Archive: Opinions

It has become increasingly clear in recent years that every decision our Town Board makes needs to be examined with the questions “what exactly are they proposing?” and “why are they proposing this?” foremost. The proposed amendments to Lansing’s zoning regulations are a perfect example.

Legal sources nationwide, town planning guides, historic zoning cases, and the Tompkins County Planning Department all have the same things to say:

1. Any activity that is permitted with a Site Plan IS permitted. The following is excerpted from the Massachusetts Citizen Planner Training Collaborative/Site Plan Review Module:

“In the special permit process, the full range of discretion is available to the special permit granting authority… The board is not compelled to grant the permit. On the other hand, the Supreme Judicial Court has defined site plan review as "regulation of a use rather than its prohibition . . . The Supreme Judicial Court has repeatedly distinguished site plan review from the special permit process in this manner.”

“In sum, site plan review can only be used to shape a project; it cannot be used to deny a project, except in rare circumstances.”

“Too many cities and towns confuse site plan review and special permits. The award of a special permit is completely discretionary. The difference is not subtle. A site plan review board lacks the power to deny a project, absent extraordinary circumstances, the likes of which have not yet been seen by an appellate court.”

“Therefore, it is crucial to review ordinances and by-laws with this limitation in mind. Uses available as of right, subject only to site plan review, cannot be stopped. If the use allowed as of right might take a form unacceptable to the community, the voters at Town meeting or on the City Council are well-advised to place the use on special permit status.”

This “not subtle” distinction is also affirmed by in a letter to the Town of Lansing from the Tompkins County Planning Dept. requesting modification of the Town Board’s proposed zoning amendments.

2. The Comprehensive Plan should be in place before any zoning changes are contemplated, as illustrated in the Pace U. Land Use Primer:

“The New York State Court of Appeals noted in Udell v. Haas that ‘the comprehensive plan is the essence of zoning. Without it, there can be no rational allocation of land use.’ Indeed, the statutes require that all land use regulations must be made ‘in accordance with a comprehensive plan.’ Therefore, planning should precede any adoption or amendment of a land use regulation.”

In their attempt to amend Lansing’s zoning regulations, the Town Board dismisses the first of these rulings, and ignores the second. If the Town Board’s revisions are enacted, Lansing’s rural residents may end up with some very different new neighbors:

Retail sales, general: food, clothing, furniture, floor covering, hardware, variety, lawn and garden, supply, pets and similar goods and items, paint - Permitted - Can you say Walmart or kmart. [And they’re not even a good source of tax revenue - these stores have a proven history of costing towns more in police time and manpower than they pay in taxes.]

Commercial recreation: outdoors - Like the Broome-Tioga Sports Center? - Described in an article in “Ithaca.com” as - “20,000 spectators, hundreds of acres of parking” (with night-time concerts, and it’s still growing.) And with the taverns and restaurants, convenience stores, gas stations, dealerships, repair shops, and other recreational businesses desired by thrill-seeking visitors, what would be left of rural Lansing?

Truck or motor freight terminals (farm related activities only) are Permitted. The “farm related” condition is so vague that it’s open to almost any interpretation, and any refusal of permit could certainly be challenged in the courts. [And do you think our town government would spend the money for court costs to protect its rural residents?]

24hr Mini marts and gas stations - are both Permitted. These locations are notorious meeting grounds for drug dealers, drug addicts, and the people that buy the stolen goods that support their habit. And the frequently isolated residences of the RA district would make homeowners easy prey in Lansing’s sparsely patrolled rural areas.

Among the other commercial and industrial activities that the Town Board wants changed to Permitted uses in Lansing’s Rural Agricultural District:

Retail sales of industrial or agricultural equipment or supplies; “Mini” commercial warehouses for self-storage; New and used car sales including garage service and repair; Car washes; Sale of plumbing, HVAC, electrical supplies and equipment; Self Service Laundries; Business offices; Banks; Warehouses for storage or wholesaling of nonagricultural goods or materials; Commercial assembly plants; General processing plants, light manufacturing and assembly; and Scientific research laboratories (hopefully not Ebola.)

