LAND USE REGULATIONS TO ADDRESS CLIMATE CHANGE: How Local Governments Can Do Their Part Without Getting Burned

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1 International Municipal Lawyers Association 2013 Annual Conference San Francisco, California LAND USE SECTION WORKSHOP Work Session # Sunday, September 29, :00 a.m. 12:30 p.m. LAND USE REGULATIONS TO ADDRESS CLIMATE CHANGE: How Local Governments Can Do Their Part Without Getting Burned Timothy D. Cremin Meyers Nave Oakland, Calif. and Dwight H. Merriam Robinson & Cole LLP Hartford, Conn International Municipal Lawyers Association. This is an informational and educational report distributed by the International Municipal Lawyers Association (IMLA) during its 2013 Annual Conference, held September 29 October 2, 2013 in San Francisco, California. IMLA assumes no responsibility for the policies or positions presented in the report or for the presentation of its contents.

2 LAND USE REGULATIONS TO ADDRESS CLIMATE CHANGE: How Local Governments Can Do Their Part Without Getting Burned I. INTRODUCTION Climate change is a global phenomenon with many contributing factors. There have been several attempts to address this issue on an international level with varying success. However, on the local level, plans and programs to address climate change continue to grow. In the United States, over 1,000 mayors have joined The U.S. Conference of Mayors Climate Protection Agreement to take action on the local level to reduce greenhouse gas (GHG) emissions. Similarly, in the European Union, the Covenant of Mayors has almost 5,000 signatories committing to reduce GHG emissions (GHGs) in their cities by at least 20% by So, in many ways, local governments are at the forefront of efforts to address climate change. This workshop explores the land use elements of plans that address climate change, commonly known as Climate Action Plans or Greenhouse Gas Reduction Plans. These plans often address issues relating to land use, transportation, building, water use, waste reduction, infrastructure, and alternative energy sources. There are generally two ways that land use measures can address climate change: (1) GHG reduction measures (i.e., measures to reduce GHGs); and (2) climate change adaptation measures (i.e., measures to adapt to or lessen the impacts of climate change). This presentation addresses these types of measures, examines legal and planning issues relating to the measures, and presents plans from cities as case studies. II. LAND USE MEASURES TO REDUCE GREENHOUSE GAS EMISSIONS A. Types of Measures Land use plans and regulations address a broad range of issues relating to a community s development. Plans and programs to address climate change normally focus on the following general areas: uses and development, transportation, buildings, and resource conservation. Types of GHG reduction measures in each of these areas are described below. Uses and Development The regulation of uses and development is at the core of traditional land use regulations. The measures addressing climate change often are focused on creating a certain development pattern that reduces automobile and energy use, and conserves natural resources. Types of measures include mixed-use development (combining residential, retail, and commercial uses), transit-oriented development, higher density development, and urban and infill development. The basic goals are to make areas where people live, work, and shop adjacent to each other and reduce reliance on automobiles. Transportation The main programs addressing transportation focus on increased transit, bicycle, and pedestrian options. These include the following types of measures: Street designs to accommodate multiple modes of transportation, including pedestrians and bikes (socalled complete street programs); Increasing public transportation availability and convenience 1

3 can be accomplished by establishing transit priority routes along existing high-trip corridors that provide opportunities for various modes of transit, such as bus, light rail, shuttles, ride shares, and rail; and Requiring Transportation Demand Management Programs for commercial and office uses, including such measures as rideshare, transit subsidies, vanpools and shuttles, guaranteed rides home, reduced parking requirements, and pay for parking programs. Buildings The main programs relating to buildings are to decrease energy use and reduce use of resources in construction and operation of buildings. Green building ordinances contain the main programs in these areas. Measures to reduce GHGs from buildings include energy-efficient systems and appliances, natural heating and cooling, cool/green roofs, on-site renewable energy (solar panels, solar water heaters), increased natural light and energy efficient lighting, and energy management systems. Resource Conservation These are measures to reduce GHGs through protecting and preserving natural resources such as the following: Water conservation through water-efficient landscaping regulations (including native vegetation) and fixtures; Increasing water reuse through requiring recycled or gray water pipes and facilities; Reduction, capture, and reuse of stormwater as part of stormwater management requirements; Regulations for types of building materials such as mandates for renewable or recycled materials; and Waste reduction and recycling as part of construction and operation of development. One aspect of these measures that have been addressed in certain plans is a cost-benefit analysis. This can be expressed as the cost for each metric ton of GHGs reduced by the measure. This allows for a comparison of the economic efficiency of reduction for each measure, and serves an important piece of information that can help in the evaluation of which measures to adopt based on the resulting amount of GHG reductions compared to their costs. B. Legal Issues Regarding Measures A city s power to regulate land use and development is derived from its general police powers, which include protection and promotion of health, safety, and welfare. The public health, safety, and welfare standard is normally given an expansion reading to include such issues as aesthetics and affordable housing. Many of the regulations discussed above are related to traditional forms of land use regulations and can be supported by the general health, safety, and welfare standard. The enactments of such planning regulations to establish generally applicable requirements are legislative acts that fall under this broad and deferential standard. However, a city s power to impose these measures as specific conditions of approval for a specific project, rather than under a generally applicable plan or ordinance, may present some legal vulnerability. A nexus and rough proportionality requirement is applied to the imposition of conditions on individual projects (adjudicative decisions). (Nollan v. California Coastal Commission, 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994); Koontz v. St. Johns River Water Management District, U.S., 2013 U.S. Lexis 4918 (2013).) Under the nexus/rough proportionality requirement, the city must show (1) a nexus between the impact and condition; and (2) that the burden of the condition is roughly proportional to the project s impacts. Given the difficulty of showing an individual project s impact on the global phenomenon of climate change, measures imposed as individual requirements may be subject to legal challenge. 2

