Wednesday, March 20, 2013

Zoning and LEED

The common approach in the United States to zoning is Euclidean zoning. It is named after a famous 1926 Supreme Court case, Euclid v. Ambler Realty Co., in which Ambler Realty Co. challenged the Village of Euclid’s zoning code.[1] The Village of Euclid is a suburb of Cleveland. The Village council had then adopted a comprehensive zoning plan to regulate and restrict land use. The plan divided the area into different classes of use and Ambler Realty Co., challenged the enforcement of these zoning regulations on the ground that the enforcement would constitute as an unconstitutional deprivation of liberty and property without due process.



The issues presented to the United States Supreme Court were whether Village of Euclid’s zoning regulations were constitutionally valid; whether the zoning ordinances, which forbid industrial development in certain areas, was a violation of due process rights; and whether the zoning ordinances may forbid retail and apartment development in residential areas? The Supreme Court held in favor of the Village of Euclid in that such zoning ordinance is constitutionally valid when it bears a substantial relation to the health, safety, convenience, and general welfare of the inhabitants; municipalities may forbid industrial development in certain areas without violating due process rights of the landowner; and zoning ordinances may forbid retail and apartment development in residential areas. The Court reasoned that such zoning ordinances must find their justification in some aspect of the inherent police power, which remains with the local government, to regulate in the interests of citizen’s health, welfare, and safety. The validity of a given zoning ordinance thus must be considered in the context of the circumstances and locality.

After this decisive case, the term "Euclidean Zoning" emerged and influenced the content and design of zoning codes across the country for decades. Euclidean Zoning stereotypically regulates land development through land use classifications and dimensional standards. Typical land use classifications are single-family residential, multi-family residential, commercial, institutional, industrial and recreational. Each type of land use must comply with pre-determined dimensional standards that regulate the height, bulk and area of structures. These dimensional standards typically take the form of setbacks, sideyards, height limits, minimum lot sizes, and lot coverage limits.

The aim of Euclidean Zoning is to provide orderly growth, prevent overcrowding of land and people, alleviate congestion, and separate incompatible land uses such as insuring that factories and noisy airports are built far from a residential neighborhood.

However, Euclidean Zoning has since come under scrutiny due to its lack of flexibility and somewhat outdated planning theory. According to one legal scholar, Euclidean Zoning “is one of the great generators of suburban sprawl, with all of its environmental, economic, and social costs. These costs include pollution, loss of wilderness and farmland, racial and socioeconomic segregation of the population, and legal obstacles to effective urban rehabilitation."[2]

From criticisms such as these, other types of zoning codes emerged. Some prevailing ones include:

  • form-based zoning, which address the relationship between the form of buildings in relation to one another amongst scale and types of their surrounding streets and blocks; this type of zoning primarily regulate the character of development rather than only distinguish land use types; it is currently being employed by cities such as Miami and Denver;
  • incentive zoning, which incentivizes developers to consider community interest such as more open space or more affordable housing or better transit access; typical incentives include allowing developers to build large high-density projects otherwise not allowed under the existing zoning regulations, and there are also private sector credentialing that can be meet, such as LEED’s credit paths, so developers can enjoy the benefit of market incentives directly; this type of zoning emerged from cities such as New York and Chicago and has become more and more attractive to urban developers in the past two decades; 
  • performance zoning, which regulates the effects of land uses through performance standards as opposed to traditional Euclidean Zoning that regulates land use types; this type of zoning codes usually are more concerned with traffic flow, building density, access to light and air, and exposure to noise and other types of pollutions; this type of zoning regulation is flexible but is very difficult to administer; so far, no large cities have based their zoning completely on performance standards; Chicago has used this type of zoning in conjunction with Euclidean Zoning for its manufacturing districts;[3] 

There are other types of zoning codes that are used by municipalities. For example, modular zoning and green zoning are some of the emerging trends. Setting modular zoning aside, we now turn to consider Green Zoning and municipalities that adopts this approach and incorporates private third-party principles such as LEED principles into their zoning regulations.

