The qualitative vs. quantitative approach to nonconforming uses under section 52-61 of the New York City Zoning Resolution: the Toys case.

• Author: Whalen, Jonathan P.

INTRODUCTION

Governmental regulation of the uses of private land goes back as far as the earliest code of Roman law.(1) In the fourth-century B.C. the Romans adopted the Twelve Tables containing building site and construction restrictions.(2) In 1916, New York City ushered in the modern age of land use regulation with the first comprehensive zoning ordinance.(3) "The 1916 zoning resolution established two types of regulation: the separation of uses by districts and restrictions on the height, bulk, and area of buildings."(4)

Although land use regulations existed well before 1916, the authority of a municipality to institute such regulations was supported by the common law of nuisance.(5) By contrast, the development and passage of the New York City Zoning Ordinance was an extension of the City's police power.(6) In 1920, the New York State Court of Appeals upheld the ordinance as a "proper exercise of the [City's] police power" in Lincoln Trust Co. v. Williams Building Corp.(7) As a result, comprehensive zoning laws are now the norm throughout the country.(8) Every state has some form of legislation authorizing local governments to institute comprehensive zoning plans.(9)

In 1961, in an effort to secure more open space for the public at street level, the City completely revised the existing zoning resolution.(10) The new ordinance encouraged plazas, parks, indoor atria, and other areas which would give back a modicum of open space to the public, which had been lost during much of the period between 1916 and 1961.(11)

Another area of major concern to the drafters of the new ordinance involved the nonconforming use.(12) A nonconforming use is "[a] use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although it does not comply with the zoning restrictions applicable to the district in which it is situated.(13) The amended resolution of 1961 detailed the objectives of the revised regulations concerning the nonconforming use in a statement of purpose: "[t]he regulations governing non-conforming uses ... are therefore adopted in order to provide a gradual remedy for existing undesirable conditions resulting from such incompatible non-conforming uses."(14) The clear objective of the regulations was to "promote and protect public health, safety, and general welfare."(15)

Recently, the New York State Court of Appeals had an opportunity to resolve a statutory construction question of first impression in Toys "R" Us v. Silva;(16) namely, "what is the appropriate legal standard to determine whether a nonconforming use has been discontinued under the [New York City] Zoning Resolution?"(17) Section 52-61 of the 1961 Zoning Resolution provides that if substantially all of a nonconforming use for a building or structure is discontinued for the requisite two-year period, then that building or structure must thereafter be used only for a conforming use.(18) The intent of the landowner is irrelevant when determining if the nonconforming use has been discontinued.(19)

It is the thesis of this Note that the Court of Appeals missed an opportunity to protect private property rights in New York State. Part I of this Note begins by analyzing the nonconforming use dilemma. Part II discusses the factual background regarding the parcel of land involved in the Toys "R" Us decision, the controversy that gave rise to the litigation, as well as the lower court and Court of Appeals opinions. Finally, Part III analyzes and criticizes the Court of Appeals for using a quantitative approach and suggests that a qualitative approach to nonconforming uses is necessary under the New York City Zoning Resolution.

1. THE NONCONFORMING USE DILEMMA

   1. Zoning: A Primer

      The movement to reform the way communities were "planned"(20) began in earnest in the early part of the twentieth-century.(21) The concept of zoning arose as the ancillary to planning.(22) Zoning involves the division of land within a municipality into use districts and the imposition of restrictions upon the use of the land in those districts.(23) The power to "zone" a particular geographic area is not an inherent power of a municipal corporation.(24) Rather, the power of a municipal corporation to zone within its geographic boundaries is "derived from and limited by enabling acts passed by the state legislatures."(25) In dictum to a 1968 case, the New York State Court of Appeals described zoning in the following context:

