Opportunities for Regulation of Land Use and Development as a Legal Tool to Protect Biodiversity

• Author: Robert B. McKinstry Jr., James McElfish, Michael Jacobson, and Coreen Ripp
• Pages: 257-292

Chapter 19

Opportunities for Regulation of Land

Use and Development as a Legal Tool

to Protect Biodiversity1

by Robert B. McKinstry Jr., James McElfish, Michael

Jacobson, and Coreen Ripp

I. Introduction

Land development and sprawl represent one of the most significant threats

to biodiversity in the United States. These activities threaten biodiversity by

displacing functional habitat and fragmenting habitat with roads, homes,

commercial buildings, and lawns. They also introduce predators, such as do-

mestic cats and dogs, and they often facilitate the introduction of invasive or

opportunistic species, such as cowbirds, raccoons, and a wide variety of in-

vasive plants. Construction and maintenance of developed landscapes can

further adversely impact biodiversity by introducing pollutants that contam-

inate water and degrade aquatic habitat.

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1. Portions of this chapter have been adapted from an analysis of laws prepared by

James McElfish, an analysis of methods for land protection prepared by Rob-

ert B. McKinstry Jr., and Michael Jacobson, and an analysis of best manage-

ment practices and best stewardship practices prepared by McKinstry, Emily

B. Schwartz, and Curtis P. Wagner for the Pennsylvania Biodiversity Partner-

ship (PBP) and the Pennsylvania Department of Conservation and Natural Re-

sources (PDCNR) and is used by their permission. The three articles will be

posted on the PBP website at http://www.pabiodiversity.org. The views ex-

pressed here are solely those of the authors and should not be deemed to repre-

sent the views of either the PBP or the PDCNR. Portions of this chapter have

also been taken from a Master’s Thesis by Coreen Ripp evaluating the use of

measures to protect natural resources in leading municipalities across Pennsyl-

vania. Coreen Ripp, Use of Regulatory Authority for Natural Resource Protec-

tion by Pennsylvania Municipalities (2005) (Master of Science Thesis, the

Pennsylvania State University School of Forest Resources) (a copy of the the-

sis is on file in the office of the Penn State School of Forest Resources).

All states have laws governing the development and use of land and their

associated activities. These laws are most typically administered by local

governments. Most land use laws can be applied toward biodiversity conser-

vation. Moreover, much biodiversity conservation can occur effectively at

the local level, particularly with respect to plants and animals with restricted

ranges.2While local governments are increasingly using these laws to pro-

tect biodiversity or values, such as open space that can assist biodiversity

conservation, most land use law regulation is not used for this purpose. This

represents a significant lost opportunity.

This chapter will first examine the land use regulation tools that are avail-

able in most states, such as comprehensive plans, official maps, and subdivi-

sion and zoning ordinances, and their potential use ftor biodiversity conser-

vation. The chapter will next examine the legal tools that are available to reg-

ulate development activities that can adversely impact aquatic habitats. Ex-

amples will be taken both from Pennsylvania law and from a 50-state survey

of state land use law conducted by the Environmental Law Institute (ELI)

and Defenders of Wildlife (ELI/Defenders Study).3

II. The Elements of Municipal Land Use Regulation

Municipal land use regulations provide the rules under which land is

planned, zoned, and subdivided or conserved and maintained. Land use reg-

ulation can be very effective at steering development away from lands nec-

essary for conservation of biological diversity. All states authorize some

form of land use planning and regulation. Under the municipal land use laws

of most states, local governments can adopt comprehensive plans and zon-

ing that provide for the conservation of contiguous habitat areas, connec-

tions between such areas, and the protection of waters, wetlands, and other

features important for biodiversity conservation while meeting their other

development goals. They can influence land development and land use to

meet these conservation goals using a variety of other tools through subdivi-

sion regulation and zoning.

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Biodiversity Conservation Handbook

2. Daniel Press et al., The Role of Local Government in the Conservation of Rare

Species,10Conservation Biology 1538 (1996).

3. Linda Breggin & Susan George, Planning for Biodiversity: Sources of Author-

ity in State Land Use Laws,22Va. Envtl. L.J. 81, 105-07 (2003); ELI&De

-

fenders of Wildlife, Planning for Biodiversity: Authorities in

State Land Use Laws (2003), available at http://www.elistore.org/reports_

detail.asp?ID=10917&topic=Biodiversity (last visited Oct. 26, 2005). The

discussion will also draw heavily on James M. McElfish, Nature-

Friendly Ordinances (Envtl. L. Inst. 2004).

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A. General Authority and Elements of Land Use Regulation

The ELI/Defenders Study found that in all states, the land use regulatory au-

thority took the form of land use planning enabling statutes.4In addition,13

states have adopted growth management laws providing more far-reaching

authority to protect biodiversity.5These state laws are derived from various

model acts,6two of which were developed in the 1920s: the Standard City

Planning Enabling Act and the Standard State Zoning Enabling Act.7States

have since significantly updated their laws, with some relying upon the

American Law Institute’s Standard State Zoning Enabling Law.8Although

there are significant differences among the various states’land use laws, they

all either require or authorize the preparation of comprehensive land use

plans governing land use within the government unit responsible for land

use regulation.9These plans specify where various land uses and infrastruc-

ture may be located. In many cases, the laws call for an official map. Neither

the plans nor the maps are self-implementing. They are typically imple-

mented through the two other principal land use tools, subdivision approvals

and zoning. The authorization for subdivision and zoning ordinances are

also set forth in these model laws.10

Thus, the four principal land use tools provided in the model acts are: (1)

comprehensive planning; (2) an official map; (3) subdivision approvals; and

(4) zoning. The land use law of Pennsylvania contains all of these elements,

and the discussion below examines Pennsylvania as the principal example

for applying land use law concepts to the protection of biodiversity.

The comprehensive plan sets forth the goals and objectives for land use;

the strategy for growth, development, and open space conservation; and, of-

tentimes, the areas where each of these activities will occur. The plan guides

development and, sometimes, the application of the official map, subdivi-

sion approvals, and zoning. The various state jurisdictions differ in their re-

quirements for comprehensive plans, but there are three basic approaches.11

In some, there is an option to regulate land use, but if that option is exercised,

planning is mandatory.In others, both the decision to regulate and to develop

a plan are discretionary. Finally, in a few jurisdictions, the development of a

Opportunities for Regulation of Land Use and Development

4. Breggin & George, supra note 3, at 88-89.

5. Id. at 91-92.

6. Id. at 88-89.

7. Id.

8. Id.

9. Id.

10. McElfish,supra note 3, at 31.

11. Breggin & George, supra note 3, at 95-96.