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Quickening the Demise of Harmful Land Uses

December 8, 2005

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At the Village Board meeting on December 5, 2005, Trustee Charlie Kane proposed that the Board reexamine its amortization provisions with respect to nonconforming uses. This report explains what amortization is, how it works, and how it may be used to bring certain arguably valid nonconforming uses – such as waste transfer stations – to an end.

What is Zoning Amortization?

Zoning provisions are complex tools used by communities to balance public good versus private property rights. Zoning amortization allows a village, city or town to phase out over a number of years specific non-conforming land uses. Such non-conforming land uses may be created by the adoption of new zoning—as Croton has done in recent years—that is more restrictive than prior codes. Amortization may allow termination of an undesirable or potentially harmful use without compensation to the property owner. Without amortization, such non-conforming uses may be “grandfathered” and remain for decades. How might amortization be applied in Croton?

Amortization in Croton-on-Hudson

Amortization is already part of the Village of Croton-on-Hudson zoning code in Chapter 230-53-E, last amended on November 10, 1960. (See Appendix 1.) We believe now, forty-five years later, we should examine the pros and cons of adding the amortization for non-conforming uses in the Light Industrial zone within the Village of Croton-on-Hudson. For example, transfer stations may be able to be amortized out of existence.

In 2000 and 2001, prior to adoption of the Comprehensive Plan by the village board, the Comprehensive Plan Committee discussed non-conforming uses that would result from the proposed modernizations of our zoning code. Some non-conforming uses may be quite tolerable, while others may constitute public nuisances or worse. The Comprehensive Plan Committee did not reach a consensus on whether to include amortization terms for any zoning districts, and, hence, the zoning revisions were adopted without any added provisions on amortizing out an undesirable or potentially harmful use. But, now four years later, we should re-open the examination of this tool again, especially for the removal of certain nonconforming uses that run counter to the now adopted comprehensive plan for the village and fall at the most publicly harmful end of the spectrum.

Short History of Amortization

Local municipalities for many years have used zoning to regulate land use and private property, by right. The U.S. Supreme Court explicitly sanctioned this legislative technique (police power) in a 1926 decision. As communities and local economies change, zoning adjustments over time make some prior land uses now non-conforming. An inherent conflict exists between property owners seeking financial return for outmoded uses and structures and the municipality seeking to protect the health, welfare and safety in upholding the public good for the future development of the community. During the past fifty years municipalities have developed new techniques to reduce non-conformance with zones as quickly as possible taking into account the interests of all parties. The U.S. Supreme Court decided recently in Kelo v. New London, Connecticut, that certain property rights may yield to the common interests in the health, safety and welfare of residents and local land use policies. Amortization is one such technique that municipal legislative bodies developed to curtail undesirable, non-conforming uses while taking into account private property rights.

New York State’s Court of Appeals on Amortization

Many courts in a majority of states have upheld legislatively enacted amortization law that gradually eliminates non-conforming uses to accomplish the zoning objectives of compatible and homogenous land use. Using this zoning tool, a municipality establishes a reasonable period of time whereby the property owner will be allowed to recoup a major part of his investment in a non-conforming use, or, at the very least, satisfy his expectation of interest on the investment. After the time period elapses, the non-conforming use terminates.

New York’s highest court, the Court of Appeals, issued the following statement on the reasonableness needed in determining amortization time periods:

“Whether an amortization period is reasonable is a question which must be answered in the light of the facts of each particular case. Certainly, a critical factor to be considered is the length of the amortization period in relation to the investment….Similarly, another factor considered significant by some courts is the nature of the non-conforming activity prohibited. Generally a shorter amortization period may be provided for a non-conforming use as opposed to a non-conforming structure….The critical question, [however,]….is whether the public gain achieved by the exercise of the police power outweighs the private loss suffered by the owners of the non-conforming uses. While an owner need not be given that period of time necessary to permit him to recoup his investment entirely, the amortization period should not be so short as to result in a substantial loss of his investment….In determining what constitutes a substantial loss, a court….should look to, for example, such factors as; initial capital investment, investment realization to date, life expectancy of the investment, [and] the existence or non existence of a lease obligation, as well as a contingency clause permitting termination of the lease.” [Modjeska Sign Studios, Inc. v. Berle, 373 N.E. 2d, 255, 262 (N.Y. 1977) appeal dismissed, 439 U.S. 809 (1978)]

Amortization provisions are particularly likely to be upheld in certain contexts:

(1) When the common law of nuisance would allow neighboring property owners to enjoin the continuation of a non-conforming use; several examples are a junkyard, auto wrecker, or gravel pit, which may be harmful to children in a residential neighborhood.

