Posted by: Patricia Salkin | August 26, 2008

NY Appeals Court Upholds Invalidation of Town Comprehensive Plan as Exclusionary

In 2004 the Town of Montgomery adopted a comprehensive land use plan and implementing zoning laws that, among other things, eliminated the multi-family (RM-1) zoning district. In a major ruling last week, the appellate court upheld the trial court’s determination that this action constituted exclusionary zoning given the local and regional need for affordable housing. It has been a while since the courts in New York have had the opportunity to reinforce past judicial pronouncements regarding the obligation imposed on local governments, by the courts, to consider local and regional affordable housing needs. Given the fact that the State Legislature has not yet enacted a comprehensive program for the provision of affordable housing (e.g., like the program in the State of New Jersey), judicial support for this principle remains critically important.


The litigation began after the developers submitted land use applications to the Town of Montgomery to build affordable and cluster housing in an area of the town which for nearly 40 years had been the only part of the town where multifamily housing was specifically permitted.  The Town then declared a moratorium on residential developments that included more than three dwelling units, which was then followed by the adoption of the 2004 comprehensive land use plan which formed the basis for the elimination of a zoning designation specifically dedicated to multifamily housing. As a result, multifamily housing was no longer expressly allowed anywhere in the town.


In response to the Town’s assertion that there were other opportunities for affordable housing in the Town, the trial court judge wrote, “The Town Board is not being asked to ‘guarantee’ affordable housing…It is being asked to do what the law requires, i.e., to provide a balanced and well-ordered plan for the community which adequately considers regional needs and requirements . . . This is not accomplished by abrogating control to others and limiting opportunities of right simply to residences of adult communities and mobile home parks.”


The appellate court also agreed with the court below that the Town failed to follow the requirements of the State Environmental Quality Review Act when it adopted the comprehensive plan and implementing local laws.


Matter of Land Master Montag I, LLC v. Town of Montgomery, 2008 WL 3853767 (N.Y.A.D. 2 Dept. 8/19/2008 ).


The opinion can be accessed at:


Thanks to John Cappello, Esq. of Jacobowitz and Gubits who represented the developer for bringing this opinion to my attention:


  1. This review states, “It has been a while since the courts in New York have had the opportunity to reinforce past judicial pronouncements regarding the obligation imposed on local governments, by the courts, to consider local and regional affordable housing needs.”

    The aforementioned statement infers the court was pleased to have an opportunity to utilize the circumstances of the Montgomery litigation because an opportunity to do so prior had not come along in for some time. Was this a prejudiced decision based on an abbreviated summation that merely touched down on all the key points of housing criteria for local governments? It initiates an immediate reaction of unease having read that statement about the finding. A lack of confidence that the particular and specific set of circumstances pertaining to the Town’s litigation were glossed over and not judged by an in depth review of the facts with this specific town. The desire to demonstrate and or ‘reinforce’, its previous judicial pronouncements, indicates that was the court’s ulterior priority and the premise of its decision. Each case is independent and should be considered solely on the compilation of facts, regardless of how much it may look or seem like a case they last saw years ago. A desire to use any case as a demonstration to others would play fair and even in a classroom but as a detriment to equal justice in a courtroom. It also holds Montgomery accountable for what has not yet been clearly defined by NYS legislature and for what purpose?
    “Given the fact that the State Legislature has not yet enacted a comprehensive program for the provision of affordable housing (AH)”.
    The decision also ignores the fact that the town did NOT disregard AH but worked actively twice a month with State, Federal, County, Town and Village volunteers and professionals to design laws and establish reinforcing code that would implement immediate DIGNITY and FAIRNESS in housing types, sizes, locations and quality throughout the entire Town, not just in one isolated location, of all of one housing type, and congested within the busiest most heavily trafficked intersection in town that the lawsuit facilitates. The town felt that by only providing ten to twenty affordable units out of 300 market priced units would relegate those in need of more affordable housing to intense competition for living space and a finite quantity of it at that.
    The finding does not consider the location of the zone and the fact that during the many decades since it was originally designated as the only high density quadrant in town it also became the most haphazard due to traffic congestion and a failing intersection. The town looked to create a residential code that would regularly churn out affordable housing in every single subdivision project of five units or more. Based on a model that would mirror a traditional community build out, those needing affordable homes wouldn’t be isolated in sections of town identified as those of lower or modest incomes.

