Monday, February 22, 2016

Zoning’s Centennial, Part 7: The Advent of Local Environmental Law: A Series by John R. Nolon

Part 7

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

The Advent of Local Environmental Law

As American development progressed into the 1980s, the landscape changed due to the prevalence of sprawl. People became perturbed at the local level, where environmental degradation is painfully obvious. Natural resources were threatened. Open space, wetlands, and habitats—and their obvious local benefits—diminished. Many of these problems were beyond the reach and competence of federal environmental law, with its primary focus on point source pollution of the air and navigable waters. As these worries deepened, local leaders and their lawyers gradually learned to rely on “local environmental law” as an antidote and, in doing so, greatly widened the net of land use law.

As land use regulation matured during the 1950s and 1960s, the line between physical, or infrastructure, planning and natural resource protection blurred. In 1955, for example, rezoning that increased lot sizes in single-family zones to protect drinking water from pollution was upheld in De Mars v. Zoning Commission of Town of Bolton (CT. 1955). The Connecticut Supreme Court rested its decision, in part, on the fact that one of the purposes of the state zoning enabling act was “to promote the most appropriate use of the land.” The National Flood Insurance Program, created in 1968, exerted an early and strong influence on the initiation of local environmental legislation. It required localities to adopt and enforce floodplain zoning restrictions so that local property owners would be eligible for flood disaster insurance and payments. Although originally focused on minimizing property loss and personal injury, flood insurance regulation gradually recognized and, in some cases, protected the ecological services provided by floodplains. This concern for nature gradually grew as local environmental law progressed into the 1990s.

Local land use law, we now understand, dictates how much of the land is covered with impervious surfaces, causing flooding; how many miles of roads are built, fragmenting habitats and watersheds; how many septic systems, sewer plants, and water systems are created, diminishing ground and surface water quantity and quality; and where buildings and improvements are located, increasing vehicle miles traveled and air pollution, aggravating climate change. Quite obviously, regulating land development and environmental considerations are intimately linked.

As local environmental perturbations increased, more localities adopted laws that protect natural resources and lessen environmental pollution. These local environmental laws take a number of forms and accomplish an array of objectives. They include local comprehensive plans expressing environmental values, zoning districts created to protect critical environmental areas, environmental standards contained in subdivision and site plan regulations, and stand-alone environmental laws adopted to protect particular natural features such as ridgelines, wetlands, floodplains, stream banks, existing vegetative cover, and forests. Local governments have creatively used a variety of traditional and modern powers that their state legislatures have delegated to them to address locally occurring environmental problems. 

Much progress has been made under the authority to encourage the appropriate use of the land through zoning. In some states, however state legislatures are more explicit. They authorize local governments, for example, to protect the physical and aesthetic environment, control development in floodplains, prevent soil erosion, or require local governments to conduct environmental impact reviews before approving development proposals. 

The evolution of this authority is seen in South Carolina. The state constitution authorizes the legislature to provide for “the structure and organization, powers, duties, functions and responsibilities of the municipalities.” The state constitution says that “[t]he provisions of [the] Constitution and all laws concerning local government shall be liberally construed in their favor,” and that any powers granted local governments by the constitution and laws “shall include those fairly implied and not prohibited by [the] Constitution” (S.C. Const. Art. VIII, § 17).

This broad grant of local authority was statutorily implemented by the South Carolina Legislature through the South Carolina Local Government Planning Enabling Act, which requires local plans to include natural resource components.. State law requires that all zoning and land use regulations must be in accordance with the comprehensive plan.  The Act also authorizes a variety of Neo-Euclidian techniques to be used, and makes it clear that “any other planning and zoning techniques may be used.” Municipalities are authorized by this state law to consider “the protection of . . . ecologically sensitive areas” in adopting their zoning laws. 

We learn two key lessons from this continuing progress toward a robust system of local environmental law. The first is that local legislators, driven by residents animated by environmental degradation, have surprisingly broad powers to protect the environment in many states. This springs from the parochial nature of local land use law, where citizens within constrained borders call for their natural resources to be protected. The second is that environmental resources often transcend those borders and require intermunicipal or regional arrangements to be effectively protected, which I will take up in Part 8.

For more information, see John R. Nolon, In Praise of Parochialism: The Advent of Local Environmental Law, 26 Harvard Envtl. L. Rev. 365 (2002).

Links to previous posts in the Zoning Centennial’s Series:

Part 1: The Need for Public Regulation of Land Use – The First Comprehensive Zoning Law

Part 2:  The Delegation of Legal Authority To Adopt Zoning

Part 3: Zoning Was Contagious, But Was It Constitutional?

Part 4: The Unintended Consequences of Euclidean Zoning

Part 5: The Most Appropriate Use of the Land

Part 6: The Surprising Origins of Smart Growth

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