Tuesday, November 20, 2018

Council Votes to Enact Local Law No. 5

At tonight's Common Council meeting, letters from former city attorney Ken Dow and former Third Ward alderman John Friedman pointing out substantive problems with Local Law No. 5, sometimes known as the "Stewart's law," were received as communications. There was no discussion of the issues raised by Dow and Friedman or the alternative solution suggested by Friedman, nor was there any evidence that anyone on the Council had even read the letters much less given their content serious consideration.

Instead the Council passed a resolution "declaring a negative declaration under SEQR [State Environmental Quality Review] to Local Law No. 5." Attached to the resolution was an already completed Short Environmental Assessment Form on which the response to each of the following eleven questions was "No, or small impact may occur":
  1. Will the proposed action create a material conflict with an adopted land use plan or zoning regulations?
  2. Will the proposed action result in a change in the use or intensity of use of land?
  3. Will the proposed action impair the character or quality of the existing community?
  4. Will the proposed action have an impact on the environmental characteristics that caused the establishment of a Critical Environmental Area (CEA)?
  5. Will the proposed action result in an adverse change in the existing level of traffic or affect existing infrastructure for mass transit, biking or walkway?
  6. Will the proposed action cause an increase in the use of energy and it fails to incorporate reasonably available energy conservation or renewable energy opportunities?
  7. Will the proposed action impact existing: (a) public/private water supplies? (b) public/private wastewater treatment utilities?
  8. Will the proposed action impair the character or quality of important historic, archaeological, architectural or aesthetic resources?
  9. Will the proposed action result in an adverse change to natural resources (e.g., wetlands, waterbodies, groundwater, air quality, flora and fauna)?
  10. Will the proposed action result in an increase in the potential for erosion, flooding or drainage problems?
  11. Will the proposed action create a hazard to environmental resources or human health?
The completed form was not discussed or even reviewed before the Council voted unanimously to make a negative declaration. That done, the Council voted to enact Local Law No. 5. All the aldermen present--Tiffany Garriga (Second Ward), Eileen Halloran (Fifth Ward), Kamal Johnson (First Ward), Calvin Lewis (Third Ward), Dominic Merante (Fifth Ward), Shershah Mizan (Third Ward), John Rosenthal (Fourth Ward), and Rich Volo (Fourth Ward)--voted aye. Aldermen Rob Bujan (First Ward) and Dewan Sarowar (Second Ward) were absent from the meeting. 

With no reference to SmartCode principles or the Sprawl Repair Manual written into the law, it is up to the Planning Board, with no support from the law, to ensure we don't end up with a convenience store and gas station more suitable to Greenport than to Hudson at this corner. It's questionable, however, how much SmartCode principles would actually help the situation. Recently, an advocate for SmartCode sent me this rendering, indicating that is was a "nice image of a convenience store on the street/pumps and parking in back," which some members of the Planning Board have been talking about for Stewart's.

The problem is that the Stewart's location is on a corner, so the pumps and parking will only be "in back" from Green Street or from Fairview Avenue. From the other street, pumps and parking will be completely exposed.


  1. You tried, Carole. But I hope we can get Stewart's to consider some kind of SmartCode Hudson-centric solution to the expansion.

  2. The law allows the Planning Board enormous leeway, while the company has shown itself to be a reasonable and good neighbor.

  3. My favorite part of the rendering is that it suggests that trucks will be refueling there.

  4. Since the illustration has nothing to do with this proposal, can Gossips please provide the source? I'd imagine the rendering is published somewhere.

  5. As a preface, let me just say that I am not opposed to what this law is intended to accomplish. Whether or not Stewart's expands is not a concern of mine either way. It does bug me, however, to see very badly drafted legislation enacted.

    Unfortunately, this law is so poorly drafted that its actual text doesn't do what the Council wants it to do. For one thing, it would allow Stewart's to expand the area of its BUILDING, but (I know this sounds hard to believe) it does NOT allow Stewart's to expand the area in which it carries on its actual operations within that building or on the site--i.e. retail and gasoline sales. The existing Hudson Zoning Code, in section 325-29, expressly distinguishes between “non-conforming use of buildings” and “building which houses [] a non-conforming use,” and separately regulates them. The proposed law, as written, would seemingly supersede the provision in 325-29(B.) that prohibits altering or enlarging a building which houses a non-conforming use, but contains nothing that would supersede the provision in 325-29(A.) that prohibits the enlargement or extension of the non-conforming USE of a building. Against the backdrop of 325-29, the enactment of this law as written would seem to allow the expansion of the building, but would not allow the expansion of the area in which the non-conforming use can be carried on.

