An Environmental Understanding of the Local Land Use System

• Date: 01 March 2015

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 Article 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 reviewing

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 areas 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 beginning 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 oces, 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 city appointed a commission to investi-

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 districts, 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 industrial 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, these 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 specic provisions of local site plan and

subdivision regulations, and other land development regu-

lations applicable to specic 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 and 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 the

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 oers an opportunity to look

broadly at local programs such as housing, economic devel-

opment, provision of public infrastructure and services, as

well as 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 guide the local

legislature in adopting zoning and land use regulations

and planning capital budgets for infrastructure needed

for future development. Private sector developers benet

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 local comprehensive land use plan is developed pur-

suant to state statutory authority and 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 signicant 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 to allow the blind chances

of nature to determine the course of evolution; the use

of his intelligence could shape its direction.” This was, in

a nutshell, the root assumption of the American urban

           

century. For decades thereafter, zoning was thought to

be the prime instrument of that 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 regional housing needs and indirect

taxation, provision for scenic vistas and conservation of

special habitats, among a host of current applications.

Many of these new zoning issues have only the remotest

connection to the division of a community into districts

that would preserve the health, safety, and welfare of

local inhabitants.

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.