Building Codes and Zoning regulations: Why Incorporating LEED into Local Zoning Regulations is a Non-Starter 

The building construction process and the energy it takes to operate those buildings contribute more than any other source to man-made carbon dioxide production. Here in the United States, buildings consume nearly 40% of all primary energy. Buildings and infrastructure also use up to 90% of all material that is extracted from the environment. In addition, storm water runoff from roofs containing asbestos degrades our water supply and construction activities causes erosion and sedimentation of lands. In their afterlife, construction and demolition wastes also account for about one-third of all landfill materials.[4]

LEED has been popular in the private sector to help reduce the burden placed on the environment by these buildings. LEED is an international standard that measures the sustainability of a building. It is a voluntary program originated in the United States and it was first designed to address commercial buildings and office spaces. But it has expanded its crediting system to private homes, neighborhood developments, and operations and management. Because it is a voluntary program, it’s fundamental philosophies are based on positive actions rather than passive obligations to the law. Incentivizing private action as opposed to enforcing more and more complicated government regulation is critical to the survival of our constitutional principles and the funding ideals of federalism of this country. We cannot stress enough the importance of the success of private voluntary initiatives such as LEED has shown.

In recent years, however, it has been a popular trend to incorporate LEED standards into local zoning regulations. This kind of Green Zoning expands on the authority of Euclid v. Ambler Realty Co. in that localities exercising their inherent power to regulate zoning for health welfare and safety by simply incorporating LEED requirements into their local zoning laws. Take City of Cambridge zoning ordinance (Massachusetts) for example, Section 22.23 requires that construction projects of at least 25,000 square feet of gross floor area but less than 50,000 square feet meet the requirements of the most current applicable LEED building rating system at level “Certified” or better.[5]

This kind of Green Zoning appears to be well intended and a good idea. But on closer inspection, there are serious problems.

First, LEED is a set of standards set by private parties and incorporating it into laws raises constitutional issues. Since LEED standards are always changing and not subject to voting or other public approval process, it is questionable if incorporating such a standard is even legal. It also raises a vagueness issue to the laws enacted: if the laws and regulations are enacted with a simple reference to LEED standards, which will invariably change without the general public’s vote, it may not have the force of law when challenged and therefore a moot point and waste of good legislative time and effort. It should be made clear that just because a local zoning regulation makes a reference to LEED, it does not render it illegal per se; rather, courts have held it is because of the changing nature of a private standard that warrants a closer inspection of the regulations that are in question.[6]

There are also preemption issues. Congress may enact laws that can expressively preempt local ordinances. If Congress should pass such a law creating standards that surpassing LEED standards, the local ordinance will no doubt not be enforceable. This is not much of an issue since builders will have to comply with the more stringent standard anyway, but it does put into doubt whether the incorporated LEED standard is stripped in total where even federal laws do not preempt certain aspect of the LEED standards that may apply, lower courts will nevertheless find the incorporation of LEED standards entirely void.[7]

Within the green building community, there is also a growing discomfort about local regulators adopting what is intended to be voluntary compliance programs.[8] The natural kind of discontent for regulations where unnecessary, especially when the industry is more than willing to embrace the standards voluntarily, perhaps runs deep in a country founded on the idea of limiting government interference into private affairs. Also, voluntary standards such as LEED are not designed as well drafted regulations; this may coerce builders to game the system and thus dilute the effect of the standard itself and reduce it to a mere paper chase. There is also limited data showing such zoning codes will actually improve building performance.[9]

There is also the question if it is even good politics to engage and decide which private green building standard is the gold standard to use in a local zoning regulation. Some have raised the issues that this kind of selective incorporation of private standards kills competition in the green building standardization industry. For example, there is an ongoing debate whether USGBC should give the monopoly on certifying wood for use in LEED projects to the Forest Stewardship Council (“FSC”).[10] According to reports, 60% of FSC certified wood comes from outside the United States and Canada; it has only 18% of the certified woodlands in North America. Compare this to the 80% of the certified woodlands Sustainable Forestry Initiative (“SFI”) has in North America, it doesn’t make sense to use FSC alone in the LEED process and neglect SFI. It also doesn’t make sense to incorporate this kind of LEED standard into local zoning regulations to give FSC a further monopoly.[11]

There are other serious questions to be answered when incorporating LEED standards into a local zoning regulation: Who should be the players in the green zoning and planning process and who should be regulating that process? Are some green building standards (LEED or otherwise) incompatible with good planning practices? Will the general public accept these green zoning implementations (green roofs, low flush toilets, etc.); will some of the LEED implementations stand-alone (mixed income housing) succeed without other government incentives? Can the local officials, with limited expertise and budget, properly oversee these green zoning laws?[12] The list goes on . . .

