Monday, May 9, 2016

Zoning’s Centennial, Part 18: Shaping and Attracting Economic Development: A Series by John R. Nolon

Part 18

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

Zoning: Shaping and Attracting Economic Development

Zoning historically assumed that the private market would inform developers what to build for maximum profit. Its job was to shape individual developments into appropriate human development patterns. The essential land use question, of course, is what type of a community is desirable and feasible to create. Changing demographics, financial markets, and environmental conditions require constant rethinking and resupplying zoning’s toolkit. 

Today’s ascendant demographic groups, such as millennials, immigrants, and senior households, prefer “walkups,” that is, walkable urban places. They have driven the real estate market toward urban centers and challenged urban planners to shape livable, sustainable, and lively neighborhoods. Fortunately, climate change mitigation also requires walkups, where buildings use less energy, water, and materials, and fewer vehicle trips are taken, resulting in fewer vehicle miles travelled. Zoning occupies a central position in creating the strategies needed to respond to these new market signals.

The Land Use Law Center’s field laboratory is the Hudson Valley Region in New York. Ten years ago, our attention was captured by the changing demographics in the region and its apparent effect on the region’s cities. To focus our energies, we organized a Mayors’ Redevelopment Roundtable, a network of mayors, corporation counsels, and development commissioners representing the region’s 12 largest urban communities. Our strategy was to work with the planning, legal, and development staff of the member communities on urban revitalization to identify common issues; conduct research; identify best land use practices; and provide assistance in implementation. In these places, zoning needs to attract economic development, rather than to simply shape it.

This is a report from the field; a quick summary of some of the issues selected for implementation and a few illustrations of best practices implemented. The highest priorities among the mayors were, not surprisingly, to increase tax ratables, keep expenditures in check, and improve their communities’ aging infrastructure. These, they intended to accomplish through five strategies: job development, sustainable development, infill development, scattered site projects, and distressed property remediation. We found that zoning, land use regulations, and their associated strategies were effective tools to accomplish these objectives.

Job Development: In this context, job development comprises new employment opportunities for Millennials, immigrants, and low-income residents. New development brings with it several opportunities to generate new employment prospects. Building and infrastructure development, including renewable energy projects, create construction jobs and jobs for those who serve construction projects. Many of these jobs require skilled, union labor, but a percentage of them can be filled by less skilled workers, including the young women and men who live in distressed neighborhoods. The City of Newburgh led the way among Roundtable communities, insisting, during the land use review process, that all new and rehabilitation projects and municipal capital projects include local workers and provide them with the necessary training. This objective can be furthered by bonus density zoning to provide the funds developers need for training and supervision.

Sustainable Development: This topic aggregates transit-oriented development, promoting renewables, energy conservation in new and renovated buildings, affordable housing and balanced gentrification, designing for density, and green infrastructure, among others. The City of New Rochelle, through fast tracking the planning and rezoning of its downtown, offering density bonuses, and creating traffic improvements, stimulated a transit-oriented development project around its central transit station that is leveraging redevelopment of adjacent sites. Yonkers created its own list of criteria for sustainable, or green, projects and requires compliance through its power pursuant to the State Environmental Quality Review Act to mitigate adverse environmental impacts by imposing mitigation conditions. Green buildings, for example, mitigate climate change (an adverse environmental impact). Peekskill is increasing zoning density and expanding land uses permitted in its waterfront transit neighborhood, as well as developing its parking lots there to create a sustainable neighborhood that will prime the pump for further downtown redevelopment.

Infill Development: Cities can accomplish many goals through infill development, which emphasizes the development of vacant lots, reuse of abandoned and underutilized buildings, and creative development of open spaces adjacent to corporate, medical, educational, and non-profit buildings. The City of Mount Vernon adopted numerous criteria from the USGBC’s LEED-ND program to guide its rezoning of a transit station area in a developed neighborhood to shape the redevelopment of its remaining infill lots. White Plains is planning a significant Transit Oriented Development program concentrated on the coordinated development of infill sites in proximity to its commuter rail station. This plan begins with two projects comprising 561 rental apartments, retail space, and parking within a short walk of the city’s TransitCenter.

Scattered Site Projects: In some communities, development opportunities are scattered throughout their downtowns and adjacent urban neighborhoods. Prioritizing the development of a few such sites in order to leverage development nearby is a strategy of interest to the Roundtable communities. The Village of Brewster adopted an urban renewal plan that shaped its rezoning to encourage development of scattered sites throughout the neighborhoods within walking distance of its train station. The Village of Port Chester selected five market-ready “hot spots” for redevelopment as the first step in warming up the market in adjacent neighborhoods.

Distressed Property Remediation: In order to revitalize downtowns, other neighborhoods, and infill sites, areas of concentrated distressed properties need to be addressed. Buildings and properties there provide an opportunity for affordable housing for existing residents, workforce housing for needed new employees, and sites for job development itself. The City of Poughkeepsie is planning a large-scale downtown-focused project that will use flexible zoning, coordinated transit, pedestrian and bike ways, development on underused parking lots, and a variety of funding sources to initiate pump-priming projects in the area. Newburgh created the first city-wide land bank in the State of New York, which is acquiring vacant lots and buildings, selectively demolishing some of them, promoting community gardening and security devices, and preparing sites for private market development, stimulated by new zoning techniques it recently adopted.

All of these projects and strategies create tensions among local interest groups and require the cooperation of multiple stakeholders, such as property owners, developers, equity advocates, city departments, taxpayers, and local resident leaders. They call for new approaches to project development and approval, including the use of consensus building techniques for community decision-making. Lawyers who are trained in conflict resolution and settlement are particularly needed to advise their clients and local officials how to achieve economic development through strategies like those implemented through the Mayors’ Redevelopment Roundtable. In these stories can be glimpsed the collaborative and creative work that needs to be done in zoning’s second century.

For more information on the Mayors’ Redevelopment Roundtable and the strategies discussed above, email jnolon@law.pace.edu; See also John R. Nolon & Jessica A. Bacher, The Role of Lawyers in Resolving Environmental Interest Disputes, Real Estate L.J. (Winter 2008).

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

Part 12B: Land Use and Energy Conservation

Part 14: Transit Oriented Development

Part 15: Zoning in Solar and Clean Energy

Part 16: Fracking as an Industrial Use under Zoning

Part 17: Water Scarcity and Land Use Planning

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