Common Questions:

 

PLANNING AND ZONING TECHNIQUES FOR PROTECTING QUALITY OF LIFE:  Resource Protection Options for Communities

This summary was prepared for the Association of State Wetland Managers by Nan Stolzenberg, AICP.
Editing by Jennifer Brady-Connor and Sharon Weaver.

Funding for this summary was provided by the U.S. Environmental Protection Agency.
The opinions expressed in the document are the authors' and do not reflect the view of the sponsoring agency.

 Association of State Wetland Managers, P.O. Box 269, Berne, NY 12023-9746
518-872-1804; Fax: 518-872-2171; aswm@aswm.org


What is the connection between natural resources and quality of life?

In most communities, quality of life is of vital importance to its residents.  Environmental protection is often one of the most important land use goals communities have.  People recognize the important contribution natural resources play to their community’s social, cultural, economic, and personal well being.  These natural resources include: water resources such as ponds, lakes, creeks, rivers, and wetlands; wildlife habitats; air; scenic and open vistas; soils; and steep slopes. As communities grow and develop, natural resources are often jeopardized.

What can a community do to protect its quality of life and its resources?

There are a variety of tools and techniques that can be put to work in a community to maintain or enhance quality of life and environmental resources.  The options encompass regulatory, non-regulatory, and administrative measures.  Like many other complex land use problems, it is unlikely that only one technique will adequately protect environmental resources or meet the needs of your community.  Rather, a combination of techniques should be carefully evaluated and implemented to meet the environmental and political needs of your area. This booklet outlines regulatory, non-regulatory, and administrative planning options that a community can use to protect these resources.

What policy or administrative tools can be used to protect resources in a community?

Comprehensive Plans: Comprehensive plans help your community understand and plan for its future needs.  It is a set of policy and goal statements that provide a roadmap for the community to follow.  A comprehensive plan helps your community to determine the kinds of growth that is desired, as well as identifies important natural resources to protect.  The New York Planning Federation has outlined the following benefits of preparing a comprehensive plan: 1) to attract the right future and help avoid the wrong future, 2) to establish a community vision, 3) to ensure economic stability and predictability, 4) to protect important natural and cultural resources, 5) to provide direction to other agencies, 6) to avoid surprises by understanding your assets and liabilities, 7) to improve access to government and non-government assistance, and 8) to back up your land use tools.  In short, your community can have a positive influence on water, wildlife, aesthetics, and other important resources that contribute to quality of life by adopting policies that will guide the activity and actions of public and private land uses.

Building Inspection and Zoning Enforcement: Building inspectors and zoning code officers usually have special significance over the manner in which development occurs in a community.  Decisions made by these local officials can positively or negatively impact im­portant resources.   Local building inspectors and code enforce­ment officers can greatly assist in efforts to protect natural re­sources and they should be trained so that they under­stand local, state, and even federal laws relating to resource pro­tection.  They should have a clear understanding of the local comprehensive plan, other local policies, and decisions made by planning and zoning boards.  Most important, they can be directed by local legislative boards to rigorously enforce local laws protecting important resources. Additionally, local legislative boards can direct inspectors and code enforcement officers to ensure that the appropriate Best Management Practices (BMPs) are imple­mented as needed.  BMPs can be required or voluntary and are specific management techniques that pro­tect important resources.

Implement SEQRA: The State Environmental Quality Review Act (SEQRA) is a state law that mandates environmental review of cer­tain actions.  Local communities can adopt policies and proce­dures to ensure full implementation of SEQRA.  It is an impor­tant tool in resource protection because it creates a process by which decision-makers at the local level can identify, measure, interpret and mitigate the potential impacts of an action on the environment.  The law emphasizes the importance of protecting the natural environment, and requires the consideration of environmental factors along with social and economic considerations when land use decisions are being made. 

What regulatory techniques are available to communities?

Zoning is a widely used technique for controlling land uses and growth in a community.   Traditionally, zoning has meant the separation of uses into sections or districts.  Zoning also states allowable densities for development and specific requirements for setbacks, road frontage, and lot sizes.  This type of zoning is common in many areas.  However, communities should expand their understanding and use of zoning to include several newer techniques such as performance and incentive zoning.  Performance zoning pays less attention to regulating uses and more attention regulating the impact a use may have on the community and the environment.  Performance zoning gives more flexibility, but at the same time, demands that new development meets certain performance criteria set by the community.  Incentive zoning offers developers various bonuses, usually in the form of increased density, in exchange for providing something the community feels is in its best interest.  Incentive zoning has been used to protect stream corridors, open space, recreational areas, and other environmentally important locations. 

