In recent months, the Village of Sag Harbor and the Village of Patchogue enacted moratoriums aimed at halting large-scale residential development, and in Patchogue’s case, including multi-family residential development. Both Villages learned that enacting moratoriums is not only subject to referral to the Suffolk County Planning Commission (“SCPC”) pursuant to General Municipal Law § 239-m but also, moratoriums can be subject to intense scrutiny by constituents and other governmental agencies, such as the SCPC.
What is a Moratorium?
Moratoriums, a word that brings angst to landowners and developers, are used by municipalities to temporarily control development while they study and potentially adopt changes to their comprehensive plans or to their land use regulations. Often described as a means to preserve the status quo, a moratorium can halt all development in a community or can be tailored to a specific land use or aimed at a specific zoning district. Moratoriums can include exemptions that allow some development to continue. For example, a municipality may exempt applications that have already been approved but not yet started.
Municipalities adopt moratoriums for several reasons: (1) prevent a rush to develop; (2) prevent inefficient or impractical growth; (3) address new types of land use not currently covered by their comprehensive plans or land use laws; (4) prevent hasty decisions that could adversely impact landowners, developers or the public; and (5) prevent construction that may be inconsistent with a future land use plan. If a municipality adopts a moratorium, it should make sure it is temporary, is for a reasonable time frame, has a valid public purpose, balances benefits and detriments of the moratorium, adheres to the procedure for adoption of local laws and ordinances, and contains a time certain when it expires.
Sag Harbor’s 2015 Moratorium Did Not Comply with GML § 239-m
The Village of Sag Harbor enacted an 180-day moratorium on July 14, 2015, that temporarily suspended the Village’s authority to process and/or grant approvals for building permits for certain one-family detached dwellings. The moratorium was triggered by the recent development of one-family homes of “a size and scale that are inconsistent with the historic and rural character of the Village” and conflict with the purposes of the Zoning Code. Id. In other words, the Trustees were concerned about the explosion of McMansions being built in the community.
The Village wanted time to consider gross floor area requirements and enacted the moratorium to preserve the status quo and avoid overburdening Village planning staff and boards. The moratorium contained an exclusion that allowed the construction of homes that had been issued building permits before June 9, 2015. It also allowed homes not exceeding 3,500 square feet to be constructed on lots of 20,000 square feet or less, or not exceeding 5,000 square feet on lots larger than 20,000 square feet. It also excepted from coverage, alterations or improvements to existing one-family detached homes that did not constitute “substantial improvement.” Id.
Although this moratorium was filed with the New York State Department of State, news reports note that constituents, unhappy with the moratorium, argued that the Village did not refer the moratorium to the SCPC for a determination of regional significance as required by GML § 239-m. That could have been fatal to the moratorium.
Sag Harbor’s 2016 Moratorium Did Comply with GML § 239-m
On January 12, 2016, the Village of Sag Harbor enacted a local law that put in place “temporary interim building restraints on building permits for certain one family detached dwellings pending the conclusion of the Planning Update and SEQRA Process for the enactment of permanent regulations for development and redevelopment of residential dwellings.” Id. The 2016 local law states it replaces the previously-enacted July 2015 moratorium and will be in place until permanent rules are adopted. According to news reports, this local law was referred to the SCPC and that the SCPC determined it was not of regional significance. The Village also filed the 2016 local law with the New York State Department of State
Like the July 2015 moratorium, the 2016 local law contains exclusions. Any application that received an exemption under the 2015 moratorium and any application that meets the interim development standards in the 2016 local law are excluded from the restraints contained in the 2016 local law. Whether the 2016 local law results in a construction boom of single family detached homes using the interim building restrictions or turns out to be, in effect, a moratorium, remains to be seen.
Patchogue’s 2015 Moratorium Complied with GML § 239-m But Was Met With Harsh Criticism
Since 2008, the Village of Patchogue has been a pioneer in land-use revitalization and redevelopment. The Mayor reports that more than 600 people have moved to the 2.2 square miles comprising the confines of the Village. Population estimates are said to be in the range of 12,500 people. However, along with these pioneering efforts to rebuild and revitalize the Village’s main street and to promote multi-family downtown living, the Village is experiencing parking, traffic. utilities and general health, safety and welfare obstacles.
In response to the housing explosion, in 2011, the Village enacted its first 180-day moratorium on new apartment houses, garden apartments, townhouses, residential uses and buildings over three stories in certain of its zoning districts, including all floating zones. Id. At that time, the SCPC approved the moratorium upon condition that (1) the Village investigate whether there are less burdensome alternatives to the moratorium and (2) the production of hard evidence supporting the necessity for the moratorium.
In 2013, the Village once again requested an 180-day moratorium on change of use, an increase in the intensity of use or an increase in occupancy in the D-3 Business District to meet the parking requirements set forth in the Village Code. The SCPC, although reluctant to grant another 180-day moratorium, approved the referral. Id.
In 2015, for the third time, and now reaching a moratorium of 540 days, the Village requested a further 180 day moratorium to provide Patchogue with time to evaluate and consider the impact of multi-family housing on parking, traffic, health, safety and general welfare toward a “carefully considered comprehensive plan.” Id. Although the SCPC staff report recommended disapproval of the Village’s request finding that the Village had not moved forward with a plan despite the prior moratoriums; the SCPC granted Patchogue’s request following a meticulous and careful recitation by the Mayor detailing the pioneering efforts and overall success of the Village’s efforts to revitalize an otherwise stagnant downtown.
The Village of Patchogue is in many ways a trailblazer and a model for downtown revitalization and multi-family development. However, as any trailblazer knows, growth and divergence are never easy or without criticism. Although Patchogue followed the proper procedure in referring its moratorium request to the SCPC, all eyes will be on the Mayor and the Village to ensure that this moratorium, will, in fact, be the last.
It would be wise for all municipalities to take note of the Suffolk County Planning Commission’s developing scrutiny in connection with multiple requests to extend moratoriums. The Commission’s comments are a reminder of the importance to seriously consider the impact of land use development, of whatever kind, on the municipalities’ overall ability to (1) serve land owner’s desires to develop their property and (2) the municipalities’ ability to serve those development needs as they apply to nature and character of the community, parking, traffic and the overall health, safety and general welfare of the community.