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Correcting Misconceptions About Croton’s Zoning Code

January 25, 2008

I had hoped not to get into the minutiae of zoning, but in a comment to my screed on the historical roots of Croton’s planning problems, “Just the Facts” exhibited a glaring level of ignorance about Croton’s zoning law and how it came into being. He claimed that I had said “zoning laws created the strip malls that populate Croton today.” I wrote nothing of the kind. From this erroneous statement, he projected that he was “not sure such conclusion is valid” and then added, “the question is whether or not zoning laws existing at the time these strip malls were built prohibited or restricted more traditional forms of development.” This latter statement does not recognize the prescriptive nature of Croton’s zoning code or that it has remained virtually unchanged over a half-century.

I burnt the midnight oil to write the following in the interest of correcting his misconceptions about zoning and to tell the history of Croton’s zoning code for those who are interested in the subject. As with the catchphrase, “Guns don’t kill, people do,” it can be said “Zoning codes do not create strip malls, people do.” I shall demonstrate the truth of the latter statement. “Just the Facts” does not appear to be familiar with Croton’s zoning code then and now, so let me explain them for him and other interested readers. Croton’s current zoning code is based on an off-the-shelf zoning code, adopted more than a half-century ago. About 90 percent of the original zoning code is still embodied in the present code. Many changes were superficial, such as changing formulas for calculating required parking spaces. I encourage him and others interested in zoning to read it on the village’s web site.

Euclidean Zoning Codes
Croton’s zoning code is a Euclidean zoning code. It takes its name not from the Greek “father of geometry,” but from the community in Ohio made noteworthy by a Supreme Court decision in 1926. This landmark case (Village of Euclid, Ohio. vs. Ambler Realty Co.) opened the door for communities across the United States to establish zoning codes. In fact, most of the zoning codes in the U.S. today are Euclidean zoning codes. Euclidean zoning is notable for its lack of prohibitions or restrictions on particular specific kinds of development. For example, Euclidean codes do not say, “Nail salons are permitted.” nor do they say, “Tattoo parlors are forbidden.”

Instead, Euclidean zoning is characterized by the division of land uses into specified zoning districts delineated on a plan or map. In the code’s text, dimensional standards place limitations on structures built on lots within each zoning district are provided. These typically take the form of setbacks, height limits, dimensional standards, such as minimum lot sizes, lot coverage limits, etc. that place limitations on the amount of development allowed to take place on lots within each type of district. Typical categories of land-uses in Euclidean zoning are single-family residential, multi-family residential, commercial, and industrial. Prescribed uses within each district usually exclude other types of uses (thus, residential districts typically disallow commercial or industrial uses). Some accessory uses may be allowed in order to accommodate the needs of the primary uses, such as home or professional offices in residential districts.

Euclidean zoning has been popular because it is straightforward and extremely effective. It is unusual in its ease of implementation—it provides one set of explicit, prescriptive rules without getting involved in whether a specific business is allowed or denied. Moreover, it has a long-established legal precedent, and architects, engineers, design professionals and planners are familiar with it.

14th Amendment Pitfalls
Under these circumstances, “Just the Facts” statement about Croton’s zoning codes “prohibiting or restricting traditional forms of development” does not apply, simply because it is not in the nature of Euclidean codes to place prohibitions or restrictions (other than safety regulations) on specific industries or businesses. To prohibit or restrict them would give the code the character of arbitrary fiat, and might invoke the question of constitutionality. The reason Croton’s Euclidean zoning code and others are worded in such a broad way is to avoid being challenged on the basis of the 14th amendment’s due process clause by a plaintiff who might show that the law is discriminatory and has no rational basis. Plenty of case law exists to support this. In 1928, the Supreme Court in Nectow vs. City of Cambridge (Mass.) overturned Cambridge’s zoning ordinance for violating the due process clause even though the city argued that its zoning was a reasonable extension of its police power.

Also important to an understanding of zoning, Euclidean zoning “laws” are made up of two parts: the zoning code itself and the zoning map of the community showing the areas allocated to each of the above-cited zoning districts. If “Just the facts” wants to ascribe “blame” for the presence of the three large strip malls and their outsize parking areas, it was the planners who drew the zoning map who were the culprits for permitting such large lots to be included on the zoning map in the heart of the village instead of at its periphery. How this came about is an interesting story: In the later half of the 19th century, the little community of Croton was essentially concentrated in a broad band extending from Grand Street to the river. South of the residences on the south side of Grand Street was a large, undeveloped area owned by John Cox, a prosperous brickyard owner.

