Cappello 1

12th Annual Land Use and
Sustainable Development Conference:
Leading Communities Toward a Resilient Future
December 6, 2013
Hot Topics of Land Use: The Rare Variance,
Effective Comprehensive Planning,
Ethics and Case Law Update
(for Local Land Use Board Members and Attorneys)
Speaker: John C. Cappello, Esq.
© 2013 Jacobowitz and Gubits, LLP
Town Law § 272-a; Village Law § 7-722; and
General Cities Law § 28-a grant authority to local
governments to consider and adopt
comprehensive plans to plan the orderly growth
and land use for the purpose of protecting the
public health, safety and general welfare of its
citizens.
All land use regulations must be in accordance with
the comprehensive plan 272a(11)(a).
© 2013 Jacobowitz and Gubits, LLP
A comprehensive plan can be more than a justification
for adopting zoning laws.
“The town comprehensive plan is a means to promote the
health, safety and general welfare of the people of the town
and to give due consideration to the needs of the people of
regions for which a town is part.” Town Law 272-a(f)1
1 This
presentation refers primarily to the Town Law. Similar provisions relating to comprehensive
planning are found in Article Village Law § 7-722 and General City Law § 28-a.
© 2013 Jacobowitz and Gubits, LLP
A comprehensive plan is defined as “the materials written
and/or graphic, including but not limited to maps, charts,
studies, resolutions, reports, and other descriptive material
that identify the goals, objectives, principals, guidelines,
policies, standards, devices, and instruments for the
immediate and long-range protection, enhancement, growth
and development of the town located outside the limits of any
incorporated village or city.” Town Law § 272-a(2)(a).
© 2013 Jacobowitz and Gubits, LLP
A comprehensive plan may include; “General statements of
goals, objectives, principals, policies and standards upon which
proposals for the immediate and long-range enhancement,
growth and development of the town are based.” Town Law §
272-a(3)(a).
Comprehensive plans may include proposed measures, programs,
devices and instruments to implements the goals and objectives
of the various topics within the comprehensive plan. Town Law §
272-a(3)(m).
All plans for Capital projects of another governmental agency on
land included in the municipality comprehensive plan shall take
such plan into consideration.
© 2013 Jacobowitz and Gubits, LLP
Comprehensive plans can be used to foster regional
planning activities.
Comprehensive plans are intended to “foster cooperation among governmental
agencies, planning and implementing capital projects in municipalities that may be
directly affected thereby.” Town Law § 272-a(1)(b).
Comprehensive plan may include “consideration of regional needs and the official
plans of other government units and agencies within the regions.” Town Law § 272a(3)(b).
Municipalities can use authorities set forth in Town Law § 284 and Village Law § 7-741
to provide for inter-municipal cooperation to adopt comprehensive plans that cross
municipal boundaries to address issues such as regional transportation patterns,
infrastructure needs and more global issues, such as carbon emissions and water
quality.
© 2013 Jacobowitz and Gubits, LLP
“The great diversity of resources and conditions that exist within
and among the towns of the state compels a consideration of such
diversity and development of each town’s comprehensive plan.”
Town Law § 272-a(1)(d).
A comprehensive plan must consider “existing housing resources
and future housing needs, including affordable housing.” Town
Law § 272-a(3)(h)(see also Berenson v. New Castle)
A comprehensive plan may consider the “present, potential
future, general location of commercial and industrial facilities.”
Town Law § 272-a(3)(k).
© 2013 Jacobowitz and Gubits, LLP
© 2013 Jacobowitz and Gubits, LLP
© 2013 Jacobowitz and Gubits, LLP
(BE PROACTIVE NOT REACTIVE)