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As we approach zoning’s centennial in 2016, the Land Use Law Center at Pace Law School is examining what is durable and what is deficient in land use regulation today.   As times change, zoning must renew itself by adjusting to changing conditions. Among the many challenges it faces at the dawn of its second century, is the alarming water scarcity experienced by arid Western states with fast-growing economies. The Center is working with Western Resource Advocates (WRA) to train local land and water planners in the front range of the Rocky Mountains how to coordinate water and land planning, particularly how “zone in,” that is to permit and encourage,  water conserving land use patterns, buildings, and landscapes.  The following text is adapted from a technical guidance manual that the Center is preparing for WRA on this challenging topic.

 Zoning Strategies for Water Conservation

 Since zoning should conform to the local comprehensive plan, such plans in water scarce communities must endorse permitting water-efficient land uses in development zones, discouraging water-consumptive developments in conservation zones, and regulating all new development to create landscapes that conserve water. The critical task for the comprehensive plan is to delineate priority growth districts within the community where more water-efficient forms of development should occur and conservation areas where development should be shaped to discourage and minimize water use.

 Large lot, low-density, and dispersed development increases water use per household, in some cases by over 100 gallons per household per day. Nationwide, lawn care alone accounts for an average of 50 percent of household water use and large-lot, single-family zoning yields large lawns.  In arid areas where rapid population growth is occurring, there is simply not enough water to sustain the level of water use created by this type of zoning, which in many communities predominates. By prescribing mixed-use, compact, higher-density development in priority growth districts, zoning sets the stage for significant water savings through a strategy of water-smart growth.

 Additional benefits of concentrating development in priority growth districts include:

  • These types of denser developments create a smaller urban footprint per household, which reduces impervious surfaces and surface water runoff, limiting flooding and minimizing the pollution of lakes, rivers, and streams and groundwater.
  • More compact development also allows for shorter water transmission systems, lessening the cost of water and sewer infrastructure, reducing leak loss potential, and reducing energy needs for pumping and pressurization.
  • This development pattern, when focused on filling in already developed areas,  leverages ratepayers’ investment in existing water delivery systems and other infrastructure.
  • Higher-density and mixed use development can be designed to increase walkability, lessen car dependency, save transportation costs, and lower air pollution.
  • Such development accommodates changing demographics with a higher percentage of smaller, more urban-oriented households who are not interested in large-lot, single-family living and whose interest in mixed-use, transit oriented, walkable and livable urban neighborhoods is increasing real property values in areas that, coincidentally, are zoned to conserve water.

 Zoning Options

There are three options for communities to consider for approving these water conserving land uses in designated zoning districts:

1. As-of-right uses: Traditionally, zoning districts permit certain land uses as of right; uses that cannot be denied unless they fail to meet standards contained in the zoning ordinance for each zone. In priority growth districts, zoning can be adopted that permits as-of-right several types of land uses that achieve water conservation: higher density, single-family homes on small lots, attached town houses, small-scale and large-scale multi-family housing, and mixed-use developments.

2. Conditional uses: Zoning also traditionally singles out some land uses that are allowed in designated zoning districts on the condition that they are compatible with the surrounding neighborhood; these are called conditional uses and permitted by the issuance of a special use permit. Any of these water-conserving land uses can be designated conditional uses and allowed, subject to more intense planning commission review and the imposition of conditions that ensure that they are appropriate in the neighborhood.  In existing single-family neighborhoods, for example, small lot attached homes or small multi-family housing can be permitted as conditional uses, which gives the planning commission an opportunity to review each project more carefully and to impose specific conditions to mitigate any adverse impact of the project on the surrounding neighborhood.

3. Flexible zoning techniques: Where even more care must be taken in rezoning areas, there are several other zoning options to consider that provide great flexibility in fostering water conserving land use patterns:

  • rezoning governed by development agreements,
  • planned unit development zoning,
  • floating zoning,
  • cluster development,
  • bonus density zoning,
  • overlay zoning, and
  • zoning that prescribes landscaping features that greatly reduce water use.

Which of these options should be chosen depends on a number of factors, including the current land use pattern and types of buildings in the community. The pattern of development fostered and types of buildings allowed by zoning must respect the current architecture and land development of the community and build gradually from that base.  The biggest factors to consider in permitting new development are density, the utilization of present infrastructure, and the cost of needed additional infrastructure. Local decision-makers can be very flexible on building architecture and types, but greater density is the key to water-conserving zoning.

