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December 07, 2016
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Zoning creep

A couple of news stories that have come up over the past few weeks have shone a light on a problem that could potentially threaten the quality of life any of us enjoy in our homes. We call this phenomenon “zoning creep:” the process by which, due to a failure of zoning boards to enforce regulations, poor judgment in applying regulations or a failure to appreciate the cumulative impact of successive alterations, the land use on some particular site becomes radically at variance with the character that the town intends for the zone in which it is located.

In one case, in the Town of Delaware, a series of piecemeal approvals of permits for a firewood operation on Swiss Hill Road gradually transformed the piece of land in question from what might have been seen as a “forestry operation”—permitted in the residential area of which it is a part—to a light industrial facility involving heavy, noisy, constant truck traffic and loud noises from 7 a.m. to 11 p.m., sometimes even on holidays. (See “Firewood business, hot neighbors” in the March 24 issue.)

Whatever the building inspector and zoning board of appeals may claim about the technical correctness of the grounds on which the individual permits for various parts of this operation were granted, the results were clearly out of line with what the town intended when it zoned this area residential. After all, the whole point of restricting certain types of development in a residential area is to make sure that people can have peace and quiet in the sanctuaries of their own home. The Swiss Hill firewood operation simply does not, at this point, answer that description. To that extent, we would hope that David Sager, who lives across the road from the facility and has filed a suit against the town’s zoning board of appeals on account of it, succeeds in his suit.

But even if the suit fails on technical grounds, we think the Town of Delaware—and indeed other towns—might benefit from reviewing both their ordinances and their procedures to see if there is anything that can be done to prevent a single, seemingly innocuous application from turning into a series of approvals that transforms a quiet rural residential area into an industrial zone.

If Sager’s suit fails, then even if the Town of Delaware subsequently tightens up its ordinances and procedures, the firewood operation would presumably be grandfathered in as a non-conforming use. Which brings us another kind of zoning creep: the expansion of non-conforming uses.

This is what has been happening in the Town of Liberty, where Camp Agudah, a non-conforming use grandfathered into a residential district, has been granted 19 permits since 2000 (see “Camp laundromat considered” in the March 17 issue). To add insult to injury, in the most recent case—an application for a laundromat—the camp has requested a permit to replace a structure it didn’t bother to get permission for in the first place.

In fact, in the case of non-conforming uses, it could be argued that most of the 19 permits should not have been granted, given that the NY State Court of Appeals has written, “the highest priority of zoning is their reasonable restriction and eventual elimination.” It looks like the Liberty planning board and code enforcement officer have been going full steam in the opposite direction. Some of the approvals were given without the required site plan review, which would have at least notified the neighbors and given them an opportunity to speak at public hearings.

To be fair, the planning board did observe proper procedure with regard to the most recent three or four applications. But the question still must be raised: is there any point at which it would consider the camp so built up that it’s time to pull in the reins? At what point do the rights of the neighbors living in conformance with the zoning start to outweigh the special privilege claimed by a non-conforming use to expand indefinitely?

One of the most important single functions of local government is to protect townspeople in their homes, and one of the most important tools allowing them to do so is zoning. That means not only sensible ordinances that truly embody the values and intentions of the community that creates them, but officials who implement them in accordance with both their letter and spirit.