The Use of Upzoning on Long Island

Land use across Long Island is so diversified, that one can travel fifty miles west to east and be in an area with population density of 4,500 people per square mile to 300. This disparity of density is due to land use and development patterns that vary across each municipality on Long Island. In an effort to combat the sprawl that manifested in the post war years, municipalities have “upzoned” certain parcels in order to limit their potential for spawning more growth. 

Upzoning is defined by traditional planning circles as “change in the zoning of a tract or parcel of land so as to intensify its usage. An example would be a change in zoning so as to increase the number of units allowable per area unit.”[1] Intensifying the number of units allows greater density or commercial uses.
However, in certain regions (such as Long Island), applications of upzoning do not serve to foster growth, but to limit it. In these instances, “…the term is used to mean the opposite -- changing the zoning in a broad area to limit growth and density.”[2] It is this definition of upzoning that is most applicable to Long Island. 

Commonly, the practice of decreasing allowable unit yield is referred to as “downzoning”. In New York City, many outer borough neighborhoods were downzoned to preserve the density and charm of certain neighborhoods. Contrast this to Long Island, where upzoning refers to the increase in size of a development lot, say, from A-1 (one house on 1 acre) to A-5 or 10 (one house per five or ten acres of land) for the sake of limiting housing and development densities.

Much of the upzoning across Long Island came as a response to environmental concerns, and the drive to upzone peaked with the state of New York passing the Sole Source Aquifer Law in 1987. 

In 1987 the New York State Legislature mandated the protection of Long Island's watersheds under its "Sole Source Aquifer Law" and provided funding to the Long Island Regional Planning Board to create a plan that would identify the hydrogeologic areas on Long Island that contained the highest quality and highest volume of our groundwater reservoir that should be protected in order to ensure our current and future needs of high quality potable water.[3]

Many of the areas discussed in each town were upzoned due to their identification as Special Groundwater Protection Areas as a result of the 1987 law. The subsequent Special Groundwater Protection Area Plan recommended specific land uses for each designated recharge area. In most of the eastern townships on Long Island, the push to upzone parcels was successful at one time or another, while there have been limited efforts in the west. 

It is the goal of this piece to highlight the application of upzoning used by various Long Island towns with the purpose of limiting growth, as well as limiting groundwater pollution.

Upzoning in the Towns of Southold and Riverhead

Like any other land use tool, there are supporters, as well as critics of the practice of upzoning. While supporters say that upzoning protects a community from density, critics say that decreases in use infringe upon property rights and decrease value of their acreage. In the eastern towns of Riverhead and Southold, there were multiple pushes to upzone remaining farm parcels in order to protect them from development. After 35 years of lobbying, Dr. Koppelman, Long Island’s veteran planner, executive director of SUNY Stony Brook’s Center for Regional Policy Studies, and then director of the Long Island Regional Planning Board, was successful in persuading the Town to revamp their zoning code, with the intention of bringing as-of-right densities that were equilivent to western Nassau County, down to more appropriate levels. It was during this time when there was one particularly heated effort in Southold to upzone roughly 8,000 acres, and farmers did not react well to the proposal:

East End towns faced with unprecedented growth have been considering additional strategies to put the brakes on development. The most dramatic of these was the Southold board's move in February toward changing the zoning of 8,000 acres owned by 150 farmers from 2- acre minimums to one home per 5 acres.

Farmers argued that 5-acre zoning was counterproductive to the town's stated goal of maintaining the farming industry. Upzoning their land would reduce its sale value because fewer homes could be built. But it also meant the land would be worth less as collateral when borrowing money to finance farming. So it would drive them out of business and force them to sell their land, the farmers said.[4]

Dr. Koppelman wrote the following Op-Ed in Newsday that responded to some criticisms of the practice:

The Farm Bureau has already raised concerns and objections that the proposed upzoning will imperil farm values and the farmer's ability to secure sufficient bank loans necessary to finance annual operating expenses.

This is not true. Five-acre zoning adopted in Brookhaven, Southampton and East Hampton towns produced a reverse impact. As the supply diminished, the price escalated. Simple supply- and-demand economics works. Riverhead, with the lowest zoning category of one- acre residential use, also has the lowest per-acre value of land.