 

As climate negotiators prepare for their discussions in Lima, they must focus on one of the most neglected strategies for mitigating and adapting to climate change: creating sustainable human settlements. My work for a land use law center embedded in a law school with a prominent environmental law program makes the lack of awareness and embrace of a land use law policy for climate change mitigation and adaptation, at best, baffling and, at worst, inexcusable. Despite decades of research, development, and successful implementation, this strategy is “new” in the eyes of the IPCC.

The recently released Fifth Assessment Report of the IPCC, for the first time, contains a chapter on human settlement. Chapter 12, Human Settlements, Infrastructure and Spatial Planning, is contained in Working Group III’s volume on mitigation. Scattered throughout the two volume report of Working Group II, Impacts, Adaptation, and Vulnerability, are insights regarding the susceptibility of human settlements to the consequences of climate change and their ability to plan for them and become climate change resilient.

The good news is that Chapter 12 finally recognizes that “cities in developed countries have lower per capita energy use and GHG emissions than the national average;” that the key drivers of emissions “are density, land use mix, connectivity, and accessibility;” and that “key mitigation strategies include co-locating high residential with high employment densities, achieving high land use mixes, increasing accessibility and investing in public transit.”

The bad news is that the IPCC report admits that “there is little scientific understanding of the magnitude of the emissions reduction from altering urban form and the emissions savings from integrated infrastructure and land use planning;” and, perhaps most lamentably, that “there is a lack of scientific understanding of how cities can prioritize mitigation strategies, local actions, investments, and policy responses that are locally relevant.”

In the run up to the critical Conference of the Parties in Paris next year, participating countries are charged with committing to cutting emissions at a level they can achieve, in keeping with political and economic realities.  While a carbon tax, or cap and trade strategy, might be more attractive, there is little doubt that most such top-down approaches are not politically realistic in the U.S.  The same cannot be said for sustainable human settlement strategies, which if properly presented, can gain bipartisan support at the local, state, and federal level.  Focusing on local responses to increasingly apparent consequences of climate change can completely change the nature of the climate conversation from belligerently negative to positive.

Professor Dan Kahan of Yale Law School, in describing the progress made in creating an agreement regarding climate action in Southeast Florida, notes that inter-municipal negotiations about sustainable settlement strategies put “a different question from the one put in the national climate change debate. The latter forces Southeast Floridians, like everyone else, to express ‘who they are, whose side they are on.’ In contrast, the decision-making [at the local level] is effectively, and insistently, testing what they know about how to live in a region that faces a serious climate problem.”

What we know at the local level is considerable, despite the lack of awareness confessed in Chapter 12.  We know, for example, that land use strategies can reduce future CO2 emissions by up to 20% through compact, mixed-use urban development near transit, and also that they can increase biological sequestration through open space requirements contained in local land use plans and regulations. Open space currently sequesters between 15-18% of CO2 in the U.S. and that number can be increased through intelligent local policies aided by state and federal initiatives. That land trusts in the Northeast are creating sequestration off-set projects that can be sold in California to secure funds to promote additional sequestration is a good example of how a national strategy could be designed to greatly increase sequestration in mitigation of climate change.

How much we know is on display this week at the Land Use Law Center’s annual conference at Pace Law School in White Plains. It features successful strategies to achieve mitigation or adaptation through innovative environmental impact review, constructing green infrastructure,  revitalizing deteriorated main streets, rezoning to facilitate and lower the cost of renewable energy facilities, enhancing biological sequestration, innovative transit oriented development regulations, sustainable neighborhood development standards, planning for resilient communities, creating no-build zones, despite the interdiction of Lucas, siting affordable housing near jobs, transit, and services, and a dozen case studies of successful sustainable development projects at the local level.

Perhaps the lack of awareness of these promising mitigation and adaptation strategies is due to the intuitive notion that one, a few, several, or even hundreds, of local initiatives cannot deal effectively with the huge challenge of emissions reductions. So many embrace silver bullet international agreements or national strategies that could work, despite decades of frustrated attempts to implement top-down approaches.  Missing from this analysis is that local strategies do work, and while they work only within their parochial jurisdictions, they can have powerful impacts if they are guided, supported, and connected by intelligent state and federal efforts.