Perhaps one of the more important questions to ask, as pointed out by Michael Allan Wolf in A Yellow Light for “Green Zoning,” is can these Green Zoning regulations be incorporated on state wide or nation-wide basis, or is it inherently adaptive to local needs? Wolf suggests that in all of the difficulties of incorporating LEED into local zoning regulations, perhaps it is useful to think of zoning separately from building codes and adopt the California approach. [13] The California Green Building Code seeks to reduce energy use, water use, and aims to recycle or salvage non-hazardous construction and demolition debris. The California Codes does not make specific mentions of LEED standards; it does not incorporate LEED specifically. Although it does adopt some LEED prerequisites and requirements, the California legislature has taken the time to incorporate useful standards where applicable to avoid the pit-falls of whole-sale incorporation of third-party private standards into the forces of law.

California thus takes a hands-off approach in terms of Green Zoning but focuses on green building codes in its law making. There is also precedent in making this distinction: in 1995, the United States Supreme Court distinguished “between municipal land-use restrictions and occupancy restrictions” and stated that land-use restrictions designate compatible uses allowed and categorized uses as “single-family residential, multiple-family residential, commercial, or industrial” while things such maximum occupancy restrictions are considered building codes, which “cap the number of occupants per dwelling . . . [and] protect[s] health and safety by preventing dwelling overcrowding.”[14]

[1] Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

[2] Eliza Hall, Divide and Sprawl, Decline and Fall: A Comparative Critique of Euclidean Zoning, 68 U. Pitt. L. Rev. 915, 916 (2007).

[3] See REVISE, RECREATE, REZONE: A NEIGHBORHOOD GUIDE TO ZONING PREPARED BY THE METROPOLITAN PLANNING COUNCIL, available at http://www.metroplanning.org/zoningGuide/index.html.

[4] Sarah B. Schindler, Following Industry’s LEED: Municipal Adoption of Private Green Building Standards, 62 FLA. L. Rev. 285 (2010).

[5] CAMBRIDGE, MASS., ZONING ORDINANCE § 22.000 (2011), available at http://www2.cambridgema.gov/cdd/cp/zng/zord/zo_article22_1341.pdf. See also Town of Normal, Illinois, SEC. 15.17-14, which requires LEED certification only within a targeted area—the central business district (the town mandates that all new construction with more than 7,500 square feet at the ground level in the B-2 [Central Business] District at least achieve enough LEED points to attain LEED “Certified” status).

[6] See N. Lights Motel, Inc. v. Sweaney, 561 P.2d 1176, 1181 n.3 (Ala. 1977) (“Adopting a code written by a private national organization generally does not raise delegation of authority problems as long as the code, organization and edition are clearly specified, and no attempt is made to adopt future amendments.”).

[7] See Heating & Refrigeration Inst. v. City of Albuquerque, 2008 U.S. Dist. LEXIS 106706 (D.N.M. Oct. 3, 2008) (granting preliminary injunction that prevented the city from enforcing city’s code requiring LEED certification for compliance because the federal Energy Policy and Conservation Act preempted the standards in question).

[8] See NAT’L INST. OF BUILDING SCI. REPORT ON BUILDING RATING AND CERTIFICATION IN THE U.S. BUILDING COMMUNITY 3, 5 (2009).

[9] See Id.

[10] See Robert Cassidy, End the Battle of FSC vs. SFI Wood in LEED, BLDG. DESIGN & CONSTR., at 9 (Mar. 1, 2010). See also Stephen Del Percio, Revisiting Allied Tube and Noerr: The Antitrust Implications of Green Building Legislation and Case Law Considerations for Policymakers, 34 WM. & MARY ENVTL. L. & POL”Y REV. 239 (2009).

[11] See Michael Allan Wolf, A Yellow Light for “Green Zoning”: Some Words of Caution About Incorporating Green Building Standards into Local Land Use Law, 43 URB. LAW. 949, 966-67 (2012).

[12] Id.

[13] California Green Building Standards Code. CAL. CODE REGS. Tit. 24., pt. 11 (2010), available at http://www.documents.dgs.ca.gov/bsc/calgreen/2010_ca_green_bldg.pdf.

[14] City of Edmons v. Oxford House, Inc., 514 U.S. 725, 732 (1995).

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