Wednesday, October 15, 2014

Using Zoning to Protect the Environment: An excerpt from Protecting the Environment through Land Use Law: Standing Ground

The following is an excerpt from Chapter 3 of Prof. John R. Nolon's new book, Protecting the Environment through Land Use Law: Standing Ground: 

Municipalities across the nation are incorporating natural resource preservation principles into their zoning ordinances. They are not doing so uniformly, but their collective progress is impressive. Some local legislatures describe the protection of the natural environment as a specific purpose of zoning. Localities may protect open space in zoning districts by adjusting applicable density, lot size, and setback restrictions. For example, conservation zoning districts permit only private land uses that are compatible with the natural environment, while agricultural zoning districts preserve agricultural land for farming purposes and open space. 

Municipalities in several states have identified environmental protection as a purpose or goal of their zoning regulations. A purpose of the Durham County, North Carolina, zoning ordinance, for example, is to promote the health, safety, and general welfare of the residents of the city and county by conserving land and water resources, providing adequate light and air, and preventing overcrowding of land and undue concentrations of population. The zoning ordinance of the city of Manhattan, Kansas, includes in its statement of purpose a specific reference to the conservation of natural resources, including open space preservation.

In Pennsylvania, the township of West Manchester amended its single-family residential district regulations to require open space preservation in undeveloped areas. Before amending the ordinance, the local legislature prepared maps showing potential future development under the existing conventional zoning. This exercise, often described as a “build-out analysis,” illustrated the great amount of existing open space and farmland that would be lost under the present zoning ordinance. In addition, the legislature mapped anticipated open space preservation to show landowners and developers exactly what was envisioned: interconnected open spaces crossing parcel lines.

In Santa Monica, California, one of the purposes of the zoning regulation is to protect and enhance the quality of the natural and built environment, and to ensure adequate park and public open space. Each of the city’s zoning districts has certain property development standards. These standards include maximum unit density, lot coverage, building height, minimum lot size, setback requirements, and building spacing, as well as a requirement for open space. For example, in the Ocean Park residential zoning district there is a requirement that at least one hundred square feet per housing unit of usable common open space [be] accessible and available to all project residents for outdoor activities. Development in any of the city’s residential districts must provide “usable” common open space, private open space, or both.

The zoning regulations of the town of Wallingford, Connecticut, require that existing trees are to be preserved to the maximum extent possible. Trees and landscaping are to be preserved and provided under the town’s regulations to reduce excessive heat, glare, and accumulation of dust; to provide privacy from noise and visual intrusion; and to prevent the erosion of the soil, excessive run-off of drainage water, and the consequent depletion of the ground water table and the pollution of water bodies.

Conservation district zoning is used to carry out local environmental objectives. In Cumberland, Maryland, the Conservation District regulations provide that “no structure shall be erected, nor shall any material or equipment be stored, nor shall any fill be placed, nor shall the elevation of any land be substantially changed” except for certain permitted uses. These include agricultural, horticultural, and forestry uses; public and private parks; recreation areas; historic areas; conservation areas; and other similar uses employing open land with open structures, gardening, and outdoor plant nurseries. All residential uses are prohibited in the zoning district.

In Cheltenham Township, Pennsylvania, a Soil Conservation overlay district was created to protect steep slopes from inappropriate development and excessive grading, and to permit and encourage the use of these areas for open space purposes. Among the many objectives of this regulation is to “permit only those uses in steep slope areas that are compatible with the preservation of existing natural features . . . by restricting the grading of steep slope areas,” and to protect individuals and adjacent landowners in the township from the possible harmful effects of inappropriate grading and development on steep slopes. Permitted uses in this zoning district are limited to passive recreational activities, wildlife sanctuaries, game farms, pastures, crop cultivation, and related uses. In Wells, Maine, a coastal community, a Resource Protection District was created to protect and preserve fragile environmental areas from intrusions that would upset ecological systems, or create potential public health or safety problems. Passive recreation is a permitted use in the district, while aquaculture, municipal facilities, piers, docks, and wharves are also permitted, subject to site plan approval.

The court upheld a legislative zoning change that applied to a single parcel in Bartram v. Zoning Commission of City of Bridgeport (68 A.2d 308, Conn. 1949).  The parcel in question was limited to residential use. The owner sought to build a drug store, hardware store, grocery store, bakeshop, and beauty parlor in a residential neighborhood removed from the nearest shopping district. The amendment was granted, challenged by the neighbors, and invalidated by the trial court. On appeal, the Connecticut Supreme Court held that the rezoning was valid, noting that the means of achieving the purposes of zoning are within the discretion of the zoning authority and not subject to review of the courts unless the authority abused its discretion; a court is without authority to substitute its own judgment for that vested by the statutes in a zoning authority.

The zoning change in the 1949 Bartram decision was innovative for its time. To alleviate downtown traffic congestion, the city council decided to allow more services and retail products in small shopping centers in residential neighborhoods, much to the displeasure of nearby homeowners. By providing local goods and services, the neighborhood became more walkable, vehicle trips and vehicle miles traveled were reduced, and air quality in the downtown improved. In today’s environment, we see such a zoning change as mitigating climate change by reducing greenhouse gas emissions, approximately 80% of which is carbon dioxide. Adjusting zoning to the realities of global warming and climate variation to mitigate its effects and adapt to its consequences is driving many zoning amendments in coastal and urban communities. 

John R. Nolon

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