(2) When the non-conforming use is partially noxious and the owner has little investment in it. More difficult cases are those where the owner has a significant investment in the use and the public interest in removing it is clear but where the threat to public health and safety is not imminent.

Amortization is introduced here for discussion as one of the tools used by many communities to quicken the demise of non-conforming uses, especially those that present a threat to the health, safety, and welfare of residents. A number of New York municipalities currently use amortization for removing undesired and nonconforming buildings, uses or outdoor signs. (See Appendix 2.)

We look forward to an active consideration of this policy tool by the village and to input and reactions from residents. Amortization may provide a way for us to legislate, rather than litigate, our way toward the village we all want.

Village of Croton-on-Hudson Trustees Charlie Kane & Leo Wiegman

Enclosures:

Appendix 1. Village of Croton-on-Hudson’s Existing Amortization Code

Appendix 2. New York Municipal Code Samples for Amortization

Appendix 1: Village of Croton-on-Hudson’s Existing Amortization Code:

Chapter 230-53-E [[§ 230-53-E below reflects the adoption in 1960 of a new zoning code in Croton and the ensuing interest in terminating ‘undesirable’ uses made nonconforming in a residential district. This specific amortization provision has been likely dormant since late 1962, when the time period for continuing the nonconforming uses terminated. The entire subchapter 230-53 is reprinted here for context.]]

ARTICLE IX Nonconforming Buildings and Uses

§ 230-53. Regulation and control.

Subject to the provisions of § 230-54, the following provisions shall apply to all buildings and uses existing on the effective date of this chapter, which buildings and uses do not conform to the requirements set forth in this chapter, to all buildings and uses that become nonconforming by reason of any subsequent amendment to this chapter and the Zoning Map which is a part thereof and to all conforming buildings housing nonconforming uses:

A. Any nonconforming use, except those nonconforming uses specified in Subsection E may be continued indefinitely, but:

(1) Shall not be enlarged, extended, reconstructed or placed on a different portion of the lot or parcel of land occupied by such uses on the effective date of this chapter, nor shall any external evidence of such use be increased by any means whatsoever. [Amended 1-19-1999 by L.L. No. 1-1999; 11-15-1999 by L.L. No. 10-1999]

(2) Shall not be changed to another nonconforming use without a special permit from the Village Board of Trustees and then only to a use which, in the opinion of said Board, is of the same or a more restricted nature.

(3) Shall not be reestablished if such use has been discontinued for any reason for a period of one year or more or has been changed to or replaced by a conforming use. Intent to resume a nonconforming use shall not confer the right to do so.

B. Except as provided in Subsection D below, no building which houses a nonconforming use shall be:

(1) Structurally altered or enlarged.

(2) Moved to another location where such use would be nonconforming.

(3) Restored for other than a conforming use after damage from any cause exceeding 50% of the replacement cost of such building, exclusive of foundations. Any such building, damaged to a lesser extent may be restored but not enlarged and the nonconforming use reinstated within one year of such damage; if the restoration of such building is not completed within said one-year period, the nonconforming use of such building shall be deemed to have been discontinued unless such nonconforming use is carried on without interruption in the undamaged portion of such building.

C. Normal maintenance and repair, structural alteration in or moving, reconstruction or enlargement of a building which does not house a nonconforming use but is nonconforming as to the district regulations for lot area, lot width, front yard, side yard, rear yard, maximum height, maximum lot coverage or minimum habitable floor area per dwelling is permitted if the same does not increase the degree of or create any new nonconformity with such regulations in such building. [Amended 1-21-1985 by L.L. No. 1-1985]

D. Nothing in this article shall be deemed to prevent normal maintenance and repair of any building, the carrying out upon the issuance of a building permit of major structural alterations or demolitions necessary in the interest of public safety. In granting such a permit, the Village Engineer shall state the precise reason why such alterations were deemed necessary.

