Challenging Troy’s RECODE Proposal

Part I: Falling Short

The proposed Troy zoning code, ReCode Troy, is a missed opportunity to make a real impact on our code. The revisions, as they stand, are at least marginally an improvement on our existing zoning code. They’re even an improvement compared to many municipal codes in the area. But what they lack is the follow-through in the vision they paint for the future of Troy. In fact, while the code itself cites climate change and a high-quality urban environment as part of its purpose statement, it falls short in a few, critically important ways.

First, the Single-Family use districts – and Neighborhood I zones in the quasi-form-based code proposed here – are systemically racially discriminatory and classist, contribute to a tremendous amount of traffic violence, and is essentially climate change denial in land use form. 

While the purpose statement did not address social equity and racial justice, it should have. The issue is too important to the residents of Troy, and our regulation of land use has a direct impact on these issues. The connection between single-family zoning and redlining is well established (The Color of Law by Richard Rothstein to name but one among many, many other books, academic articles, essays, and other research). Additionally, the exclusion inherent in single-family zoning that disproportionately affects people of color also extends to anyone of lesser means – excluding them from living closer to jobs, recreation, commercial opportunities, natural resources, schools, and other community resources. 

This land use means that the working class (which are disproportionately people of color) must travel farther to access these resources – to the extent that they are allowed to at all. The farther travel means even higher costs of driving and further reliance on vehicles that are expensive to operate and maintain. It means longer transit trips that are exacerbated by the sprawling form of development encouraged by single-family zoning. It means more dangerous bike, pedestrian, and driver journeys from frustrated and distracted drivers that are compelled to slog through endless traffic promoted by this zoning. 

These extended journeys also highlight how single-family zoning is climate denial in land use form – it requires nearly everyone to drive everywhere. Since even short walking or bike trips feel unsafe because the development pattern prioritizes vehicle movement, most people drive – continually adding more and more carbon, brake and tire dust, and other pollutants into our neighborhoods. 

Single-family zoning also is incredibly inefficient. From the amount of energy needed to heat, cool, light, and generally operate larger, detached houses to the horrendously polluting lawn equipment, loosely regulated application of pesticides and fertilizer, and the tremendous amount of fresh water applied to larger lawns, the single-family zoning that encourages this type of built environment is simply unacceptable with the climate crisis now in the single digit years away from irreversible tipping points leading unimaginable death, suffering, and strife. With all of us collectively staring down the barrel of such a future, how can we tolerate doing more of the same things that got us into this mess any longer? To begin to improve a situation, we have to stop doing the behavior that got us into it.

While a zoning code cannot – on its own – solve the climate crisis, it actually does play a massive role. We can stop making things worse, and perhaps even begin to reverse some of the damage that we’ve collectively inherited. Just as important, we can also stop reproducing structures rooted in racism and classism. We should simply not have any single-family districts or Neighborhood I zones in the city of Troy.

It’s important to remember that a zoning ordinance is not (as we sometimes think about it) a document about what we want to see where. It is a document about what cannot be where. Single-family dwellings can still be built in all of the residential zones (aside from the Downtown and Waterfront Mixed Use districts). Single-family districts (and Neighborhood I zones) are exclusionary to large swathes of the residents of Troy – both current and future – and compounds this social ill with safety and ecological ills at the same time. In 2022, we should have the courage, and vision, to say that Troy has progressed beyond exclusion, carnage, and denial. Troy should be leading the way for the region, state, and country by embracing an equitable, livable, and sustainable future. We should meet this moment with the urgency that the climate crisis requires, the resolve that inequity demands, and the boldness that our future promises.

Part II: Double Fault

While the Single-Family districts and Neighborhood I zones are where the draft zoning falls the most short of an equitable, safe, sustainable, and livable Troy, there are other issues. While the Two-Family and Multi-Family districts don’t impart the same level of exclusion that single-family districts impose, there are exclusionary aspects included within these districts as proposed. 

