In the 1930s, villages and towns throughout New York began to enact their own local zoning laws. The power to do so is derived from the Tenth Amendment, New York’s Constitution and Home Rule statutes as contained in municipal laws enacted by our state legislature. Home Rule provides that Villages and Towns throughout New York have exclusive control of their own zoning laws. It is such an important part of our local laws that it essentially is the foundation for the existence of towns and villages.
Home Rule has been a legal concept unfortunately overlooked by lawyers and the courts in MHANY Management, Inc. et al vs. County of Nassau and Village of Garden City, et al,. In that case, the federal courts determined that Garden City and Nassau County discriminated against the plaintiffs by passing zoning laws limiting the construction of “affordable housing.” I have entered this case as amicus curiae, a friend of the Court, pro bono publico, on the side of Garden City and Nassau County, asking for the Circuit Court to consider Home Rule, but the Circuit Court has not taken heed. As the former chair of the Nassau Bar Association’s civil rights committee, I have undertaken this responsibility because as a lawyer and judge I took an oath to uphold, protect and defend the Constitutions of the United States and the State of New York. Part of this oath included my fervent promise to our former mayor that I would always act “to preserve the residential character of our community.” In my opinion, this case threatens not only the residential character of the community but also Home Rule and the very existence of our towns and villages.
To understand the case one must also look to the Fourteenth Amendment as enacted in 1868. In the post-Civil War era it barred various form of de jure (legal) discrimination including Jim Crow laws. The Fourteenth Amendment for the most part lay, dormant until 1954 when the Amendment was used to attack segregated schools in the south which could no longer be “separate but equal.”
Garden City is the first planned community in the United States. Its bucolic, pristine character has high end housing and a substantial array of apartments. Similar to Park Avenue, Old Westbury and the Hamptons, anyone can live there if they can afford it. Since many minorities are still on their way up financially, they cannot afford to live there. As a result, Garden City is de facto segregated. It accepts no federal housing money yet because they passed zoning laws that may have limited the building of affordable housing, the Courts have said that they violated Fair Housing Laws and the Fourteenth Amendment in that they allegedly discriminated against an undefined class. Meanwhile instead of any housing, the County is moving the Family Court to that site and the alleged discrimination is therefore moot.
There is a clash between the Tenth and Fourteenth Amendments in this case. Home Rule should win but so far it has not. Garden City is being unfairly labeled as a community that favors Jim Crow laws when its only interest is in preserving its residential character, a right afforded to it under the Tenth Amendment.
