Unit 5 - Property Development and Government Control
I. Foundations of Land Use Control
Land use is governed by the principle that while you own a "Bundle of Rights," the government has the Police Power to restrict those rights for the health, safety, and general welfare of the public.
"As of Right" Zoning: The use of a property that is expressly permitted by the zoning ordinance. If your project is "as of right," you do not need special permission, only a building permit.
Private Land Use Controls: These are Deed Restrictions or Covenants (CC&Rs) placed on a property by a private owner or developer.
Exam Alert: If a private restriction and a public zoning law conflict, the stricter of the two prevails.
II. State and Federal Regulations
State Environmental Quality Review (SEQR): Requires all state and local government agencies to assess the environmental significance of any "action" (like a zoning change or subdivision approval) they have the power to approve.
Environmental Impact Statement (EIS): A detailed report required if an action is determined to have a significant adverse impact on the environment.
NYS Article 9-A: A state law that regulates the sale or lease of subdivided vacant lands on an installment basis. It requires a "Filing Statement" with the Department of State to protect buyers from fraud.
Interstate Land Sales Full Disclosure Act: A federal law regulating the sale of subdivided land across state lines.
III. Local Authority and Planning
The Town, City, or Village Board enacts the local laws, but the daily work is handled by specific boards.
The Planning Board: Responsible for the Master Plan (Comprehensive Plan). They review Subdivisions and Site Plans.
Plat Map: A detailed map of a subdivision showing individual lots, streets, and boundaries.
PUD (Planned Unit Development): A special zoning district that allows for a mix of residential, commercial, and public uses in a single project.
Zoning Board of Appeals (ZBA): A quasi-judicial body that hears appeals and interprets the zoning ordinance. They do not make policy; they provide "relief."
IV. Variances: The Two Types
This is a high-priority exam topic. You must know the "Tests" for each.
1. USE Variance: Permission to use land for a purpose not allowed in that zone (e.g., a store in a residential zone).
The Test: Unnecessary Hardship. The applicant must prove:
They cannot realize a reasonable economic return.
The hardship is unique to the property, not the whole neighborhood.
It will not change the essential character of the neighborhood.
The hardship was not self-created.
2. AREA Variance: Permission to build in a way that violates physical/dimensional rules (e.g., building a deck too close to the property line).
The Test: Balancing Test. The ZBA balances the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood. Self-created difficulty does NOT automatically disqualify the applicant.
V. Special Tools and Enforcement
Special Use Permit: A use that is allowed only if specific conditions are met (e.g., a daycare center in a residential zone).
Incentive Zoning: Offering a developer a "bonus" (like more height) in exchange for providing a public benefit (like a park).
Clustering: Grouping houses closer together on smaller lots to preserve open space elsewhere in the subdivision.
Article 78 Proceeding: The legal process used in NY Supreme Court to appeal a decision made by a government agency or board.
Timeframe: Generally must be filed within 4 months (120 days) of the final decision.
⚠️ EXAM ALERT: QUICK FACTS
Building Department: The Building Inspector is the local official who ensures construction follows the State Building and Fire Code. They issue the Certificate of Occupancy (C of O).
Non-conforming Use: A "Grandfathered" use. If a store existed before the area was zoned residential, it can stay. However, if the store is destroyed or abandoned, the right to the non-conforming use is usually lost.
Sunshine Law: Also known as the Open Meetings Law, it requires that all meetings of public bodies (Planning Board, ZBA) be open to the public.
Board of Health: Typically oversees private well and septic system approvals for new construction.
KEY TERMS
Abutting: Parcels of land that share a common boundary or touch each other at any point.
Accessory Apartment Uses: A separate, complete dwelling unit that is established within or added to an existing single-family residence, often subject to specific local zoning regulations.
Accessory Uses: A use of land or of a building that is subordinate and customarily incidental to the main use of the same lot or building.
Air Rights: The legal right to use and control the space above a specific parcel of land.
Building Code: State and local regulations that establish minimum standards for the construction, maintenance, and occupancy of buildings to protect public health and safety.