E. Each of the nonconforming uses specified below is deemed sufficiently objectionable, undesirable and out of character in the district in which such use is located as to depreciate the value of other property and uses permitted in the district and blight the proper and orderly development and general welfare of such district and the Village to the point that each of such nonconforming uses shall be terminated on or before the expiration of the specified period of time after November 10, 1960, which period of time as specified for the purpose of permitting the amortization of the remaining values, if any, of such use shall be as follows:

(1) In any residence district, any nonconforming use of open land, including such uses as a parking lot, trailer, junkyard or open storage yard for materials or equipment, may be continued for two years after November 10, 1960, provided that on the expiration of that period such nonconforming use shall be terminated.

(2) In any residence district, any sign not of a type permitted or of a permitted type but greater than two times the maximum permitted size may be continued for one year after November 10, 1960, provided that on the expiration of that period such nonconforming use shall be terminated.

(3) In any nonresidential district, any sign not of a type permitted or of a permitted type but greater than two times the maximum permitted size may be continued for two years after November 10, 1960, provided that on the expiration of that period such nonconforming use shall be terminated.

Appendix 2: New York Municipal Code Samples for Amortization

Sample 1: Ossining: Termination of nonconforming uses (1990)
Sample 2: Southampton: Nonconforming uses, buildings and structures (1999)
Sample 3: Saratoga Springs: Lodging, eating and drinking establishments (2004)
Sample 4: Yorktown: Amortization of nonconforming signs (1999)
Sample 5: Briarcliff Manor: Existing signs made nonconforming (1999)

The chapters in which the amortization codes are embedded can be very lengthy; the excerpts below contain only the specific paragraphs on amortization. The dates above indicate year in which the ordinance was adopted or most recently amended. For full sources, see: www.e-codes.generalcode.com (accessed 14-30 November 2005)

Sample 1: Village of Ossining NY

[[The Ossining zoning amortization is like the one in Croton’s code from 1960.]]

Chapter § 270-43. Termination of nonconforming uses.

Each of the nonconforming uses specified in this section is deemed sufficiently objectionable, undesirable and out of character in the district in which such use is located as to depreciate the value of other property and uses permitted in the district, and blight the proper and orderly development and general welfare of such district and the community, to the point that each such nonconforming use must be and shall be terminated on or before the expiration of the specified period of time after the effective date of this chapter; which period of time is specified for the purpose of permitting the amortization of the remaining value, if any, of such use:

A. In any residence district, any nonconforming use of open land, including but not limited to such uses as a parking lot, trailer, junkyard or open storage yard for materials or equipment, may be continued for three years after the effective date of this chapter, provided that after the expiration of that period such nonconforming use shall be terminated.

B. Any sign not of a type permitted or of a permitted type but of a size exceeding the maximum permitted area by more than 10% may be continued for one year following the effective date of this chapter, provided that, after the expiration of that period, such nonconforming use shall be terminated. Any sign that is now nonconforming by reason of a previous law shall be terminated within six months of the adoption of this chapter.

Sample 2: Village of Southampton NY

[[The Southampton zoning code provides for Village’s right to set a period for amortizing out non-conforming uses. We do not know if they have ever set such a period.]]

Chapter § 116-19. Nonconforming uses, buildings and structures.

G. Compulsory termination of nonconforming structure or use.

(1) A nonconforming structure or nonconforming use may be subject to compulsory termination by the municipal legislative body when it is found detrimental to the conservation of the value of the surrounding land and improvements or to future development of surrounding lands and therefore is tending to deteriorate or blight the neighborhood. Editor’s Note: As to the removal of hazardous structures, see Ch. 47, Buildings, Unsafe.

(2) In ordering the compulsory termination of a nonconforming structure or nonconforming use, the municipal legislative body will establish a definite and reasonable amortization period during which the nonconforming use may continue while the investment value remaining after the date of the termination order is amortized. Determination of the amount to be amortized shall be based on the value and condition of the land and improvements for the nonconforming use less their value and condition for a conforming use and such other reasonable costs as the termination may cause. The rate of shall be in accordance with reasonable economic practice.