Various zoning techniques can be used.  They include:

Large Lot Zoning: A minimum lot size is set (usually 40 to 160 acres) with one residence per lot allowed.  Lot sizes in this technique vary tremendously, and can range from 10 to 700 acres. Lot sizes of three to five acres are not considered large lot zoning.  If parcels are in excess of 40 acres, this technique can better protect larger parcels while allowing some development and flexibility.  The larger the lot size, the lower the overall population density.  Lower densities are desirable for environmentally sensitive areas.  The disadvantage of this tech­nique is that density standards or minimum lot sizes must not be too small (parcels become too small to protect natural resources) or too large (unlikely to gain political support). Small minimum lot size increases consumption of land, land speculation and leapfrog development.  This technique has high risk of creating low density urban sprawl spread across the landscape and has not been very successful at protection natural resources unless the lots are quite large.

Quarter/Quarter Zoning: This is a variation of large lot zoning.  The name refers to 1/4 of 1/4 of 640 acres, or about 40 acres.  This is roughly equal to a 1/4 of 1/4 section of a United States Geographical Service topographic quadrangle. It is a fairly straightforward technique, with each landowner being entitled to one buildable lot per 40 acres of farmland.  Once the entitled lots have been built, the  entitlement for the entire parcel is utilized.  Usually, performance standards for setbacks, septic, and road access are required as well. The one buildable lot is one acre in size.  This is more restrictive than large lot zoning and results in densities far less than 1 Dwelling Unit (DU) per 40 acres.  It is designed to maintain large tracts of land.  However, this technique cannot be applied everywhere. It has had most success in rural areas showing moderate growth pressure.  It can only work where ownership of large parcels is by few individuals (i.e., this would not work in areas with heavily fractured ownership). It is often used as a tool where farmland protection is the goal; however, development may be pushed onto more environmentally sensitive lands. 

Sliding Scale Zoning: This technique allows each landowner a certain number of buildable lots based upon the size of the parcel.  The number of potential buildable lots Decreases as the parcel increases in size.  Thus, tract size governs density.  Smaller tracts are allowed to have higher densities than larger ones.  Both minimum and maximum lot sizes are set (usually one and two acres, respectfully). Sliding scale zoning can be coupled with standards that restrict development to the least productive soils or restrict development on environmentally sensitive lands such as steep slopes.  These standards help direct the location of development to protect important natural resources.  Sliding scale zoning encourages cluster development, which splits smaller parcels further to direct growth onto already fragmented land.  This leaves larger, undivided land undeveloped, it directs growth to smaller, already fragmented parcels, and may create affordable housing. The main advantage of sliding scale zoning is limited subdivision of environmentally sensitive and prime agricultural lands. Farmers and large landowners have supported it but sliding scale zoning can meet the needs of small landowners too. The disadvantage is that it can be rezoned, like other zoning techniques.  This is especially significant after development allotments are used.  When this happens, landowners may pressure local governments for more lots. It also requires more administration and ongoing monitoring.

Open Space Zoning: This technique uses clustering and other creative designs of building lots to permanently retain open space.  Clustering of buildings is heavily relied upon because less land is consumed. There is much variation in use of this technique and many communities throughout the northeast have incorporated open space zoning. 

One variation mandates Open Space Development Design, or Conservation Subdivisions.  Here, a community can designate a district where new subdivision development is not permitted to consume more than a certain percentage (often 50%) of any parcel.  The remaining land is permanently restricted and further subdivision is not allowed. 

Some regulations have a sliding scale for setting aside open space.  The sliding scale allows the gross density to rise only if the net area consumed by development is reduced.  Thus, as more open space is preserved, the number of lots can increase, but the maximum lot size decreases.  

Open space zoning implemented through an overlay district, tied to specific environmentally sensitive areas, is another variation.  It allows variable lot sizes and land uses, retains open space, recreational areas, scenic areas, and environmentally sensitive areas and preserves prime farmlands.  It can also promote affordable housing because the smaller lot sizes require fewer roads, utilities and other infrastructure, reducing the costs of development.  However, this technique requires more effort to create and implement properly and unless open space is permanently set aside through a conservation easement, rezoning can erode open space and protected lands. 

Contract or Conditional Zoning: A special use permit approach, contract zoning places conditions on certain uses based upon certain standards.  Special permits are usually given if the proposed use is consistent with the zone.  Standards can be built in to manage land use compatibility, environmental protection, and public service costs.

Planned Unit Developments: A Planned Unit Development, or PUD, allows a combination of housing types along with open space, agricultural, recreational, commercial, or professional uses.  It is grounded on the basis of incentives and often uses clustering.  PUDs are flexible, allow a mixture of uses, and foster negotiations between the municipality and the developer.  When implemented, PUDs allow increased review powers, and offer local governments opportunities to assemble adequate amounts of land to protect resources.  PUDs also allow municipalities greater control over the timing and sequence of development.  Because the developer saves in individual lot and infrastructure costs, PUDs require that these savings pass to the municipality as preserved open land.  Thus, a PUD can encourage the creation of self-sustaining amenities such as agricultural, open space, and recreational lands.