    Worse, (assuming the above is ignored and the USE does expand), the law actually does not authorize the Planning Board to require mitigation of the expanded USE at all. The mitigation required is limited to the "impacts of the renovated building." Again, the building and the use are two distinct things, and this law addresses and regulates only the building, not what use is made of it.

    The Council was told all of this. Many people gave substantive, knowledgeable, and thoughtful input to try to improve the quality of this legislation, but the Council seems to have had no interest.

    If anyone has the interest (and the legal standing) almost anything anyone tries to do under this law would be vulnerable to litigation.

    Again, I don't oppose what they want to do. I even submitted to the CC a revised draft that does the exact same thing, but that fixes the worst problems. A much better law is in their hands now. There is just no good excuse for enacting this law in this form.

  6. Everything under §325-29 - whether A, B, C, D, or E - is introduced with the same and/or:

    "The following provisions shall apply to all buildings and/or uses existing lawfully on the effective date of this chapter, which buildings and/or uses do not conform to the requirements set forth in this chapter."

    It seems to me that those and/ors are the same as either/ors - as in either or both - which when applied to "all" forms of nonconforming uses deflates any useful distinction between nonconforming things and nonconforming actions.

  7. Then there is the extremely misguided--or very confused--desire expressed in the law's Legislative Findings "to allow for the renovation, replacement and/or expansion of currently existing non-conforming uses within [the] R-2 and R-2H District…” This is not to say that convenience stores, gas stations, and restaurants should not be renovated or expanded. That may be a perfectly fine thing to do. But if they are to be expanded, it is nonsensical to continue to designate them as "non-conforming uses." The term "non-conforming use" has a meaning in zoning law. The NYS Court of Appeals tells us the significance of a "non-conforming use" designation:

    “Nonconforming uses are necessarily inconsistent with the land-use pattern established by an existing zoning scheme.*** Due to constitutional and fairness concerns regarding the undue financial hardship that immediate elimination of nonconforming uses would cause to property owners, however, courts and municipal legislators have adopted a ‘grudging tolerance’ of such uses (Matter of Pelham Esplanade v Board of Trustees, 77 N.Y.2d 66, 71). The law nevertheless generally views nonconforming uses as detrimental to a zoning scheme, and the overriding public policy of zoning in New York State and elsewhere is aimed at their reasonable restriction and eventual elimination.” Matter of Toys “R” Us v. Silva, 89 N.Y.2d 411, (Court of Appeals, 1996). “[T]the overriding policy of zoning is aimed at the ultimate elimination of nonconforming uses.” Matter of Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278, (Court of Appeals, 1980).

    Since, according to the Court of Appeals, "the overriding policy of zoning is aimed at the ultimate elimination of nonconforming uses" the Common Council's purpose of perpetuation and continuation--not to mention expansion to other parcels--of non-conforming uses is utterly backward.

    Very simply put: if the Council wants to extend and expand these businesses, their designation needs to be changed from "non-conforming uses" to "conditional uses." It is unclear whether or not the Council intended to make such a change in designation, but intended or not, the text of the law does not accomplish this. And yes, it matters. Negating essential attributes of fundamental components of the City's zoning law is not a wise move.

  8. KD my friend, this is very strange coming from someone who argued that a proposal alone automatically terminates the nonconforming status of the South Bay causeway!

    Compared to the quasi-sacred status of "nonconforming" you've presented here, as if residents are forever bound to the precise terms of a 50-year-old zoning amendment, it was only two years ago you argued that even a mere PROPOSAL affecting conditional uses in the comparatively new Core Riverfront District immediately frees that use from its nonconforming straightjacket.

    (NB, in the CR District uses are simultaneously conditional and nonconforming, not either/or!)

    Professionally, I understand that different clients require different arguments, and that your argument here, presumably on behalf of a new client, owes no consistency to arguments you made when working for the City.