(3) Anything to the contrary in this chapter notwithstanding, any nonconforming billboard or any flashing or moving sign, wherever located, shall become an unlawful structure on June 1, 1976, and shall thereupon be removed. [Amended 11-23-1999 by L.L. No. 7-1999]

(4) Any owner of any such nonconforming billboard or flashing or moving sign, who alleges that the period herein provided for amortization of such sign is unreasonable as to a particular sign, may apply to the municipal legislative body for an extension of time for of such sign. If the municipal legislature finds that the construction cost of a particular sign may not be reasonably amortized by the aforesaid date, then the municipal legislature may extend the period to a date which it finds will provide a reasonable period. In no event, however, shall the total period for a particular job extend beyond a date which would result in of the construction cost of a particular sign at a rate of less than $100 per year, computed on a straight-line basis. [Amended 11-23-1999 by L.L. No. 7-1999]

(5) Anything to the contrary in § 116-19G notwithstanding, nonconforming signs other than billboard signs may be subject to compulsory termination by the municipal legislative body pursuant to provisions set forth in § 116-13, in which event, removal of such nonconforming signs shall be governed by the provisions set forth in § 116-13 rather than by § 116-19G. [Added 11-23-1999 by L.L. No. 7-1999]

Sample 3: City of Saratoga Springs NY

[[Saratoga’s zoning amortization clause focuses on a group of related uses. Apparently they feel they have too many hotels and restaurants.]]

Chapter 136: LODGING AND EATING AND DRINKING ESTABLISHMENTS

§ 136-9. Vested rights; period.

Any person, firm, corporation or other entity that holds, on April 6, 2004, a valid license for a bed-and-breakfast, rooming house, inn, or hotel/motel, issued under the provisions of this chapter as they existed on April 6, 2004, shall have the right to renew said license according to the definitions of this chapter as they existed on April 6, 2004. This right may be exercised only with respect to said previous definitions and shall not apply to any other previous provision or provisions of this chapter. This right shall vest on the applicant only and shall not be transferred or assigned. This right may be exercised by a licensee for a time no longer than the next two renewal periods subsequent to April 6, 2004.

Sample 4: Town of Yorktown NY

[[Yorktown amortizes nonconforming signs, with a schedule for period related to investment.]]

Chapter § 300-193.16. Amortization of nonconforming signs.

A. All nonconforming signs with a replacement cost of less than $100 shall be removed or made to conform within 60 days of the effective date of this article.

B. Unless an earlier removal is required by Subsection C below, all other nonconforming signs may be maintained for the periods set forth in the following table, beginning on the effective date of this article:

Sign Cost or Renovation Cost - Permitted Years from Effective Date

$100 to $1,000 - 1
$1,001 to $3,000 - 2
$3,001 to $10,000 - 3
more than $10,000 - 4

C. Any owner of a sign who requests an period longer than one year shall, within 60 days from the date of enactment of this article, file with the Building Inspector a sworn statement and documentation as to the cost of the sign, the date of erection or the cost and date of the most recent renovation and a written agreement to remove the sign at or before the expiration of the period applicable to the sign. Failure to file such a statement shall require removal of such sign within one year of the effective date of this article.

D. In the event of any disagreement between the sign owner and the Building Inspector as to the cost of the sign, the Building Inspector’s determination of such cost shall be final.

Sample 5: Village of Briarcliff Manor NY

[[Briarcliff set a 2-year period to amortize out nonconforming signs after enacting a new, stricter sign ordinance in 1999.]]

Chapter 172: SIGNS

C. Existing signs made nonconforming by this chapter. [Amended 7-22-1999 by L.L. No. 5-1999]

(1) Except as otherwise provided in Subsection A above, a sign that was in existence prior to December 18, 1998, and that was constructed in accordance with other applicable laws in effect on the date of its construction, which by reason of its size, height, location, design, or construction is not in conformance with the requirements of this chapter shall be issued a nonconforming sign permit if an application is made in accordance with this chapter.

