In our editorial of July 21, we argued that wrongful takings lawsuits resulting from ordinances prohibiting high-impact industrial use have little chance of succeeding, and that, therefore, we are unlikely to see more than one or two such suits in local towns that adopt such ordinances. In a letter to the editor in the August 4 issue, Lumberland, NY resident Charles Petersheim presented a counterargument that we consider to be worth addressing: that even one lawsuit, if you happen to live in the town that draws the short straw, might be too much to ask of the residents of a small, low-income rural town.

The good news for towns considering the high-impact industrial use prohibitions—which currently include Lumberland, Tusten and Highland—is that there is another line of defense. It is contained in the use variance sections that the Community Environmental Defense Council (CEDC) has crafted in constructing its zoning package (see section 7.5 for Lumberland, 11.3 for Tusten). As constructed, these provisions spell out a legally rigorous methodology that the town can employ on a case-by-case basis to review complaints from landowners that such zoning prohibitions are too restrictive. The provisions should allow the towns either to avert a lawsuit in the case where the applicant’s claims have merit, or to ascertain accurately their lack of merit and the speed with which they are likely to be dismissed.

In general, New York State law requires that a court may not properly consider a wrongful takings lawsuit against a municipality unless the landowner has sought and been denied a use variance by the town Zoning Board of Appeals (ZBA). And under the state law, there is a strict series of conditions that must be met in order for a use variance to be granted.

First, the landowner must demonstrate that the zoning ordinance results in an unnecessary hardship, namely, that the landowner has been left with land that has little or no value with regard to any purpose for which the land could be used (and not just the high-impact industrial use in question). The proposed zoning ordinance sets forth both this and the other criteria that the courts have held must be satisfied in order to establish a wrongful taking, including that the hardship in question must impose a unique burden on the applicant and that the landowner’s hardship may not be self-created.

The zoning ordinance requires that a landowner who applies for a use variance must provide detailed information to the ZBA that demonstrates that these conditions have been met. An applicant for a use variance will, in effect, be required to provide the town with the very same evidence that would have to be presented in court in order for the applicant to win the case. This parallel between legal precedent and the way the use variance section has been constructed means that, in cases where the applicant cannot meet the conditions specified in the zoning ordinance for a use variance, he or she would also be unable to meet the standards demanded by the courts in order to demonstrate a wrongful taking. So the ZBA will, on a case-by-case basis, be in a position to make highly accurate judgments as to which applications would pose a substantial legal danger to the town, and ought to be handled by granting a use variance.

We would recognize one caveat here: it seems to us that these use variance provisions are only likely to be as effective as the ZBA that is employing them. Accordingly, it might be advisable to arrange for some kind of training for ZBA members, and towns might also consider providing access to legal counsel to the ZBA as it considers a use variance application of this type.

The decision to take any action, personal or public, involves a balancing of risk and reward. Few actions—perhaps none that have important consequences—are entirely without risk. The reward at stake in the zoning ordinances being considered by Lumberland, Tusten and Highland is the assertion of a democratic principle, home rule, and the commitment of an area’s residents to determine the quality of life in their own neighborhoods—not to have that quality determined for them by big business in collaboration with higher levels of government. The risk is not quite zero, but the careful crafting of the ordinances takes it low enough that we do not think it is too much to ask of citizens who value the character of their neighborhoods and their democratic rights.