The Village’s Comprehensive Plan lays out new directions for the Village. Changing land use over time to accommodate the Village’s future needs careful preparation. Fortunately municipalities have a number of tools available to effect change —3 hammers if you will—with which to build. These tools include (1) using eminent domain, (2) establishing local development corporations, and (3) amortizing out unwanted uses.
Eminent domain involves the purchase of private property for public use. Local development corporations involve public-private-nonprofit partnerships for a specific area. Amortization is the subject of this note. The Village of Croton-on-Hudson “Zoning Map” is available in PDF format here.
What kind of local legislation could remove an undesirable and non-conforming land use? Zoning amortization can terminate undesirable land uses. Municipalities use amortization to quicken the demise of buildings, uses or signs that are deemed nonconforming or potentially harmful.
In Minority Report #1 (see: “Quickening the Demise of Harmful Land Uses”), we briefly described how other NY villages and towns use amortization. Well-crafted local legislation may reduce both the likelihood of future lawsuits and produce desirable land uses at lower out-of-pocket costs.
How does amortization work? If we pass a local law adopting amortization for a specific land use, we would determine a period of years over which that use would be fully amortized. At the end of that period, any such land use would cease, legally and without compensation to the operators or owners. After such an amortization period, the owner of the land would have to change to a conforming land use that fit into the existing zoning.
How do we find out more about zoning amortization? The two resources (See URL links at bottom) assess the benefits and potential pitfalls of adopting amortization for non-conforming uses. (We have numbered today’s enclosures as Appendix 3 and 4, to avoid confusion with Appendix 1 and 2 of our prior Minority Report #1.)
In Appendix 3, The American Planning Association offers detailed commentary on the federal government’s ‘Growing Smart” initiatives, including about 20 pages on amortization. The APA analysis is frank: “Amortization has long been a controversial land use regulation technique, as owners of nonconforming uses can claim that the removal of a nonconforming use at the end of an amortization period, without compensation, is unconstitutional.” (APA, page 8-112)
The heart of this excerpt is section 8-502 of the APA’s 2002 Legislative Guidebook. It describes specific municipal code considerations for amortization for non-conforming uses, including how to determine amortization periods. The APA chapter goes on to point out, “Most amortization provisions in zoning ordinances fall into two categories. In the first category, an ordinance adopts a fixed time period for the amortization of particular nonconforming uses, such as billboards. At the end of the time period, all nonconforming uses in existence at the time the amortization ordinance was adopted must terminate. The second type of amortization provision applies amortization on a case-by-case basis. The ordinance contains criteria that the legislative body or another official applies on a case-by-case basis to set an amortization period for nonconforming uses. If a nonconforming user does not agree with the decision on the amortization time period, it can challenge the decision in court.”(APA, page 8-119)
In Appendix 4, planner and attorney Margaret Collins examines numerous methods for choosing how to set the amortization periods for non-conforming uses. She discusses the benefits and pitfalls of several different economic methods employing fair market value, replacement cost of premises, owner’s investment, and recoupment of costs. Collins notes, “Fixed amortization periods are appropriate for non-conforming uses with little or no investment in construction as well as for those in conforming buildings.”(Collins, page 233)
On the difference between setting fixed periods versus adopting a case by case approach, Collins writes, “Although it is more complicated than setting fixed periods for categories of uses and structures, customizing the above approach to each individual case should maximize judicial approval of amortization periods and minimize spurious claims that specific amortization periods are arbitrary and unreasonable. Amortization periods based on the return-on-investment analysis have the added advantage of being shorter than amortization periods based on the economic life of the nonconforming structure, thus eliminating the nuisance occasioned by the use sooner than would fixed periods.”(Collins, pages 234-235)
The analyses of amortization below about controlling non-conforming land uses may help our residents and the village, planning and zoning boards explore legislative options. Revising our village’s amortization code may be a better solution than relying solely on the discretion of the courts and the labor of numerous attorneys.