Zoning’s Centennial, Part 20: Land Use Law and Climate Change Management: A Series by John R. Nolon

[“This is the final post in the Zoning’s Centennial series.  More posts celebrating zoning’s 100^th birthday will be forthcoming later this year.]

 

Part 20

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

Land Use Law and Climate Change Management

When a New York City commission (1916) and the Hoover Commission (1922) created zoning, and SCOTUS validated it (1926), they had no idea that they were arming local governments to battle climate change. When the floating zone was first created in 1950, the Village legislators in Tarrytown could not have known that this and other Neo-Euclidian techniques could possibly evolve to address such an unfathomable menace.

One hundred years have passed, and we are now at work in coastal communities on Long Island helping local leaders adapt to sea level rise and storm surges. They are digging through our database of strategies and thinking of creating a wholly new zone: an “expanding zone”, one that grows as new data about climate change is received.  They are trying to get ready to use the “R” word, “retreat”, to explain the inevitable to their residents and business owners. They ask us whether they should create a retreat zone, an adaptation zone, and a safe zone to guide future development. They are utterly preoccupied by this ill-defined space between the mean high tide line and an elevation safe (at least for now) from inundation. They are handling and reshaping the tools that New York City, Hoover, the Supreme Court, and a century of local innovation gave them.

Can they adapt floating zoning, overlay zoning, transfer of development rights zoning, density bonus zoning, conservation easements, wetlands laws, and the land use system’s other inventions to properly control development in these new zones? If they don’t do something of that kind, will they eventually be held liable, legally or politically, for their failure after the next catastrophe occurs or gradual inundation destroys their sole-source drinking water aquifers? How do they account to their children and children’s children for their time at zoning’s helm?

Other local leaders are focused on mitigating climate change. Of course this phenomenon is global, but urban communities are the principal sources of carbon emissions, which are the primary cause of climate change. The Land Use Law Center has created a Mayor’s Redevelopment Roundtable and, through it, currently serves the largest cities and urban villages in our region. These mayors want to know whether they can use zoning’s inventions as well. The Presidential Climate Action Project says that “the greatest potential for reducing greenhouse gas emissions…is to reduce vehicle miles travelled—the miles Americans drive each year.” Hundreds of local governments, including some in the Roundtable, have adopted Transit Oriented Development (TOD) zones and are rezoning for compact, mixed-use development to create “WalkUPs” (walkable urban places). The new demographics—seniors emerging rapidly from their single-family cocoons, mobile millennials looking for lively urban neighborhoods, and immigrants seeking employment—are tipping the urban-suburban balance, and they are being zoned in through TOD and other zoning strategies. Our mayors are interested as well in other tools including energy code enhancements, design controls, green infrastructure, and other techniques to make their neighborhoods safe, lively, and livable places.

This series of blogs demonstrates that zoning is adaptable to new challenges as it responds to changing conditions. We defenders of zoning are reminded, however, that zoning is parochial, extending only to municipal boundaries--far, far short of the reach it needs to effectively manage global climate change. We are also told that localities have limited assets and staff capacity to handle sophisticated problems. We point out that land use law is essential to mitigation. It regulates buildings, which consume 40% of the energy produced in the U.S. It is responsible for vehicle miles travelled, which contribute 33% of CO₂ as personal vehicles motor from origin to destination over a landscape created by zoning.  Further, the natural landscape, which sequesters 18% of CO₂, can be diminished or enhanced by zoning.

We are advised to pay attention to top-down, mostly federal solutions as our preferred path to a new era of effective climate control. This endless debate was sharpened in Paris at the Conference of the Parties in 2015. Building on an insight of the UN Climate Change Conference in Warsaw in 2013, the Paris COP memorialized the INDC: Intended Nationally Determined Contributions. The Paris agreement turns climate policy upside down, changing the focus from nation-state dominated action to on-the-ground solutions, guided, bolstered, and supported by state and national governments. This new approach operates from the bottom up, engaging “sub-national” entities, cities, states, corporations, NGOs, etc., to demonstrate how they can contribute to climate change mitigation.

This debate will continue. In March 2016, the U.S. submitted its INDCs to the UN, relying primarily on stricter emissions standards for coal-fired energy generation plants and similar top-down contributions. China, the world’s leading emitter, took a different approach; its INDCs include emission reductions that rely on the construction of green buildings, renewable energy in buildings, low-carbon community operations, low-carbon transportation systems, and promoting pedestrian- and bicycle-oriented neighborhoods. By 2020, China says, 30% of travel will be by transit and 50% of new buildings will be green.

China will have to allocate resources to the municipal level to implement its INDCs. The US can follow suit. Funding, data, and technical assistance—conditioned on intermunicipal or regional cooperation—can remove the barriers to zoning’s larger success. Such a program, funding actors in a system where all politics is local, can truly be a bipartisan effort, one that is much more likely to pass our curious Congress than most top-down solutions. This may be the path to Zoning’s New Century.

For further information: stay tuned.

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: Shaping and Attracting Economic Development

Part 19: Open Space Zoning Turns To Sequestration