NEW: Letter to the Editor: New Castle’s zoning laws are constitutional

Monday, September 20, 2010

Dear Editor,

In an article appearing in The Journal News on August 27, 2010, titled “Resident Starts Petition Against Condos,” New Castle Town Supervisor Barbara Gerrard stated that the town is bound by several legal requirements that many residents don’t fully understand. [In the interest of full disclosure, I am the resident who started the petition against Chappaqua Crossing condos, in a letter to the editor published on August 20, 2010 in NewCastleNOW.org. (See “Open letter to the community: Petition opposing residential zoning at Chappaqua Crossing.”)

I believe that one of the reasons many residents don’t fully understand the legal requirements is because the town has not been forthcoming with information. In fact, it wasn’t until August 30 (after it was delivered to the town board on July 23, 2010) that the town finally posted on their website Summit Greenfield’s draft final environmental impact statement, or FEIS, for Chappaqua Crossing. (http://chappaquacrossingreview.mynewcastle.org/index.php/draft-feis-documents-july-2010).

In the Journal News article, Ms. Gerrard also referenced the fact that New Castle was sued in the 1970s for blocking multifamily housing.  While I am a lawyer, let me be very clear that I do not practice in the area of Land Use/Zoning.  In fact, I have absolutely no expertise in this area at all. 

However, after reviewing the case that Ms. Gerrard referenced, specifically Berenson v. Town of New Castle, 38 N.Y.2d 102 (1975), as well as other case law relied on by the developer in the documents finally posted on the Town’s web site, I believe that New Castle’s zoning laws would be found constitutional today.

Background on the Berenson case

Specifically, in that 1975 case, Berenson v. Town of New Castle, 38 N.Y.2d 102 (1975), New Castle’s zoning laws were found to be unconstitutional because in practice they prohibited multifamily structures from being built.  But, today, the present laws of New Castle do not prevent multifamily dwellings from being created. In fact, there are already multiple districts in New Castle zoned for multifamily construction. 

There are currently 622 condo units in complexes such as Old Farm Lake, Chestnut Oaks, Applehill Farm and Chappaqua Commons.  Significantly, in a later case, New Castle’s zoning ordinances were examined applying the test developed in Berenson and found to be legally sufficient.  The Court found that regional multifamily housing was taken into consideration when the law was passed and there is no discriminatory purpose behind New Castle’s zoning laws. Blitz v. New Castle, 94 A.D.2d 92 (2d Dept. 1983).

Other cases relied on by the developer in section VI. B. of Chappaqua Crossing’s Modified Project are: Continental Building Co., Inc. v. Town of North Salem, 211 A.D.2d 88 (3d Dept. 1995),  Triglia v. Town of Cortlandt, Index No. 17976/96, 1/21/98 NYLJ 31 (col. 2) and Land Master Montg. I, LLC v. Town of Montgomery, 13 Misc. 3d 870 (Sup. Ct. Orange Cty. 2006).  However, these cases involve towns who specifically changed their zoning laws in an effort to reduce the number of multifamily housing units. 

New Castle has not changed its zoning law in order to lower the amount of multifamily housing units available.  And it certainly cannot be said that New Castle has prevented all multifamily construction as of right.  New Castle has multiple established zoning districts for multifamily construction and has taken no action to ban construction of multifamily housing within its boundaries.

Cases supporting New Castle’s position

Further, Summit Greenfield fails to cite the cases of Suffolk Housing Services v. Town of Brookhaven, 70 N.Y.2d 122 (1987), and Robert E. Kurzius, Inc. v. Incorporated Village of Upper Brookville, 51 N.Y.2d 338 (1980). In Brookhaven, the town was sued under the theory that the town’s failure to exercise its zoning power and grant plaintiff a variance that would allow multifamily construction was unconstitutional.  The court found that the presumption of constitutionality still applied to the town’s zoning ordinances and further that because the town had allowed other multifamily construction, the inaction was not unconstitutional or intentional.

In Kurzius, plaintiff challenged a law that required minimum lot requirements in certain areas of the village. The Court of Appeals reiterated the standard that “A zoning ordinance will be invalidated on both constitutional and State grounds if it was enacted with an exclusionary purpose, or it ignores regional needs and has an unjustifiably exclusionary effect.” Id. at 343. The court went on to state that zoning ordinances are presumptively constitutional and recognized the “preservation of open-space and protection of a municipality’s residents from the ill-effects of urbanization” as legitimate public interests. Id. at 344. 

Of course, zoning ordinances cannot be purposefully used to discriminate under the guise of protection of open-space. The court stated that “a zoning ordinance enacted for a statutorily permitted purpose will be invalidated only if it is demonstrated that it actually was enacted for an improper purpose or if it was enacted without giving proper regard to local and regional housing needs and has an exclusionary effect.” Id at 345.

Similarly, in the present situation, New Castle has allowed other multifamily developments to be built.  And, in my opinion, New Castle’s failure to grant the developer a variance would be deemed constitutional.

Affordable housing requirements

As far as the issue of affordable housing, Westchester County has not even adopted an implementation plan yet.  In fact, Westchester County recently submitted their third implementation plan on August 9, 2010 (”County submits its third “fair and affordable” housing implementation plan,” NCNOW.org, August 13, 2010).  And to their credit, the New Castle Town Board already approved a local law that adds workforce housing to permitted zoning uses in parts of downtown Chappaqua in an effort to bring affordable housing to the area. (”Town board eases the way for affordable housing in downtown,” NCNOW.org, June 25, 2010, and “Town Board Passes Zoning Law For Workforce Housing In Downtown Chappaqua,” Patch.com, June 24, 2010.)

If you are opposed to the current proposal for residential rezoning at Chappaqua Crossing, then sign the petition: Fight to Stop Rezoning at Chappaqua Crossing (http://www.ipetitions.com/petition/fighttostop).  Send a message to the developer and to the Town Board that our community is ready to fight to stop the current proposal for residential rezoning at Chappaqua Crossing.

Robert J. Greenstein