In Accordance with a Comprehensive Plan, the Need for Planning Consistency in New York State

Pace Environmental Law Review Volume 10 Issue 2 Spring 1993 Article 4 April 1993 In Accordance with a Comprehensive Plan, the Need for Planning Consistency in New York State Peter Q. Eschweiler Follow this and additional works at: https://digitalcommons.pace.edu/pelr Recommended Citation Peter Q. Eschweiler, In Accordance with a Comprehensive Plan, the Need for Planning Consistency in New York State, 10 Pace Envtl. L. Rev. 603 (1993) Available at: https://digitalcommons.pace.edu/pelr/vol10/iss2/4 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Environmental Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. PACE ENVIRONMENTAL LAW REVIEW Volume 10 Spring 1993 Number 2 In Accordance With A Comprehensive Plan, The Need for Planning Consistency in New York State* Peter Q. Eschweiler** Table of Contents I. Introduction ............................... 605 A. Examples of Conflicts and Usurpation .... 606 B. The Importance of Water to Westchester C ounty ................................ 608 * Except for minor editorial changes, this address appears as originally presented on February 19, 1992 at "Development Rights and Water Body Protection - Legal Solutions," a conference sponsored by the Real Estate Law Society of Pace University School of Law. ** Peter Q. Eschweiler, a member of the American Institute of Certified Plan- ners, recently retired from his position as Commissioner of the Westchester County Department of Planning, a post he had held for more than 22 years. During his term in office, the scope of the assignments of the department broadened to cover not only physical and long-range planning, but also housing, community development, environmental management, capital and facilities planning, and geographic information systems. Before joining the county planning department in 1967, Mr. Eschweiler served as a land use planning consultant to several Westchester municipalities. Since retiring from Westchester County service in June 1991, Mr. Eschweiler has served as consultant to the Professional and Technical Advisory Group of the New York State Association of Counties, the New York State Association of County Planning Direc- tors, and the Hudson River Valley Greenway. A native of Milwaukee, Wisconsin, Mr. Eschweiler was educated at Cornell University, where he received the degrees of Bachelor of Arts in Government in 1955 and Master of Regional Planning in 1957. 1 604 PACE ENVIRONMENTAL LAW REVIEW [Vol. 10 II. Traditional Land Use Planning .............. 609 A. The Role of Planners ................... 609 B. The Comprehensive Plan ............... 610 C. Guiding Development .................. 613 D. Planning and The Private Enterprise Sys- tem ......... ..... .. .. ...... .. ... .. .. .. 6 15 E. Planning and the Police Power .......... 616 F. Plan Implementation Devices ........... 617 1. The Zoning Ordinance .............. 618 2. The Drawbacks of Zoning ........... 619 3. Subdivision Approval ............... 620 4. Site Plan Review ................... 622 5. The Official Map ................... 622 6. Urban Renewal ..................... 623 7. The Capital Program ............... 624 G. One-Dimensional and Out-of-Date Ena- bling Statutes .......................... 628 III. The Westchester County Experience ......... 633 A. Adding the Third Dimension ............ 633 1. Mandatory Review at the County Level 633 2. Areawide Relationships in the Beren- son D ecisions ....................... 638 B. 3-D Planning Views of Westchester: What Worked? What Did Not? ............... 639 1. The Role of the Regional Planning A gencies ........................... 639 2. The County Undertakes a § 701 Study of Housing Needs ................... 642 3. The UDC Bombs out in Westchester C ounty ............................ 647 4. The § 701 Housing Needs Apportion- ment Study, and its Quick Death .... 648 5. The § 208 Areawide Water Manage- m ent Plan ......................... 650 6. Westchester Adopts a Housing Policy 654 7. Community Development Funds Come to W estchester .......... ..... 657 8. CHAS: The Comprehensive Housing Affordability Strategy ............... 659 https://digitalcommons.pace.edu/pelr/vol10/iss2/4 2 19931 PLANNING CONSISTENCY IN NEW YORK 605 C. Functional Transitions of Governmental P ow er ................................. 66 1 1. Health and Social Services .......... 661 2. T ransit ............................ 661 3. Sewage Treatment and Disposal Oper- ations ............................. 662 4. W ater Supply ...................... 663 5. Solid Waste Disposal and Environmen- tal Recycling ....................... 665 D. County Land Use Policy in a Home Rule C ounty ................................ 