A second argument that might be raised is that upzoning would make the provision of affordable housing that much more difficult to achieve. Fortunately, Southold already addressed this issue several years ago in the last town-wide upzoning. Each of the hamlet core acres does permit housing at densities up to four units per acre where public water is available. This provision reduces a major cost of house construction-the price of land-thus enabling affordability.[5]

Ultimately, Southold’s efforts to upzone the farm acreage had failed, but they were successful in passing a moratorium on development. When Southold’s moratorium expired in 2005, and development looming, the town decided to strengthen it’s zoning code in light of their previous failure:

Opinions differ about what to expect when the clock runs out on the moratorium the Town Board imposed in August 2002, but there are indications that new rules -- requiring open space, clustered homes and affordable housing in subdivisions -- will curb development pressures.

At a minimum, Mr. Horton and supporters said, changes the town enacted during the moratorium will preserve up to 80 percent of the town's remaining 10,000 acres of undeveloped land.[6]

With a relatively light population density of 408 people per square mile[7] (compared to Brookhaven’s 2,500, or Nassau County’s 4,669), the Town only recently has dealt with curbing growth. Due to the demand for residential and commercial units, farmers had come to expect large returns on investment of their acreage. This expectation helped fuel the opposition to any effort to upzone. Prior to the much publicized effort to upzone over 8,000 acres, the town anticipated growth by successfully upzoning vacant and farmed land in 1983 without much fanfare:

In 1983, Southold upzoned a large portion of the town's available property, including much of its nearly 7,000 acres of farmland, from one to two acres. The next year Southampton rezoned more than 7,000 acres of agricultural land from one to two acres and from one and a half to three acres as part of a massive rezoning in the town.[8]

The upzoning in both Southold and Southampton served to help preserve the farmland along the north and south forks. Despite Southold’s efforts failing, the town did require specific subdivision requirements during the 2002 moratorium:

In a standard subdivision, 60 percent of the buildable land must be left as open space, and houses must be clustered on the remaining 40 percent, which must also be used for roads and drainage. Twenty-five percent of houses must be affordable, selling at a target price of $200,000 or less.

Developers have the option of paying into a town fund to lower the number of affordable houses to 10 percent. The town plans to use the money to finance affordable housing elsewhere. The second choice, known as a conservation subdivision, would preserve 75 percent to 80 percent of buildable land as open space. Developers who choose this option are guaranteed expedited review of their subdivision plans and exemptions from some fees, among other incentives.[9]

Similar to Southold, Riverhead’s efforts at the comprehensive upzoning of large parcels were stricken down by farmers on multiple occasions, who are worried about the value of their acreage:
 

The Riverhead Town Board has tabled a vote on upzoning farm acreage in Wading River - leaving area farmers relieved, but civic leaders and environmentalists concerned that the action has set a precedent for farm preservation proposed throughout the town after complaints by farmers:[10]

Riverhead farmers and their advocates turned out in force yesterday to lambaste a proposal to rezone the town's 14,000 acres of farmland from one-acre to two-acre plots. They argued that such a move would drag down the collateral value of their land and eventually undermine the local agricultural economy.No other proposal in a recent report by a rezoning advisory committee has received as much critical scrutiny as the upzoning idea. In part, that is because Riverhead is the last East End town that has one-acre agricultural zoning.

In an effort to emphasize preservation solutions they believe more sensible, the Long Island Farm Bureau yesterday successfully lobbied the town board to give the bureau 90 days to convene a Farmland Preservation Task Force and present more alternatives to the town.[11]

The efforts by both towns showcase the difficulties faced by local governments when they try to retroactively curb development by using restrictive zoning.

The Town of Brookhaven

The Town of Brookhaven is Long Island’s largest town, with an area larger than all of Nassau County. With the town’s ample amounts of open space, development pressures were intense during the land boom 1980s, 90s and up until the recession. To try to counter the constant surge of growth, creative zoning was used by the Acampora administration in the 1980s, and served as the method of choice used for preserving vast swaths of Pine Barrens land before the 1995 Pine Barrens Comprehensive Land Use Plan was implemented by the state:

Brookhaven Town yesterday proposed what would be Long Island's toughest land controls - 10-acre minimum lots in some areas - as part of a massive upzoning of thousands of acres in eastern Brookhaven aimed at curbing development to protect watersheds in the pine barrens.