When news of the building of the New Croton Dam was announced, Francis Larkin, a wealthy Ossining attorney, sagely bought large tracts of land in Croton and Croton Gorge, including Cox’s large swath of undeveloped land. Mr. Larkin had been Ossining village trustee, village president, justice of the peace, and Ossining town supervisor! He later built dormitories for dam workers, part of a small community called Larkinville. He died in 1902 at the age of 82. The former Cox property became part of his estate on his death, shared by his wife and six children. In the meantime, Croton had incorporated as a village in 1898. Its southern corporation line was at the northern limit of the Van Cortlandt lands, just south of and roughly parallel to Maple Street. Two sisters, the surviving Van Cortlandt heirs, later sold the northern part of their property south of the Croton corporation line (but not the southern area around the Manor House) to Clifford Harmon. This large area later became the site of the community bearing his name.

Zoning Comes to Croton
When, after World War II, the time came to impose a zoning code on Croton, planners found themselves with two main areas of downtown Croton to zone. The first area included the older residences and retail establishments in the north end of Croton (the upper and lower village) about which little could be changed. The other was the large and relatively undeveloped area between Grand Street and Harmon’s northern boundary. This former Cox/Larkin parcel was wooded with second-growth scrub trees and looked pretty much like the Katz property recently purchased by Croton. The Croton Historical Society displays postcards showing this undeveloped area. (Harmon had been absorbed by Croton in 1932, but with nothing to change in Clifford Harmon’s residential platting, planners only had to make sure that the text of the planning code accommodated its preponderance of small lots.

Without regard for the necessary balance between residential and commercial areas, the planners went overboard and designated both sides of Maple Street, South Riverside Avenue and Croton Point Avenue for commercial development. As a result of the Cox/Larkin property having been divided and sold off, this area contained two large tracts on Maple Street. What the planners failed to do on the zoning map was to impose the smaller lot divisions of Grand Street on the two large lots. Therefore, when strip mall developers came looking for available land they found the two large plots lying fallow in the newly zoned part of Croton and pounced on them. The ShopRite lot has a different history.

Meanwhile, Back at the Van Cortlandt Lands
The property that would eventually become home to the ShopRite was already in play when the Croton planning board expressed interest in its fate in 1953. In 1945, the Manor House and adjoining lands had been sold to Otis Chatfield-Taylor. For the first time in 280 years the land was not in the hands of a member of the Van Cortlandt family. A member of a socially prominent Chicago family, Mr. Chatfield-Taylor and his wife, the daughter of Russian artist Boris Anisfeld, lived in the picturesque Manor House in Croton. He had been a magazine writer, playwright and a Broadway producer, and was the editor of The Croton-on-Hudson News. On a cold January day in 1948, at the very gates of the Manor House, his automobile skidded into one of the Manor’s stone gateposts and overturned. Mr. Chatfield-Taylor, who had gone through the war as an ambulance driver with the American Field Service, died that night in Ossining Hospital on Spring Street.

Jerome Britchey, an attorney and trustee of Temple Israel of Northern Westchester, next bought the property from Mr. Chatfield-Taylor’s wife. He demolished the lovely Van Cortlandt barns on the west side of Route 9 and created the Starlite Drive-In Theater and a golf driving-range on the broad meadow. As soon as the drive-in theater opened in 1948, Croton officials became concerned for the future of the historic Manor House. Fortunately, in 1953, John D. Rockefeller, Jr., acquired the Manor House and 5.5 acres of land from Max Blitzer to whom Mr. Britchey had sold the Manor House parcel, and began the restoration of the buildings. Eventually, he acquired more land for a total of about 17 acres, guaranteeing the integrity of the historic site on the east side of the old Albany Post Road.

Nothing could be done about the indignities being wrought on the Van Cortlandt lands to the west. A bowling alley (Starlite Lanes) with 24 lanes was added in 1959 by a company headed by Sy Schwartz; the building was later incorporated into the ShopRite complex. The giant theater screen was located at the west side of the dusty plot, which had space for 500 cars. Sound was provided by loudspeakers hanging from posts throughout the parking area. Patrons could reach for a loudspeaker and suspend it from a partially opened car window. Two film showings were offered nightly, and refreshments were available from the Little Dipper snack bar. The drive-in closed in 1972. The contrast is still stark between the historic site on one side of the stub road created by the demolition of the former Route 9 concrete bridge and the other side, so garishly commercial.

