An Open Letter: Supervisor Hoehmann Urges Governor Hochul to Reject New State Zoning Bill, Preserve Home Rule

Clarkstown Supervisor George Hoehmann is apprehensive that a bill introduced in the New York State Assembly could prevent his town and other municipalities from enforcing their own zoning laws.  We thought it best to let the Supervisor speak for himself on the issue, and have republished his letter to the Governor below.

Dear Honorable Governor Hochul: 

On behalf of the Town of Clarkstown, I am writing to express our vehement opposition to the proposed NYS Assembly Bill 4854 regarding residential Accessory Dwelling Units. 

First and foremost, this legislation as proposed is a gross violation of Home Rule under the New York State Constitution. Home Rule provides that all zoning is delegated to the local level. The basic foundation of the Home Rule philosophy is the understanding that the most local level of government is in the best position to know and address the issues facing the community. This proposed legislation effectively strips local municipalities of residential zoning control and places the authority at the highest level of government. The Town of Clarkstown fully intends to defend its constitutional rights, up to and including challenging this matter in court should this bill be passed into law. 

Constitutionality aside, there are a number of deeply troubling issues with this legislation which would have tremendous negative impacts on health and safety, the environment, and quality of life. The Town of Clarkstown, therefore, offers the following comments: 

1. The proposed legislation completely bypasses the New York State Environmental Quality Review Act (SEQR). With 20,694 detached single family homes, the Town of Clarkstown could easily double in density with zero environmental impact safeguards. Combined with the elimination of zoning provisions restricting Floor Area Ratio, setbacks, and lot coverage, passing this legislation is an environmental disaster in the making. With a median household of 2.9 persons, the Town of Clarkstown alone could grow by 60,000 additional people or a 70% increase in population without a single environmental Accessory Units under this proposed law do not count against density or Floor Area Ratio requirements. Has the State considered the environmental implications of the increased demand in emergency services, utilities, sewage, stormwater mitigation, school enrollment, traffic, etc
2. Municipalities cannot require more than 1 exterior access by door. During a fire these apartments will only have one easy way out. For units in a basement, an egress window will likely derground, making it particularly difficult for anyone, especially the elderly and handicapped, to escape in an emergency. As we have recently seen with Hurricane IDA, at least 11 people died in New York City basement apartments due to the flooding. This legislation would create the same reckless and dangerous conditions that resulted in the loss of life on a massive, statewide scale. 

3.  This legislation stipulates that the primary homeowner only has to live in the house for 1 year. This short duration can easily lead to thousands of situations where a former single family home is converted into a 2 family apartment building with absentee landlords. This can easily encourage wealthier individuals to run multiple rental properties that can easily fall into neglect and disrepair.. The proposed legislation says municipalities cannot require any rear or side setback greater than 4 feet. If enacted, two houses which added accessory units next to each other could have a mere 8 feet between the structures. This is highly insufficient space to fight a fire and greatly increases the likelihood of having a fire jump from one structure to another. 
4.  This law calls for a maximum ceiling height restriction of 7 feet. This eases the conversion of basement areas into apartments, which combined with other restrictions, makes reaching residents in a fire or other life threatening emergency much more difficult. 
5.  Municipalities will be facing a parking crisis if this law is enacted. This legislation stipulates that no additional parking requirements can be mandated, even when a garage is converted. This means a homeowner could construct an apartment that would not only eliminate parking for themselves, but also for the tenant. That shifts parking on–street, thereby hampering emergency vehicle access. Clarkstown, like most other suburban towns, restricts overnight parking in the winter months to accommodate for snow plowing. This will be a nightmare for every municipal highway department, EMS, and police department in NYS. In Clarkstown alone, as an example, every single family home that is converted could add 4 vehicles (2 for the homeowner and 2 for the tenant, on average) onto the street. 

7.  Any municipality is already free to implement any and all of these provisions if so desired. Any such development would be subject to SEQR review at a minimum. Rather than dictate a Draconian mandate that violates the constitution, the State might consider an incentive program for municipalities to adopt a modified version of this legislation. If this were done, municipalities could study the local impacts which they are in the best position to identify and mitigate. 

These are just the highlights of a host of concerns and objections the Town of Clarkstown has identified in a precursory review of the proposed legislation. Should the Town attempt to create ordinances that seek to remedy these concerns, this legislation explicitly states that the State will sue to prevent any changes. 

The Town of Clarkstown understands the State‘s desire for more housing units and greater affordability, but superseding local authority on property development as proposed is an undeniable threat to public safety and our environment. 

Most importantly, the Town of Clarkstown finds this bill to be outright unconstitutional. To quote directly from the NYS website, “The home rule powers enjoyed by local governments in this state are among the most advanced in the nation. By recognizing the extent of their powers and by continuing to exercise them, local governments can best avoid the erosion of such powers. In this fashion, local governments will not only serve the needs of the people, but will strengthen state local relationships as well.”