Brookhaven Adopts Innovative Zoning Regulations to Foster Redevelopment of Vacant and Underutilized Commercial Properties

Farrell Fritz, P.C.
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In an effort to stimulate the revitalization of abandoned, vacant or underutilized commercial shopping centers, bowling alleys and health club properties, the Brookhaven Town Board recently voted to adopt a new zoning classification, known as the Commercial Redevelopment District (“CRD”).  In the past year, there were a number of retail and commercial recreational businesses in the Town that were so severely impacted by the effects of the COVID-19 pandemic that they closed permanently.  Even prior to the pandemic, many brick and mortar retail stores have gone out of business because they were unable to compete with the growth of online shopping and e-commerce platforms.  The result is that there are many large vacant buildings and tenant spaces scattered throughout the Town.

The CRD regulations recognize that the more rigid conventional zoning regulations that currently exist do not allow owners of vacant and underutilized commercial real estate to repurpose and redevelop their properties in a way that is both economically beneficial and socially desirable.  The new regulations, therefore, are designed to create planning and zoning flexibility that will allow for developments that are more creative and imaginative in their land use and design, and evoke a unique sense of place.  Properties that are redeveloped under the new CRD regulations must be civic-oriented, pedestrian-friendly, economically vibrant and environmentally sustainable.

The CRD is not a fixed zoning district that applies to a particular geographic area of the Town.  Instead, it is a “floating zone” that can be applied to properties located anywhere in the Town, provided that they are eligible for inclusion in the CRD.  Eligible properties are those that are over five acres in size, and either currently improved with an abandoned, vacant, or underutilized commercial shopping center, bowling alley and health club or previously improved with buildings used for these purposes that have been demolished and removed.

The land uses permitted in the CRD are extremely broad.  The zone permits all uses otherwise allowable in the Town’s zoning ordinance, except for uses that are exclusively permitted in the Town’s J5, L1, L2, K, MHC and PC districts and restaurants with drive-through facilities.  It also permits a combination of land uses, known as mixed-use developments, which are in high-demand on Long Island as young professionals and families seek more affordable housing options in more urban settings that offer proximity to dining, shopping, work, public transportation and other features that improve the quality of their lifestyles.

The CRD includes relaxed dimensional requirements that provide developers with a larger building envelope within which to construct new buildings.  New developments are required to be set back 25 feet from adjacent residential uses, but can be constructed to the property line when adjacent to non-residential development.  The maximum permitted height in the CRD is 50 feet.  To encourage a mix of commercial uses, the regulations prohibit single-tenant commercial buildings that are 40,000 square feet or greater in size.  There are also a number of design regulations incorporated into the new zoning law to ensure that the developments are pedestrian-oriented and bicycle-friendly, and provide civic spaces and recreational areas for residents, employees and visitors to gather for social activities, recreation and visual enjoyment.

Residential developments in the CRD are permitted a maximum base density of 10 units per acre, but density increases may be granted up to 27 units per acre if the site or the proposed development meets certain criteria.  For instance, the regulations allow the base density to be increased by an additional 7 units if the site is located within 2,000 feet of an active Long Island Railroad station and by an additional 4 units if the site can utilize an existing public or private sewage treatment plant.  Other density increases are authorized for sites that have been specifically targeted for redevelopment in an adopted community-based hamlet plan or other planning document, include buildings that will be constructed with superior materials or incorporate green energy technologies, or if 20% of the total housing units will be designed and constructed for persons with special needs.  A minimum of 10% of all residential units shall be maintained as affordable and/or workforce housing units, in accordance with Town Code Chapter 85, Article XIII.

Since there is an expectation that developers who obtain a change of zone to CRD will follow through with their redevelopment plans, the new regulations provide for a forfeiture of residential and nonresidential density if the developer does not advance its project in a timely manner.  For instance, a developer shall forfeit one residential unit or 500 square feet of non-residential development per acre if it fails to make the change of zone effective within one year of the date of the change of zone grant, obtain site plan approval from the Planning Board within two years of the effective date of the change of zone or obtain a building permit and commence substantial construction within three years of the effective date of the change of zone.  A similar forfeiture shall result for every additional six months beyond the specified time periods.  Upon request of the developer, the Town Board may grant a six-month extension of the time periods, which will avoid the law’s automatic forfeiture provisions.

The new CRD regulations received wide-spread support from both building industry professionals and civic leaders.  At the December 3, 2020 public hearing, Mitch Pally, the Chief Executive Officer of the Long Island Builders Institute, expressed his organization’s strong support for the new regulations, which he characterized as “groundbreaking on Long Island” and “tremendously beneficial to the building community of Long Island.”  Jennifer Dzvonar, the president of the Port Jefferson Station/Terryville Chamber of Commerce, advised the Town Board that the chamber was “100% in support of this proposed code” because it “will encourage commercial property owners to update and revitalize their establishments” and create downtown-type areas that will entice additional local businesses.

Owners of vacant or underutilized commercial properties in the Town of Brookhaven that are eligible for inclusion into the CRD should give serious consideration to utilizing this progressive approach to redevelopment which can be a win-win for both developers and the communities in which these properties are located.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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