This afternoon’s panel featured Prof. John Nolon from Pace Law School and Prof. Patricia Salkin, an Associate Dean at Albany Law School. Nolon presented on the topic of ”Local Land Use Law, Urban Form, and Climate Change Mitigation” while Salkin focused on the topic of ”Smart Growth and the Greening of Comprehensive Plans and Land Use Regulations”.
Professor John Nolon:
The situation we face is more urgent than many people in the United States realize. Projections of the intergovernmental panel on climate change are not only out of date but alarming. We are starting along a good path, but we must move a long it more quickly and with urgency. We have a large population coming into the United States, projections cite that 100,000 million people will come into our country. This increase in population will require more development of homes by 2043. And, 66% of development by 2050 will be built between now and then, causing the building environment to change rapidly.
Where the new development will go and the amount of energy efficiency it will have is important. The blueprints created by local governments are important in determining how the new development will proceed. Buildings emit 38% of domestic CO2 and personal cars emit 20% of our CO2 totaling 52% of CO2, which is the main focus of the intergovernmental panel on climate change.
Local governments control settlement patterns. Through comprehensive plans, zoning, subdivision and site plan regulations, local environmental laws, green building ordinances, and development review process are tools that local governments have for local governments to influence green building. Our system of government has allocated to the local level the responsibility of determining how we build.
Current blueprint created by local governments is largely a blueprint caused by the proliferation of single family, single use neighborhoods. Over the past decade 60% of people have chosen to live in single family homes, which is a product of the market. If 60% of 40 million households choose to live in single family neighborhoods, there will be an increased depletion of our environment at a much higher rate because of this kind of development. Aging empty nesters, never nesters, young immigrant households want to live in the urban environments, which improves the urban real estate market.
Furthermore, the shift from single family homes to urban housing will shift 8 million households from one type of development to another. The compact development brings less CO2 emission.
According to the Growing Cooler report, shifting 60% of new population to medium density compact development will save 79 million tons of CO2 emissions. With fewer cars, services and goods within short walks of homes, and transit parks within a close distance will create a lighter carbon footprint.
The difference between single family living and urban living is about 18 metric tons per person per year less CO2 emissions after the shift from single family living to urban living. This represents a huge percentage of our country’s CO2 emissions. Just through zoning and reconfiguring the human settlement pattern, we can reduce travel and building emissions resulting in a 25% decrease in CO2 emissions.
Other local land use strategies, encouraging solar, encouraging wind, and green building laws. Land use stabilization wedge, zoning for compact, mixed use development reducing vehicles. We can increase building efficiency through green building laws. We can facilitate wind and solar power with new laws.
Professor Patricia Salkin:
If we are serious about implementation, we must change local green building code and energy star requirements. These changes must start with local governments, without further authority of state governments and the federal government. Local governments must conduct a green audit. Before you can make these changes, it is important to take an inventory of what we have and create a comprehensive plan for zoning that takes into account green zoning. We should adopt our zoning regulations to comply with our vision for our communities.
The American Planning Association surveyed planners, and 65% of those polled believed that energy issues are very important to planning, with 94% of those polled saying that there is a role for planners in energy conservation.
The APA has adopted a policy guide on planning and climate change, which focuses on reducing green house gas emissions, change the patterns of behavior, development and policy through land use control and looking at interdisciplinary actions.
The comprehensive plan includes our statement of goals, aspirations, and policy directions. In order to green our comprehensive plan we should look at energy, conservation, critical areas, land use, transportation, housing etc. Some states are now requiring local governments to specifically address climate change in their comprehensive plans, such as California and Florida. Not telling local governments what to say in their plan, but they must address climate change in their comprehensive plan.
Examples of statements made in comprehensive plans that address green issues: Marin County, CA: Energy reduction, sustainability measures incorporated through the plan. Chula Vista, Ca: Decrease automobile dependency. Boulder County, CO: TDR and green building. Albuquerque, NM: More public transit. Blacksburg, VA: Compact development.
The comprehensive plan is not the law, but it is the guiding document for the creation of the law. Other things that municipalities are putting in their comprehensive plans as aspirations for their future laws include, transient oriented development, recycling water (green roofs or storm water programs), bike plans, and adopting climate action plans. Dozens of states have begun to adopt these climate action plans.
Another aspect of local land use control, in most states, there is some environmental rules that must be factored into our local environmental land review.