    I also agree that the Core Riverfront text was horribly written having pretty much excluded public input. (I said so at the time, too.) The CR District is plagued by the autocratic decisions that created it, but the culture in City Hall has now changed for the better, in part thanks to you. Nowadays, discussions about zoning at the Legal Committee are open and collegiate. Indeed, I heard every point you're now painting as a lapse of reason discussed openly and intelligently between committee members, committee staff, and residents. (The points in your letter were also discussed, despite your letter's limited number of recipients.)

    At least in 2011 the intent to create a "nonconforming" status for the causeway was clear enough from the full Common Council's working sessions. I'd have though it was perfectly obvious listening to the audio of the most important discussion of all on 9/26/11: https://wavefarm.org/archive/x14rqr

    In the audio at 1:08:02, we hear William Sharp, the Principal Attorney for the NYS Department of State, reassure the Aldermen that "if indeed [uses] are lawful under the existing [pre-2011] zoning, they would become a lawful nonconforming use. They would not be able to enlarge or expand under the City's zoning. The existing zoning that you have does not permit expansions of nonconforming uses - my guess is unless there is perhaps a variance granted by the Zoning Board of Appeals."

    [Note that Mr. Sharp references another exception to your now-sacrosanct concept of nonconforming uses: the variance.]

    I can only conclude that this new understanding which contrasts so starkly with your previous interpretation for South Bay (which parted so radically from Mr. Sharp's reassurances at 1:08:02), is being pursued on behalf of an unannounced client.

    If that is the case, and the arguments you're making here are for pay, then I think you should say so. Otherwise, I hope you'll explain this sea change in your thinking about nonconforming uses. For the good of South Bay we need you to retract your previous idea that a nonconforming status is flimsy enough that it can disappear at the first sign of a proposal.

  9. I am the Chairmen of the Legal Committee (John Rosenthal, 4th Ward). I am going to comment in multiple parts.

    I am curious as to why Mr. Dow has taken such a concerned interest in this piece of legislation. And, though his writing is quite clear, his voice remains that of an outside legal opinion, albeit an informed and well-written one. But, as the adage goes, “lawyers are wrong 50% of the time,” so that is something to ponder here. Mr. Dow's points require a judge and a court to weigh them. That said, it is disconcerting to hear our former City Attorney openly asking readers of this blog to challenge the City in court. That is unfortunate; contrary to his assertions, he has no idea what that outcome would be, just a strong opinion as to its potential.

    Nonconforming uses are not absolutes, and Mr. Dow knows this. Our zoning law allows for petitioners to pursue changes or amendments to it and it is within the Council’s power to grant amendments to the code. The City’s ZBA is empowered to grant variances, which, by their definition, negate “essential attributes” and “fundamental components” of the City’s zoning Code. Under Mr. Dow’s tenure, the Common Council pursued an action which arguably resulted in “negating essential attributes of fundamental components of the City’s zoning code.” I am referring to The Wick, an upscale hotel, to which I don’t recall hearing much warnings from Mr. Dow that tinkering with the code in such a way was “not a wise move.” I am not questioning the economic necessity or the benefits of the outcome of that particular decision, I am simply using a recent example of a business seeking remedy under City law to pursue a development goal. In that case, the Wick sought a PILOT grant -a one-time payment in exchange for Tax relief. In this case, we have a gas station and store. It should be noted that Stewart’s is not seeking a PILOT for this project. At least Mr. Dow’s position isn’t parochial, he actually understands that Stewart’s is a viable and thriving business, and therefore, he supports a type of legislative remedy.

    Regardless of an out-of-context quote from the Court of Appeals, the court is not absolutist about non-conforming uses. The court would most likely weigh all sorts of factors into any decision, certainly beyond Mr. Dow's conservative and orthodox reading of the law in this circumstance. The Common Council sought to limit the scope of this law by making it specific to two historic, continuously operated businesses. The circumstances with regards to non-conforming uses at those locations has changed since 1968 and 1973, and the City is within it's rights to define that change. It seems Mr. Dow's dispute is mostly one of semantics.