    The court’s decision ignores these points, even as it clearly states this should be taken into account by the town.
    “It is being asked to do what the law requires, i.e., to provide a balanced and well-ordered plan for the community which adequately considers regional needs and requirements.”
    Who better knows a town or a regions dynamics, limitations and needs and how to balance them then those of the municipality or town itself?
    While in moratorium the town commenced and developed an Inclusionary Local Law or Affordable Housing Law Draft which was designed to embrace all AH needs, with homes, 2 family owner occupied apartment rentals, accessory living units in larger homes or in any property’s outbuildings such as in barns, gate houses, etc. The AH home was to be built along with larger homes in ‘nice’ neighborhoods and gave the developers allowances to ensure no loss to investment. This draft would have offered dignity, green space and privacy to the AH dweller, yet, the developers and lawyers chose to fight this affordable housing draft and prevent it from having fair public review. Not a meeting was held without the litigious presence of 2 or more local lawyers form the same local firm. They worked to disrupt every phase of progress and did not pass on any opportunity to denigrate and deride the effort. Even though it was favorably reviewed and picking up momentum the lawyers for this one conglomerate networked against it. The litigious actions were never ending. The cry of lost profits was reverberating throughout every legal action tossed in to stump those at work doing something right for EVERYONE. The proposed local law was reworked several times to meet all needs and demands that were willingly listened to and recorded. One of the lawyers serving on the volunteer committee was from the firm that incessantly sues the town, yet he was welcomed. He then abruptly quit the team and used the documents he acquired to compile into the ongoing, ever morphing lawsuit against the town. This action by developers, points to suits such as this, are based NOT on altruistic concerns such as that of discrimination to those of low income, it shows the desire to do and get what they wish, and create personal profit. Their plans were decades old, of the type that has already demonstrated failure in older communities. Their offering plan Affordable Housing price started at $285,000!
    The court also weighed in on what it felt was appropriate for affordable housing type.
    Judicial is to judge the application of the laws, not create them. The AH law is based on monetary values not types or styles of residences:
    “This is not accomplished by abrogating control to others and limiting opportunities of right simply to residences of adult communities and mobile home parks “
    It’s exclusion of mobile home parks, adult communities, show an attempts to define what is correct for AH and is over reaching. This case, being based on the desire of a developer to build apartments or condos, and the finding in favor for them, clearly leans toward defining what style or residence/building is correct to meet the AH need. If NYS has yet to do so, how can the Judicial branch? Nor does it consider the possibility that the apartment/condo may well be no more equal in merit, perhaps even less so, then a mobile home in quality, size and amenities. It also ignores well know problems that occur with such dwellings, such as possible ‘absentee landlord’s leading to run down ‘slum’ conditions, the lack of individual land plots that do exist with mobile homes and does not for most apartments/condos as they have public greens.
    It ignores the fertile ground densely created apartments/condos offer to allow one to be labeled/identified, discriminated against, as one being poor since they live in such units, locations. One cannot ignore the appearance of an apartment ‘complex’ VS a home development and that difference of ‘being poor’ is enhanced by the shear difference in home style and location.
    The statement “limiting opportunities of right simply to residences of adult communities and mobile home parks’ and up holding the finding against Montgomery for condos/apartments infers apartments/condos are better then mobile homes etc. This is not fact but assumptive reasoning.
    The statement is dangerous also, as we now define what type dwelling is affordable, not based on cost but design, type. Do we then continue down this thought process, since we have eliminated mobile homes/adult homes, to define one day, that condos are discriminatory in that they do not afford quality environments due to multiple dwellers, and the ramifications, including psychological, labeling of persons living in such density, locations? And again the state has not gone this far, how can the court?
    It states clearly that the court was fully aware the zone was placed 40 years ago. The lack to examine what changes have occurred in that town in 40 years is a flaw. Forty years ago the town was defined as Rural/Poverty. It was farmland with three small villages. It was not NYC, nor Rockland. The towns’ growth exploded in the past 7 years, pushed with the onset of September 11, 2001, it has doubled in population, as it offers easy commute to NYC. The town was working to meet the needs of all who were selecting Montgomery as home and those who wish to remain living in a ‘home town’ that they cannot any longer afford, by ensuring quality affordable housing. Why? Because developers choose to build high priced homes and large developments of such raising the cost in the area and taxes needed to run the town. This is not what the town has directed. It is what the developers did because they could by laws not yet ready to meet the onslaught of a population boom, zoning code originally written for agricultural and herd farms not code ready to generate sensible well planned housing.
    Why were these points not recognized in court for a fair trial of fact?
    This town attempted to see to it that builders/contractors and developers, adhered to a code that would develop a cohesive uniform community, everyone would have the opportunity to live in every area of town. The developers who are known to take the easy route, had no interest in learning or doing anything different, hyperactively they instead repeatedly sued the town. They were able to make a case on paper hit the key notes and attain the semblance of a case in years past that, the court neglected to review in full, choosing instead to succumb to a knee jerk reaction and punish the residents of a municipality who are struggling to make a positive difference for everyone, new and longtime, without prejudice.
    Providing affordable housing in a town is critical to all and should be of infinite source not finite, it is likely the developers and their attorneys feared that element of the proposed law the most.
    The Town of Montgomery respects this far deeper then what this legal result outcome infers. If one were to examine all the facts of this case, it would find that Montgomery was undertaking the previously unexamined task to offer a rich quality of life to every inhabitant of Montgomery and do far more then simply meeting the law. Once again the lawyers have fed their needs at the expense of the community as a whole, they hobble the locals around them and then flaunt their ‘accomplishment’ before the eyes of the unknowing and uninformed.
    Thank You .

  2. Hooray for Zahokas for a very well-thought out and insightful reply. I remember attending an all-day Affordable Housing workshop set up by the former supervisor. Many residents participated and expressed various ideas and concerns about having housing available for all income levels. I thought the recent decision seems to violate “home rule” by judicating what the municipality could do and throwing out a Comprehensive Master Plan that many residents and volunteers worked very hard on. I don’t understand why having no Plan or returning to an outdated plan is considered better then the existing one. Isn’t that like throwing out the baby with the bathwater? Why didn’t the Town lawyer anticipate this as a possibility and have some other strategies that could have been proposed? I really think the Town should consider who is working for them or if there are other interests involved. This constant litigation is killing the spirit of community action in this town. Maybe we need to revert to some old-fashioned protests and get the word out to more people about what is constantly going on behind the scenes.

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