(2) Such permit shall allow sign(s) with a commercial message made nonconforming by this Signs Chapter to remain in place and be maintained until December 18, 2001. On or before that date, all such nonconforming signs with a commercial message issued such nonconforming sign permit shall either be eliminated or made to conform with the requirements of this Signs Chapter and such period of time shall be deemed sufficient to amortize the cost thereof.

(3) Except as otherwise set forth in § 172-7F of this chapter, no other provisions of this Signs Chapter shall require the removal of any existing sign containing a noncommercial message that is issued a nonconforming sign permit.

On December 10, 2005 11:21 PM, TeaDrinker said:

This comment has been posted on behalf of Ann Gallelli, as per her request.

Amortization appears to be an avenue that the Village should actively research and analyze to see how well it might work for Croton. It has the benefit of being an action that we can move ahead with independent of ongoing, concurrent actions. We need to move beyond simply being reactive to the decisions of other bodies and be proactive on Croton’s behalf.

I hope the Village Board will take a careful look at amortization as a zoning tool to help eliminate prohibited uses in the Village.

— Ann Gallelli

On December 8, 2005 11:27 AM, Pat Barua said:

Buried in all the minutia of sidewalk parking and snow-induced DPW problems at the Village Board meeting on December 5th was this truly exciting proposal by Trustee Charlie Kane. Trustee Kane is so averse to grandstanding that you easily could have missed it – and I thank Trustees Kane and Wiegman for taking the time to post all of this fabulous information to the Blog.

Amortization is potential dynamite that could blow NIR/Regus to pieces. At the risk of being repetitive, I just want to emphasize and explain some of the key points made above, especially as they might apply to eradicating the use of the Metro Enviro site as a waste transfer operation.

Amortization puts a limit – usually a time limit – on how long a property owner can continue a nonconforming use. (A nonconforming use is one that is not permitted under the zoning laws. Generally, when zoning laws change to prohibit a currently existing use, the property owner is allowed to continue that use as a “preexisting nonconforming use”).

The Village Code now prohibits any landowner from using his property as a waste transfer station site. The only way a landowner can legally do so now is if his property was legally being so used when the law changed. The only landowner who even arguably qualifies is Greentree Realty, which owns the Metro Enviro site. All of its rights derive from Metro Enviro’s (Greentree’s tenant) former waste transfer station operation allegedly being a “preexisting nonconforming use.”

What amortization could do is provide that, even if Greentree is right that it is allowed to operate a waste transfer station as a preexisting nonconforming use (a position we are contesting in court), it can only continue that use for, say, five years. Then it’s over. Forever. At a minimum, we would be looking at no waste transfer station when the time period was up. More significantly, we would deter any serious business owner from making an investment in an operation that would be illegal in a relatively short time period.

Amortization provisions are perfectly legal and have been upheld by New York’s highest courts. As common sense would dictate and the law recognizes, property owners do not get to continue their nonconforming uses forever. As long as a municipality has a valid amortization provision, the property owner must abide by it.

What makes an amortization provision valid? One factor is that the time period, or event that triggers the end of the nonconforming use, must afford the property owner a reasonable period to recoup any investment he made in the nonconforming use. So, for example, if Greentree invested its own money in the structures built to house Metro Enviro’s waste transfer operation, it must be afforded a reasonable period to recoup that investment. (Presumably the income Greentree has been earning since the structure was built would count toward the recoupment period. It should be noted, however, that there is no evidence that Greentree invested any money at all – it may be that Metro Enviro LLC made the investment, and recouped it when it sold its assets to Allied.)

Our present Republican Board Majority and its myriad legal advisors are much too focused on litigation as the exclusive legal weapon of choice in the fight against a waste transfer station in the Village. That is very expensive and short-sighted. We also need to have legislation in place that provides additional offense and defense.

A reasonably competent Board Majority committed to eliminating the possibility of a waste transfer station might have considered what they could do as legislators to accomplish that aim.

Amortization is a superb first step, and I hope that Trustee Kane and Wiegman continue to advocate for it, and that the rest of the Board will direct their highly touted counsel to determine whether amortization would work for us, and if so, bring a proposed local law to the table quickly.



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