Zoning, like all other bodies of law, evolves in response to changing societal needs and demands. Through a process akin to natural selection, smart communities continually reassess and update their public policies and programs, comprehensive plans, and land use laws to guide and incentivize development and, importantly, to enable the strongest, most promising development scenarios to thrive. The COVID-19 pandemic presents a unique set of challenges to municipalities seeking to utilize their regulatory powers to promote safe, economically viable and effective planning policies in their communities.
Notably, zoning regulations, including both use and bulk regulations, emerged in significant part in response to the epidemics that ravaged society during the 19th and early 20th centuries. Public officials needed to address concerns that inferior construction and crowded, dark and damp living arrangements contributed to the spread of disease, resulting in the New York State Tenement House Act of 1901, which contained many of the regulations now common in building and zoning codes requiring access to sunlight and air. Furthermore, the separation of distinct uses was seen as a tool to promote the public health, including fighting the spread of disease. This purpose was specifically identified by the U.S. Supreme Court in its 1926 decision Village of Euclid, Ohio v. Ambler Realty Co., in which the Court noted that “the danger of fire and  contagion are often lessened by the exclusion of stores and factories from areas devoted to residences, and, in consequence, the safety and health of the community may be promoted.”
Evolving Variation in Zoning
The success of these early measures soon led to the implementation and evolution of what is now commonly known as Euclidian zoning, which generally refers to the division of municipalities into geometric or mapped districts that allow (or disallow) various uses, and which are generally accompanied by area or bulk restrictions. The zoning at issue in Euclid divided the municipality into six classes of use districts, which were cumulative, in that the uses in the second use district included those in the first, and the uses in the third district included those in the first and second, and so on.
Foreshadowing the continuing evolution of zoning, in ruling on the constitutionality of the Village of Euclid’s zoning law, the Supreme Court wrote “while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation.” As the Euclid Court wrote, “a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles.”
Similarly, while at its core zoning relies on the lawful application of a local government’s police powers to uphold the morals, health, welfare and safety of the community, the particulars of zoning laws continuously change to meet the new and different conditions that are presented to municipalities, using elasticity to advance and improve communities. Much like Charles Darwin’s theory of natural selection, in which species with adaptive traits are best positioned to weather climate changes and other challenges, some municipalities have adopted flexible zoning regulations that position them to better respond to changing markets and unexpected events. These municipalities are more likely to survive and thrive, and their regulations and other development programs become best practices that are replicated throughout the country.
With the emerging recognition of the importance of incorporating flexibility into zoning regulations, some municipalities branched out to explore novel tools beyond classic Euclidian zoning. These tools have included form-based codes which, rather than simply regulating through the segregation of uses, regulate the physical development of communities, including how buildings relate to the street, the integration of the public and private spheres, and building appearance. Other municipalities began invoking Planned Urban Development districts (PUDs) and/or floating zones, which allowed for more flexible bulk and use regulations in targeted areas predicated upon legislative discretion.
Zoning’s Future Evolution in Response to COVID-19
The current pandemic presents its own unique challenges. Inevitably, there will be a discernible market response. It can already be felt, with growth in suburban real estate markets. Local and regional governmental bodies quickly need to confront the same questions that are being asked by the development community as it analyzes the new marketplace environment: what changes are needed, what land uses are desired and where and how do we ensure that zoning will evolve to properly shape the advancement of a community in a safe, responsible and economically productive fashion? Those municipalities that can adapt their zoning regulations to changing conditions within their own unique environments are best positioned to survive and thrive in a post-COVID-19 world – much like the tortoises Darwin studied in the Galapagos Islands, which underpinned his theory of Natural Selection.
Issues such as density, circulation, common area utilization and efficient design will undoubtedly be encountered in both residential and non-residential development contexts. How the marketplace and local governments confront these concerns will likely dictate the strength of the real estate market for years. These expected market trends and related best practices may include the following:
The concept of reusing and repurposing existing buildings may take on a lot more significance in light of the pandemic. Many storefronts, secondary and tertiary malls, business properties and institutions simply will not survive. Municipalities should consider how they can facilitate and incentivize the adaptive reuse of buildings to avoid community blight and to promote social and economic growth. The amendments to the New York State Environmental Quality Review Act (SEQRA) that became effective in 2019 created an express “Type II exemption” for the reuse of residential, commercial or mixed-use structures where those uses are permitted and no Type I threshold is surpassed. Municipalities can build on this template, such as by expediting the review of projects that involve adaptive reuse when certain criteria are met mitigating adverse environmental impacts and by providing density bonuses for such projects.
Emerging Residential Trends
While it may still be too early to assess the degree to which the pandemic will affect and/or alter residential development, it appears likely to do so on multiple levels. At least some migration of people out of dense urban areas to more suburban or rural areas is likely and is seemingly already underway. Municipalities should evaluate their zoning codes to determine if they accommodate the different types of housing these new arrivals will desire. While some suburbs will inevitably experience increased interest in the development of standalone single-family homes, young professionals, who may lack the resources or the interest in owning such homes, may have a preference for townhouse developments, which provide for some outdoor private space. Others may seek out rental projects with flexible leasing policies, as long-term acquisitions or the commitment of a down payment becomes less desirable, as well as seek designs that incorporate social distancing. Private or semi-private gardens may become more important than other amenities that do not as easily accommodate social distancing, such as common rooms, clubhouses and gyms.