669 E. GIS: The Technology of Tomorrow's Plan- n in g .................................. 6 7 5 IV. State Level Growth Management Efforts ..... 678 I. Introduction The purpose of this colloquium is to examine, under the rubric of "water body protection," the rising tension between development rights and local planning, and the efforts to pre- serve water bodies and other natural resources. In giving vis- ual form to his premise, Professor Nolon has suggested that the traditional arrangement of planning and land use regula- tory authority is planar and horizontal, and that a number of the efforts to impose control over land use in the name of environmental protection are planar and vertical. With the in- tersection of two planes, the lines are drawn. This article presents a land use planner's view of the horizontal plane of the authorities, the powers, and the techniques for land use planning.1 It will comment on the need to 1. This article originally was prepared and delivered as a speech and appears as originally presented, except for minor editorial changes. It expresses over three de- cades of experiences and observations of the author and is not intended as an exhaus- tive legal document. For more specific citations and examples see generally PATRICK J. ROHAN, ZONING AND LAND USE CONTROLS (1977); ROBERT M. ANDERSON, AMERICAN LAW OF ZONING (1986); DANIEL R. MANDELKER, LAND USE LAW (1988); AMERICAN BAR ASSOCIATION, ADVISORY COMMISSION ON HOUSING AND URBAN GROWTH, HOUSING FOR ALL UNDER LAW (Richard P. Fishman, ed., 1978); THE PRACTICE OF LOCAL GOVERN- MENT PLANNING (Frank S. So et al. eds., 1979);DANIEL R. MANDELKER, MANAGING OUR URBAN ENVIRONMENT (2d ed. 1981); DANIEL R. MANDELKER, ENVIRONMENTAL AND LAND 3 606 PACE ENVIRONMENTAL LAW REVIEW [Vol. 10 add "3-D" - the third dimension - to this plane. It will list some of the changes that are occurring and their causes, draw- ing on examples from my experience in the Westchester County Department of Planning. Finally, the article will dis- cuss some of the efforts that are being made to coordinate these changes with a greater sense of common policy align- ment, at least in New York State. It is my premise, first, that there needs to be a mecha- nism in place to assure that any government that regulates matters affecting the use of land must have a plan for the most appropriate use of that land. Second, there must be a greater consistency between this plan and the plans of the other agencies at the same or other levels of government. Third, the plan must articulate that the implementation of the plan is necessary, that there is a predictable outcome, and that it is consistent with desired goals. A. Examples of Conflicts and Usurpation Professor Nolon, in his presentation at this colloquium, posed the following as examples of extraterritorial actions which are being taken or have been proposed in the name of water quality protection: Item. The State of New York would impose moratoria on development in areas tributary to Westchester's Long Is- land Sound sewage treatment plants, pending the im- provement of those plants to arrest the nitrogen buildup in the Sound.' Pathogenic pollution is not at question; it is CONTROLS LEGISLATION (1976). For discussions on zoning and land use in the context of New York State, see WILLIAM X. WEED & OSCAR L. WARREN, WARREN'S WEED NEW YORK LAW OF REAL PROPERTY (4th ed. 1993). Specifically, see vols. 3 (Land Use Regulations: Takings and Monetary Damages); 3A (Municipal Corporations); 4 (Public Housing); 5 (State Land Use Control); 5A (Urban Renewal); 6 (Zoning: Bulk and Design Regulations and Flex- ible Techniques; Zoning: Construction; Zoning: Nature and Authority). For further information regarding Westchester planning and for Westchester County planning documents, contact the Westchester County Department of Plan- ning, 432 Michaelian Office Building, White Plains, New York 10601, Tel. (914) 285- 4400. 2. For additional information, contact The Long Island Sound Study Office, Stamford Government Center, 888 Washington Blvd., Stamford, Ct. 06904-2152. https://digitalcommons.pace.edu/pelr/vol10/iss2/4 4 19931 PLANNING CONSISTENCY IN NEW YORK 607 the fertilization by treated sewage that is the complaint. Item. The City of New York proposal for extensive changes and stricter rules affecting development in the areas tributary to its water supply reservoirs in seven up- state counties, including the dictation of the permitted densities of development, in the interests of cost avoidance of water filtration plants.3 Item. Along the Hudson River, the Village of Tivoli con- siders establishing watershed rules and regulations that would give the Village power to protect its drinking

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