The Origins of Zoning in America and its history in Southold Town

by Leslie Kanes Weisman

(This text is an abbreviated summary of Leslie’s presentation at the 2024 annual meeting of the Kenney’s/McCabe’s Beach Civic Association)

The story of zoning in America is really a story of how Americans learned to legislate their NIMBYism. Before zoning, cities mostly regulated what could be built through nuisance laws. If someone didn't like how their neighbor was using their property, they could take them to court and let a judge decide what to do about it. But by the turn of the 20th century cities like New York and San Francisco were experiencing rapid urbanization that created congestion, overcrowding, outbreaks of disease and industrial pollution; while new building technologies were pushing building heights higher and higher, costing neighborhoods sunlight and air.

The building that broke the camel's back in New York City was the 42 story Equitable Building built in 1915, which still stands at 120 Broadway. Rising without setbacks to its full height of 535 feet, it cast a seven-acre shadow over neighboring buildings, which dramatically affected property values. Consequently, angry property owners demanded that the city find a way to regulate buildings. City officials responded by passing the nation's first comprehensive zoning code in 1916. That code allowed a builder to build right up to the lot line to a certain height but then required that the bulk of the building be set back from the lot line, thus regulating building shape rather than height. This explains why New York's skyscrapers from that period, like the Empire State Building, have such a particular "wedding cake" profile. This regulation was one of the first to establish setbacks from lot lines, like those we have in Southold. The city's new zoning code also set up separate residential and business districts as well as unrestricted areas.

So, in summary, zoning laws were put into place to divide a municipality's land into districts or zones, that limit how land can be used and developed in each of those zone districts, and lays out the process that must be followed in order to do so. The over-arching idea is to protect the value of one's land by establishing stability and conformity in use and protecting properties from adverse impacts. Zoning laws, also referred to as land use regulations, are enforced through the police powers of state and local governments.

In the Town of Southold, zoning codes were first established in 1957. At that time, whatever uses existed were simply zoned in place that way, to avoid creating nonconformities to the new code. In 1989 the code was again updated and now the Town is currently engaged in another update. There are five reason I can think of why this is timely and important. First, for the past 35 years, many amendments to the code have been approved by the Town Board. This can result in a piecemeal code that can easily become inconsistent between definitions and chapters. Those inconsistencies, where they exist, need to be corrected.

A second reason is ZBA Code Interpretations. Interpreting the Town Code is part of the powers and duties of the Zoning Board of Appeals. In the past 20 years the ZBA has done about 30 interpretations. Those interpretations become de facto code and have the force of law. The Building Department is required to apply these interpretations in granting or denying building permits. But they do not appear in the code and are not usually cited in a Notice of Disapproval from the Building Department. These interpretations need to be codified or extinguished so that the public knows about them and can act accordingly. For example, in a 2002 interpretation the ZBA essentially established a pyramid law for single family dwellings that was finally codified in 2022 with the passage of legislation that established a sky plane setback from property lines.

A third reason is unanticipated uses. A 35-year-old code never considered Battery Energy Storage Systems. Where should they be allowed? In what zones? And under what conditions? Should they be allowed at all or prohibited? Neither was the need for home offices in accessory structures which are not currently permitted. But during COVID and with the establishment of digital meeting platforms like ZOOM and Teams, many more people started working from home. Should they be allowed to create a personal home office in their detached garage where they could have some privacy from the kids and other distractions, if it's only for their personal use and not accessed by the public?

The fourth reason is environmental change - from sea level rise, increased flooding, and bluff erosion from severe weather events - to unsustainable levels of nitrogen from old, outdated septic systems and the wide-spread use of lawn fertilizers that are polluting our creeks and bays. How should our Town Code address these environmental issues? For instance, lifting single family dwellings to comply with FEMA regulations in coastal erosion hazard areas and high velocity zones may help protect property, but it is also causing big changes to the character of many neighborhoods.

Fifth and finally is our Town's Comprehensive Plan, which was adopted by the Town Board in 2020. Ten years in the making, this excellent plan is the most important document we now have as a tool to preserve what is best in our town and to guide the direction of appropriate and responsible future growth and development. Revising the current Town Code, especially the zoning chapter and other land-use related chapters, to ensure the implementation of the goals of the Comprehensive Plan is at the very epicenter of our current zoning update, and it is also a requirement of New York State's zoning enabling statutes that give town's the power to enact local zoning rules.

To do the current code update, the Town obtained a state grant and signed a contract with an experienced planning consultant called ZoneCo. The Town's Planning Department Director Heather Lanza, and Associate Director Mark Terry, are working closely with Zone Co and are responsible for ensuring that the two requirements of the grant are being followed. The first is the establishment of a Zoning Update Advisory Committee whose members are all local people, appointed by the Town Board. Our nine committee members include architects, local business owners, lawyers, zoning and planning officials, contractors, affordable housing developers, and the Mayor of Greenport Village. Our mission is to review and provide feedback about all aspects of the project and to make sure that Zone Co's new draft zoning update proposal is consistent with the vision and goals in our town's Comprehensive Plan.

Thus far our committee has established a user-friendly website with a simple survey the public can take and where all the information available to date can be found. Using handouts of color-coded zoning maps, committee members walked each of the hamlets together, with Heather and Mark, so we could actually see on the ground what exists in each zone district, hamlet by hamlet, including Fishers Island. And we have discussed all of the data gathered from the on-line survey and from a series of public forums held in each hamlet, all available on the website. We are currently using large zoning district hamlet maps to analyze and identify potential opportunities and problems for future development in each hamlet. And, as the local oversight committee, we are now at the stage where we're planning to develop some findings to give to ZoneCo to incorporate into their initial draft code update proposal.

The second grant requirement is local public participation. Toward that end,between February and July of this year, Heather Lanza and Mark Terry conducted an interactive Zoning Informational Forum in each of the hamlets hosted by our local civic associations. Each forum was very well attended and the results of those meetings are also on our website, https://southoldzoningupdate.com/.

We should have the first draft revised zoning code and zoning map from ZoneCo by this Fall. The Zoning Update Advisory Committee, the Town Board and the public will all be asked to participate in discussions of that initial draft. In the winter of 2024-2025 ZoneCo will make revisions to their initial draft zoning code and zoning map, based on public and town input. And in the Spring of 2025 the complete final zoning code and zoning map will be available for public review, public hearing, and adoption by the Town Board.

I want to conclude by acknowledging that most of us who live on the North Fork are aware of the challenges we face as our community changes and grows. But we are fortunate to still have an accessible small-town local government that encourages us, as residents, property owners and stakeholders, to be engaged in and to influence how we, as a town, navigate through those changes together. Each of us has a role to play in that process and in our collective future. Please stay informed and engaged in this very important zoning code update, and go to the website where you can sign up for future notifications as the project progresses: https://southoldzoningupdate.com.

Leslie Kanes Weisman is Emerita Professor of Architecture, the Chairperson of the Southold Town Zoning Board of Appeals, and a member of the Zoning Update Advisory Committee.