The 10-acre zoning is proposed for 5,700 acres of Pine Barrens and 2,400 acres of farmland in the Manorville area. Another 3,400 acres of pine barrens in Middle Island, Yaphank and Ridge, west of Brookhaven National Laboratory, would be rezoned from mostly one-acre to five-acre lots. The most stringent existing zoning on Long Island is five-acre lots.[12]

The Town of Brookhaven followed up their upzoning with rezonings along NYS Route 347, and other main arterial roads, with the goal of curbing commercial development:

The rezonings, which would eventually cover 1,200 acres, would presumably end most retail development plans put on hold in January when the town imposed a limited moratorium on new construction along the highways.

After the town's announcement in March that it intends to enact the most stringent upzoning for residential lot size on Long Island, the commercial rezoning clearly demonstrates that Brookhaven's land-control program is among the strictest anywhere.

''There is a basic tightening up on Jericho Turnpike in Smithtown, on Veterans Highway in Islip, in Southampton, Southold and throughout the county,'' said Lee E. Koppelman, executive director of the Long Island Regional Planning Board and director of the Suffolk County Planning Department. ''But measures are more extreme in Brookhaven because the developmental pressure there is greatest.''[13]

The upzoning of extensive amounts of acreage by Brookhaven in the 1980s successfully laid the groundwork for the protection of the Pine Barrens in 1993, and was credited with setting the policy precedent that effort successfully modeled.

Town of Smithtown

West of Brookhaven lays the Town of Smithtown, which had land use controls in place since 1932. The Town is more mature in terms of growth and development when compared to its easterly neighbors. The development pressures in Smithtown are not as intense as those in Brookhaven, but Smithtown is home to many environmentally sensitive watersheds vulnerable to nitrogen runoff and absorption. The situation in Smithtown is nicely summarized below:

Smithtown has six residence districts allowing for single-family dwellings on minimum plots of 7,500 square feet to one acre, and four multi-family districts allowing for attached dwellings at densities of 6 to 17.4 per acre. Between 1932 and 1950, most of the waterfront was zoned one-half acre which was the Town's most restrictive category at that time. In 1950, most of this land was upzoned to one acre. There are some one-half acre districts in Fort Salonga and along the Nissequogue River between Mill Dam Road and Landing Avenue. A significant one-quarter acre residential district is located in the San Remo neighborhood and in the vicinity of Upper Dock Road. This area was zoned at high density as a result of a map filing for San Remo prior to the adoption of the zoning ordinance. The filed, plan contained about six thousand 20' x 100' lots.[14]

The parcels along the waterfront that were upzoned in the 1950s set a precedent of usage of zoning tools that subsequent administrations followed. Below is a portion of an interview of a Town Council Candidate for the Town of Smithtown from 1991 in Newsday where the candidate discusses, in detail, the historic upzoning within the town as a tool for preventing overdevelopment:

That's a two-fold question. First, what do you do about curtailing overdevelopment of the town? In my opinion, on the board, I think we have addressed that issue. I've been on the board 12 years and in that span of time, we did a lot of up-zoning, where we took commercial property and we rezoned it to residential property - which results in a higher and better use of land. So in many categories, we've upzoned it to residential. . . . We've also done such things as upzoning land use where it might've been a quarter-acre zone, a third-acre zoning or even half-acre zoning. We've upzoned that to acre zoning, so that cuts down on the overdevelopment of property. There's another thing you can do to cut overdeveloping. That's to not approve applications which provide for spot-zoning. That's where an applicant comes forward and he wants to put a delicatessen on an intersection in a residential area, and there's no zoning for it but he applies for business zoning in a residential area, gives you all this justification for it and sometimes that's approved. Well, my position is: Don't approve that kind of an application because that's spot-zoning and you're just allowing businesses to encroach on residential areas and it pulls down the values on the residential neighborhoods. A third way of stopping it is by looking at where you have too much commercial zoning along major arteries in town and you wind up with strip development, which is shopping center after shopping center, all on the same roadway. That does two things. One is there are too many stores for a neighborhood and you wind up with a lot of vacancies, and a lot of hard times for those who try to make their businesses succeed in that area. The second thing that happens is you wind up with a tremendous traffic headache where you have people going in and out of the shopping centers, slowing down the traffic.[15]

While Smithtown’s upzoning has been rooted in historic precedent, the upzoning of parcels in Hauppauge was from one-fourth of an acre to one acre zoning. Due to the diminished parcel sizes, the upzoning effort was considered a partial success by planners. In general, townships in western Suffolk County have not actively upzoned land for preservation purposes. Some areas along the north shore of Nassau however, have embraced upzoning, not for its ability to help preservation, but for the exclusivity larger residential parcels have in communities.