Overlay Districts: A resource protection overlay district can direct development away from sensitive or environmentally important lands.  Overlays are commonly used to increase protection of specific stream, scenic, watershed, or other sensitive lands.  It is a set of regulations that are in addition to the base zoning district and is usually applied to specific locations within a community.  Open space development design and other standards protecting resources can be incorporated into an overlay district.  Techniques such as conservation subdivisions, buffer strips, and numerous performance standards are usually included in overlay regulations.  Overlay districts are often more politically acceptable because it is not a question of if an area can be developed, but rather how. The underlying densities are not changed.   They are frequently used to maintain rural character and protect resources such as streams, wetlands, aquifers, watersheds, etc.

Are there other regulatory techniques available that are not zoning?

Yes.  There are several other useful techniques.  They include single purpose ordinances such as floodplain regulations; watershed rules and regulations; stormwater, erosion, and sedimentation control; Best Management Practices (BMPs); site plan review; building envelopes; buffer strips; and subdivision regulations.

Best Management Practices: Preventive and remedial land conservation practices are often called Best Management Practices.  They are used to protect and conserve streams and other water bodies, often by controlling nonpoint sources of pollution.  There are many references and resources on best management practices for development, farming, and forestry.

Single Purpose Ordinances: Many communities that have no zoning adopt a variety of single purpose ordinances to protect resources.  Floodplain regulations designate flood-prone areas and limit their uses to those compatible with the degree of risk associated.  These may be very important because flood insurance is only available to landowners subjected to local floodplain regulations.  Watershed rules and regulations lay out specific requirements and standards that must be met in a designated watershed to protect water quality and quantity.  Stormwater, erosion, and sedimentation control can also be single purpose ordinances to ensure that activities do not pollute waterways and wetlands.

Site Plan Review: Site plan review is a process that can be used with or without zoning to evaluate the potential impact a development has on a community.  The evaluation comes in the form of reviewing and permitting the development’s intended design, arrangement, and land use as well as how well the proposal meets the specific standards and criteria of the community.  Site plan review is an important tool that helps a community understand the physical, social, and economic effects of a proposed development. Commercial, retail, industrial and large residential developments typically undergo a site plan review that is administered by local planning boards. Site plan review results in a proposal’s denial, approval, or approval with modifications.

Building Envelopes: Building envelopes are defined as that portion of a lot located within the minimum prescribed front, rear, and side yard setbacks. As lot size increases, the percentage of a lot within a building envelope increases. In order to protect important community resources, there is no reason to permit a development. Flexible siting of reduced building envelopes can protect development that would allow for disturbance to take place within a large area of a lot.  Thus, a community can narrowly define building envelopes and the most suitable areas for development in their subdivision ordinances.  Areas beyond these reduced building envelopes should be restricted against wetlands, steep slopes, scenic areas, or other resources that need not be disturbed.

Subdivision Regulations: Subdivision regulations lay out how the community wants development to occur.  It can fashion development in specific ways and regulates private land use to meet the broader goals of the public interest.  Subdivision regulations often include requirements to protect wetlands and floodplains, prescribe how and when open space or recreational lands must be set aside, and set standards for lot layout. 

Buffer Strips: Buffer strips are a barrier between conflicting land uses or between development and important community resources.  Located at the edge or boundary between two uses, a "green" buffer can reduce conflicts and protect sensitive lands from the negative impacts of development.  Buffers are usually areas of vegetation, but can also be landscaped berms.  Buffer strips along streams and wetland boundaries are common.

What non-regulatory mechanisms can a community use to protect resources and preserve its quality of life?

It is important to keep in mind that in most communities, environmental resources, including aesthetic and historic resources, contribute greatly to the quality of life.  When certain regulatory mechanisms are not available or adequate enough to provide resource protection, many communities have turned to mechanisms such as conservation easements, the purchase, transfer or donation of development rights, and the outright purchases of important lands.

Conservation Easements: Many state and local governments and private land trusts acquire conservation easements (development rights) on properties to preserve land.  This requires legally splitting the development rights of a property from other property rights and held so that development is prevented. All conservation easements are voluntary and may be permanent or short-term. Land with a conservation easement can be sold or transferred to others, but the land use is limited by the restrictions of the easement.  For example, a parcel of land may have a conservation easement that allows one single-family residence to be built, with the rest remaining as open space. 

