The “housing crisis” is a perennial issue in Albany . Once again, the governor and the legislative leaders are trying to reach an agreement to address the fact that
New York has too little housing to meet demand. While the political branches have the prerogative to enact housing policies, there is also an important role for the judicial branch in the housing drama. In New York, the authority to regulate the development of land is vested in villages, towns and cities . These local governments enjoy significant power over land use. They have the authority to establish zoning, determining the manner in which land may be used and regulating the dimensions of every kind of structure, from houses to office buildings. The land use laws allow municipalities to curtail substantially private property rights. All developers must obtain a building permit from local authorities, a process that grants enormous power to local officials to decide when and whether the developer may place a shovel in the ground. Developers commonly need the approval of at least one local land use board, often a zoning board, in order to obtain variances or another form of zoning permission before the developer can secure a building permit. The land use processes are intended to regulate, within limits, the ability of owners to develop their properties. The laws governing land use bestow defined powers upon local officials and land use boards that, while granting municipalities discretion over land use matters, also protect the rights of owners against governmental abuses and arbitrary determinations. The law does not allow local officials to withhold a building permit because the applicant proposes an unpopular project, nor does it allow a zoning board to concoct any excuse to deny an application just to appease local residents who oppose a project. In practice, however, land use regulation in many parts of the state has devolved into a pawn of politicians. Local elected officials can transform a straightforward permit application process into an interminable maze when they wish to frustrate a property owner whose project is seen as controversial. Land use boards are often popularity contests, where an applicant, after investing months of time and tens of thousands of dollars, can see his application denied simply because a handful of neighbors oppose the application, regardless of the legal merits of their objections. When these kinds of abuses occur, it is the duty of the courts to provide remedies for aggrieved property owners. State law authorizes the judicial branch to review the decisions of land use boards to ensure that they act in accordance with the limits of their powers and make decisions based upon actual evidence, not upon excuses dreamed up to appease a complaining public. Too frequently, however, judges at both the trial and appellate levels have set the bar so low that nearly any decision of a zoning board, no matter how subjective or flimsy, is allowed to stand. For example, in two cases decided this year (one of which was my case), the Appellate Division in Brooklyn upheld the decisions of zoning boards denying applications to construct single-family homes on existing vacant parcels. The court’s mechanical “deference” to zoning boards has left the state with two fewer homes and two more empty lots. Thus, developers are reluctant to make investments in housing when they know that their applications can be stymied by a few hecklers and that their chances of receiving a meaningful hearing in the courts are small. Politicians and board members are emboldened to do as they wish because the courts so rarely rebuke improper conduct. Any excuse for a denial, it seems, passes judicial muster. The courts, therefore, have a critical role to play in alleviating the housing crisis. This is not a call for the judiciary to craft housing policy or for the Legislature to undermine the land use powers of local governments. It is a plea for the courts to discharge their critical function of judicial review robustly in order to ensure that municipalities act within the limits of the law and that land use boards issue decisions that are legally sound. Chief Judge Rowen Wilson has admirably pledged to expand the number of cases that the Court of Appeals reviews each year. Our highest court’s review of the treatment of land use cases, matters that not only significantly impact the economic health of the state and the affordability of housing for New Yorkers, but that also relate to the fundamental constitutional right to own and use private property, is long overdue. We cannot end the housing crisis if we make it impossible to build houses. Browne is a lawyer.