Two-family dwellings are certainly better than single-family, but, when combined with the Neighborhood I intensity zone, it’s not that much of an improvement. It’s not clear what the Two-Family district accomplishes as compared to the Multi-Family or Mixed-Use districts in the same intensity zones other than being exclusionary. Two-family (and even single-family) housing would still be permitted in both, if the developer so chose. It’s exclusion for the sake of exclusion, we can, and should move on from such structural harm.

Additionally, the exclusion of nearly all commercial activity in the Two-Family and Multi-Family districts further raises the barrier to entry for low-income populations and people of color to entrepreneurship. With the existence of old storefronts in proposed residency-exclusive districts, the City is taking opportunities for these communities to access lower cost spaces to conduct neighborhood commercial business, while at the same time foreclosing opportunities to repair and reanimate these spaces. The exclusion of nearly all commercial uses in these districts also increases the likelihood that residents will drive to commercial areas – undermining the market for smaller, local business and adding to the twin evils of car-centered development: traffic violence and pollution. Further, this exclusion of neighborhood retail impacts basic livability. The ability to access basic grocery items from a bodega, grab a sandwich from a deli, a cup of coffee from a coffee shop, or drop off some laundry at laundromat right around the corner from one’s home would all be denied to large chunks of Troy – with some residents needing to walk several blocks (possibly a half mile or more in some cases) to reach an area where these commercial activities might be located.

The three residency-exclusive districts are simply unnecessary, and are actually harmful to the residents of Troy. Eliminating Two-Family and Multi-Family districts, and instead adopting Mixed-Use 1 as the default use district (with perhaps some edits to things like small bars or gas stations requiring Special Use Permits) would result in a more equitable, sustainable, and livable Troy.

Part III: By A Thousand Cuts

To make the critique of the remainder of the code more efficient, the issues are bulleted below. 

• Site Plan Review
  • Doesn’t require review for single/double family structures, but does for multi-family. There should be parity – allow for multi-family exemption as well in Neighborhood II/III/IV or require for single/double
  • Exemption for 5 additional parking spaces would mean 10 spots for up to 6 bedrooms. Remove exemption all together or at least tie to # of bedrooms (i.e. any more than 1 space per bedroom must submit a site plan)
  • Says the Planning Commission may hold a public hearing, leaving the possibility that projects that deserve a public hearing may not get it. Establish standards (or at least guidance) for when there must be a public hearing
• Variances
  • The variance criteria is restrictive. While this is not bad, per se, use variance has been offered as a remedy by current elected officials to potential future non-conforming uses. The variance criteria is unlikely to allow uses like neighborhood retail (i.e. coffee shops, bodegas, laundry facilities, day care) in the Single, Double, and Multi Family districts – even when there are existing out-of-use store fronts that could provide lower barriers to entry for such small businesses in those districts. Even the act of seeking a variance is adding to costs and erecting barriers, especially when it’s not clear what the compelling public interest is in not allowing such uses
• Powers and duties of Zoning Board of Appeals
  • Unclear what threshold, if any, is needed for adoption in the case of a rehearing
    • If a rehearing is needed – why would the standard be different?
  • Attendance section doesn’t address attendance
    • Should be *some* sort of standard and provision for removal based on attendance and/or training
• Penalties
  • While it may be customary to include imprisonment in penalties, it’s hard to understand what the public utility would be to imprison someone for zoning violations
  • This is an opportunity to impose a schedule of income-based fines. Established systems use “day fines” – scaling fines to increments of the violators daily income
• Accessory Dwelling Units
  • It should be noted that the inclusion of accessory dwelling units (ADUs, or granny flats) is a step in the right direction, and should absolutely be lauded. The inclusion of ADUs as a permissible use in nearly all residential districts is a feature that should remain, but we should also acknowledge that this is insufficient to overcome the social, safety, and environmental destruction that single-family districts inflict
• Neighborhood Zones:
  • The lot width requirement in Neighborhood II zone should be reduced or eliminated for many of the same reasons mentioned in Section I and II of this document above
  • Neighborhood II should be the lowest acceptable intensity in the city of Troy
  • Neighborhood III and IV are not meaningfully different and should be combined to the standards of Neighborhood IV, with the addition of allowing porches. The new combined zone should be applied to more of the city – it’s a flexible intensity and should balance existing character while allowing more density in more places
  • There are a few typographical errors in the Development Intensity Zone lot development standards (graphics not agreeing with text in Neighborhood II, V)
  • It seems incongruous that Neighborhood IV has a minimum of 2 stories, but Downtown Edge has just 1? Whether an error or not, to be adjacent to the Downtown core – where 8 story (100’) buildings are allowed – to allow anything less than 3 stories in the Downtown Edge is perplexing. Further, the Downtown Edge should probably allow up to (at least) 6 stories. The basic idea in form-based codes is that development gets more intense the closer to the core, and this doesn’t really do that effectively
  • Again, the Downtown Core somehow allows a 1 story building – seemingly at odds with the purpose of a form-based code. With a variance system in place, it’s hard to imagine the point of setting the minimum so low in the Downtown Core

