A Look Back at Paul Grunberg’s Thoughts on Zoning

Paul Grunberg fought hard during his 20-year service on the Chatham ZBA (fifteen years as its chairman) for a plan to replace the outdated Comprehensive Plan. The new Comprehensive Plan wouldn’t be passed until 2009, twelve years after his death in 1997.

In 1972, Paul earned a Master’s Degree in Urban-Environmental Studies from Rensselaer Polytechnic Institute while becoming increasingly involved in civic affairs. The following is an article he wrote in 1975, while contemplating the potential impact of zoning laws on our rural town. The Chatham Courier republished it on August 31, 2000.

In this article below, he speaks of the answers to the surveys given the town in 1971. Please note, the last survey conducted in Chatham was in 2004. It certainly would be enlightening to hear what the citizen’s answers to these very questions would be in 2019… before any new zoning laws are implemented.

A review of zoning in the Town of Chatham

Will Eventual Court Test Cause Township to Change the Status Quo Sought by Residents?

By Paul Grunberg, Chatham Center

During the last few years several zoning ordinances in various states have been challenged in the courts on the ground that restricted development were discriminatory to lower income groups. As pointed out in an article in The Wall Street Journal of January 31, 1975, when the pressure to develop occurs, the flight against these ordinances is led by an unlikely partnership of developers and civil rights advocates. In such an occurrence, last March, the New Jersey Supreme Court, upholding a Superior Court decision of 1972, struck down the Mount Laurel Township ordinance and all exclusionary zoning ordinances. In this decision, which promises to become a landmark, according to the New York Times of March 25, the “… unanimous ruling … effectively outlawed restrictive zoning ordinances such as those that prohibit apartments or mandate minimum lot sizes.”

As the Town of Chatham has one of the more restrictive zoning ordinances in terms of lot sizes it is probable that out ordinance will be tested in court when sufficient demand for housing appears. Therefore, this gives us a good excuse for reviving once more the debate on zoning, or land-use planning, in order not only to clarify our thoughts but also, when the challenge comes, to know what is worth defending and what is not. It is hoped that comments and other ideas will follow this article.

The ordinance we have, roughly described, allows more intensive growth in about ¼ of the town area (zones H-2, H-1, and RL-3) and limits development to 5 and 10 acres per family in ¾ of the town (RL-2 and RL-1). In addition, the ordinance contains the more conventional restrictions in regard to uses, zoning virtually the whole town as residential and restricting commerce and industry to five areas totaling several hundred acres and future floating zones. The residential zoning allows primarily single-family dwellings, two-family dwellings by special permit, and some townhouses in Cluster Developments. Only in Planned Unit Developments of 100 acres or more would a developer be allowed to submit plans for other types of dwellings such as apartments. A small list of selected “home occupations” is permitted and, in H-2, usually the core of the hamlets, neighborhood commercial facilities are allowed.

There are two main concepts in the planning of this ordinance: one is the distribution of density of development; the other is the more conventional zoning for use.

Distribution of Density. This should be interpreted as an attempt to conserve natural resources such as land and water, and to reduce the long-term cost of roads and utilities. In our ordinance, the distribution of density is implemented through the device of “large acreage zoning.”

The accusation is often heard that large lots discriminate against people of modest means. Probably, it is true that the size of lots has historically, often been used to discriminate socially and economically; however, that is more true when dealing with smaller lots of 1/4, 1/2, or 1 acre. In those instances, the size of the lots determines, by itself, the type of neighborhood and the cost of the residences. In rural, open areas such as ours, the cost of land varies inversely to the size of the parcel being sold: if five acres can be bought for $1,000: the price is more likely to be $2,000 or $3,000. Similarly, should pressure to develop cause a change in zoning from five-acre lots to one-acre lots, the price per acre would increase substantially, thus benefiting the landowner much more than the prospective buyer.

On the other hand, in recent years, we have become more conscious of problems created by development consisting of small lots and individual residences spread over large areas (also known as “sprawl”). Whereas one small lot in open country can exist with private well and sewage disposal, when many such lots cover large areas the soil can no longer absorb the waste created: one reason is that a large portion of the land is covered by road surfaces, and another reason is that modern families use huge amounts of water (100 gallons per person per day) which they return to the ground in polluted form and, in addition, use numerous poisons, detergents, and other noxious substances. In time, this causes the underground water to become undrinkable, and finally the community is forced to install sewers and public water to reach every lot. When spread over large areas of single-family lots, roads and utilities are very expensive in construction and maintenance.

