An Environmental Understanding of the Local Land Use System

• Author: John R. Nolon
• Pages: 61-107

61

Chapter 3:

An Environmental

Understanding ofthe

LocalLand Use System

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 essentials, 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 environment. Environmentally inclined municipalities initi-

ate their environmental law initiatives by inserting an environmental protec-

tion 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 regula-

tions, 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 chapter is necessary reading for those who wish to take advantage

of traditional land use techniques such as land use planning, 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 bal-

ance has been one of the key objectives of the American land use system from

its inception over 100 years ago.

62 Standing Ground

B. The Rapid Rise of Zoning

At the beginning of the 20th centur y, cities needed new techniques to con-

trol private development to prevent res, promote public safet y, and protect

property values. In New York City, Fifth Avenue merchants were upset with

the encroachment of other

land uses, such as garment

factories 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 sky-

scrapers. In 1913, the city

appointed a commission to

investigate 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 permitted 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. Department of Commerce

issued a model law ca lled the State Zoning Enabling Act.2 e intent of the

Act was to be considered and adopted by state legislatures to make it clear

that the adoption of zoning laws is within the legal authority of municipal

governments. By the mid-1920s, nearly 400 local governments had adopted

comprehensive zoning laws. All 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 natu-

ral resources it harbors.

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 intel-

ligence could shape its direction.” This

was, in a nutshell, the root assumption

of the American urban planning move-

ment as it took form at the turn of the

century. For decades thereafter, zoning

was thought to be the prime instrument

of that movement.1[all FNs should be

Arabic numerals not Roman numerals.]

An Environmental Understanding of the Local Land Use System 63

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 regulations applicable to specic projects. Developers sub-

mit current proposals to local planning boards, which review 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

legislated 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 devel-

opment 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. Communities that

wish to adopt aggressive envi-

ronmental protections are well

advised to put the rationale for

such regulations in their com-

prehensive 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 com-

munities are built. A truly comprehensive plan guides not only the physi-

cal and economic development of the municipality, but also accommodates

social, environmental, and regional concerns.

e planning process oers an opportunity to look broadly at local pro-

grams such as housing, economic development, provision of public infra-

structure and services, as well as environmental protection. e plan explains

how these issues relate to one another by presenting a “big picture” look

at the community currently and articulating goals for the future. e local

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 cur-

rent applications. Many of these new

zoning issues have only the remotest

connection to the division of a commu-

nity into districts that would preserve

the health, safety, and welfare of local

inhabitants.3