• Adult Uses
  • The prohibition of more than one adult use per lot, the 750 foot buffer between lots supporting adult uses, and the 250 foot buffer from the many other uses are overly burdensome and antithetical to dense urbanism that is promoted throughout the rest of the document. Having more than one use per lot is convenient to customers and residents, provides agglomeration effects to the businesses, and results in less driving and contributes to walkability. The 750 foot buffer, for similar reasons, should be dropped altogether – or at least reduced
  • The 250 foot buffer to the long list of other uses is likely to be a de facto prohibition of adult uses entirely – particularly to the dense development pattern of the majority of Troy. This buffer should be reduced, and the list of uses that must have a buffer should also be pared down (cemeteries, community centers, parks, and public recreational facilities in particular defy compelling explanation for their inclusion on such a list)
  • Similarly, the provision regarding the observation of business activity is overly broad. In particular, the use of “relating to any sexual act or any part of the sexual anatomy” and the application to “any display, decoration, sign, show, window, or other opening” could reasonably be interpreted to ban just about anything that these businesses could reasonably display at all. How would the business let the public know about its existence/location without running afoul of the zoning ordinance? 
  • The existence of sexuality-related commerce doesn’t need to be – and shouldn’t be – shameful. Using the zoning ordinance to regulate adult uses as proposed is ham-fisted, and should use a lighter touch. The city council can always regulate these businesses with stand-alone regulations to address it the manner it deserves – well-thought out, supportive of the workers at these businesses, safe, and without shaming sex itself
• Agriculture
  • Provision regarding composting for community gardens is overly restrictive as many smaller lots would be unlikely to be able to comply with this provision. It’s also not clear why this restrictive zoning regulation is better to deal with potential issues than an education/demonstration/simple certification requirement
  • The requirement of a Site Plan for smaller urban farms is overly burdensome, and a threshold establishing that smaller operations should be exempt from this provision, or complete a simplified version – particularly with respect to the equipment needed and frequency and duration of chemicals/pesticide application as conditions (that may not be within the control of the business owner) may change that alter these answers
  • Requiring that no “dust or odors [be] detectable off the property” is prima facie absurd for a farming operation. There will be odors and dust, but are they any more of a nuisance than the odors coming from other unregulated uses, or simply the neighbors trash? By what standard will a determination of “detrimental to the public health, safety, or welfare” be made?
  • How will prohibiting slaughter of chickens or rabbits be enforceable? Why is a prohibition – and resulting fine – better for the public good than simply requiring education/certification?
• Cannabis dispensaries/retail, tobacco, hookah, vaping establishments
  • The buffers from public parks, schools, or religious institutions are too large and restrictive. It’s particularly not clear why parks should be included in this list as it is legal to smoke in certain parts of parks
  • The buffer from other establishments of this type is both confusing and inappropriate. It’s not clear what the “type” is referring to in this provision – 500 ft between tobacco establishments or between any one of these establishments. The buffer is onerous under any interpretation, but particularly with the latter. Dense, walkable cities tend to have industry districts, and that is a benefit to residents
• Convenience Stores
  • The 500 foot buffer requirement in this section is antithetical to the concept of convenience. It’s not guaranteed that any particular store will carry the items that one needs or desires, and this buffer ensures that residents are inconvenienced. Allowing variety and different stores to cater to different customer bases should be encouraged, not discouraged. Having convenience stores at the same intersection is a boon to livability! This is easily the most anti-urban provision of the additional regulations on use, it should be eliminated