In 1974, the Council on Environmental Quality published a study called “The Cost of Sprawl” comparing several types of development. In the comparison between a community developed in “sprawl” fashion and one of much more concentrated housing, the construction of roads and utilities turned out to be more than double and the maintenance costs 50 percent higher in the first community. Additional costs are shown in auto ownership and travel, water consumption, etc. In view of these future problems, and in view of the fact that there is much vacant land between Chatham and the nearest large urban center of Albany, it does not seem unreasonable for a town such as ours to decide to save its natural resources—land and water—and to decree that future more intensive development should take place in certain portions of its fifty square miles and that the remaining area should be kept at such low density that sewers public water, and suburban type roads will never be required. Such decision need not imply a limit to the development, but rather a distribution of its density.

Unfortunately, such decision does imply that sewers will be needed in the more intensively developed zones sooner than if development were scattered. In the long run, however, the savings in expenses and taxes would be huge and the rural atmosphere preserved to a large extent.

Zoning for use. In 1971, the planners hired by the town prepared a Comprehensive Plan as a prerequisite to the drafting of a zoning ordinance. In this Comprehensive Plan, under “Goals and Objectives” it is stated that 95 percent of the respondents in a survey conducted in the Town of Chatham like the town the way it is. Further in the Comprehensive Plan, page III-4, Table II, we learn something about the work location of the population, as follows:

Town of Chatham (excl. Village) – 39.5 percent; Albany – 29.0 percent; Village of Chatham – 3.7 percent; Other Places – 16.0 percent; Other (undetermined) – 12.8 percent.

In the Appendix of the same book, page A-4, we find some of the results of the survey conducted by the planners:

  • Question No. 4: Are some of the following needed? – Industry – 108 yes, 35 no; New Business – 84 yes, 34 no.
  • Question No. 5: What type of community would you like to see develop in the future? Leave it as it is – 48; rural – 20; light industry – 14; residential – 10; planning for rural, residential and industry – 9.

The above seems to indicate that most residents like Chatham the way it is; that the town cannot be called “residential” in the sense of most bedroom communities as a great number of residents work in the town itself; that many respondents desired more business and industry; and finally, that only 10 percent of the respondents chose “residential” as the most desirable way to develop. In view of the above, how did it come about that virtually the whole town was zone “residential?” Or, in other words, why was “rural” translated into “residential?”

During the early years of this century it became apparent that, with the rapid expansion of industry, some protection for residential areas was necessary and justifiable. The proximity of large factories, of smoke, noise, odors, and the like could indeed present a threat to health and welfare. In an early decision by Justice J. Owen (Supreme Court of Wisconsin, 1932, State ex. Rel. Carter v Harper), zoning legislation was approved to “bring about an orderly development of our cities; to establish residence districts into which business, commercial, and industrial establishments shall not intrude; In another case, considered a cornerstone of zoning law, Euclid v. Ambler Realty Co., Supreme Court of the U.S., 1926, Justice Sutherland laid the widely accepted basis for this use of the police power: “This question involves the validity of what is really the crux of the more recent zoning legislation, namely, the creation and maintenance of residential districts.”

These decisions were dealing with city environment and the protection from large industrial and commercial establishments. But, once the tool of zoning had gained acceptance, like other government control devices, it began to grow. Over the years it became acceptable not only to separate factories from homes, but also to separate single-family residences from two-family residences or from apartments, to separate ¼ acre lots from ½ acre lots. This was done by gradually extending the meaning of “welfare” to include the “protection of property values,” and with everyone’s tacit assent. Since property values and social status frequently parallel each other, zoning became well established as a tool for social and economic stratification. It also became a tool to freeze the “character” of a neighborhood by those who “like it as it is.”