Not only does the Town Board intend to permit a wide range of formerly restricted commercial and industrial enterprises, they’ve even created new ones:

#15. Storage Unit/ Containers - Lansing’s RA district is the only place where it’s permitted, even commercial and industrial zoning districts require Special Conditions to be fulfilled. Why is this new land use, which allows any number of “Structures including, but not limited to, commercial transport trailers (with or without wheels attached), truck boxes, and container boxes” permitted only in Lansing’s Rural Agricultural zone?

#43. Contractor’s/Landscaping Yard - this RA permitted use allows the storage of any amount of building, landscaping or construction material, machinery or vehicles in “any space whether inside or outside a building” and yet this use is definitely NOT permitted in either the Residential Mixed Use or Commercial Mixed Use zones.

In fact, the only commercial or industrial activities which will not be permitted in the Rural Agricultural zone and will be permitted anywhere else in Lansing are a “solid waste recycling or transfer station” and a “junkyard,” both of which will only be allowed in the Industrial zone, and even then, only with a Special Permit.

A planner in another town in Tompkins County, who declined to be quoted due to conflict of interest, agreed wholeheartedly that these zoning changes would leave Lansing vulnerable to exactly the sort of unchecked commercial and industrial development I have outlined above, and added that Lansing is known as a town with a group of people who want no zoning restrictions whatsoever to be placed on their activities.

A July 16, 2014 letter from Tompkins County Commissioner of Planning, Edward C. Marx, to Lansing’s Deputy Town Clerk has this to say regarding these same proposed amendments:

“The Department has reviewed the proposal, as submitted, and has determined that it may have negative inter-community, or county-wide impacts as described below. We recommend modification of the proposal.”

“Proposed Section 501.4, related to the Code Enforcement Officer's discretionary classification power... could result in the alteration of allowed uses in various zoning districts without any review by the Town Board”

“Site Plan Review is not a discretionary review in the same way that Special Use Permit is. If standards for site development are met it is expected that the activity will be permitted.”

“Some of the land uses allowed in the Rural Agriculture (RA) district appear to run counter to the Town of Lansing Comprehensive Plan (2006)”

And the Commissioner’s final comment:

“Given the Town is in the midst of updating its Comprehensive Plan it would be more appropriate to explore updates to the zoning code after that effort is complete. Proposing changes at that point, tied to recommendations of the plan, would ensure that changes are aligned with the community's vision.”

The letter ends with the request:

“Please inform us of your decision so that we can make it a part of the record.”

***Three months later, the Town of Lansing has not sent formal notification of any modifications to their proposal***

Why is the Town Board still trying to push through these sweeping changes to Lansing’s zoning regulations before a Comprehensive Plan is completed and approved by residents? Perhaps the answer lies in what these changes are, and who will really benefit. Don’t be lulled by obfuscations and statements designed to minimize the impact of these proposed changes. County and local planning professionals agree - these are MAJOR changes to our zoning regulations - don’t allow them.

Show up at the October 15 meeting and express your opposition to the proposed zoning amendments, and more importantly, do it in writing with letters and petitions. The New York State “Guide to Planning and Zoning” outlines the procedure for modifying the vote needed to approve amended zoning:

§ 265. Changes.

1.    Such regulations, restrictions and boundaries may from time to time be amended. Such amendment shall be effected by a simple majority vote of the town board, except that any such amendment shall require the approval of at least three-fourths of the members of the town board in the event such amendment is the subject of a written protest, presented to the town board and signed by:

(a)     the owners of twenty percent or more of the area of land included in such proposed change; or

(b)     the owners of twenty percent or more of the area of land immediately adjacent to that land included in such proposed change, extending one hundred feet therefrom; or

(c)     the owners of twenty percent or more of the area of land directly opposite thereto, extending one hundred feet from the street frontage of such opposite land.

Will opposition from Lansing’s residents cause these proposed zoning changes to be modified or even withdrawn? Possibly, but only temporarily - there’s far too much money involved for this proposal to ever, really, be taken off the table.

Sincerely, Doug Baird
Lansing, NY
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