Who’s to Blame?
So, if “Just the Facts” insists on ascribing blame for the existence of three strip malls, he can blame it in part on the local officials who, a half-century ago, neglected to draw the smaller lot lines on Croton’s zoning map that would have continued Grand Street’s traditional retailing pattern. Doing so would have kept the two strip malls on Maple Street out of central Croton. Planners could do little to prevent the ShopRite strip mall from coming into existence. The groundwork for it had already been laid with Jerome Britchey’s golf driving-range and drive-in theater and were beyond the reach of planners.

I’ll forgo responding to the empty questions from “Just the Facts” in the second and third paragraphs of his comment about my position on overly restrictive zoning ordinances. As he acknowledges, I have already stated my position. It is: “That government governs best that governs least.”

Finally, a word about the 2004 zoning amendment, a radical departure from Euclidean zoning, and one that risks being challenged under the due process clause of the 14th amendment. The narrow specificity of the excluded businesses was added to the 2004 amendment by local citizens rather than by zoning-savvy planners. A surprising change to a Euclidean zoning code, the reason the amendment has not been challenged is that Croton’s crazy quilt of seven separate retailing nodes makes this small and now backwater village a less-than-desirable location for many enterprises. Croton is like a painfully homely girl announcing to the world that she has no interest in getting married when the chances of anyone courting her are slim. Amateurs who tinker with the zoning cake mix (as was done in the 2004 amendment) by adding or removing ingredients should take personal responsibility when the cake “falls” in the oven.

— Businessperson

On January 25, 2008 7:01 PM, Just The Facts said:

Businessperson,

I am done mincing words with you. You are clearly one of those insufferable, condescending know it all types that no one can stand to be around. Perhaps the lack of interaction with other people explains why someone with the name of “businessperson” has so much free time on their hands that they can ramble off three excessively long articles in the past week. I actually find it funny the time you spent (wasted?) writing these articles. Not because they are not factually informative (although their conclusions are all wrong and contradictory), but because they won’t get the attention that they otherwise might because you chose to write them in your usual condescending and mean spirited tone.

Now as for substance:

1) Your argument is inconsistent and irrational. Your January 17, 2007 editorial states that “Croton’s First Fatal Mistake” was approving a strip mall because zoning permitted such a strip mall to exist. I actually agree with you on this point. But the question is do you, “businessperson” agree with your own point?

If you do believe that this was the “first fatal mistake of Croton”, then you believe that the village board in the 1950’s should have governed more (not less) by prohibiting the strip mall and imposing stricter zoning laws and regulations. So do you in fact believe that the Croton’s mistake in the 50s was that its zoning and board was weak?

If you do in fact believe that the fatal mistake was caused by weak zoning, how does this jive with your self admitted position “that government governs best that governs least”. As proven further by your irrational hatred of the Gateway regulations which prohibits big box stores, fast food and other arguably harmful retail in Croton. Your statements in the past would suggest that we compound Croton’s “first fatal mistake” by allowing such establishments to set up in Croton — further eliminating the small plot/main street flavor you seem to wish was preserved in the 1950s. If Gateway was eliminated wouldn’t it just mean that “businessperson Jr.” sometime in the year 2040 would post lengthy articles on Crotonblog bemoaning the elimination of Gateway as the reason that Croton’s decline continued and worsened in the past thirty years?

You can’t have it both ways businessperson. Either zoning should be strengthened or it should be weakened. If it is strengthened things like the strip malls would not have occurred, but then again this is not government that governs the least. If it is weakened, the village board has no teeth to prevent harmful development.

As a side note, I am beginning to think that I am the foolish one here for trying to make an irrational person see that their own statements are self contradictory. Its like trying to convince a crazy person that they are crazy. Needless to say, I see right through you and I would bet good money that most of the other readers on this blog see through it as well. (Let me guess, you are going to propose another stupid way of challenging my figure of speech).

2) I find it noteworthy that you still have not responded or even addressed the fact that you were entirely wrong from a business theory and practice point of view that the close proximity of competitive businesses is certain to lead to a reduction in business for existing businesses. It is precisely this close minded attitude of yours that I first found issue with. I believe we need to find businesses for Croton that draw people from other communities to shop in Croton. Croton has way to much commercial space for just 6,000 consumers. We need a reason for shoppers to come and shop here — such a reason could possibly be becoming known as the place with ten great restaurants or three great speciality food stores, etc.

So, “businessperson”, I have now provided you with plenty of ammunition for another long series of editorials. Thank me later for providing an anecdote for what otherwise would have been a long lonely weekend holed up in your residence without anyone to interact with because no one can stand your intolerable personality. I on the other hand will be too busy with my friends and family to pay any more attention to your pointless and contradictory mutterings.



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