Zoning’s Centennial, Part 12B: Land Use and Energy Conservation: A Series by John R. Nolon

Part 12B

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

Land Use and Energy Conservation

This installment in the Centennial series should be Part 13. However, as a blog about land use and building, we choose to skip this superstitious number, like developers skip the 13th floor. A study done a year ago in New York City found that out of 629 residential buildings with 13 or more floors, only 55 labeled the 13th floor as the 13th floor. This means only 9% of the structures that actually have 13th floors label them as such. The remaining 91% of buildings with 13th floors have relabeled them, for example, as 12B or 14A. And so, this Part of the Zoning Centennial construction project is labeled Part 12B, out of a spirit of cooperation with the private sector.

In turn, the private sector is also cooperating with land use regulators. Together, they are dramatically reducing the energy use in buildings; a key, if not essential, strategy for reducing reliance on fossil fuels and mitigating climate change.

Approximately 40% of total U.S. energy consumption and 70% of all electricity consumed domestically are attributed to residential and commercial buildings. Two-thirds of the energy used to produce electricity is wasted, as heat escapes into the atmosphere during generation, and up to 15-20% of the net energy produced at these plants is lost in transmission.

The following is laundry list of energy conservation and climate change mitigation techniques that rely on land use law, assembled from real projects on the ground:

• Because of the enormous waste of energy at the point of generation in remote locations, the lowest-hanging fruit in the orchard of energy-conserving land use techniques is to permit or require on-site generation, which is now technically and financially possible in many situations. The LEED-ND rating system gives developers credit for on-site generation and many are earning those points. What LEED recognizes, local governments can make mandatory as part of zoning.

• The principal method of achieving energy efficiency in new building construction and the substantial renovation of buildings is the energy conservation code; promulgated by the International Codes Council, it has been adopted in most states, and is enforced by local governments. This code contains minimum standards for the design, construction, and installation of the building shell or envelope, mechanical systems, and lighting. By vigorously enforcing this code, dramatic progress can be made in energy conservation.

• Land use law in some states allows local governments to enhance the energy code by adopting additional standards aimed at achieving greater energy efficiency. A creative example is found in Marin County, California. The County requires large homes under 4,000 sq. ft. to exceed the energy conservation code requirements by 15%. If the home is over 4,000 sq. ft., but less than 5,500 sq. ft., it must exceed the state code in efficiency by 20%. For homes between 5,500 and 6,500 sq. ft., the requirement is 30%. Homes over 7,000 sq. ft. must be “net zero energy” users; a goal that green builders can actually achieve.

• In New York, the Town of Greenburgh amended its local code to require that all new homes comply with the Energy Star rating system, promulgated by the Environmental Protection Agency and the U.S. Department of Energy. Energy Star can achieve energy savings in excess of 30% greater than the base energy code. It governs appliances, heating and cooling systems, the thermal envelope, electrical, ventilation, and equipment efficiency.

• The Town of Blooming Grove, New York, uses a density bonus to encourage home developers to adopt Energy Star. The Town awards a 10% increase in the number of homes that can be constructed under local zoning in exchange for making them all Energy Star compliant.

• Local subdivision and site plan regulations can be amended to govern building orientation, layout, or landscaping on sites, which can be used to reduce energy consumption in new buildings. Land use laws can require homes in subdivisions to be clustered and designed to conserve energy, or equipped with solar panels (or at least to be wired and built to accommodate them).

• Solar and wind generation facilities can be either frustrated or facilitated by local land use law. Onsite solar arrays and rooftop wind turbines can be prohibited by use, setback, and height restrictions found in traditional zoning codes. Amendments to these provisions can designate renewable energy facilities as as-of-right uses, allow them by special permit, or permit them as accessory uses. Bonuses, like those used in Blooming Grove, can be used to incentivize renewables.  

• Local land use boards can require developers and their design consultants to follow an integrated design process, where they collaborate during the early stages of the project review process to achieve the greatest possible energy conservation and cost reduction. It is at this stage that decisions can be made about building orientation, form, shading, energy-efficient exterior lighting, window size and location, rooflines and extensions, reflective roofing, height-to-floor ratios, and building features that relate to passive ventilation and cooling.

• Local land use laws can achieve extraordinary energy efficiency by permitting and encouraging the use of combined heat and power (CHP) systems in individual buildings and interconnected energy systems in certain mixed use districts. By employing CHP - a mechanical system that can be used to produce electricity, heating and cooling, or both - in higher-density, mixed-use neighborhoods, the potential for energy efficiency, and therefore energy conservation, is remarkably greater than if used on an individual parcel of land.

• To increase the use of district energy systems (DESs), the local land use regulatory system can be adjusted to allow, or even to incentivize, them. DESs must be made an allowable use under local zoning and site plan regulations, as well as local building and energy codes. They, too, may be encouraged through bonus zoning provisions that provide additional development densities for developers who adopt DES technologies.

• Finally, the number of localities that are adopting Transit-Oriented Development (TOD) zoning ordinances has been growing exponentially over the past ten years. There are hundreds of examples of new zoning districts that create livable, mixed-use neighborhoods where new buildings are connected to transit systems through design and infrastructure enhancements. In these neighborhoods, per capita CO2 emissions can be two-thirds less than those in typically-zoned neighborhoods in the suburbs (more on this to come in Part 14).

For more information, see John R. Nolon, Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation, Journal of Land Use and Environmental Law, (2012).

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

Part 7: The Advent of Local Environmental Law

Part 8: Regionalism and ‘Wistful Hoping’

Part 9: Mixed Signals: Exclusionary Zoning and Fairness

Part 10: The Emergence of the Law of Sustainable Development

Part 11: Designing Density

Part 12: Green Infrastructure