Upzoning in Nassau County’s North Shore

In Northern Nassau County, the exclusive villages of Muttontown, Old Brookville and North Hills have used upzoning as a way to preserve the character of these exclusive enclaves, while maintaining the integrity of the aquifer. 

North Hills, which is within the town of North Hempstead, just south of Manhasset Bay and less than four miles from Queens, was one of the last preserves of undeveloped land in Nassau County when downzoning began in 1970, starting the development wave. 

Dr. Lowell H. Kane, who has been Mayor of North Hills since 1978 (he bought a condominium there in 1977), said much of the pressure for upzoning in the community had come from outsiders - water conservation and air quality officials, for example. Some village residents have also been pushing for restrictions. The population of North Hills has risen to nearly 2,500 from about 300 in 1970.[16]

 

These large former estates were subdivided into five acre plots that not only conveniently protected the North Hills Special Groundwater Protection Area, but also left the exclusivity of these wealthy enclaves intact. 

Conclusion

In conclusion, upzoning on its own does not protect open space. What is necessary is that a municipality pairs the increase in plot sizes with defined zoning districts that have stringent subdivision regulations. In the instances where the zoning tool was used successfully, it was paired with clustering requirements, or required redemption of transfer-of-development rights credits. Across Long Island, upzoning has been both successfully employed for a variety of uses by townships: increasing density, decreasing density, fostering exclusivity. In other areas, the increase in acreage of lot size was fought by specialized interests who feared that land values would plummet.
If property is upzoned by a municipality blindly, without cause, a takings case may threaten the integrity of the zoning code. However, if the upzoning is done in the context of a comprehensive planning effort, the taking issue could be avoided:

So long as the ordinance has a legitimate comprehensive planning objective, there is no taking unless all reasonable uses of property have been proscribed. As to the first part of the test, courts have accepted a variety of public purposes to justify downzoning, including bringing the subject area into conformance with the local comprehensive plan, upgrading the community’s economy, protecting against the dangers of inadequate health facilities, promoting orderly growth, maintaining aesthetic character, and preserving the environment. This “legitimate state interest” prong of the takings test is often not even challenged by landowners who claim that a rezoning or a refusal to rezone has taken their property.[17]

In closing, the decision to upzone property alone is not sufficient for preservation of open space, or for curbing development. The upzoning must be rooted in sound planning principles, as well as comprehensive, strong, and well-defined land use controls that do not leave the zoning code vulnerable to legal challenges.

---

[1] New Jersey Department of Agriculture, State Agriculture Development Committee, Definitions http://www.nj.gov/agriculture/sadc/tdr/faqs/definitions/

[2] CanEquity Mortgage, Canadian Mortgage Glossary, http://www.ontarioequity.com/cgi-bin/search.cgi?u%20D

[3] http://www.southforkgroundwatertaskforce.org/SGPA.ihtml

[4] Southold Rescinds Zoning Plan, Bill Bleyer, Newsday, October 14^th, 2001

[5] Up with the Zoning, Down with the Worry, Newsday, Dr. Lee Koppelman, March 7^th, 2001

[6] Southold is Bracing for a Flood of Building, John Rather, New York Times, January 23^rd 2005

[7] Suffolk County Department of Planning

[8] Fighting to Keep Farmland, Dallas Gatewood, Newsday, November 7^th, 1987

[9] Southold is Bracing for a Flood of Building, John Rather, New York Times, January 23^rd 2005

[10] Riverhead Tables Vote on Farmland Zoning, Don Smith, Newsday, March 24^th, 1989

[11] Riverhead Farmers Rip Plan,  Joe Haberstroh, Newsday, February 4^th, 1997

[12] Huge Rezoning Planned To Protect Watersheds Brookhaven to set toughest controls on LI, Tom Morris, Newsday, March 6, 1987

[13] Brookhaven’s Sweeping Plan May End Retail Development, Phillip Lutz, New York Times, August 2^nd, 1987

[14] Town of Smithtown Local Waterfront Revitalization Program, adopted Town of Smithtown Town Board, May 2, 1989

[15] LI Campaign ’91 Q&A Where They Stand, Newsday interview by Karissa S. Wang October 27^th, 1991

[16] Big Homes are Back in North Hills, L.I.,  Kirk Johnson, NY Times, December 14^th, 1984

[17] The Takings Issue: Constitutional Limits on Land Use Control and Environmental Regulation, Robert Meltz, Dwight H. Merriham, Richard M. Frank, pgs 223-224