4 State or local environmental review laws may provide a legal basis for imposing requirements to reduce GHGs and address climate change. About 28 states have laws regarding the analysis of the environmental impacts of development projects and mitigation for those impacts. Certain states require the analysis of issues relating to climate change and GHGs as part of the state environmental review law New York (6 New York Codes, Rules and Regulations , Appendices A and B (environmental assessment forms include GHG analysis (effective October 7, 2013)); Massachusetts (Massachusetts Environmental Policy Act (MEPA), 301 Code of Massachusetts Regulations 11.00); California (Public Resources Code section , Title 14 California Code of Regulations sections , (c)); and Washington (Guidance for analysis of GHGs ( df)). Another way to avoid legal limitations on regulations relating to climate change is to adopt incentive-based programs rather than mandatory requirements. Examples of incentives in the land use context that could promote the incorporation of GHG reduction measures in development projects include: expedited plan review; reduced fees (plan check or other fees); zoning incentives; and exceptions to certain development standards. Incentive-based regulations are often considered for regulations of existing buildings or uses to reduce GHGs. Retrofitting existing structures to increase energy efficiency is one of the most cost-effective ways of addressing this issue. However, regulation of existing buildings presents some legal issues, which can be avoided if the programs are incentive-based. The preemption of local laws also is a legal constraint on the adoption of GHG reduction measures. Federal preemption has been applied to void local green building ordinances that conflict with the National Appliance Energy Conservation Act. (Air Conditioning, Heating & Refrigeration Inst. v. City of Albuquerque, 835 F. Supp. 2d 1133 (2010).) State law preemption also presents an issue of concern. This issue will become increasingly prominent as more states move to address climate change and impose requirements. At the present time, building code and energy efficiency requirements are two areas that are regulated by states and the power of localities to enact regulations in these areas is limited. For example, in California, energy efficiency is an area preempted by state law, and there are tight restrictions on local regulations which increase state standards. Local governments are required to apply to the California Energy Commission for approval and provide documentation and analysis to show the following: (1) how the local government has determined that their proposed standards will save more energy than the current statewide standards; and (2) the basis of the local government s determination that the local standards are cost-effective. (California Public Resources Code section (h)2 and Section of the California Building Energy Efficiency Standards.) A list of California cities that have enacted greater energy efficiency standards and the documentation to support adoption are available at Similarly, green building regulations have been partially preempted by state law in California. As part of the State Building Code, California enacted CALGreen which consists of green building measures. CALGreen establishes uniform minimum mandatory standards that apply statewide. (California Green Building Standards Code, Title 24 California Code of Regulations section ) So, less strict local standards are preempted. Local agencies may only amend CALGreen standards to 3

5 impose greater requirements if certain findings are made. The findings must identify local climatic, topographical, or geological conditions to support greater requirements. (California Health & Safety Code ). III. LAND USE MEASURES FOR ADAPTATION TO CLIMATE CHANGE A. Basis for Regulation The risks presented by climate change are based on projections of future conditions that rely on current information and extrapolation from past trends and events to the future. Although there is continuing debate on the extent and effect of climate change, a number of local jurisdictions have begun to develop and adopt plans with policies for adaptation to climate change effects. Threats from climate change are location-specific and the types of effects vary. However, climate change effects include: temperature extremes, rainfall extremes, sea level rise (which leads to flooding and coastal erosion), droughts, extreme storms/weather, and related impacts on public infrastructure, including power. Although there is some uncertainty regarding the extent of risk, this issue can be addressed as part of the plan. The planning process can include both a vulnerability assessment and a risk assessment. The vulnerability assessment considers the extent of the effect of the impact and the cost and amount of intervention needed to adapt. The risk assessment evaluates both the likelihood and consequence of the impacts. The likelihood is the probability of the effect occurring. The consequence is the known or estimated effect of the impact. Adaptation strategies focus on those impacts that have the highest risk rating and where the adaptation measures to address the impacts are most effective with limited costs. In order to address these risks, cities are adopting adaptation plans that include certain land use measures. The goal of the measures is to proactively plan future development and infrastructure to be resilient to impacts of climate change. The costs of building new structures and infrastructure to adapt to climate change over its lifecycle is significantly cheaper than restoration or rebuilding post-damage, retrofitting after construction or an increased lifetime maintenance bill. B. Types of Adaptation Measures Below is a list of types of adaptation measures used to address climate change impacts. Modification of coastal development to account for sea level rise - design development based on projected sea level rise (ex. raise height of lowest habitable floor) - promoting appropriate and sustainable defenses (ex. barriers, seawalls, levees) - locating development away from areas of highest risk 4

6 Storm water management plans - increase capacity of drainage facilities - restore natural systems to control stormwater (marshes, increase impervious surfaces in development) -reduce storm water runoff from new and existing development (storm water retention and reuse, increase absorption materials) Thermal properties of construction materials that improve heating and cooling Protect infrastructure from impacts - retrofitting versus re-siting existing infrastructure - underground versus aboveground utilities - siting of new infrastructure to minimize risks Reduce water use and increase water efficiency - landscape appropriate for climate - water efficient fixtures - water reuse (gray or recycled water) IV. CASE STUDIES OF LOCAL CLIMATE ACTION PLANS AND CLIMATE CHANGE ADAPTATION PLANS A. Climate Action Plans Boston, Massachusetts Burlington, Vermont Union City, California B. Climate Change Adaptation Plans New York, New York Vancouver, Canada Miami, Florida 5