One particularly strong candidate for a new use is the supply chain distribution center, which promotes the efficient functioning of delivery services that have rapidly grown in popularity during the pandemic, in addition to providing jobs and other economic benefits. While Euclidian orthodoxy may no longer be in vogue, municipalities may want to proactively target and designate areas within their borders where larger uses in this category with excellent access and vehicular circulation can be accommodated. Smaller uses in this category could likewise be accommodated in proximity to residential areas through less traditional form-based codes and hybrid codes incorporating traditional zoning regulations and form-based codes.
The pandemic has caused many workers to become familiar with working from home, and a significant portion will likely desire to continue to work in this format. In response, municipalities must now consider relaxing antiquated home-occupation restrictions in their codes, which are often strict and the product of Euclidean rigidity. Absent empirical data demonstrating adverse local impacts, the time may now be right to expand the range and intensity of home-occupations, since having folks sit in front of their computers, accepting deliveries, producing deliverables, participating in conference calls and otherwise conducting business from home may actually be prudent, environmentally sensitive and economically beneficial.
Changing Parking Requirements and Traffic Projections
If more people are working and shopping from home in a post-COVID-19 world, municipalities may wish to explore allowing for reduced or creative parking arrangements, such as implementing maximum parking limits, permitting the payment of fees in lieu of parking spaces, using shared parking lots or allowing parking spaces to be land banked (i.e., designating a portion of a site that would be required for parking to be preserved as open space which can be used in the future for parking if found to be needed by the official charged with enforcing the zoning code). Parking and driveway areas may also need to be reevaluated to better accommodate delivery drivers. Reduced traffic counts may also impact traffic projections.
Indoor Design Requirements
Although this article focuses on changes to land use controls that will enable municipalities to adjust, if not thrive, in a post-COVID-19 world, there are also numerous changes to the internal design of structures that will likely come into play as a result of the pandemic. Such changes may include the use of individual HVAC systems for each unit within multifamily buildings; additional exterior entrances within multifamily complexes; the use of no-touch technology (i.e., automatic doors and voice-activated technology); an increase in elevators to reduce crowds; and fewer requirements for common spaces. These changes can also be accommodated through adjustments to zoning and building codes. The awareness, if not need, for better separation and social distancing will inevitably change the floorplans of the future.
As Darwin theorized over 160 years ago, species that have the traits that enable them to adapt to changes in their environment will survive and flourish. Those that do not, will perish. Similar precepts should inform municipalities as they urgently contemplate their next steps in what will likely be an accelerated evolution of their respective communities.
David is a founding member and managing partner of Zarin & Steinmetz. He concentrates his practice in the areas of zoning, land use, real estate, environmental law and litigation. He regularly appears before municipal boards processing land development applications. David has also successfully litigated numerous complex cases in state and federal court at the trial and appellate levels. Currently, David is involved as lead counsel in several adaptive reuse and mixed-use projects, as well as multiple senior assisted living applications. David has secured an “AV” peer rating and has been designated as a “SuperLawyer” from 2015 through the present.
Dan is a partner with Zarin & Steinmetz. He counsels private and municipal clients on permitting and entitlements, SEQRA, zoning, the National Environmental Policy Act, public-private partnerships and watershed regulations. Dan represents clients in administrative proceedings before state and local land use boards. Dan received his Juris Doctor, cum laude, from Vermont Law School, where he served as editor-in-chief of the Vermont Law Review. He received a Bachelor of Arts in History from Williams College. Dan is LEED®-accredited and serves as co-chair of the Land Use Committee of the Environmental and Energy Law Section of the NYSBA.
Maximillian is an associate with Zarin & Steinmetz. He received his Juris Doctor, magna cum laude, from the Elisabeth Haub School of Law at Pace University in 2019, where he served as an article groups editor at the Pace Environmental Law Review. While in law school, Maximillian worked as a research assistant with the Pace Land Use Law Center. In addition, he interned with the Corporation Counsel of the Village of Ossining, N.Y., and with Johnson, Haslun & Hogeman. Maximillian received Master’s and Bachelor’s degrees in Urban Planning from the University of Illinois at Urbana-Champaign.
. See Tenement House Reform, www.vcu.edu, https://socialwelfare.library.vcu.edu/issues/poverty/tenement-house-reform.
. Id. at 392.
. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 381 (1926).
. Id. at 387.
. See Cornell University v. Bagnardi, 68 N.Y.2d 583, 594 (1986).
. See Charles Darwin, On the Origin of Species (1859).
. See C.J. Hughes, It’s Time to Get Out of Dodge, N.Y. Times, May 10, 2020, at Real Estate, page 1.
. See Patrick Sisson, The Dying Mall’s New Lease on Life: Apartments, Bloomberg.com, June 30, 2020. (An article in Bloomberg News noting that it is predicted that “[m]ore than half of U.S. department stores in malls will be gone by 2021,” citing to an analysis by Green Street Advisors, and that adapting vacant malls to residential use is a growing trend that will likely prove successful in the age of COVID-19; further noting that the federal government has proposed re-using vacant retail space to accommodate affordable housing).
. 6 N.Y.C.R.R. § 617.5(c)(18).
. See Hughes, supra note 9; see also Douglas Elliman, Elliman Report, April 2020 (Market Report from Douglas Elliman showing the number of new leases signed in Manhattan, Brooklyn, and Queens fell 70.9% from April 2019), https://www.elliman.com/resources/siteresources/commonresources/static%20pages/images/corporate-resources/rental-mar/rental%2003_2020.pdf.