Voluntary agreements are negotiated between the landowner and the government or land trust.  Those entities holding a conservation easement are responsible for monitoring and enforcing the provisions of the easement.  The terms of conservation easements are flexible and specific to each property.  Some allow development on a parcel but it usually is limited to existing buildings.  Others allow for some use such as agricultural or recreational.  Still others might restrict agricultural practices if environmental concerns exist. Land with a conservation easement remains privately owned and managed.  It also remains on the tax rolls.  Only donations of perpetual easements are considered a tax-deductible charitable contribution.  Limited term easements are not tax-deductible.  The value of a development right is generally determined based on the difference between the land's value for development and its present non-developed value.  According to federal law, easements donated for conservation purposes must provide "significant public benefit."  Benefits include recreational, ecological, open space, and historical.

A donation of a conservation easement to a government or nonprofit organization allows the owner to realize tax benefits. The advantages of donated conservation easements include: may make it more acceptable than regulatory programs due to the voluntary nature; potential estate, income and capital gains tax relief; a creative, flexible technique meeting landowner needs; permanence and easier administration.  However, the voluntary nature means that a landowner may not choose to donate.

Purchase of Development Rights: When a conservation easement is bought, it is called a PDR, or purchase of development rights.  Some state and local governments and many private land trusts have programs established to purchase development rights.   PDR programs are all voluntary and once a participant sells the development rights of the land, it is permanently protected from land use conversion.  This type of land transaction protects open space, recreational, ecological, agricultural, or historic resources.  Nine states have established PDR programs and voters in many of these states, including New York, have approved tax expenditures for purchasing conservation easements.

Purchased conservation easements can help a landowner turn a fixed land asset into a liquid cash asset that can be reinvested or used to pay off debt.  PDRs will protect resources from future development and may reduce property and estate taxes. Disadvantages include the expense, possible loss of taxable property, lack of landowner participation, and potentially cumbersome administration.

Transfer of Development Rights (TDR): Transfer of Development Rights transfers development to another part of a community where development and infrastructure may already exist.  The goal of a TDR is to direct growth to an already developed, or developing, area.  New growth directed to urban lands can make development less costly and it can preserve land at no direct cost to taxpayers. TDRs direct development to underutilized space in urban or suburban areas.  Like PDRs, protected lands remain in private hands and on municipal tax roles.   To be effective, lands are identified as eligible for a development rights transfer and ineligible for conversion to new uses.  Landowners of these properties (senders) sell development rights to developers in urban areas (receiver). A local government holds the rights transferred and the developer in the receiving area obtains a density bonus.  This density bonus allows a higher density than the current zoning permits and higher densities mean an increase in developer profits. The only public cost is for program administration.

TDR programs can be either mandatory or voluntary, but most are voluntary.  TDRs allow the preservation of farmland or environmentally sensitive lands while simultaneously providing landowners compensation. They can be tailored to meet community land use goals, help implement local comprehensive plans and zoning ordinances, and they can provide permanent land protection. TDRs also allow efficient use of urban land. However, there may be a lack of willing buyers at the time there is a willing seller, there may not be a demand for higher density development in receiving areas, and TDRs are often complex to administer.

Outright Land Purchases or Donations: Outright public purchases are efficient mechanisms to protect land.  Purchases can be accomplished through a conservation sale, a fee-simple acquisition, or a land donation. 

A conservation sale involves a landowner selling their property at less than full market value to a public agency or private land trust.  The difference between this value and the market price is considered a charitable gift.  Landowners receive both monetary compensation and tax benefits.  The buyer can prevent future development on the property by placing a conservation easement on it. 

A fee-simple acquisition is an outright purchase of the land.  Once purchased, the land can be leased or sold back into private ownership with attached conservation easements.  Governments in New York can purchase land on a voluntary basis on the authority of the General Municipal Law 247.  Local governments can also acquire property by eminent domain to protect the general health and welfare of its population. 

A land donation occurs when landowners donate their property to a public agency or private not-for-profit organization.  As with donated development rights, parcel donations are considered charitable allowing a tax benefit.  Landowners who donate land often retain the right to use the land for a specified length of time, usually until death, and they may also request a conservation easement protecting the land from development.

CONCLUSION

There are numerous regulatory and non-regulatory techniques to assist communities in meeting their resource protection goals.  Incorporating one, many, or all of these techniques will maintain a balance between development and open space, and help retain a community’s quality of life. 

WEBSITES FOR FURTHER REFERENCE

National Association of Counties                                                        http://www.naco.org

Local Government Environmental Assistance Network                     http://www.lgean.org

Smart Growth Network                                                                       http://www.smartgrowth.org

Land Trust Alliance                                                                             http://www.lta.org

American Farmland Trust                                                                   http://www.farmland.org