Building Permit: A formal written authorization issued by a local government agency allowing the construction, alteration, or demolition of a structure.
Census Tract: A small, relatively permanent geographic entity used by the U.S. Census Bureau for statistical purposes; it usually follows visible and identifiable boundaries.
CO/Certificate of Occupancy: A document issued by a local government agency after a final inspection, certifying that a building is safe to be inhabited and complies with all applicable codes and ordinances.
Condemnation: The formal legal process by which a government exercises its power of eminent domain to acquire private property for a public use, involving just compensation to the owner.
Cul-de-sac: A street or passage with only one outlet, typically ending in a circular turnaround.
Deed Restriction: A private agreement and limitation written into a deed that restricts the use of the land, such as minimum house size or architectural style.
Demography: The statistical study of human populations, including size, density, distribution, and vital statistics like age and income.
Doctrine of Laches: A legal principle used to bar a claim because of an unreasonable delay in asserting a right, which resulted in prejudice to the opposing party.
Easement: A non-possessory right to use another person's land for a specific purpose.
Eminent Domain: The inherent power of the government to take private property for a public use upon the payment of just compensation.
Escheat: The reversion of property to the state when an owner dies without a will and has no identifiable heirs.
Family, Defined: Local zoning ordinances often provide a specific legal definition of what constitutes a "family" for the purpose of regulating occupancy in residential areas.
Group Home: A residential facility that provides care and housing for a small group of unrelated individuals with disabilities or other needs.
Home Occupation: A business or professional activity conducted within a residential dwelling that is incidental to the residential use and complies with local zoning restrictions.
Infrastructure: The basic physical and organizational structures and facilities needed for the operation of a society, such as roads, sewers, water systems, and power lines.
Lead Agency: Under the New York State Environmental Quality Review Act (SEQRA), the specific government agency responsible for coordinating the environmental review process for a proposed project.
Master Plan: A comprehensive long-term document that serves as a guide for the future physical development of a community.
Moratorium: A temporary suspension or delay of a specific activity, such as the issuance of building permits, enacted by a local government while it studies or updates land-use policies.
New York State Office of Parks, Recreation and Historic Preservation (OPRHP): The state agency responsible for managing state parks and historic sites, often involved in reviews of projects affecting historic resources.
Non-Conforming Use: A land use that was lawful when established but no longer complies with current zoning regulations; it is typically "grandfathered" in as long as it continues. Police Power: The constitutional power of a state or local government to enact and enforce laws to protect the public health, safety, morals, and general welfare.
Restrictive Covenant: A private agreement in a deed or other legal instrument that limits how a property owner can use their land.
Right-of-Way: The legal right, established by grant or usage, to pass over a specific route through property owned by another.
Setbacks: The minimum required distance between a building or structure and the property lines or other features, as defined by zoning ordinances.
Spot Zoning: An illegal practice where a small, specific area is rezoned in a way that is inconsistent with the surrounding area's zoning and the community's master plan, usually for the benefit of a single owner.
Subdivision Regulations: Local laws that control the process of dividing large parcels of land into smaller lots for development, including requirements for streets and utilities.
Survey: A map or diagram showing the precise boundaries, area, and location of a parcel of land and any improvements or encroachments upon it.
Taking (as defined by courts): A government action that so significantly limits a property owner's rights or value that it is legally considered an exercise of eminent domain, requiring just compensation.
Topography: The physical features and surface contours of a parcel of land, such as its hills, valleys, and slope.
Transfer of Development Rights (TDR): A land-use tool that allows a property owner to sell the "development rights" from one parcel (the sending site) to another parcel (the receiving site) to preserve open space or historic sites.
Variance (Area/Use): Legal permission to depart from specific requirements of a zoning ordinance. An
Area Variance allows a departure from physical requirements like setbacks.
Use Variance allows a land use that is otherwise prohibited in that zone.
Zoning Ordinance: Local laws that divide a community into specific districts (zones) and regulate the types of land uses and the size and placement of structures within those districts.
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