Now, back to the Town of Chatham. It is easy to sympathize with those who “like it as it is.” But we are dealing here with 50 square miles of rural country: it is impossible to freeze Chatham as it is. Any kind of growth will change it. What we must ask is how change will be affected by specific zoning regulations. The present ordinance does not allow most types of enterprises, no matter how small, except in business zones. Instead of some accidents by small entrepreneurs here and there, as in the past, we would promote the growth of shopping centers in the business zones, built by impersonal investors, to satisfy the needs of a growing population. These centers would include the usually large parking lots and be deserted at night. Is this the goal of those trying to preserve Chatham’s character? The pleasant hamlet of Old Chatham contains a service station, a busy tavern, two apartment houses: none of these functions would be permitted by the zoning ordinance were they not already there. Would it have improved the town’s atmosphere to have them relegated to some commercial area? Or to have all new apartments relegated to some large project?

In pondering the consequences of one type of zoning versus another one might consider how strict application of residential zoning has affected the large areas of suburbia, a situation in which Chatham may be someday. Economic groups stratify, all wage earners disappear from sunrise to dusk, life becomes uniform. Children are shielded from all work activities until their late teens: this could not be what Justice Sutherland has in mind when, in his famous decision, he found residential neighborhoods necessary for “the creation of a more favorable environment in which to rear children.”

The probabilities that a new resident might purchase property in Chatham at today’s prices in order to produce an unpleasant “mess” are very slight. On the other hand, once Interstate 90 is completed, the pressure to build residential suburban housing will be very strong. It seems that the benefits of allowing more freedom of the individual homeowner far outweigh its dangers.

However, it is true that property values would be higher in the more conventional residential suburbs than in an area where one could never be quite sure of how the individuality of one’s neighbor might express itself, and this merits consideration too.

I am aware that the virtue of residential zoning is seldom questioned. This is precisely why I question it now: the devil’s advocate must have some voice. And if I sound too emphatic in questioning it, it is because the voice of the devil’s advocate is often shrill. In truth, I am not opposed to all residential zoning, and certainly I am in favor of protection from large businesses whose clout is heavy, whose motive is their own profit, and whose policy makers are seldom part of the community. But it is important, in my opinion, especially in rural towns, to remove from strict residential zoning the aura of superior morality and absolute desirability and to bring back such zoning into the area of discussion, of choice, of preference.

But enough of that, now. At the beginning of this article we noted how large acreage zoning was often accused of being discriminatory. We must ask here one last question: are strict residential restrictions in rural areas discriminatory?

Social and transportation statistics show a strong correlation between income levels and distances traveled to work.

This generally means that lower income groups tend to settle near work centers. But in addition, especially in rural areas, many families must or want to supplement their incomes from a business conducted at home or from some apartments built in the old house or in the barn, and this is done without much expense and overhead. Such families, if not enjoying another substantial and secure income, would no longer move to Chatham when possibilities for work and income are reduced; those living here might someday sell their properties to benefit from rising prices. The new residents would be, almost by definition, commuters and usually of a higher income bracket. The contention made here is that too many restrictions on what individuals may do around their homes would be harder to bear by the less prosperous, and that therefore a change in the makeup of the population would occur in time. Since the change would be toward higher income residents, the residential restrictions could be considered exclusionary and discriminatory toward lower income groups.

The examination of this question, aside from the matter of justice, is important for another reason: should my analysis be correct and should Chatham change into a wealthier community, when the ordinance will be challenged in court, what will be struck down, inevitably, is the large acreage zoning. This would be an unfortunate outcome for those who sincerely believe that the maintenance of large open spaces is important, whether for economic, ecological, social, or esthetic reasons. At the time of a court challenge, in order to defend the principle of open spaces, it might be useful to be able to show that little fuss is made about who lives here and what they do, and it would be advantageous to show some unconventional disorder. Coupled with that, the argument that density zoning is desirable for reasons such as the preservation of natural and economic resources could carry more weight.

There could well be a trend to the thought that, in the words or S.B. Zisman, a planning consultant from San Antonio, Texas, “the separation of functions is not so essential as the creation of a system of open spaces.”

But in general, some of the questions we have raised here are in ground, without the benefit of precedent in the courts or otherwise. This is why careful debate is important. But should the community arrive at a consensus different from the conventional, we can take heart from a statement in a pamphlet published by the Potomac Institute of Washing, D.C.: “Courts respect honest attempts to approach difficult problems rationally.

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