Daily Development for
Friday, September 5 , 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

ZONING: Zoning ordinance precluding educational institutions from a residential historic district is unconstitutional on its face where the ordinance does not provide a mechanism by which the legitimate public interest of education can be balanced against the legitimate public interest of historic preservation.

Trustees of Union College v. Members of the Schenectady City Council, 656 N.Y.S.2d 425 (App. Div. 1997).

A zoning ordinance that restricted the use of property located in a historic preservation district to single-family housing and special permit uses that did not include educational uses. Citing extensively an earlier New York Court of Appeals case, Cornell Univ. v. Bagnardi,486 N.Y.S.2d 964, mod on other grounds 68 N.Y.2d 583 (N.Y. 1986). (The Cornell Court of Appeals decision, although not the critical holding, contains much useful language for understanding the principle involved here.)

The Cornell court upheld an established principle in New York that educational uses are given a preferred status with respect to the application of zoning ordinances because they are clearly in furtherance of the general public welfare. Therefore even though zoning ordinances are presumptively constitutional because they must merely be in furtherance of a legitimate public purpose, the ordinance was unconstitutional because if failed to provide a mechanism by which the purpose of historic preservation could be balanced against the public purpose of providing educational facilities.

As stated by the Court of Appeals in Cornell: "the total exclusion of [educational and religious] institutions from a residential district serves no end that is reasonably related to the morals, health, welfare and safety of the community . . . Since a municipality's power to regulate land use is derived solely from its right to use its police powers to promote these goals, such total exclusion is beyond the scope of the localities' zoning authority."

Although, as Cornell also stated, "[a] community that resides in close proximity to a college should not be obliged to stand helpless in the face of proposed uses that are dangerous to the surrounding area," a zoning ordinance in New York cannot reach the conclusion that exclusion of education activities serves the public interest, apparently, unless there has been a specific focus on the exact educational activities involved and a weighing of the benefits of those activities against the benefits of their exclusion. Because the ordinance in question did not allow for education activities as a special use, the subject provision is, on its face, was unconstitutional and constituted an ultra vires enactment.

The city mustered arguments that there were avenues by which it could make the necessary balancing test at the instance of the college: namely, an application for a variance or an application seeking an amendment to the zoning ordinance, but the court responded that "such procedures, even if viable, do not cure the facial infirmity [in the present ordinance]. Moreover, neither the variance process, which requires plaintiff to demonstrate practical difficulties or unnecessary hardships, nor the zoning amendment process is a constitutionally permissible substitute for the necessary balancing of the parties' competing interests."

Comment 1: Although not a zoning maven, the editor is nonplussed by the degree of judicial legislation in the concept advanced by the New York court here. The fact that the New York legislature has done nothing to protect municipal discretion over the years perhaps suggests that in fact the rule is consistent with state policy. Nevertheless, the concept would appear to open up the possibility of courts making other determinations as to what are and are not "public welfare" activities. Is this the province of the court, especially when local government, as here, has specifically decided otherwise? (The city changed the existing zone, which did permit educational activities as a permitted use, to one that did not, specifically in order to prevent further intrusion on a historical district.)

Comment 2: Equally interesting is the court's notion that seems implicit in this decision that the objectives of historical preservation are presumptively not of an equal order of magnitude with educational objectives. Why not? Clearly the city, having had long experience with the development of educational activities within this very district, concluded that historical preservation and college facilities were inherently inconsistent. Why shouldn't it be permitted to make this determination? What happened to the presumption of Constitutionality?

Comment 3: Dumb question, perhaps, but does this ruling mean that *every* zoning classification in New York must include a special use possibility for educational purposes? The court speaks of zoning in residential districts, but what is it about university facilities that makes them intrinsically valuable in residential districts but less valuable in commercial or industrial districts? The good citizens of Ithaca are not welcome to pop on down to Cornell when they wish to pick up a little biochemistry education. Cornell is, and properly should be, a national research institution, not a community service facility. It's "public benefits" would be equally beneficial no matter where located.

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