Jacobowitz & Gubits, LLP
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Walden, NY 12586
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COURT STRIKES DOWN RESTRICTIVE ZONING
Affordable Housing Omitted
By John Caher
New York Law Journal — Tuesday, September 26, 2006
ALBANY—With a stern reminder that zoning laws cannot be manipulated to exclude lower-cost, affordable housing, a judge in Orange County has struck down an allegedly exclusionary law—and awarded counsel fees to the developer.
Supreme Court Justice Joseph J. Owen's 20-page decision in Landmaster v. Town of Montgomery/Roswind Farmland Corp. v. Town of Montgomery, is the first New York court pronouncement on the controversial issue in eight years, according to land use expert John R. Nolon, a professor at Pace University School of Law and Law Journal columnist.
"They are being reminded through this case that they have to pay attention to including types of zoning that produce housing that can be made affordable," Mr. Nolon said. "This has not been uttered by a justice in our court system in eight years. And this is a good time, because in those eight years there has been double-digit inflation in housing prices in some parts of the region."
In the cases before Justice Owen, the petitioners had submitted land use applications to the Town of Montgomery to build affordable and cluster housing in an area of the town called "Scott's Corners," which for nearly 40 years had been the only part of the town where multifamily housing was specifically permitted.
But the town declared a moratorium on residential developments that included more than three dwelling units. It followed up with a new "comprehensive plan" eliminating any zoning designation specifically dedicated to multifamily housing. Consequently, multifamily housing was no longer expressly allowed in Scott's Corners, or anywhere else in the town for that matter.
Roswind and Landmaster, represented by Jacobowitz and Gubits in Walden, N.Y., challenged the new zoning scheme, mainly via Berenson v. New Castle, 38 NY2d 102, a 1975 Court of Appeals precedent that said zoning laws must balance the local interest in maintaining the status quo with regional needs. Justin Owen said Montgomery failed to meet the Berenson standard in that "the challenged laws were enacted without giving proper regard to local and regional housing needs and . . . have an exclusionary effect."
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The court observed that between 2000 and 2002, a median income family in Orange County could afford a house in the range of $145,000 to $185,000——and there were no houses for sale in that range during the time period at issue. Additionally, the court noted that the town's own Affordable Housing Committee, which was established several months after the comprehensive plan was adopted, demonstrated a housing "affordability shortfall" and documented a need for roughly 700 to 1,000 owner-occupied affordable units.
Town officials countered that the existing zoning law allowed for a vast array of affordable housing options, in that it permitted lot clustering by permit and included accommodations for planned adult communities and motor home courts. But Justice Owen said those alternatives "either commit multifamily and affordable housing to the total discretion of Town officials or affect very limited segments of the total population."
"The current zoning scheme; effectively, creates the illusion of affordable housing while limiting its reality to a few chosen sectors and vesting almost total control in the Town," Justice Owen wrote. "[R]espondents have not done their share to accommodate the affordable housing needs of the community either within their own boundaries or the region."
In addition to holding that the comprehensive plan had an exclusionary impact, Justice Owen said the town neglected to follow the State Environmental Quality Review Act.
"The Town Board is not being asked to 'guarantee' affordable housing," Justice Owen wrote. "It is being asked to do what the law requires, i.e., to provide a balanced and well-ordered plan for the community which adequately considers regional needs and requirements . . . This is not accomplished by abrogating control to others and limiting opportunities of right simply to residences of adult communities and mobile home parks."
Justice Owen scheduled a hearing for Nov. 2 to determine the amount of attorney's fees owed to Jacobowitz and Gubits.
"The significance of this case is it sends a message to all the public officials that meeting the need for workforce housing by providing an array of housing by providing an array of housing is real and it needs to be addressed in a way that will ensure it happens," said Gerald N. Jacobowitz, who represented the petitioners along with J. Benjamin Gailey and John C. Capello of his firm.
The town was represented by Paul Edward Svensson of Boeggeman, George, Hodges & Corde in White Plains. Mr. Svensson was not immediately available for comment yesterday.
In their Law Journal column last week, Mr. Nolan and land use attorney Jessica A. Bacher, an adjunct faculty member at Pace, said that despite the "judicial vigor" the Court of Appeals displayed 31 years ago in Berenson, most municipalities "are doing little to eliminate barriers to housing or stimulate needed production." They said "additional encouragement, guidance, and resources are needed."(NYLJ, Sept. 20).
Mr. Nolan suggested yesterday that Justice Owen's ruling may be a wake-up call for municipalities that have ignored or neglected the Berenson principle.
"For the first time in [eight] years, we have a decision telling towns they cannot eliminate from zoning ordinances those types of homes that allow developers to build affordable types of housing," Mr. Nolan said. "This is a big cautionary moment for communities, because they are being told not to do something that they are tempted to do."
- John Caher can be reached at jcaher@alm.com.
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