Innovations in Local Environmental Law

• Author: John R. Nolon
• Pages: 109-173

109

Chapter 4:

Innovations in Local

Environmental Law

I. Local Environmental and Land Use Law

In Chapter 1, we traced the growing awareness of t he power that loc al gov-

ernments have to protect the environment through local environmental law.

Chapter 3 explored the legal authority of state and local governments to pro-

tect the local environment through their delegated authority to control land

use as well a s their power to protect t he public health, safety, and welfare

generally.

In this chapter, we examine a large number of laws that localities in many

states have adopted to protect their natural resources. Today, local environ-

mental protection laws can be found that cover an impressive ra nge of envi-

ronmental issues such as open space protection, environmental ly sensitive

area protection, erosion and sedimentation control, grading, lling and exca-

vations, oodplains control, ground water/aquifer resource protection, land-

scaping, ridgeline protection, scenic resource protection, soil removal, solid

waste disposa l, stream and watercourse protection, steep slopes, stormwater

management, timber harvesting, tree protection, vegetation removal, and

wetlands. Interestingly, many of these ordinances deal with the prevention of

nonpoint source pollution, which is a critical environmental problem that is

generally conceded to be beyond the eective reach of federal environmental

law.

ese loca l environmental laws are implicated when developers propose

projects to local administrative bodies charged with reviewing development

proposals. Traditionally, local bodies, such as planning boards, review devel-

opment proposals to determine whether they comply with the provisions of

comprehensive plans, zoning ordinances, and subdivision and site plan regu-

lations. e addition of local environmental laws to these traditional land use

controls extends the reach of loca l regulation and lls in signicant gaps in

both land use and environmental law. is, in turn, has encouraged land use

lawyers and pla nners to learn about environmental f unctions a nd enga ged

environmental scientists and lawyers in t he local land use real m.

110 Standing Ground

II. Protecting Natural Resources Through Local

Environmental Law

A. Purposes

Local environmental regu lations can serve two important purposes. First,

they can preserve the quality of life of a community by retaining and protect-

ing existing environmental assets so that a balance between development and

environmental protection is achieved. Second, they can prevent the harm to

the c ommunity caused by pollution related to the development of specic

parcels of land.

Clinton, New York

Despite its cl ose proximity to the Poughkeepsie urban are a, Clinton, N ew

York, retain s large areas of agricultural and undeveloped land. The town

contains a wide variety of natural resources of exceptional quality, including

lakes, ext ensive wetla nds, large wooded tracts, r ural set tings, and several

watersheds. These and other natural features are considered amenities that

attract developm ent, but they can al so place environmental co nstraints on

actual constru ction. According to the t own’s comprehensive plan:

§3.1 The town should discourage the development and encourage

protection of slopes over 15 percent and ridgelines to ensure minimal

disruption of their e nvironmental func tion and scenic qualit ies.

§3.25 Impo rtant wildli fe habitats an d other signif‌ica nt environmental

areas should be ident if‌ied and protected .

§3.19 The town should develop an d imple ment a log ging ord inance

to address issu es of stormw ater manageme nt (e.g. erosio n control) ,

water quality a nd habitat protec tion.

§3.20 A de f‌ined open spac e system should be part of ever y site plan

proposal and , where po ssible, be linked to form continuo us greens-

pace corridors. N atural corridors should be part icularly encour aged

along stream beds and wetl ands to provide o pen space, w ildlife habi-

tat, and groundw ater protection .

§3.7 The town should re duce the pollutant l oad in runoff by:

•฀ Recommending limiting use of lawn chemicals and fertilizers within

a minimum of 100 feet of all wet lands, stream s, and water bodies

Innovations in Local Environmental Law 111

e rst purpose can be achieved by the adoption of the zoning law itself.

Zoning districts can be designed to achieve a balance between land develop-

ment and resource protection throughout the community. Local zoning ordi-

nances may contain provisions that directly protect the environment. See,

for example, the model state enabling statute recommended by the Growing

Smart Legislative Guidebook.2 It states that a zoning ordinance may regulate

development aecting views and scenic resources, drainage and stormwater

runo, soil erosion or sedimentation, the quality of air a nd water, critical

and sensitive areas, a nd natural haza rd areas, including oodplains. To the

extent that language such as this exists in a state’s zoning enabling act, local

zoning ordinances and other land use regulations can contain provisions that

aim to protect environmental resources. e purpose of such provisions is to

“encourage t he most appropriate use of la nd t hroughout the communit y,”

one of the basic purposes of zoning itself. Such purposes can be clearly stated

in the local comprehensive plans. A n in-depth explanation of land pla nning

is contained in Chapter 3.

•฀ Requiring a minimum distance of 100 feet of vegetated buffer

between a ll stormwater management basin outfalls and wetlands,

lakes and streams

•฀ Developing guidelines for minimizing the impacts of road salt includ-

ing disposal of snow at least 100 feet from any receiving waters.

•฀ Implementing townwide policies that eliminate or minimize all

known sources of water pollution including road salt, leaching

dump sites, and herbicide s/pesticides /fertilizers applied to land-

scaped areas and utility corridors.

§8.1 The t own should encourage high quality design and construc-

tion, with the retention of existing trees whenever possible and the

extensive use of landscape elements that integrates new development

with the surrounding area. Projects requiring site plan approval should

include landscaping with consideration of passive and ac tive solar

potential. The town should adopt and appropriate archite ctural P at-

tern Book as a guide for applicants and reviewing agencies.

§8.14 The Planning Board sh ould have the authorit y to mandate clus -

tering as an effective means t o reduce hous ing costs, limit access

points, and provide addit ional recreation and o pen space.1