Land Use Prof Blog

Sunday, July 24, 2016

Zoning's Next Century, Part 1: An Agenda for the First Decade: A Series by John R. Nolon

Zoning’s Next Century

An Agenda for the First Decade

John R. Nolon, Distinguished Professor

Elisabeth Haub School of Law, Pace University

July 25, 2016

On this date--July 25th--in 1916, New York City adopted the nation’s first comprehensive zoning ordinance. In a series of 20 posts earlier this year, we traced zoning’s evolution into land use law and noted its steady progress in solving complex problems regarding the use and protection of land and natural resources. The posts demonstrated how zoning that ordered community development became society’s method of shaping human settlements to promote jobs, economic development, ecosystem services, and equity, while reducing carbon emissions and adapting to climate change.

On the cusp of its second century, land use law is ready to be used as an essential strategy for sustainable economic development and climate change management: a man-made tool capable of repairing damage done by an alarming man-made problem.

In honor of this anniversary, here is a land use law agenda for the first decade of zoning’s second century.

Reduced carbon emissions. The 2015 Conference of the Parties to the International Convention on Climate Change in Paris called on participating nations to list the strategies they will use to mitigate climate change. These are called Intended Nationally Determined Contributions or INDCs and they are to be submitted to the UN so that it can evaluate their cumulative results. The United States’ submission relied on traditional, top-down environmental law mechanisms to contribute to climate change mitigation. By 2020, when a new submission is due, our INDCs must be grounded as well on land use strategies that reduce vehicle miles travelled and energy consumption by reshaping settlement patterns and revising building construction protocols. This is the first order of business for zoning’s second century.
Retreat and resilience: Much of our population is settled along coastal waterways and flood plains. Many more are in the drought-prone southwest where the summer’s heat threatens livability and sparks wildfires. Retreating from the most dangerous of these areas is highly controversial, but an inevitable result of the changing climate. Land use law is evolving to plan for and manage the gradual retreat from some of these danger zones and to make others resilient through proper placement and construction of buildings and infrastructure. The loose confederacy of strategies now being developed must become a clear blueprint of best practices for states and localities to adopt.
3. Reduced liability for preventing dangerous development. A quarter of a century ago, the U.S. Supreme Court, in Lucas v. South Carolina Coastal Council, held that land use regulations that prevent all economic development are takings and require full compensation for the affected owner. Justice Scalia, writing for the majority noted that changed circumstances and changed knowledge could be used to soften this rigid total takings rule. Properly constructed no-build regulations in climate change’s danger zones must be validated by the use of this dictum to liberate regulators from the liability that has stifled common-sense adaptation strategies.
Creating livable neighborhoods for the new demographics. Land use regulations can create livable neighborhoods for the nation’s emerging households: young individuals and couples (millennials), immigrants, and seniors who are leaving single-family neighborhoods. Most prefer urban living, but only in neighborhoods with a proper mix of services, entertainment, restaurants, and transportation alternatives. These places are where society has invested in infrastructure and where jobs and housing are needed to revitalize urban neighborhoods and reduce per capita carbon emissions. The many solid innovations already in place must be shaped into a common agenda for implementing this objective.
Creating transportation alternatives. Technology is making cities smarter. They are using new media, communication, and transportation software to lower the costs and increase the amenities of urban living. Foremost among these is transit oriented development that connects mixed-use buildings with transportation services in transit station areas and makes the connections obvious and accessible to residents and workers through smart technologies.
Managing neighborhood transitions. As this agenda evolves, it could result in gentrification---the displacement of low and moderate income residents, a result clearly counter to the basic precepts of sustainability. The faint outlines of a strategy for managing this transition without displacement are becoming visible. They involve job development and training for current residents, remediating distressed properties (while making them affordable), including affordable units in new housing projects, and close attention to quality of education and public safety, among other initiatives. Here, land use planning and regulation must be coordinated with other disciplines for progress to be made.
Resolving the fair housing dilemma. The Inclusive Communities Project case, decided by the Supreme Court in 2015, determined that zoning that disparately impacts racial minorities may be invalid under the Fair Housing Act. This requires careful thought and action by affluent communities where whites and single-family zoning predominate. How to create an inclusive community through land use regulations is an elusive objective. Equally challenging is the issue of distributing limited federal and state housing dollars and tax credits. These resources historically have been allocated to communities with low and moderate income populations: where the need is, as they say. The Court indicated that this kind of steering may violate the Fair Housing Act because it perpetuates segregation. To the extent that limited subsidies are allocated to more affluent areas, they are less available to mitigate gentrification in revitalizing urban neighborhoods. This is a public policy quandary of critical importance, one that must be resolved in the first decade of zoning’s new century.
Protecting urban food sheds. The local food movement is inherently sustainable and innovative farmers are producing crops close to urban centers. Critical to the success of this strategy is the preservation of high quality farm land in defined food sheds. Land use laws must be adjusted to permit farmers in critical areas great flexibility to use farm land to meet market needs and diversify their on-site land uses and to provide zoning incentives to do so. Zoning that permits residential development of farm land must be reformed to protect the most fertile soils and farms.
Reducing water demand and protecting water quality. As the domestic population expands, water consumption will increase in areas with limited potable water supplies. Land use regulations can foster settlement patterns that reduce per capita water use by emphasizing smaller lots and higher density development. This combined with regulations that require water smart facilities and water-conserving landscapes can reduce per capita consumption by half or more. At the same time, development that serves the nation’s growing population must be governed by local land use laws that protect ground and surface water from pollution. This requires more communities to adopt water pollution controls developed over the past two decades as local environmental law.
Making local land use strategies an intentional objective of state and federal initiatives. The power of local governments to control land use is not likely to be taken away during the early decades of zoning’s new century. This power and its proper use must be harnessed for this agenda to be realized; integrating local land use authority must become an intentional objective of state and federal policy. Returning to item one on this agenda, elevating land use strategies to become a core component of the nation’s INDCs is an important, if not necessary, method of doing this.