      Zoning is not just an expansion of the common law of nuisance. It seeks to achieve much more than the removal of obnoxious gases and unsightly uses. Underlying the entire concept of zoning is the assumption that zoning can be a vital tool for maintaining a civilized form of existence only if we employ the insights and the learning of the philosopher, the city planner, the economist, the sociologist, the public health expert and all other professions concerned with urban problems.(26) In 1926, the movement to zone communities was given a major constitutional boost as a result of the landmark Supreme Court case Village of Euclid v. Ambler Realty Co.(27) The Village of Euclid was a suburb of the City of Cleveland, Ohio.(28) As a municipal corporation, the village possessed the power to, and indeed did, adopt an ordinance establishing a comprehensive zoning plan for the community.(29) The Ambler Realty Company owned a substantial piece of land in Euclid.(30) Because the new zoning scheme prohibited industrial and commercial uses, the company argued that the value of its property diminished, and thus, the ordinance deprived the company of property without due process of law, in derogation of the Fourteenth Amendment to the Constitution of the United States.(31) The Court upheld the zoning ordinance as a valid exercise of police power, asserted for the public welfare.(32)

      In determining whether a zoning ordinance is valid, the totality of circumstances must be weighed(33) and as such, "[a] regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities."(34) Consulting the law of nuisances for a proper analogy in Euclid, Justice Sutherland wrote that "[a] nuisance may be merely a right thing in the wrong place,--like a pig in the parlor instead of the barnyard."(35) The Court found that a comprehensive zoning scheme, like the one in question, can have far reaching benefits to the general public.(36) The exclusion of commercial and industrial buildings from residential districts would tend to improve the safety and welfare of the inhabitants of residential communities, especially children.(37) It would also facilitate fire prevention, reduce street congestion, and would make street repair easier and less expensive.(38) Euclid firmly established the constitutionality of comprehensive zoning and became the inspiration for many communities who adopted similar zoning ordinances.(39)

   2. The Euclidian Zoning Principle Applied to Nonconforming Uses

      As a result of the Supreme Court's decision in Euclid, communities across the United States began adopting what are commonly referred to as Euclidian zoning principles.(40) The basic premise of Euclidian zoning principles encourages communities to draw neat and rigid use districts so that no residence has a commercial neighbor, no retail business must tolerate the noise and pollution of industry, and industry may survive without the risk of unattended children and complaining householders.(41)

      The nonconforming use is the "inevitable byproduct" of such Euclidian zoning ordinances.(42) Areas within a freshly zoned community unavoidably contain existing uses which are contrary to the new scheme.(43) Instead of pursuing a full frontal attack on these nonconforming uses, which would force all uses of land to immediately conform to the zoning scheme as of the date of the ordinance, early drafters of zoning plans permitted existing uses to continue unfettered.(44) As an alternative, early planners chose to pursue a system of extensive regulation which they believed would cause nonconforming uses to gradually disappear.(45) For example, most zoning regulations contain sections which restrict "change of uses, alterations, repair or restoration of structures, and abandonment or discontinuance of nonconforming uses."(46) Despite the desire to end nonconforming uses, the early planners underestimated their resilience.(47)

      Ironically, early Supreme Court decisions held that a municipality could adopt retroactive land use ordinances that terminate an existing use. Reinman v. City of Little Rock(48) and Hadacheck v. Sebastian(49) upheld city ordinances which prohibited, retroactively, certain uses of land. The Court, in both cases, held that the ordinances were constitutional and did not deprive the property owners of property without due process of law, or deny the property owners equal protection of the laws.(50) Applying this rational to nonconforming uses, it would appear municipalities held the power to "apply comprehensive zoning ordinances to eliminate nonconforming uses retroactively."(51) Failing to act on this opportunity, early zoning ordinances protected nonconforming uses from immediate termination to avoid potential political problems.(52) It was feared public opposition to the termination of existing land uses might threaten the acceptance of zoning legislation in its entirety.(53) The window of opportunity would be closed in later years as the states and the courts forbade the retroactive elimination of the nonconforming use.(54)

   3. Nonconforming Uses in New York

      Nonconforming uses have enjoyed unanticipated longevity in New York and their treatment has generated an ever-expanding body of case law.(55) As stated earlier, most municipal corporations do not possess the inherent power to enact zoning laws.(56) The same is true in New York.(57) The zoning power of...