What is intuitive here is that creating sustainable settlements is a strategy that has a fighting chance of being politically and economically realistic.  Readjusting the intuitive instincts that guide negotiators on the road to Paris could pay off as a next step for managing climate change.

 

Daniel E. Estrin, Supervising Attorney, Pace Environmental Litigation Clinic
Adjunct Professor of Law, Pace Law School

BREAKING NEWS:

For the second time in four years, Pace Environmental Litigation Clinic’s clients have caught Frasure Creek Mining, LLC in the act of submitting false information to government agencies on numerous quarterly discharge monitoring reports associated with pollutant discharges from its mountaintop removal coal mines in eastern Kentucky.

For more information about the thousands of violations of the Clean Water Act on which the Clinic and its co-counsel served noticed on Friday, November 14, 2014, here are links to our Notice of Intent to Sue and the Press Release prepared by our clients, Appalachian Voices, Waterkeeper Alliance, Kentuckians for the Commonwealth and Kentucky Riverkeeper.

Check out Appalachian Voices’ Flickr page for photos of discharges from some of Frasure Creek’s coal mines.

We’ll continue to update this post with links to articles/press coverage regarding our notice of intent to sue to enforce these violations of federal law.

Press:

Environmental Groups to File Federal Suit Against Frasure Creek Mining (Ronnie Ellis, CNHI, Frankfurt, KY)

Clean Mining a Deception in Kentucky, Groups Say (Michael Wines, New York Times)

Groups Again Allege Kentucky Mining Company Falsified Pollution Records (Erica Peterson, NPR/WFPL News, Louisville, KY)

Environmental groups accuse Kentucky coal company of resuming falsified pollution reports (Bill Estep, Herald-Leader, Lexington, KY)

Greens Threaten Ky. Mining Co. Over CWA Reports (David Siegel, LAW360)

Groups allege 28,000 mining violations, lax enforcement (James Bruggers, The Courier-Journal, Louisville, KY)

Groups say Ky. mine filing false reports again (Associated Press, Lexington, KY)

Blogs:

Same coal company, same old (illegal) tricks (Eric Chance, Appalachian Voices)

Groups Take Legal Action Against Coal Company for Falsifying Water Pollution Reports (Anastasia Pantsios, Ecowatch)

Kentucky Coal Company Falsified Water Pollution Reports, Environmental Group Alleges (Katie Valentine, ThinkProgress.org)

 

 

Municipalities across the nation are incorporating natural resource preservation principles into their zoning ordinances. They are not doing so uniformly, but their collective progress is impressive. Some local legislatures describe the protection of the natural environment as a specific purpose of zoning. Localities may protect open space in zoning districts by adjusting applicable density, lot size, and setback restrictions. For example, conservation zoning districts permit only private land uses that are compatible with the natural environment, while agricultural zoning districts preserve agricultural land for farming purposes and open space.  To read more click: http://lawprofessors.typepad.com/land_use/2014/10/using-zoning-to-protect-the-environment-an-excerpt-from-protecting-the-environment-through-land-use-.html.

Land Use Climate Bubbles are emerging in every region of the country that should rivet the attention of policy makers. In numerous communities, property values are declining because of repeated flooding, continued threats of storm surges, sustained high temperatures, constant fear of wildfires, the lack of water in residential, commercial, and agricultural areas, and real concerns with mudslides in vulnerable areas. This persuasive evidence that local economic bubbles are forming is reinforced by a variety of recent and persuasive reports at the national and international level.  To read on click: http://lawprofessors.typepad.com/land_use/2014/10/costs-and-consequences-of-climate-change-land-use-climate-change-bubbles-part-ii.html.

Sidney is in retreat. Situated next to the Susquehanna River in the Catskill Mountains of New York, the village was built on a floodplain on the south side of the river. In 2006, Sidney was hit by a record-breaking storm that dropped 14 inches of rain over the upper Susquehanna Basin. The village suffered major damage to multiple structures in its extensive flood prone areas, including the main street business district and adjacent residential neighborhoods. The community, of course, focused on rebuilding because the flood was thought to be a one in one hundred year event and that it would not likely happen again. Just five years later, Tropical Storm Lee hit the village, causing widespread structural damage in the floodplain. Things in this community then changed. To read more click http://lawprofessors.typepad.com/land_use/2014/10/the-remarkable-case-of-sidney-new-york.html.

