invites corruption (I am not saying any corruption occurred with the Or issue, but the potential is there), or 2) the ZBA improperly granting a use variance (which has happened in my opinion). That is what happens when a law recreates hardships, with its application making no sense in specific instances. The temptation is there to just ignore the law, and understandably so, and that is what has happened.

    1. Steve is right about what the Planning Board considered in March. It was not Local Law No. 9 for 2017; it was the Green Street Overlay District proposed by Stewart's. The post has since been corrected.

  5. Charlotte was a pretty girl but had an odd birthmark mole sort of thing on her forehead. Often she'd ask her mother to take her somewhere to have something done about it but since they were in a small town it became a "one of those days" event. Time came to pass and Charlotte went on a trip to the big city with her classmates. On her third day she phoned home excited to tell her mother "I fixed the spot". Her mother was pleased because she knew of her daughters' years of anguish upon meeting strangers and since the face is the first thing looked at when meeting and making judgements about a person, she felt it was time and a good thing to fix. Charlotte was big girl now, Mom trusted her to make good decisions.
    She anxiously awaited Charlotte's return and when that young lady threw open the door, in glory, the first thing Mom laid eyes on was the frog tattoo where the mole had been.

  6. Enlarging existing businesses into existing and occupied housing is a very bad idea. It sets a terrible precedent. Hudson is "Hudson" because a set of circumstances prevented a lot of it from being changed for many years, thereby preserving a unique housing supply. It retained its charm through "benign neglect", a preservation term associated with keeping housing stock because there was no money to destroy it and build new houses or business. Now we are talking about purposely tearing down 100 year old houses. It goes against everything Hudson should be trying to do to maintain its uniqueness. Our housing stock is what drew people to Hudson to begin with. It makes no sense whatsoever to destroy housing so that we can, in effect, supply people with more soup and pizza. Stewart's is a chain. They won't go bankrupt if the store stays the same size. It fills me with disgust the way Hudson kowtows to anyone who waves a few dollars at us. When the cement plant wanted to come in and destroy the town by ruining the air and providing no new jobs, boy, they rolled out the red carpet. I thought we had gotten beyond that, but I guess we haven't. It's a damned shame.

  7. Back in Hudson's hay day, there were 6 (new) car dealerships and as many gas stations on Fairview and Green.

    The city should be obligated to promote as well as preserve historic use.

    If the number of stations is halved, wouldn't they need to double in size to meet demand as the city begins to grow again?