Common Questions:
PLANNING AND ZONING TECHNIQUES
FOR PROTECTING QUALITY OF LIFE:
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.
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?
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
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
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
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