Protecting the Environment Through Land Use Law: Standing Ground, starts with this quote from Emerson, “All of my best thoughts were stolen by the ancients.” The quote introduces Chapter One of this book, which is entitled The Long Arch of Local Environmental Law, illustrating that law has been employed for centuries to balance land development and natural resource protection. The chapter begins with this background: http://lawprofessors.typepad.com/land_use/2014/10/protecting-the-environment-through-land-use-law-standing-ground.html 

 

On October 20th at Pace Law School, Professor John Nolon will demonstrate how local governments can preserve natural resources, maintain critical environmental functions, respond to climate change, and build sustainable communities. His presentation coincides with the launch of his new book on local environmental law, Preserving the Environment Through Land Use Law: Standing Ground, and his receipt of a prestigious award from the International City/County Management Association (ICMA). Demonstrating his commitment to involving students in his work, the luncheon ceremony is being co-sponsored by the Land Use and Sustainable Development, Real Estate, and Environmental Law Societies.

David Yassky, Dean of Pace Law School said, “John Nolon’s Land Use Law Center is known nationwide for developing practical experience for students, pursing rigorous and relevant scholarly endeavors, and serving the community and profession. We are proud to join Professor Nolon in the launch of his latest book, and we join ICMA in honoring him for his contributions to the legal and local government professions.”

Jason Czarnezki, Executive Director of Pace Environmental Law Programs, “The nationally ranked Environmental Law Program at Pace Law School has pushed the boundaries of environmental law for decades: redefining its practice and preparing the next generation of lawyers for the serious challenges ahead. Professor Nolon’s work with local governments contributes greatly to expanding the field of environmental law. He has sparked much progress by his innovative interpretations and applications of local land use authority. His new book demonstrates this in granular detail, and this award from the ICMA is a well-deserved recognition of his contributions to professionalism in municipal government nationally.”

Standing Ground looks at the legal foundations of local environmental law within the federal legal system. It establishes a comprehensive framework for understanding how local land use protects the environment, and outlines policies to make urban neighborhoods environmentally sensible and livable. Standing Ground also demonstrates the Pace Land Use Law Center’s innovative work since Professor Nolon founded it in 1993. The Center fosters the development of sustainable communities and regions by promoting innovative land use strategies and dispute resolution techniques. For the last 20 years, Professor Nolon and the Center have offered training programs, conferences, seminars, clinics, continuing education classes, and frequent publications and resources on land use, real estate, affordable housing, and environmental issues.

Robert J. O’Neill, ICMA Executive Director, said, “ICMA’s mission is to create excellence in local governance by developing and fostering professional management to build sustainable communities that improve people’s lives. ICMA Honorary Membership is awarded to recognize an individual outside of the local government management profession for his or her distinguished public service and contributions to improving and strengthening local government. For his numerous contributions to increasing local governments’ capacity to build sustainable communities, it is our great pleasure to award Professor Nolon Honorary Membership in the ICMA.”

Paul Beyer, Director of Smart Growth, New York State Department of State, “I have seen the positive influence of John Nolon’s work at the local level throughout the state, as well as on state agency programming. I call him the State’s Dean of Smart Growth and Sustainable Land Use Planning and am delighted to hear about this well-deserved award from the ICMA.”

“In the Preface and Acknowledgements to the book, Professor Nolon makes clear his appreciation for the students who worked with him in its production and the contributions of the staff attorneys of the Land Use Law Center. He mentions by name nearly two dozen students who labored with him over the past two years to create Standing Ground. We are so pleased that the ICMA is honoring his contributions to the profession of municipal government since that is precisely what the book achieves,” said Jessica A. Bacher, Executive Director of the Land Use Law Center.

The ICMA award will be presented by ICMA Member and Pace Law Student J. Justin Woods, JD/MPA Candidate, (2016). Woods and Meredith Robson, the incoming Village Manager of Ardsley, New York, collaborated to nominate Professor Nolon for this award.

