Land use and zoning roundup

  • “NEPA Reforms a Big Step toward Correcting Worst Abuses of Environmental Permitting Process” [CEI on White House Council on Environmental Quality release of proposed revamp of National Environmental Policy Act]
  • Developer, relying on NYC’s own interpretation of zoning rules, puts up 668-foot tower. City: whoops, we’ve decided that wasn’t a good interpretation, here’s a new one. Judge: now lop off nearly half the building. What’s wrong here? [Rick Hills, City Journal] “Mom-and-pop shops ‘blindsided’ by de Blasio’s sign crackdown” [Melanie Gray, New York Post]
  • Challenge to Ohio town’s zoning ordinance limiting number of unrelated persons who can live together [Cato Daily Podcast with Maurice A. Thompson]
  • Tradeable rights for NIMBY objectors? [Peter Van Doren]
  • “Why the ‘Used Housing’ Market Should Be Like the Used Car Market” [Scott Beyer last summer]
  • “How California Environmental Law Makes It Easy For Labor Unions To Shake Down Developers” [Christian Britschgi, Reason] NIMBYs keep In-N-Out Burger out of Rancho Mirage [same]


  • As unfair as the result seems (and is, I guess) , I do not see the problem with the court’s interpretation of the statute. The court is correct. The statute is quite clear.
    The city, probably deliberately, was misinterpreting its own law all these years, and probably a bunch of people got rich as a result.

    • The problem, of course, is that the permitting process is supposed to merge all of those issues into the permit. Thus, the judge really shouldn’t be doing this.

    • The text of the zoning resolution (it’s not a statute at issue) is not at all clear.

      From the linked article.

      I taught statutory interpretation at NYU Law School for 15 years, I found it challenging to parse this language. How, exactly, does “unsubdivided,” which modifies “tract of land,” shed any light on “lots of record”? The idea that the meaning of these statutory tea leaves is “plain” enough to require a developer to reject the DOB’s contrary official opinion defies common sense.

      • “The problem: the developer received his building permit under an official guidance on the definition of zoning lots dating to 1978. That guidance may have been in error—the Department of Buildings (DOB) has since drafted, but not yet adopted, a new policy—but developers built 28 other buildings since 1978 in reliance on it.”

        The only problem I see is that this retroactive cutting off of the building is being applied to only a single one of the 28 mentioned buildings built under the noted interpretation. Sounds like there are 27 other buildings that need to be cut down to size. After all, if this one isn’t grandfathered in, why should any of the other 27 be? Otherwise, unequal treatment under the law.

        The best way to get bad decisions reconsidered is to make them stick…really stick, to everyone.

  • “Why the ‘Used Housing’ Market Should Be Like the Used Car Market”

    It’ can’t be, not completely. Housing, particularly single family housing includes both buildings and land. Buildings may depreciate over time, the way a car does, but land does not.

  • Mr. S, thank you for the correction. The “zoning resolution” looked to me a lot like what would be called, anywhere else, a zoning statute or local law, with implementing regulations.

    That being said, I read the court’s opinion, and, unless the judge distorted or left out something important in the text he was analyzing, I think he’s right.

    The unfairness of the situation is palpable, of course, and may leave the city with a problem to solve. Because there are so many existing buildings built under the former interpretation, it might be best for the city to try to find a way to settle this one out without chopping down the building. Not sure it can be done, but everything comes down to money doesn’t it?

    • “That being said, I read the court’s opinion, and, unless the judge distorted or left out something important in the text he was analyzing, I think he’s right.”

      He may be “right” as a matter of interpretation of the applicable law, but that’s a far cry from being right about tearing part of the building down. Ultimately, the legal issue is whether the people suing have a legally enforceable right to undo a permit validly issued and where actions have been taken in reliance thereof. The answer, as far as I can tell, and keeping in mind that we are talking about property rights here, the “permit violated the statute, so the building has to be fixed” decision seems woefully unsupported.

      All the law etc., it seems to me, merges into the permit.

      This decision seems to me to be judicial arrogance.

    • “would be called, anywhere else, a zoning statute”

      I don’t know where you are, but where I am (Wisconsin), a statute is state or federal law. Local laws would be referred to as ordinances and are passed by resolutions.

      Zoning is always local.

      • Thank you, Mr. S.
        In New York, at least on the local government level (town/village is what I am most familiar with) , a zoning law can be either an Ordinance enacted locally by the legislative body, or a Local Law, enacted by the legislative body pursuant to an entirely separate, broader, grant of power from the state, which must be filed with the NY secretary of state to be effective.

        New York City is a creature all on its own, of course, and I have not practiced there. Thus my imprecise use of terms.