    With this local law, the City allows for the limited expansion of CERTAIN non-conforming uses, with a specific definition that roots their operation historically and continuously for a period over 20 years. In a sense, it defines a new type of nonconforming use in the R-2 and R-2H, which is within our right, but still acknowledges the previous understanding.

  10. In closing, I want to state that we weighed much of the points that Mr. Dow raised in our deliberations. We also examined, at length, the proposal for a commercial overlay. We decided that the Council should pursue a very limited law. This bill does not allow for big-box development to creep into the City. What this blog has failed to point out with consistency is the current Council's deep concern about the antiquated nature of our current zoning laws. We recognize that the era to which most of our zoning was codified, is long past. Our zoning favors suburbanization over density, it privileges a type of ahistorical thinking that moves beyond how we should think about the character of the past, as it interacts with the demands of the present. It has exacerbated inequality and a feeling that the current development of the City is leaving people behind. We need to rethink lots of things. To that end, the Council voted to create an ad hoc committee to examine and promote new measures for planning and zoning. This blog has barely mentioned that point. Lots of great proposals lay before us, like form-based zoning or smart code. We need to a new Comprehensive Plan. Our existing plan is nearly 17 years old and woefully stale. With all this said, we found it wise to limit the scope of the law so we can then turn and look at the zoning of the City, overall.

    There is much work to do that will require wide community input.

  11. KD, your letter relies overmuch on the 2002 Comprehensive Plan, aspiring to a solution which is "viable and consistent with the Comprehensive Plan," "not in conflict with the Comprehensive Plan," and "in conformity with the Comprehensive Plan."

    In fact, Hudson has failed to keep its Comprehensive Plan updated as municipalities are expected to do. The plan didn't originate on Mount Sinai, but was produced from circumstances at the turn of the century, and only ever intended as an interim guide.

    Far from being bound to the past the Comprehensive Plan itself called to amend the Zoning Code, even in beneficial ways which we've subsequently failed to act upon.

    Our freedom to revise the Comprehensive Plan - and indeed the expectation that we do so, and sooner rather than later - implies revisions to the Zoning Code. Why wouldn't we update our ideas about nonconforming and conditional uses at the same time?

    Your client must understand that binding the city's future to either the 2002 Comprehensive Plan or a 1960s Zoning Code risks committing Hudson to a "slow atrophy of a life stifled by useless shadows" (Whitehead).

    Kudos to the present Common Council for moving the ball forward.

  12. Tim and John, to respond to you inquiries as to why I am taking an interest in this: I am actually not doing this on behalf of anyone. I represent no client or any other party or person. Although you would likely not have seen it, in my email to the Planning Board on August 9 I stated that “I am not submitting this on behalf of any other party, but offer it as my own observations.” That remains the case.

    The genesis of my involvement was reading the proposed draft last summer and seeing that the Legislative Findings called for “encourag[ing] the upkeep, renovation, and continuation of non-conforming uses,” and stated that “it is desirable to allow for the renovation, replacement and/or expansion of currently existing non-conforming uses…” I was really taken aback by those statements. The idea of a law to promote the expansion of non-conforming uses seemed incredible to me. It was reading that statement of purpose that got me interested enough to really look at the substantive text of the law.

    When I looked closely at the text, the other issues that I wrote about became apparent. I thought (simply enough at the time, although it has gotten a lot more involved) that if Hudson were to enact a law to do what this law seemed intended to do, that several aspects of it really needed revision.

    It might also be worth noting that this is not the first time I have gotten deeply involved—both professionally and on my own initiative—in revising proposed laws in other places and contexts. For about two years, it was my job as a legislative counsel (legislative analyst) with the New York State Senate. Law text—and the consequences of it—is a particular interest of mine.

    I am writing a further response to more of the specific items that you both address in your recent posts, but it might take a little while to submit it.

    I would also like to say that I really appreciate and respect the depth and thoughtfulness of your comments and this discussion.

  13. Ken, I confess that I needed to be reminded there's no client. In that case your commitment is admirable, though I'm sure you can appreciate that with each new installment here the question would return: Why is somebody who doesn't live here and (presumably) doesn't pay taxes here taking such an interest in our affairs? It seemed a bit unlikely, so please accept my apology for confusing your academic interests with your professional interests. Best, Timothy