Staten Is. zoning minefield blocks housing.

Staten Island is often called the borough of homeowners. It has benefitted from a great deal of residential new home construction over the last three decades, principally after the construction of the Verrazano Narrows Bridge.

The South Richmond section of Staten Island, basically that area to the south of a line roughly running along Arthur Kill Road and Richmond Road, was the subject of a rather controversial planning "war" in the early 1970s, the result of which was the enactment of the Special South Richmond Zoning District as part of the Zoning Resolution. The rules that builders have operated under in the South Richmond District were, for a long period of time, even-handedly and consistently interpreted and applied. Unfortunately, this has recently changed. Therefore builders, who in response to rising demand for homeownership in South Richmond purchased vacant land expecting to find a small housing gold mine, instead, are finding themselves trapped in a zoning minefield.

Suddenly, 18 years of consistency in zoning interpretation policy has exploded before the homebuilders' eyes, as as-of-right entitlements are being reinterpreted so as to require discretionary approvals.

Until recently, the Staten Island homebuilders could always rely on applicable zoning regulations contemplating the as-of-right removal of trees and alteration of topography in South Richmond. Section 107-321 of the Special South Richmond Zoning District zoning regulations allows tree removal on an as-of-right basis, if the tree is less than 6 inch caliper, or the tree is "located in areas to be occupied by buildings, driveways, areas for required accessory parking, or within a distance of eight feet of the exterior walls of such buildings, provided that it is not possible to avoid such removal by adjustments in the arrangement of such buildings, driveways or required parking areas."

Section 107-312 of said South Richmond zoning regulations allows topographical alterations on an as-of-right basis, if the topographical alteration concerns not more than 2-feet of cut or fill, or if it is "in an area designated for building foundations, driveways or utilities for a proposed building .. [or is done] in order to meet the legal mapped grades of a street."

In effect, the above quoted as-of-right zoning controls enabled the builder to place a house in its customary position within the middle part of a lot, and remove the affected trees or alter the affected topography in conjunction with such house configuration on an as-of-right basis.

If the builder desired a separate zoning lot for each house (as distinguished from several houses on one zoning lot), complementary subdivision controls were available. Section 107-08 of said South Richmond zoning regulations allows, by way of City Planning Commission Certification, the subdivision of a zoning lot, "provided that the existing topography and all individual trees of 6-inch caliper or more ... to the greatest extent possible are preserved under future development options."

Those subdivision controls had always been intended and consistently interpreted by the City Planning Commission so as to dovetail with the tree removal and topography alteration regulations explained above. In other words, a builder always knew that the tree removal and topo modifications remained as-of-right as allowed under 107-312 and 321. It was only outside of the as-of-right area where the Planning Department would impose itself. Thus, customary house placement within the middle part of a lot - reflecting marketability to a prospective homebuyer and feasibility to a homebuilder - had always been the fundamental determinant of the "future development options" under consideration in the alteration normally associated with such customary house placement. This was always considered acceptable for the purpose of subdivision approval.

But starting in 1992, after hundreds of housing subdivision development projects under the above-explained standard, the Department of City Planning dropped an interpretive bombshell. All of a sudden, without any written memorandum, notice or policy change or rule-making procedure, the frame of reference shifted from customary house placement to maximized tree and topography preservation, without regard to the as-of-right provisions of 107-312 and 321.

Essentially, this meant that, in the eyes of the Planning Department, tree and topography preservation was the paramount or near-paramount consideration, even if it reduced the number of housing units or amount of housing floor area substantially below the as-of-right entitlement, or caused the placement of houses in inappropriate locations (such as the space ordinarily reserved for a rear or side yard). Consequently, no Staten Island homebuilder today can purchase vacant land in South Richmond for subdivision with any certainty as to its development potential, or the time it may take to have its application even reviewed - it all depends on the subjective and sometimes arbitrary, capricious and always lengthy view of the Planning Department.

Zoning regulations which subject all possible development to discretionary (non-as-of-right) public approvals are legally precarious, since they depend on the contingencies and exigencies of administrative actions. In several leading cases, the courts have found or implied that such regulations amount or can amount to an unlawful taking of property without just compensation or deprivation of property without due process of law.

But, putting the legality of such actions aside, the Planning Department is costing the public big money. The actions or inactions of the local Planning Department in delaying approvals and/or in applying a newly interpreted set of rules to what previously had been time-honored policy, and, in fact, what most practitioners would have considered black letter law, have substantially increased the cost of housing to the public.

Today, almost any substantial housing development project in South Richmond will probably require Zoning Lot Subdivision Approval. If the Planning Department continues its present policy, there will be untold delays and substantial increases in the cost of affordable housing in South Richmond.

A particular problem is that, since no one can rely on a consistent application of what the building and planning community had previously thought to be the law, there is no way to make a reasonable decision concerning how or to what extent any particular parcel can be developed. The ability of a rational business person to make good decisions in South Richmond has been all but eliminated by current Planning Department policy.

The irony of it is that the most dense type of housing, townhouses and condominiums, which do not require a Zoning Lot Subdivision Certification, can, more often than not, be built without having to deal with the newly imposed tree and topography interpretations. The result is that many builders have and will continue to shy away from the planning of developments that are more aesthetically pleasing and contextually consistent with the suburban atmosphere of South Richmond, in order to avoid the Planning Department's interpretation of the law. These developments, by their very nature, require more tree and topographical removal and modification, all still as-of-right.

Unless the City takes immediate action to defuse the problem caused by the Planning Department's actions, the ability of the housing industry in Staten Island to reflect the needs of the marketplace and build the kind of homes that the public and existing communities want, will be blown away.