Monday, May 16, 2016

Zoning’s Centennial, Part 19: Open Space Zoning Turns to Sequestration: A Series by John R. Nolon

Part 19

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

Open Space Zoning Turns to Sequestration

When the Land Use Law Center was asked in 1994 to report to President Clinton’s Council on Sustainable Development, we concluded that under present zoning, the amount of open space in the Hudson Valley Region would decline from 70% then to 30% by 2050. This estimate was calculated based on the rate at which large tracts of land were being subdivided into smaller, mostly residential parcels. At work were the mechanics of sprawl. Zoning maps adopted by the 256 municipalities in the region created a blueprint for future development, most of which would be residential subdivisions. Once zoned for single-family housing, local planning commissions approve subdivisions, applying standards in subdivision regulations that are adopted by local legislatures.

This erosion of open space, here and throughout the nation, gave rise to a movement. Land trusts came of age as open space concerns stimulated donations of land, development rights, or funds that could be used to acquire such land. Local voters began to approve bond resolutions or support real property tax increments to secure funds to purchase and set aside open space. State support for open space preservation manifested itself in a number of ways that involved direct appropriations, taxes, state bonds, tax exemptions, and local financing schemes. These land purchase and donation initiatives signaled a commitment to mitigate sprawl and its ill effects on the quality of life in developing communities, one parcel at a time. 

In the aggregate, these funds allow the purchase of the small percentage of the land that needs to be preserved in order to change the ratio of open space to developed land that we projected in our report. This realization – here and elsewhere – led to an effort to prioritize purchases based on lands that matter most. In the eyes of some communities, this meant the purchase of lands that created a historic viewshed; for others, it meant acquiring land that provided needed ecosystem services. In still others, it meant creating a connected landscape that provided for the movement of critters, water, and people through unfragmented natural areas.  

A parallel – but too often disconnected – movement sprung up at the local level through changes in land use regulations and procedures. Some communities began to inventory their undeveloped parcels, prioritize their contributions to residents’ quality of life and the environment, add open space components to their comprehensive plans, and adopt zoning and subdivision regulations that preserved the natural resources associated with open space. Localities began to create a new blueprint, one that balanced open space preservation and development, through use of land exactions, mandatory clustering of development, deductions of constrained land from counting in developable lot calculations, and overlay zoning that added strict standards to development located in critical environmental areas. These efforts, when coordinated by a comprehensive plan, can achieve open space preservation – one community at a time.

Today, a quarter of a century into this movement, attention is slowly focusing on sequestering lands: those that mitigate climate change by absorbing nearly a fifth of the carbon dioxide emitted by vehicles, buildings, and enterprise. Biological sequestration of CO2 emissions occurs within the vegetated environment; places like forests, pastures, meadows, and croplands. These landscapes naturally absorb and store carbon.

The local and state initiatives that have evolved to preserve and enhance open space provide a basis for a broader sequestration policy, one that builds on available legal technology and existing norms to respond to the looming global perturbation of climate change. The need, however, is to bring these local efforts to scale, particularly when the objective is to achieve a goal as ambitious as climate change mitigation.

With federal and state involvement, the efforts of land trusts and localities can transcend their one parcel and one community at-a-time impacts. Consider two recent examples. 

In New Zealand, in heavily forested zones, the federal government identifies carbon accounting areas, uses geospatial mapping systems, establishes metrics, and measures increases in sequestration. The owners of forested land are given accounts and issued certificates of tons sequestered; these credits are tradable, depending on the viability of carbon markets (a story for another day). Land trusts and local governments would benefit from such a scheme, especially from the monies it could bring to their preservation efforts while increasing the percentage of CO2 sequestered nationally.

A new law in California opened up opportunities to receive compensation for the carbon value of forests and a land trust in eastern Maine is leading the way. The California law requires polluters to reduce their carbon emissions over time, but allows them to use approved "offset" projects to meet up to 8% of their emissions cap. The first group of offset projects announced by the California Air Resources Board listed the Maine-based Downeast Lakes Land Trust preservation project as one of two forest offset projects selected. Proceeds from the sale will allow the land trust to acquire and preserve an additional 55,000 acres of sequestering land.

For more information on open space preservation and sequestration, see John R. Nolon, Managing Climate Change through Biological Sequestration: Open Space Law Redux, 31 Stan. Envtl. L.J. 196 (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

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

Part 18: Zoning and Economic Development

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