An Environmental Understanding of the Local Land Use System
| Date | 01 March 2015 |
| Author |
3-2015 NEWS & ANALYSIS 45 ELR 10215
An
Environmental
Understanding
of the Local Land
Use System
by John R. Nolon
John R. Nolon is a Distinguished Professor of Law at
Pace University Schoo l of Law, where he teaches propert y,
land use, and sustainable development l aw courses and
is Counsel to the Law School’s Land Use Law Center.
He has been an Adjunct Professor at the Yale School
of Forestry and Environmental Studies since 2001.
is Article is adapted from Chapter ree of J R.
N, P E T
L U L: S G, published in
2014 by ELI Press. e book updates and expands on
the author’s previous work, describing in detail how
localities are responding to new challenges, including
the imperative that they adapt to and help mitigate
climate change and create sustainable neighborhoods.
is A rticle outlines a comprehensive framework for
understanding how traditional local land use author-
ity can be used to preserve natural resources and envi-
ronmental functions at the community level.
I. Planning, Zoning, and Land
Development Basics
A. The Basics of Land Use Planning
Lawyers and planners who understand the workings of
the local land use system will nd many ways to use it
to protect environmental resources. Stripped to its essen-
tials, the local land use system starts with the adoption
of a comprehensive plan, moves to zoning that conforms
to and implements that plan, and supplements these with
land development regulations that can protect the envi-
ronment. Environmentally inclined municipalities initiate
their environmental law initiatives by inserting an environ-
mental protection component in their comprehensive plan.
is provides legal support for adopting zoning districts,
such as a conservation residential zone, to protect natural
resources. Subdivisions and site plans, or land development
regulations, can be amended to prevent soil erosion and
sedimentation or to protect habitats and wetlands. Local
planning boards can use informal protocols in review ing
land development proposals to encourage developers to
adjust their proposals to avoid environmental degradation.
is Article is for those who wish to take advantage
of traditional land use techniques such as land use plan-
ning, zoning, and land development regulations to protect
the environment. It also orients the reader to a number of
more innovative and exible techniques that can be used to
designate and protect vulnerable environmental a reas and
assets to achieve the proper balance between conservation
and development. is balance has been one of the key
objectives of the American land use system from its incep-
tion over 100 years ago.
B. The Rapid Rise of Zoning
At the beginn ing of the 20th century, cities needed new
techniques to control private development to prevent res,
promote public safety, and protect property values. In
New York City, Fifth Avenue merchants were upset with
the encroachment of other land uses, such as garment fac-
tories and oces, into their high-end retail neighborhood.
ere was broad sentiment that the city was becoming too
densely settled, largely because of the spread of skyscrap-
ers. In 1913, the cit y appointed a commission to i nvesti-
gate a completely new idea: the division of the city into
land use districts.
Based on the commission’s recommendations, the
nation’s rst comprehensive zoning ordinance was adopted
by New York City in 1916. It divided the city into multiple
land use dist ricts, or zones. ese districts allowed private
landowners to use their land only for the purposes permit-
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
45 ELR 10216 ENVIRONMENTAL LAW REPORTER 3-2015
ted in the applicable district. is protected Fifth Avenue
retailers, for example, from the incursion of garment facto-
ries—an industria l use—in that retail zone.
is concept spread quickly. In 1922, the U.S. Depart-
ment of Commerce issued a model law called the State
Zoning Enabling Act.1 e intent of the Act was to be con-
sidered and adopted by state legislatures to make it clear
that the adoption of zoning laws is within the legal author-
ity of municipal governments. By the mid-1920s, nearly
400 local governments had adopted comprehensive zoning
laws. A ll 50 states adopted some variation of this statute
delegating authority to municipalities to regulate private
land uses. Over time, t hese statutes have been changed;
today the states vary in how broadly they empower local
governments, to what extent they guide them, and when
they foreclose local action through preemptive, statewide
laws. From the beginning, however, the state enabling
acts made it clear that one of the purposes of zoning is to
achieve the most appropriate use of the land, which—then
and now—includes protecting the environment and the
natural resources it harbors.
C. Land Development Regulations and Plan
Consistency
Developments that conform to zoning standards must also
comply with the specic provisions of local site plan and
subdivision regulations, and other land development regu-
lations applicable to specic projects. Developers submit
current proposals to local planning boards, which review
1. D’ C A C Z, A S
S Z E A (1926).
them, applying these standards and then approving the
project proposals, with or without conditions, or denying
permission to build for failure to comply with these legis-
lated land use controls.
In most states, zoning a nd other land use regulations
must conform to a locally adopted comprehensive plan,
which is not itself regulatory, but charts the desired course
of land development and conservation for the future.
Localities vary greatly in how much detail they place in
their comprehensive plan, how many topics it covers, and
how often and comprehensively it is updated. Communi-
ties that wish to adopt aggressive environmental protections
are well advised to put the rationale for such regulations in
their comprehensive plans.
II. Land Use Plans and the Environment
A. The Comprehensive Plan
e comprehensive plan creates a blueprint for the future
development and preservation of a community. It is t he
policy foundation upon which communities are built. A
truly comprehensive plan guides not only the physical and
economic development of the municipality, but also accom-
modates social, environmental, and regional concerns.
e planning process oers an opportunity to look
broadly at local programs such as housing, economic devel-
opment, provision of public infrastructure and services, as
well a s environmental protection. e plan explains how
these issues relate to one another by presenting a “big pic-
ture” look at the community currently and articulating
goals for the future. e local comprehensive plan con-
tains a number of long-term goals, shorter-term objectives
related to each goal, strategies to achieve each objective,
and implementation techniques for carrying out each strat-
egy. ese components are then used to g uide the local
legislature in adopting zoning and land use regulations
and planning capital budgets for infrastructure needed
for future development. Private sector developers benet
when plans clearly articulate the desires and aspirations of
a community, create a community that is well engineered,
environmentally sound, and livable, and chart a path that
they can reliably follow.
B. Development of the Plan
e loca l comprehensive land use plan is developed pur-
suant to state statutory authority a nd practices vary from
state to state. One typical pattern is for the local legislative
planning body to appoint either the planning board or a
special board or committee to develop a proposed plan for
adoption, ultimately, by the legislative body. Good plan-
ning practice incorporates signicant public participation
in the process of developing the plan. Public participation
is important to gather intelligence on local conditions
and issues and to build a constituency for support of the
plan after its adoption. At a minimum, the public must
The Root of American Planning
“Modern man did not have t o allow the blind chances
of nature to determin e the cou rse of evoluti on; the use
of his intellige nce could shape it s direction.” This w as, in
a nutshell, the root assumption of the Americ an urb an
century. For dec ades there after, zoning was thought to
be the prime instrument of t hat movement.
S I. T, Z A 18 (1969), partially quoting O
H, T A P 333 (1963).
The Scope of Modern Zoning
Zoning now includes re gional housing needs a nd indirect
taxation, provision for scenic vistas and conse rvation of
special habitats, among a host of current applications.
Many of these new zoning issues have only the remote st
connection to the d ivision of a community into di stricts
that would preserve the health, safety, and welf are of
local inhabit ants.
Peter L. Abeles, in Z T A
D: P S K (Charles M. Haar & Jerold S. Kayden
eds., 1989).
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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