Techniques to promote solar energy include state laws that pre-empt local zoning. Solar energy is a valid planning concern that is within the power of local governments to advance the agenda of increasing solar energy. In Arizona, for example, the Solar Rights Act allows the implementation of solar energy panels regardless of zoning. Historic preservation plays a big role in influencing solar development. Some communities are exempting the use of solar panels in historic preservation areas.
Wind power has been controversial, depending on what state you are in. If the local governments allow for turbines, you might want to designate which areas you want the turbines and include that within the local plan. The location designated must be consistent with where the wind is, taking into account the noise generated by the turbines. When it comes to turbines a state or federal rule is necessary in order to ensure that these projects get up and running, which probably won’t happen if left solely to the local level.
Compact design can be used to promote the preservation of open space and greenspace. Local design standards can help implement this.
Clustering ordinances can help conserve natural areas and help with density. Local governments can permit/require the clustering in subdivisions.
We want to create walkable communities through our site plan to ensure that commercial and residential areas are pedestrian friendly. It is essential that these sidewalks are connected by the local government with a comprehensive sidewalk plan.
Rainwater collection ordinances are used to help conserve water to help meet demand and conserve water in order to prevent depletion of potable water.
Xeriscaping ordinances make landscaping more sustainable, help with water conservation, and improve the habitat for plants and animals.
Green roofs are specifically designed roof type gardens or lawns that can also allow for trees, or they may be shallower just for grass and other small plants. Benefits are that they improve air quality, building efficiency, and provide urban greenery in cities. Communities need green roof ordinances to prevent roofs from caving in and create incentives.
Cool roofs, are traditionally covered with reflective materials to help with the urban heat island problems. These can be incorporated into building codes.
Transfer development rights program can promote sustainability to preserve natural and minimally developed areas. You take the allowable density in one area and you sell the rights to build your units to another area so that you increase density and create compact development thereby saving undeveloped areas.
We should identify and facilitate land uses that are not already present in local districts. We should put schools and parks back in neighborhoods. There needs to be residential business areas in neighborhoods. Currently we have parks that are not accessible in suburban communities.
Professor John Nolon:
Attorneys are needed to put into law the requirements that will stop us from destroying our planet. Law needs to lead the social norms. Local governments are beginning to aggressively move to create transit oriented development on the local government. Lawyers are starting to respond to the need to adopt local laws to prevent natural disasters. We need to leave local governments to adjust to the climate change challenges. It is local governments that really understand what the problems of their communities are. As people are affected by climate change, will be incentivized by lawyers to adopt laws to help solve the problem.
We need to look at what the appropriate role is for local governments, state governments, and the federal government. While local governments should lead in environmental laws, the federal government can help through making materials and funds available to states to help states make their own programs that can encourage local governments to do what they think should be done.
Q1: Have states started incorporating climate concerns in their legislature prior to lawsuits, or have lawsuits inspired these changes?
A1: Both. In some states, change has started with lawsuits, but other states have started incorporating climate concerns prior to litigation.
Q2: Which part of the Constitution gives the federal government the authority to run the wind turbine operation?
A2: There is no mention of local government in the Constitution, so the authority belongs to the federal government. The Telecommunications Act example is parallel to the wind turbine operation. The Telecommunications Act mandates that state and local governments may not prevent the construction of cell towers, nor may they delay the process. Prof. Salkin advocates a similar act regarding wind turbines, to essentially force local and state governments to allow for the construction of wind turbines.
Q3: What provisions in local laws deal with rising sea level problem?
A3: One approach creates a rolling easement – as the sea level rises, people who own land adjacent to the ocean loose the right to that land. Another local government has developed a moratorium on all development after natural disasters so that they have time to adjust their land use laws. There is also a beach zone local law that prohibits the rebuilding of a building that has been destroyed. Another possibility is to use the Stafford Act which requires states to have plans on how to deal with natural disasters. If states were required, under the Stafford Act, to have a plan dealing with sea level rising this would also address the problem.
Q4: What do you envision as possible means to overcome opposition to comprehensive plans?
A4: “American hate two things: sprawl and density”, said Nolon. Americans hate density; it is part of the American Dream that everyone can have a car in their garage and a home to call their own. As the environmental crisis grows, people will become more concerned with environmental crises than they are about their car in their garage. As a result their priorities will change, and the American Dream will change.