Robson said, “For over 20 years, Professor Nolon and the Land Use Law Center have been training local leaders in smart growth and effective municipal planning strategies. Their resources, seminars, and publications on land use, affordable housing, and local environmental issues have provided treasured counsel to countless local officials and citizen volunteers.”

“Professor Nolon and Pace Law School have built an extraordinary Center for Pace Law students to engage in innovative land use law practice focused on sustainable development. I am so grateful to work with Professor Nolon and the Center staff, and I am proud to be part of honoring Professor Nolon for all he has given to the field of planning and local government, and more importantly, for the service he provides to Pace Law students and local communities,” said Woods.

Standing Ground is published by West, the Environmental Law Institute, and the American Planning Association. All royalties are dedicated to the Land Use Law Center, and will be used to support the work of Pace Law students engaged in the Center’s programs. Standing Ground can be ordered from the Environmental Law Institute website at www.eli.org/eli-press-books.

For more information:

Any questions about the event can be directed to J. Justin Woods, Land Use & Sustainable Development Fellow at the Pace Land Use Law Center, at jwoods@law.pace.edu.

Media inquiries can be to Pace Law School through Joan Gaylord, Manager of Pace Law External Affairs, at (914) 422-4389 or jgaylord@law.pace.edu.

Any questions about the ICMA or the ICMA award can be directed to Michele Frisby, ICMA Director, Communications & Public Information, at mfrisby@icma.org.

Vacant properties are a persistent land use issue in the most financially distressed regions, as thousands of properties currently sit empty throughout nation. “Zombie” properties result when a bank begins foreclosure proceedings on a property, and the owner abandons the property before the process can be completed. Existing in limbo until the foreclosure paperwork is finally finished, the properties sit rotting for years, attracting unsavory activities and decreasing neighborhood property values. In Newburgh, N.Y., alone, ten percent of all homes are in some state of abandonment, and many of these properties are zombie properties based on the Center’s study of confirmed vacant properties in Newburgh. Other cities that have experienced an industry exodus, such as Poughkeepsie (for which the Center has conducted a similar study), Niagara Falls, Buffalo, and even Westchester County localities face a similar plight and are eager to begin taking substantive steps to resolve them.

Jessica Bacher, Executive Director of Pace Land Use Law Center, has been a key player in the process of property remediation in localities struggling with vacant properties. She serves as Chair of the ABA State and Local Government Section’s Distressed Properties Sub-Committee of the Land Use Planning & Zoning Committee, and her forthcoming article in the Urban Lawyer, A Local Government’s Strategic Approach to Distressed Property Remediation, co-authored with Meg Byerly Williams, discusses this issue in detail. In Newburgh specifically, Jessica has worked closely with city staff and local non-profits on code enforcement best practices, the development of one of the first land banks in New York State, and creation and amendment of local laws to better address the concerns posed by vacant properties.

Vacant properties also have caught the attention of the New York Attorney General’s Office. The Attorney General strongly advocates legislation that directly addresses the vacancy issues faced by localities, and the legislature will consider this legislation again in January 2015 during the new legislative session. The legislation will require banks to register vacant properties in a central database and pay for their upkeep. Jessica believes this is a crucial step to effectively address the vacancy issue: “a statewide registry would alleviate a significant local burden and shed light on an issue that until now has gone almost unnoticed. The registry would help to clarify the extent of the problem, so appropriate strategies and enforcement techniques can be developed and deployed.” The bill also creates a standardized definition of the term “abandonment,” provides guidelines for determining abandonment, requires banks to provide notice to those residing in foreclosed properties that they have a right to remain in the property until the conclusion of the foreclosure proceedings, and imposes penalties on banks that do not wrap up their foreclosure proceedings in a timely manner (up to $1,000 per day). If passed in the upcoming legislative season, the bill will ease the uphill battle localities face when addressing vacant property issues.

Professor Ann Powers:

Two Pace students, Ann Bermont (’14) and Anthony Papetti (’14), were among those responding to a request by the International Union for the Conservation of Nature (IUCN) for assistance  preparing briefing materials for IUCN’s oral presentation in a case before the International Tribunal on the Law of the Sea (ITLOS). Case #21 Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC) involves the rights and obligations of coastal states in managing fisheries and preventing illegal fishing. It will be heard by the Tribunal in September in Hamburg.

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