BY JESSICA A. BACHER and JOHN R. NOLON
When we started the Land Use Law Center at Pace Law School 25 years ago, we dedicated our efforts to promote sustainable development. We quickly learned that this meant working at the local level and reviewing comprehensive land use plans, zoning and other land use regulations.
New York, like all states, has delegated the power to control land use and land development to its municipal governments, including its cities, villages and towns. A quarter of a century ago, the challenges were fewer, if no less complex, than the development issues we face today.
In 1993, Westchester had an affordable housing problem, which was a crisis for the homeless and a critical problem for localities whose seniors, young couples and workers could no longer afford to live locally. Lewisboro paved the way for responding, through zoning, to this problem. It was the first municipality in New York to award developers extra density in exchange for housing affordable to local workers and others with comparable incomes. Bonus density was popular with other communities. This approach and mandatory inclusionary zoning regulations were adopted by many communities.
Today, the problem has become fair housing. How do communities with largely white demographics use their land use regulation to increase diversity in their populations by removing barriers to affirmatively further fair housing? This is a problem that has defied solution at the national level for decades, but is now very much on the local doorstep.
Twenty-five years ago, green development was in its infancy. Greenburgh was the innovator here. It amended its zoning to require single-family homes to comply with the federal Energy Star rating system, guaranteeing less energy consumption, less fossil fuel generation for heating and cooling and, thereby, lower costs and less contribution to global warming. Communities are revising land use regulations to ensure low carbon land use. Yonkers followed Greenburgh by using the LEED ND rating system as a guide to amending its land use regulations.
The state of New York amended its building code array to add an energy code, requiring all buildings to be more energy efficient. Localities began to think about the thermal values of the buildings they permitted and how to reduce vehicle miles traveled through walkability and mixed-use development, which reduces car dependency and carbon dioxide emissions from tailpipes.
Transit oriented development (TOD) came on the scene in 1998 with the groundbreaking at the Hudson Park development on the waterfront in downtown Yonkers. That development was immediately adjacent to and directly connected to the Yonkers Metro-North train station in a mixed-use neighborhood, near restaurants and recreational fields with attractive art, and served with half the parking otherwise required by the Institute of Traffic Engineers at that time. Today, all of our urban villages and cities with transit are amending zoning to promote TOD.
Local planners are gauging the advent of ride-hailing autonomous vehicles that will reduce parking needs to a fraction of what they were and free up hundreds of acres of parking lots to new and complementary development. The Regional Plan Association has quantified this future asset and recommended zoning reforms to use it sustainably.
A quarter of a century ago, a few isolated communities permitted solar panels in their zoning because of the energy crisis of the 1970s. They stopped when that crisis ebbed so that when the urgent need for the use of renewable solar energy emerged a few years ago, a regulatory barrier existed to its use. The cost of gaining local approvals through special use permits, variances or other exceptions to zoning became a significant cost of developing solar energy and the only component of that cost that was not declining as technology improved. Sustainable Westchester has involved all Westchester communities in promoting solar energy and permitting it through land use regulations and incentives.
When we began, we had a national flood insurance program that was solvent and localities were required to rezone floodplains modestly to require buildings to be elevated. Today, with fiercer storms, constant rainfalls and sea level rise, the challenges could not be more severe.
The federal budgets for flood insurance and disaster recovery, particularly from coastal storms, have ballooned and local governments are reviewing inundation maps that expose the vulnerability of buildings built anywhere close to coastal waters.
Resilience is being built into local zoning ordinances where the concern is that allowing infrastructure and buildings in vulnerable coastal zones is putting lives, property and taxpayer dollars directly in harm”™s way.
These issues challenge local officials and those who elect them to carefully track the many changes in weather, technology and markets. Over the last 25 years, we have learned that amending comprehensive plans and adjusting zoning standards are critical tools to preserve natural resources and promote sustainable development.
Jessica A. Bacher is the executive director, Land Use Law Center, Elisabeth Haub School of Law, at Pace University. She can be reached at jbacher@law.pace.edu. John R. Nolon is the distinguished professor of law, Elisabeth Haub School of Law, and counsel, Land Use Law Center, at Pace University. He can be reached at jnolon@law.pace.edu.