• Home-based businesses
  • The hours for client visits are too restrictive, client visits should be allowed to terminate as late as 10pm
• Parking, loading and transportation
  • Off-street parking
    • While establishing maximums, rather than minimums, is an excellent move, the maximums established by Schedule C are simply too high – especially since applicants can petition for 20% more. Dropping these maximums by 20%, establishing a “or one parking space per bedroom, whichever is lower” provision as-of-right, and maintaining the ability to petition for 20% of the new lower threshold is an appropriate balance
  • EV charging
    • Extend requirements for any surface lot to have at least one charging station and a ratio of 1 charging station per 3 spaces for any use district containing residential uses – while the other uses should retain the 1 to 10 ratio. With the proliferation of EVs, their share of total vehicles will necessitate far more charging infrastructure moving forward
  • Bike Parking
    • Extend the requirement for short term bike parking to any surface lot, and require a minimum of three bike spots – a three-bike rack is simple enough to install, in terms of materials, labor, and space
    • Increase the minimum rate of long term bike parking for multi-family residential and community residential by one space
• Public space enhancements and placemaking elements
  • This provision is great, even if it’s not terribly strong. One way to improve this would be to prohibit the use of hostile architecture in these elements, as they are cruel, inhumane, and harm all users of public space
• Stormwater management standards
  • Single- and two- family dwellings should not be exempt from the urban runoff control provisions as such dwellings can collectively be a large source of runoff. The smaller impact of individual disturbances shouldn’t exempt the activities when there is such a potential for their collective impact to be quite large
• Sidewalks
  • Despite being mentioned 57 times in the document, there doesn’t seem to be a direct, explicit requirement to build sidewalks. If there isn’t, then one should be established
  • To think a bit bigger, Troy should consider a municipal sidewalk program – where the city assists with creation and maintenance of sidewalks throughout the city, particularly with snow removal in winter. Such a program could assist with financing of derelict or missing portions of the sidewalk network, as well as conduct repairs and maintain accessibility during all seasons. The benefits would be most acutely felt among those mobility impairments – both temporary and permanent, but would also be tremendously beneficial to anyone making their way around the city. While such a program could be more fleshed out in other parts of the code or other legislation, there may be an opportunity to support a program via zoning through permanent easements, incentives, or some combination of mechanisms.
• Director of Code Enforcement Powers
  • While there is some ability to appeal to the Zoning Board of Appeals, the Director is also charged with delivering the appeal – which seems like an issue to someone who is seeking relief from a Director that is acting in bad faith/abusing authority. A non-exhaustive list of the Director’s duties/powers:
    • Issuing a CO for partial occupancy
    • Issuing a temporary CO 
    • Determining whether an alteration to the exterior of the principal structure qualifies for exemption to Site Plan requirement
    • Exemption to Site Plan requirement
    • Revoke Special Use Permit
    • Boundary/lot line adjustments that “do not result in the creation of any additional buildable lot(s); or the creation of any non-conforming lot, structure, or use; or the creation of any new public or private street”
    • Override a stay of enforcement during appeal
    • Issue temporary permits for structures or uses
    • Decides when violation is corrected and time frame for correcting
    • Power to waive violation fee
    • Issue appearance tickets
    • Initiate court actions
    • Interpret district and zone boundary lines
    • Transmit appeals to ZBA
  • Providing a means to appeal directly to the ZBA, the ability of the ZBA to discipline (or recommend it to the council) the Director of Code, and empowering/requiring the ZBA/Director of Code to employ outside experts on subject matters beyond its expertise (i.e. hydrology, agriculture, transportation planning) would all be ways to balance the enormous power given to the Director.